author: CHATELAIN, Judge

text:
    Delisa MITCHELL, Individually and on Behalf of her Minor Child, Darion Mitchell v. Albert ROY, Jr., and Imperial Fire and Casualty Insurance Company.
    No. 10-563.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 3, 2010.

      Gregory P. Marceaux, Attorney at Law, Lake Charles, Louisiana, for Plaintiff/Ap-pellee, Delisa Mitchell, Individually and On Behalf of her minor child, Darion Mitchell.
    James P. Doherty, III, Frederick Law Firm, Lafayette, Louisiana, for Defendants/Appellants, Albert Roy, Jr. Imperial Fire and Casualty Insurance Company.
    Court composed of MARC T. AMY, BILLY HOWARD EZELL, and DAVID E. CHATELAIN, Judges.
   CHATELAIN, Judge

kThe defendants, Imperial Fire and Casualty Insurance Company (Imperial) and Albert Roy, Jr. (Roy), appeal from a judgment rendered against them and in favor of the plaintiff, Delisa Mitchell (Delisa), individually and on behalf of her minor son, Darion Mitchell (Darion). For the following reasons, we amend in part, reverse in part, and render.

FACTS AND PROCEDURAL HISTORY

Darion, who was ten years of age at the time, was injured on March 14, 2008, when he rode his bicycle into the path of a 1999 Chevrolet Venture minivan that Roy was driving. The accident occurred on 8th Avenue between 9th and 10th Streets in Lake Charles, Louisiana, at approximately 4:30 p.m. Upon impact, Darion, who was not wearing a safety helmet, struck his head on the windshield when he was thrown onto the minivan’s hood.

Acadian Ambulance transported Darion from the scene of the accident to Christus St. Patrick’s Hospital. He underwent CT scans of the head and cervical spine and X rays of his right shoulder, chest, pelvis, and abdomen. The CT scan of Darion’s head revealed some mild soft tissue swelling; otherwise, the test results were •within normal limits and no fractures were noted. He was diagnosed with a head injury and scalp lacerations, and he received sutures and staples to those areas before being discharged from the hospital later that same evening.

On September 23, 2008, the plaintiff filed a petition for damages against Roy and his automobile liability insurer, Imperial. She alleged that Roy had negligently caused the accident by traveling in excess of the posted speed limit, by failing to keep a proper lookout, and by failing to do what he should have done to avoid the 12colIision. The defendants answered the petition, asserting that the plaintiffs damages were caused when Darion recklessly operated his bicycle.

The matter proceeded to a bench trial on January 5, 2010, following which the trial court stated from the bench that Roy’s negligence was the sole cause of the accident. The trial court determined that Imperial and Roy were solidary obligors up to the $10,000.00 limit of Roy’s policy with Imperial and awarded damages in favor of Delisa, on behalf of Darion, as follows: $10,000.00 for pain and suffering, $5,000.00 for mental anguish, $10,000.00 for scarring and disfigurement, and $11,706.27 for medical expenses. The trial court also awarded Delisa $3,000.00 for her loss of consortium damages.

The defendants now appeal, asserting that the trial court erred in the following respects: (1) in allowing Angela Dodd (Dodd), a witness, to offer a lay opinion concerning the speed the Roy vehicle was traveling prior to the accident; (2) in holding Roy to a higher degree of care than ordinary care; (3) in not assigning any fault to Darion for failing to keep a proper lookout for hazards; (4) in not assigning any fault to Delisa for violating La.R.S. 32:199, the bicycle safety helmet law; and, (5) in making an award of loss of consortium to Delisa.

DISCUSSION

The Louisiana Supreme Court, in Siverd v. Permanent General Insurance Co., 05-973, p. 3 (La.2/22/06), 922 So.2d 497, 499-500 (citations omitted), set out the standard of review applicable to this matter:

A court of appeal should not set aside the factual findings of a trial court absent manifest error or unless clearly wrong. However, if a court of appeal finds that the trial court committed a reversible error of law or manifest error of fact, the court of appeal must ascertain the facts de novo from the record and render a judgment on the merits. Although appellate courts should accord deference to the factfinder, they ^nonetheless have a constitutional duty to review facts. Because appellate courts must perform this constitutional function, they have every right to determine whether the trial court verdict was clearly wrong based on the evidence or clearly without evidentiary support. The reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court’s findings; it must instead review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was reasonable.

“[W]here there is conflict in the testimony, inferences of fact should not be disturbed upon review, even though the reviewing court may feel that its own evaluations and inferences are as reasonable.” Linnear v. CenterPoint Energy Entex/Re-liant Energy, 06-3030, p. 11 (La.9/5/07), 966 So.2d 36, 44.

In Stobart v. State of Louisiana, through Department of Transportation & Development, 617 So.2d 880, 882-83 (La. 1993) (citations omitted), a case upon which the Siverd court relied, the supreme court offered the following guidance where a trial court’s findings are based on conflicting testimony:

[Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. However, where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness’s story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination....
... Thus, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.

In the present case, the trial court ruled as follows:

The Court finds in favor of the plaintiffs specifically finding that the accident was caused by the sole fault and negligence of Mr. Roy, the defendant. And that’s based primarily on the third party independent witness, Ms. Dodd, who has some rather compelling testimony regarding the speed of the Roy vehicle. And even though she gave an |4estimate of the speed, I think looking at her testimony as a whole, it’s clear that she was able to determine that his vehicle was traveling greater than 25 miles an hour. How much greater, we don’t really know. It kicked up dust. It immediately brought itself to her attention because of that. And she made a contemporaneous comment to her niece about the speed of that vehicle. That is very compelling, persuasive testimony that is more persuasive, much more persuasive than the testimony of Mr. Roy and/or Mr. Fernandez.
She also noted that there were over eight kids playing on the street at the time of the incident; and her testimony was that many of these children were in her vicinity, which means that the Roy vehicle passed them before they reached the point of impact with Darion Mitchell, which means that not only did Mr. Roy violate his degree of care that he owed to Darion Mitchell; he also violated it as to the other children, because once he saw any child on the street, he had the highest degree of care owed to those children.
And contrary to the defendant’s recitation to the Court of the law, it’s not that the motorist simply has a duty to use ordinary care. Once that motorist knew or should have known — in this case, knew — because either he saw them or he should have seen them, plus he had notice from his passenger that there was one child in the area, Darion, he did not exercise the highest degree of care. He only reacted when it was too late instead of anticipating that children would do things suddenly and without warning and would put themselves in danger.
So Mr. Roy was going too fast. He did not take into account that there were children in the area. He ignored his friend’s warning until it was too late.
The physical evidence clearly contradicts the testimony of Roy and Fernandez, because the accident could not have happened the way they say it happened. The middle of the — or even middle to driver’s side part of the bumper at least the middle part of the bumper to the Roy vehicle was damaged, and the left side of the bike was damaged clearly indicating that the vehicle hit the bike, not the other way around.
So the fault is a hundred percent against the defendant.

Admissibility of Opinion Testimony Regarding Roy’s Speed

The defendants contend that Dodd’s testimony regarding the speed the Roy vehicle was traveling based on the movement of dust on the street “was not rationally based on perception.” Dodd explained that she had in the past operated her own | .^vehicle at various speeds ranging from twenty to forty miles per hour and that the environment appeared different at those varying rates of speed. Based upon those prior observations, she estimated that the Roy vehicle was traveling between thirty-five and forty miles per hour just before the accident. The defendants submit that Dodd should not have been allowed to present testimony as to the speed of the Roy vehicle because her observations were made when she was sitting stationary in her front yard, thus giving her the impression that the Roy vehicle was moving faster than the speed at which it was actually traveling. Finally, the defendants point out that the testimony of Officer Andrea LeLeaux -contradicted some of Dodd’s testimony. Specifically, Dodd stated that Roy had slammed on his brakes and skidded, but Officer LeLeaux testified that she had looked for skid marks in her investigation of the accident and had found none., The defendants argue that this contradiction “further undercuts] the reliability of Dodd’s testimony” regarding the speed of the Roy vehicle. The plaintiff counters that Dodd’s testimony met the requirements of La.Code Evid. art. 701, and, thus, the trial court acted within its discretion when allowing her to testify.

Louisiana Code of Evidence Article 701 guides us in our assessment of the admissibility of a lay witness’s opinion testimony. It provides as follows:

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are:
(1) Rationally based on the perception of the witness; and
(2) Helpful to a clear understanding of his testimony or the determination of a fact in issue.

“The general rule is that a lay witness is permitted to draw reasonable inferences from his or her personal observations.” State v. LeBlanc, 05-885, p. 7 Ir/La.App. 1 Cir. 2/10/06), 928 So.2d 599, 608. “If the testimony constitutes a natural inference from what was observed, no prohibition against it as the opinion of a non-expert exists as long as the lay witness states the observed facts as well.” Id. The LeBlanc court discussed the appellate standard of review regarding testimony admitted pursuant to La.Code Evid. art. 701:

A reviewing court must ask two pertinent questions to determine whether the trial court properly allowed lay opinion testimony: (1) was the testimony speculative opinion evidence or simply a recitation of or inferences from fact based upon the witness’s observations; and (2) if erroneously admitted, was the testimony so prejudicial to the defense as to constitute reversible error.

LeBlanc, 928 So.2d at 603.

In reaching a decision on this alleged evidentiary error, this court must consider whether the challenged ruling was erroneous and whether the error “prejudice[d] the defendants’ cause, for unless it d[id], reversal is not warranted.” Wallace v. Upjohn Co., 535 So.2d 1110, 1118 (LaApp. 1 Cir.1988), writ denied, 539 So.2d 630 (La.1989); La.Code Evid. art. 103. “Moreover, the party alleging error has the burden of showing the error was prejudicial” and had “a substantial effect on the outcome of the case.” Brumfield v. Guilmino, 93-366, p. 12 (LaApp. 1 Cir. 3/11/94), 633 So.2d 903, 911, writ denied, 94-806 (La.5/6/94), 637 So.2d 1056. Ultimately, “the determination is whether the error, when compared to the record in its totality, has a substantial effect on the outcome of the case.” Wallace, 535 So.2d at 1118. “Absent a prejudicial error of law, this Court is not required to review the appellate record de novo.” Brumfield, 633 So.2d at 911 (citing Rosell v. ESCO, 549 So.2d 840 (La.1989)).

In overruling the defendants’ evi-dentiary objections to Dodd’s lay opinion testimony about the speed of the Roy vehicle, the trial court stated that it would “take 17into consideration that [Dodd] is not an expert on speed” and that it would consider her opinion “in the context of just a lay impression.” We are satisfied that the trial court properly allowed Dodd to testify as to the inferences she drew based upon her personal observations, that the trial court gave the proper weight to Dodd’s opinion testimony, and that Dodd’s testimony aided the trial court in determining a fact in issue. Moreover, we are convinced that even if the testimony was erroneously admitted, it was not so prejudicial to the defendants as to constitute reversible error, especially because this matter was a bench trial.

Standard of Care Applicable to Roy

Roy testified that he did not see any children on 8th Avenue until he and his passenger simultaneously noticed Dar-ion, and he took immediate evasive action by moving to the left of the roadway and braking his vehicle. The defendants argue that no factors were present to trigger a heightened duty of care on Roy’s part, and he acted reasonably and properly once he saw Darion. As a result, citing Thomas, the defendants submit that Roy should not have been assessed any fault for causing the accident.

The plaintiff contends that the trial court properly held Roy to a high degree of care after hearing Dodd’s testimony that despite the presence of at least eight children near the street in the area where the accident occurred, Roy nonetheless continued to travel at a high rate of speed, making it all but impossible for him to avoid the accident with young Darion.

“Louisiana law does not impose absolute liability on a motorist who hits a child in a dart-out situation.” Bogan v. O’Connor, 97-1205, p. 5 (LaApp. 4 Cir. 12/17/97), 703 So.2d 1382, 1385, writ denied, 98-145 (La.3/20/98), 715 So.2d 1212. “Although | sthe law does not make a driver of a vehicle the insurer of a child’s safety, it does impose a high degree of care upon the driver and a duty to anticipate that a child, possessed with limited judgment, might be unable to appreciate impending danger, is likely to be inattentive, and might suddenly place himself in a position of peril.” Thomas v. Duncan, 41,938, p. 5 (La.App. 2 Cir. 3/7/07), 954 So.2d 218, 221-22. In Scardina v. State Farm Mutual Automobile Insurance Co., 597 So.2d 1148, 1150 (La.App. 1 Cir.) (citations omitted), writ denied, 604 So.2d 1004 (La.1992), the first circuit observed:

Although the duty of a driver charged with the knowledge of children near the roadway is heightened, the duty is not limitless. Upon seeing children near the roadside, a motorist is expected to react appropriately, but a driver does not necessarily have a duty to stop. Motorists driving near children are charged with a high degree of care, but the driver is not an insurer of every child’s safety.
When a driver has employed all reasonable precautions to avoid an accident, and a sudden act of a child creates an emergency rendering it impossible for the motorist to avoid striking the child, the accident is considered unavoidable and the motorist is not liable. In other words, if a motorist is proceeding at a lawful and reasonable rate of speed, maintaining a proper lookout, and otherwise obeying the rules of the road, he will not be held liable for injuries to a child who suddenly darts or dashes into the path of his vehicle from a concealed position in such a way that an accident cannot be avoided. Each case must be considered in light of its particular set of circumstances.

The trial court was presented with conflicting testimony regarding whether Roy knew or should have known that there were children present as he was traveling down 8th Avenue, thus subjecting him to a higher standard of care. After carefully reviewing the record evidence, we cannot say that the trial court’s decision to believe Dodd rather than Roy and his passenger was manifestly erroneous or clearly wrong, and we will not second guess the credibility call made by the trial court. The trial Lcourt was justified in holding Roy to a heightened standard of care. Therefore, we find no merit to the defendants’ assignment of error.

Allocation of Fault

The defendants next contend that the trial court manifestly erred when it found Roy totally at fault. They argue that some fault should be attributed to Darion for failing to keep a proper lookout for hazards and to Delisa for knowingly allowing Darion, a child under the age of twelve, to operate his bicycle on a public roadway without wearing an approved helmet.

Louisiana Civil Code Article 2323(A), generally known as the “comparative fault” article, directs that “[i]n any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined.” The article further provides that “[i]f a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.” La.Civ. Code art. 2323(A).

“The determination of whether comparative fault is applicable is a legal question to be decided by the court.” Precht v. Case Corp., 99-1296, p. 14 (La. App. 3 Cir. 2/16/00), 756 So.2d 488, 498, writ denied, 00-791 (La.5/5/00), 761 So.2d 546. That being said, “allocation of fault is a factual determination subject to the manifest error rule.” Theriot v. Lasseigne, 93-2661, p. 10 (La.7/5/94), 640 So.2d 1305, 1313.

In assessing the nature of the conduct of the parties, various factors may influence the degree of fault, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what 1 inwas sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. The finding of percentages of fault pursuant to the comparative fault article is a factual determination. If the court of appeal finds a clearly wrong apportionment of fault, it should adjust the allocation, but only to the extent of lowering or raising it to the highest or lowest point respectively which is reasonably within the trial court’s discretion.

Rideau v. State Farm Mut. Auto. Ins. Co., 06-894, p. 9 (La.App. 1 Cir. 8/29/07), 970 So.2d 564, 574 (citations omitted), unit denied, 07-2228 (La.1/11/08), 972 So.2d 1168.

The following colloquy .was exchanged as the trial court explained its ruling in this matter:

MR. DOHERTY:

Is the Court making a factual finding that the plaintiff, Darion Mitchell, was not of the age of discernment—

THE COURT:

Well, the standard—

MR. DOHERTY:

—or was incapable of discernment for other reasons?

THE COURT:

The standard on his fault is the self care expected of a child of his age, ten years old, intelligence and experience under the particular circumstances presented to him.
What I find is that the accident happened but for Mr. Roy’s violation of his high duty towards children in the area where he’s driving his vehicle. This is not to say that under a different set of circumstances if Darion is riding his bike and rides out in the middle of the street that he’s not going to be found at fault. He’s just not at fault in this situation, because Mr. Roy is completely at fault for driving too fast, being warned, ignoring other children, ignoring this child. He’s solely at fault.
So if I look at the duty owed by Darion, under the circumstances, I just find that he has no fault under that standard, under these facts.
_!a—
I don’t think I have to make a ruling as to age of discernment. He was ten years old. For a ten-year-old under these circumstances with a driver who should have seen, was warned, he doesn’t have any fault; the fault is all on Mr. Roy.

The defendants contend that Delisa testified that she had instructed Darion to be aware of vehicular traffic when riding his bicycle and to look both ways before crossing the street. At trial, Darion confirmed that he had received those instructions from his mother. The defendants also submit that certain aspects of Darion’s testimony about what happened just before the accident simply do not add up. On one hand, Darion stated that before he attempted to cross the street, he pedaled from the sidewalk and through a three-foot strip of grass where he stopped to look both ways for “a few minutes.” He noticed Ms. Dodd and some kids down the street, but he saw no cars traveling on the street. On the other hand, Darion stated that he was hit by Roy’s van almost immediately after he entered the street; in fact, the rear wheel of his bicycle was still on or near the curb at the time of impact. The defendants contend that given the fact that Ms. Dodd testified that there was nothing blocking Darion’s view of the street or the Roy vehicle at the time of the accident, Darion should have seen and/or heard the Roy vehicle in advance of his darting into the street.

As a corollary to their contention that Darion and/or Delisa should have been assigned some or all of the fault in causing the accident, the defendants argue, citing Thomas, 954 So.2d 218, and Bogan, 708 So.2d 1382, that Roy should not have been assessed any fault because he was faced with the sudden act of a child that created an |12emergency and rendered it impossible for him to prevent the accident despite his having taken all reasonable precautions.

The plaintiff counters that it was “not unreasonable to expect a ten year old riding a bike in a residential neighborhood, to ride his bike from a driveway into the street.” The plaintiff further submits that the evidence does not support Roy’s “newly manufactured defense” that upon seeing and being warned of Darion’s presence near the roadway, he braked his vehicle to a stop, whereupon Darion, who was pedaling fast with his head down, slammed into the front of his vehicle. Officer LeLeaux testified that Roy told her that as he was traveling down 8th Avenue, a child on a bicycle came out right in front of him. Although he swerved in an attempt to miss the child, Roy nonetheless struck the child. When counsel for plaintiff questioned Officer LeLeaux, she stated that she would have noted in her report if Roy had told her that he stopped his vehicle before the impact. The plaintiff further contends that, if the defendants’ version of the accident was true, Darion’s bicycle would have been damaged on the front instead of on the side as documented in Officer Le-Leaux’s report. Notwithstanding, the plaintiff offers no jurisprudential support for her contention that the trial court correctly held that Darion was not guilty of any fault under the facts of this case.

In Keel v. Thompson, 392 So.2d 713 (La.App. 3 Cir.1980), the parents of a nine-year-old boy who was struck by a vehicle after he failed to stop at a stop sign before entering the street brought suit against the driver and her insurer. Where the evidence established that the driver “was proceeding at a safe speed, considerably below the speed limit,” “there was nothing to indicate that children were playing or riding bicycles in that area,” and the driver’s view was blocked by a large bush, the | ^appellate court affirmed the trial court’s finding that the driver was free from any negligence. Id. at 716.

In Johnson v. Safeway Insurance Co., 96-910 (La.App. 3 Cir. 2/19/97), 694 So.2d 411, writ denied, 97-1750 (La.10/17/97), 701 So.2d 1330, the trial court dismissed a suit brought by the mother of a six-year-old child who was struck by a car as he darted across a street, noting that the driver’s line of vision was blocked by hedges and that the driver had done his best to avoid the accident. On appeal, fault was assessed at fifty percent each to the driver and the child. The appellate court based its fault assessment on its finding that the driver owed a high degree of care because of the presence of children in the area and its reversal of the trial court’s factual finding that the driver’s view was totally obscured, along with its determination that “a six year old boy understands he should not cross a street without first looking for oncoming traffic.” Id. at 414.

In Bogan, 703 So.2d 1382, suit was filed on behalf of a nine-year-old who was injured when he was struck by a vehicle after darting into the street from between two parked cars. Following a jury trial, the driver was found free from negligence in causing the accident. The fourth circuit affirmed, noting that there was no evidence that the driver could have or should have seen the child any sooner than he did because of parked cars and large trees on the side of the roadway, the driver was aware of the presence of children in the area and was paying close attention to his surroundings, and he was not speeding.

|uIn Rideau, 970 So.2d 564, a ten-year-old girl was killed when a truck hit her as she tried to cross the road. After a jury trial, the truck driver was found sixty percent at fault and the child and her mother were each found to be twenty percent at fault. On appeal, the first circuit found error in the trial court’s failure to grant the plaintiffs’ request for a judgment notwithstanding the verdict to strike either the twenty percent fault of the child or her mother and to proportionally re-allocate fault to the other. In doing so, the appellate court reasoned that because the evidence showed that the ten year old was a mature and intelligent child who had be instructed on how to safely cross the street on her own and had done so many times in the past, she had the “duty and responsibility to take the necessary steps to ensure her own safety when crossing the road.” Id. at 574. That being the case, her mother “had no duty to supervise her every time she needed to cross the road” and thus “could not be at fault for failing to help [her] cross the road on this occasion.” Id. at 574-75. As a result, the court reversed the jury’s imposition of fault on the mother and re-assigned it to her daughter after determining that, although the driver and the child “were almost equally at fault in causing [the] accident,” the driver should bear the higher percentage of fault because “[t]he risk created by his inattention or inadvertence was great, and he was in a superior position to avoid the accident.” Id. at 579.

After reviewing the jurisprudence and the particular facts of the case now before us, we are convinced that the trial court committed manifest error in failing to assign any fault to Darion. Delisa testified that her son had been instructed on how to safely cross the street and he had been allowed to ride his bicycle, alone, to his friends’ houses in the neighborhood for three or four years before this accident 11soccurred. Like the child in Rideau, Darion had the “duty and responsibility to take the necessary steps to ensure [his] own safety when crossing the road,” and he must bear some fault in causing the accident. Rideau, 970 So.2d at 574.

The defendants further contend that the trial court manifestly erred when it failed to cast Delisa with some fault for failing to require Darion to wear a bicycle helmet as required in La.R.S. 32:199. With regard to the defendants’ claims that Delisa should share a percentage of fault, the plaintiff analogizes the helmet law to the law requiring the use of safety belts in vehicles. Because Louisiana law specifically recognizes that evidence of the failure to wear a safety belt should not be considered evidence of comparative negligence, the plaintiff argues that the same policy should operate to prevent evidence of Dar-ion’s helmet non-use as a basis for finding Delisa at fault in this situation. Consequently, the plaintiff submits that the trial court did not commit manifest error when it chose not to cast Delisa partially at fault in causing the accident. For reasons which follow, we find merit to the defendants’ contentions and find the plaintiffs argument misplaced.

Louisiana Revised Statutes 32:199 (emphasis added) provides, in pertinent part:

B. With regard to any bicycle used on a public roadway, public bicycle path, or other public right-of-way, no parent, guardian, or person with legal responsibility for the safety and welfare of a child shall knowingly allow any of the following:
(1) Such child under the age of twelve to operate or ride as a passenger on a bicycle without wearing an approved helmet of good fit fastened securely upon the head with the straps of the helmet.
D. The issuance of a citation for a violation of this Section shall not be prima facie evidence of negligence. The comparative negligence %6516statutes of Louisiana shall apply in these cases as in all other cases of negligence.

We begin, as we must, with the words of the statute at issue. Although interpretation of La.R.S. 32:199 is res nova, well-established principles of statutory interpretation guide our inquiry. “The starting point in the interpretation of any statute is the language of the statute itself.” Theriot v. Midland Risk Ins. Co., 95-2895, p. 3 (La.5/20/97), 694 So.2d 184, 186. “Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language.” La.R.S. 1:3. “The meaning and intent of a law is determined by considering the law in its entirety and all other laws on the same subject matter and by placing a construction on the law that is consistent with the express terms of the law and with the obvious intent of the legislature in enacting the law.” Kinchen v. Livingston Parish Council, 07-478, p. 5 (La.10/16/07), 967 So.2d 1137, 1140, (quoting Colvin v. La. Patients Comp. Fund Oversight Bd., 06-1104 (La.1/17/07), 947 So.2d 15). Louisiana Civil Code Article 9 states that “[w]hen a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” We find no ambiguity in La. R.S. 32:199, which particularly states, “[t]he comparative negligence statutes of Louisiana shall apply in these cases as in all other cases of negligence.” (Emphasis added.) Accordingly, we need not consider the intent of the legislature in applying the statute. Moreover, given the distinct word choice and straightforward statutory language, we see no need to j 17analogize La.R.S. 32:199 to this state’s automobile safety belt law as codified in La.R.S. 32:295.1.

In the present case, it is clear Darion was not wearing a bicycle safety helmet at the time of the accident. More specifically, Delisa testified that she knew Darion was not wearing a helmet because he had outgrown the one she had previously bought for him, and she had not replaced it.

It is equally clear that Darion hit his head on the windshield of Roy’s vehicle. As a direct result of that impact, Darion had some glass in his head and staples had to be inserted on his forehead and above his left ear. As the evidence bears out, there was a direct relationship between the non-use of a bicycle safety helmet and the injuries incurred. Accordingly, we find that the trial court manifestly erred when it failed to cast Delisa with a percentage of fault.

Because the trial court erred in assigning all of the fault to Roy, we must now adjust the fault allocation but only to the extent of lowering or raising it to the highest or lowest point respectively which is reasonably within the trial court’s discretion. See Clement v. Frey, 95-1119 (La.1/16/96), 666 So.2d 607. We have found that the trial court properly applied a heightened degree of care upon Roy because he knew or should have known that children were present where he was traveling on 8th Avenue. Similar to the defendant driver in Rideau, “[t]he risk created by his inattention or inadvertence was great, and he was in a superior position to avoid the 118accident.” Rideau, 970 So.2d at 579. We have also found that Darion and Delisa should have been cast with some degree of fault. After thoroughly considering all of the evidence before us, we allocate sixty percent fault to Roy, twenty-five percent fault to Darion, and fifteen percent fault to Delisa.

Loss of Consortium Award

In the present case, the defendants contend that no evidence was presented to support Delisa’s loss of consortium claim. They submit that the testimony indicated that the relationship between Delisa and Darion did not suffer as a result of the accident and that they were able to participate in the same activities that they enjoyed before the accident. In addition, Darion has continued to assist with household chores since the accident. Finally, the defendants point to the absence of any testimony to show that Delisa lost any financial support, aid, or assistance as a result of Darion’s being injured. The defendants admit that although Delisa was understandably worried about her son after the accident, such worry cannot serve as the basis for her loss of consortium award.

The plaintiff counters that the evidence presented supports her claim that she suffered the loss of love, affection, society, and companionship as a result of Darion’s accident. She rode with Darion in the ambulance after the accident and was present at the hospital when he was checked for serious head and vertebral injuries. She also had to remove glass from Darion’s forehead for a week after the accident, and she 119was present when the staples were removed from Darion’s head. She adds that she would like to have the scar on Darion’s forehead removed but that she does not have the funds to do so.

Civil Code art. 2815 gives parents a cause of action for loss of consortium when their child is injured by the fault of another. Parents must prove, by a preponderance of the evidence, any one or more of the following: (1) loss of love and affection, (2) loss of society and companionship, (3) loss of performance of material services, (4) loss of financial support, (5) loss of aid and assistance, and/or (6) loss of fidelity.
A child may sustain physical injury without necessarily causing his parents a loss of consortium. Mental anguish suffered by the parents because of an injury to their child is not compensable in a loss of consortium claim.

Morrison v. Kappa Alpha Psi Fraternity, 31,805, p. 23 (La.App. 2 Cir. 5/7/99), 738 So.2d 1105, 1122, writs denied, 99-1607 (La.9/24/99), 749 So.2d 634, 99-1622 (La.9/24/99), 749 So.2d 635, 99-1668 (La.9/24/99), 747 So.2d 1120.

In Morrison, a college freshman was injured in a fraternity hazing incident. Thereafter, he and his parents filed suit against the fraternity and several other defendants. Following a jury trial, the student was awarded general damages and damages for past and future medical expenses. The jury additionally found that the student’s parents had suffered a loss of consortium, but it declined to award them any damages. On appeal, the second circuit determined that the jury had erred in finding that the student’s parents had proved any element of their loss of consortium claim by a preponderance of the evidence, noting that “[tjhere was absolutely no evidence that they were dependant upon their son materially or financially, nor did they prove that they were deprived of his love, affection, society or companionship.” Id. at 1122-23. The court further noted that while the parents’ testimonies “would possibly support the conclusion that they suffered mental anguish as a result of [their son’s] |2ninjuries, ... a claim for loss of consortium does not include mental anguish suffered as a result of physical injury to their son.” Id. at 1123. See also Precht, 756 So.2d 488 (on appeal, parents of six-year-old girl severely burned while riding tractor with her uncle awarded $5,000.00 each for loss of consortium where evidence showed that parents had to administer painful scrub-bings of her burns for several months); Simpson v. State through Dep’t of Transp. & Dev., 636 So.2d 608 (LaApp. 1 Cir.1993), writs denied, 637 So.2d 471 (La.1994) ($50,000.00 award each to both parents of fifteen-year-old who suffered the traumatic amputation of both legs when truck he was driving went out of control on a trestle bridge in heavy downpour reversed on appeal where no evidence was offered to show they were materially dependent on son or that they were deprived of his love and affection).

As was noted in Simpson, Precht, and Morrison, the mental anguish a parent suffered as a result of an injury their child suffered simply cannot serve as the basis for an award of loss of consortium. After applying the facts of this case to the relevant jurisprudence, we conclude that the trial court erred in making a loss of consortium award to Delisa. Accordingly, the $3,000.00 award made to Delisa for her own loss of consortium is hereby reversed.

DECREE

For the foregoing reasons, we amend the judgment of January 20, 2010 to reallocate the percentage of fault assigned to sixty percent to Albert Roy, Jr., twenty-five percent to Darion Mitchell, and fifteen percent to Delisa Mitchell. Accordingly, judgment is rendered in favor of Delisa Mitchell, on behalf of her minor child, Dar-ion Mitchell, and against Imperial Fire and Casualty Company and Albert Roy, Jr. for sixty percent of $36,706.27, or $22,023.76. The judgment is further amended to 12i reverse the $3,000.00 award made to De-lisa for loss of consortium. The judgment is affirmed in all other respects. Each party is to bear its own costs for this appeal.

AMENDED IN PART, REVERSED IN PART, AND AFFIRMED AS AMENDED.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

      . Because the jury effectively determined that the driver had no quantifiable fault, the jury was not asked to quantify the fault of any other person or entity. Nevertheless, the appellate court noted the trial court’s conclusion that the nine-year-old boy, who had exhibited some learning deficiencies prior to the accident, was incapable of negligence because he did not have the mental capacity of a typical nine year old. Bogan, 703 So.2d 1382.

      . In stark contrast to the provisions of La.R.S. 32:199, the legislature specifically provided that the "failure to wear a safety belt [in an automobile] ... shall not be considered evidence of comparative negligence." La.R.S. 32:295.1(E). "When analyzing legislative history, it is presumed the Legislature’s actions in crafting a law were knowing and intentional." Foti v. Holliday, 09-93, pp. 6-7 (La. 10/30/09), 27 So.3d 813, 817. More particularly, "the Legislature is presumed to enact each statute with deliberation and with full knowledge of all existing laws on the same subject. Thus, legislative language will be interpreted on the assumption the Legislature was aware of existing statutes, well established principles of statutory construction and with knowledge of the effect of their acts and a purpose in view.” M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-2371, pp. 13-14 (La.7/1/08), 998 So.2d 16, 27 (citations omitted).

      . In assessing fault to both Darion and Delisa, we find the decision in Rideau, 970 So.2d 564, distinguishable in one aspect. In that case, the first circuit concluded it could not cast the mother and the child both with fault. Unlike that case, Darion is at fault for failing to take steps necessary to ensure his own safety, and Delisa is independently at fault for allowing Darion to ride a bicycle without wearing an approved helmet.

      . The defendants point out that Delisa did not make a claim for, nor would she be able to prove her entitlement to, bystander damages pursuant to Lejuene v. Rayne Branch Hospital, 556 So.2d 559 (La. 1990).


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    KEVIN CAMPBELL, et ux. v. COAST CONCRETE SERVICES, INC., et al.
    No. 10-576.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 3, 2010.

      Gary McGoffin Durio, McGoffin, Stagg & Ackermann, Lafayette, LA for Defendant/Appellee Louisiana Testing & Inspection, Inc.
    Lamont P. Domingue Voorhies & Labbe Lafayette, LA for Plaintiffs/Appellants Kevin Campbell, Kim Campbell.
    Court composed of MARC T. AMY, BILLY HOWARD EZELL, and DAVID E. CHATELAIN , Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   AMY, Judge.

_JjThe plaintiffs appeal the trial court’s judgment finding that they did not prove that the defendants were responsible for the damage to their home’s foundation. For the following reasons, we affirm.

Factual and Procedural Background

The plaintiffs, Kevin and Kim Campbell, began construction on a new home in Lafayette in 2003. They wanted the home to be built on a “post-tension” foundation and hired Coast Concrete Services, Inc. (Coast) to design the foundation. Coast advised the plaintiffs that it needed a geo-technical investigation of the soil on the building site in order to design the foundation. The plaintiffs hired Louisiana Testing and Inspection, Inc. (LTI) to perform the geotechnical investigation and prepare a report for Coast.

Dale Phillips, a civil engineer working for Coast, testified that the LTI report was used to understand the nature of the soil on the building site. He explained that the presence of expansive soil under a foundation causes differential movement, or swelling, which can result in cracks in the walls and flooring of a home. Mr. Phillips’ testimony further related that when designing a foundation, knowing the nature of the soil underneath allows the engineer to “design something in the foundation to make it stiff enough to try to resist any of the differential movement.”

According to the American Society for Testing and Materials (ASTM) Book of Standards submitted into evidence by the plaintiffs, the primary method of identifying soil’s swell potential is to perform testing to determine the soil’s “Atterberg Limits (AL)” and “Plasticity Index (PI).” ASTM’s manual provides two |2procedures which can be used to prepare soil specimens for testing: the “dry prep” procedure (where the soil specimen is dried in an oven before undergoing testing) and the “wet prep” procedure (where the soil specimen is not dried in an oven before testing).

Here, LTI used the “dry prep” procedure to prepare the Campbells’ soil specimens for testing. LTI then prepared a report containing the results, which was submitted to Mr. Phillips. Mr. Phillips testified that, according to his reading of LTI’s report, he understood the soil on the Campbells’ property to be non-expansive and designed a foundation accordingly.

After construction was complete, the plaintiffs began noticing cracks in various areas of their home. Following consultation with various structural and geotechnical engineers, the plaintiffs filed suit against LTI, alleging that its failure to discover and report the presence of expansive soils to the foundation design engineer caused the foundation failure. Specifically, the plaintiffs alleged that LTI’s use of the “dry prep” method resulted in un-derreporting of the AL and PI values of the soil, and LTI knew or should have known that the “dry prep” method uniformly produces lower AL and PI values. They further argued that LTI’s use of the “dry prep” method violated ASTM standards.

|SLTI asserts various other causes for the plaintiffs’ damages. It contends that the plaintiffs’ property had significant drainage problems, that they ignored instructions provided in the report for the protection and maintenance of the foundation, and that they practiced poor construction in the building of the home, ultimately resulting in the failure of the home’s foundation.

Following trial, the trial court issued a judgment in favor of LTI, finding that the plaintiffs failed to carry their burden of proving that LTI’s soil testing was improperly performed or the results improperly reported. The plaintiffs appeal, asserting that the trial court erred in: (1) applying an incorrect burden of proof on the parties; (2) finding that LTI owed no duty to use the “wet prep” procedure in its testing; (3) finding that no soil tests performed on the plaintiffs’ home showed the potential for foundation swelling; (4) finding that they failed to prove an alternative design would have prevented the damage; and (5) finding that LTI did not breach any contractual or tortious duty owed to the plaintiffs.

Discussion

Cause-in-Fact

In the plaintiffs’ first two assignments of error, they assert that the trial court erred in finding that they did not prove that LTI’s underreporting of the soil’s swell potential was the cause of their damages. In brief, the plaintiffs contend that the trial court erred because “it placed on the Campbells the burden to disprove all ‘possible’ causes, which the law does not require; and ignored LTI’s burden of proving its affirmative defense of alternate causes by a preponderance.” Also, in brief, the plaintiffs assign error to three of the trial court’s specific findings: (1) finding that the critical swell potential of the tested soil was not discovered by LTI “by pure|4chance”; (2) finding that no soil test showed the potential for the swell conditions present; and (3) finding that the plaintiffs failed to prove another foundation design would have been used and/or the damage would not have occurred anyway. Because these findings were relied upon by the trial court in determining that the plaintiffs failed to prove that LTI’s conduct was the cause-in-fact of their damages, they will be discussed collectively below.

The standard negligence analysis employed to determine whether to impose liability under La.Civ.Code art. 2315 is the duty/risk analysis, which consists of the following four-prong inquiry: (1) Was the conduct in question a cause-in-fact of the harm which occurred? (2) Did the defendant owe a duty to the plaintiff? (3) Was that duty breached? (4) Was the risk, and harm caused, within the scope of protection afforded by the duty breached? Rando v. Anco Insulations, Inc., 08-1163, 08-1169 (La.5/22/09), 16 So.3d 1065. “Under [this] analysis, all four inquiries must be affirmatively answered for plaintiff to recover.” Id. at 1086. In Hanks v. Entergy Corporation, 06-477, p. 19-20 (La.12/18/06), 944 So.2d 564, 578, the supreme court stated:

In an action to recover damages for injuries allegedly caused by another’s negligence, the plaintiff has the burden of proving negligence on the part of the defendant by a preponderance of the evidence. Benjamin ex rel. Benjamin v. Housing Authority of New Orleans, 04-1058, p. 5 (La.12/1/04), 893 So.2d 1, 4; Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So.2d 654, 664 (La.1989). Proof is sufficient to constitute a preponderance when the entirety of the evidence, both direct and circumstantial, shows the fact sought to be proved is more probable than not. Benjamin, 04-1058 at p. 5, 893 So.2d at 4-5; Cangelosi, 564 So.2d at 664. Thus, the plaintiff in this type of action must produce evidence from which the factfinder can reasonably conclude his injuries, more probably than not, were caused by the negligence of the particular defendant. Cangelosi, 564 So.2d at 664. The plaintiff, however, does not have to conclusively exclude all other possible explanations for his injuries, because the standard is not proof beyond a reasonable doubt. Cangelosi, 564 So.2d at 664; Boudreaux v. American Insurance Co., 262 La. 721, 736-38, 264 So.2d 621, 626-27 (1972). Placing the burden of proof on the plaintiff requires him ultimately to persuade the factfinder concerning the defendant’s negligence, and if the factfinder is undecided after all the evidence has been presented, the plaintiff loses because of the failure of his evidence. Cangelosi, 564 So.2d at 664; Boudreaux, 262 La. at 736-38, 264 So.2d at 626-27.

In its reasons for judgment, the trial court stated, as follows:

The issue is whether the use of the dry method is causally connected to the failure of the foundation and resulting damages, and whether using the dry prep method was below the standard of care for soil testing.
As all are aware, the plaintiff must carry the burden that the LTI’s soil testing was either improperly performed or the result improperly reported and this resulted in a designed foundation failure.
The alternate borings taken later do not provide a great deal of help to the Court, other than to show there are some variances throughout this lot. Mr. Gorsha, an engineer who conducted soil tests, confirmed that the swell conditions present were not discovered “by pure chance”. His testimony was clear that nothing in any soil test show the potential for swell conditions present at this residence. He explained further that a tree may have been removed from that area and heavy clay placed at the removal site as potential cause of the uplifting at the one specific location. I note this area was heavily wooded prior to development of the subdivision, and in particular on the subject lot. I accept this testimony as true.
When analyzing the testing methods (wet v dry), I note both are in regular use and accepted in the residential construction field. More importantly, even critical, is the fact that the engineer Mr. Dale Phillips did not know, ask, and apparently did not care which method was used when designing the post tension slab. It is difficult under these circumstances to find the “dry prep” test to be substandard.
Even if I were to find the dry [sic] prep test was marginally better, I find the plaintiffs [sic] have failed to prove that another design would have been utilized and/or the uplifting apparently occurring would not have occurred anyway.
It is clear other factors and conditions may have caused or contributed significantly to the problem, i.e. building site preparations, the construction of grade beams below grade, the backfilling of | ^excavated areas and the most unusual occurrence of water saturating the subsoil. The latter condition was discovered when additional soil studies were performed after construction.

Whether LTI’s alleged negligence was the cause-in-fact of the plaintiffs’ damages is a factual determination left to the trial court. Toston v. Pardon, 03-1747 (La.4/23/04), 874 So.2d 791. Further, when the trial court has allowed both parties to present their experts before making its factual determinations, its choice of alternative permissible views cannot be considered to be manifestly erroneous or clearly wrong. Id.

Here, the trial court heard expert witness testimony from both the plaintiffs and the defendant. The plaintiffs presented the expert testimony of Billy Prochaska, a civil engineer specializing in geotechnical engineering, whom the plaintiffs hired to conduct forensic testing of the soil. Mr. Prochaska testified that his testing revealed much higher AL limits than initially reported by LTI. He opined that LTI’s use of the “dry prep” method caused LTI’s underreporting of the soil’s swell potential. Mr. Prochaska related that he did not believe the foundation’s problems were caused by a drainage problem or tree problem.

The trial court also heard the testimony of Dale Phillips, the civil engineer who designed the Campbell’s foundation for Coast. He testified that he typically did not inquire into whether a geotechnical report included the use of the “wet prep” or the “dry prep” method, and in designing the Campbell’s foundation, he could not recall whether the report indicated LTI used the “dry prep” or “wet prep” method. When Mr. Phillips was asked whether he would have designed the foundation differently if he had Mr. Prochaska’s “wet prep” results, as opposed to LTI’s initial results, he answered, “I think I would have.” He explained that if given the higher PI num-bersJjMr. Prochaska reported, he “would have inferred that the soil had some expansive nature to it, and I would have done a more expansive calculation and analysis and design.”

Another expert, Newton J. Gorsha, Jr., testified for the defendant. Mr. Gorsha testified that he was a registered professional civil engineer specializing in geo-technical engineering. He explained that he tested soil specimens for the Campbells’ property using both the “wet prep” and “dry prep” method for comparison. He related that he compared his test results to LTI’s initial results and found that “[t]here was virtually no difference.” Mr. Gorsha testified that he did not discover the same conditions in the soil that Mr. Prochaska reported. However, he explained that he ran an analysis to estimate the swell using Mr. Prochaska’s reported numbers and determined that even “if I would have been writing a report based on any of these [LTI’s and Mr. Prochaska’s soil testing results], I would not have detected the kind of swell that occurred at this house.” He stated further, as follows:

[I]t’s an anomalous condition. Whenever we go out and perform a geotechnical investigation, we’re looking for the site conditions to design for, but we’re also looking for an anomaly. Anomaly is what we consider a weak condition or a potentially, you know, explosive swell condition that would affect our analysis.
Since the anomalous conditions really didn’t show up, any Geotechnical Engineer writing the report would have made the same mistake. And I don’t really consider it a mistake; it’s just we didn’t get enough to hit that spot.

When asked what he believed caused the swell, Mr. Gorsha answered:

I can only theorize. There are two theories that I have. We had a lot of trees out there on the site. And with their removal, surface material was put in. I’m fairly certain that happened. This area, because of the shape, the circular shape of the swelling, and it is very, very uniform going through the living or sitting area. It appears to me, and I have seen this dozens and dozens of other forensic investigations that I’ve performed. Any time we have tree stump, its going to swell up in |sa circular pattern. That’s what we have here. So that leads me to theorize that there was a large tree or several trees that were clustered together that got pulled out and we have a very, very, dry clay that was put in there with high clay content.

The trial court’s reasons for judgment reveal that, after evaluating the expert testimony, it found that the plaintiffs failed to prove that LTI’s conduct was the cause-in-fact of the plaintiffs’ damages. As explained above, the trial court’s choice of alternative expert views cannot be considered to be manifestly erroneous or clearly wrong. Id. However, where documents or objective evidence so contradict a witness’s testimony, or the testimony itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witnesses’s testimony, a reviewing court may find manifest error even in a finding purportedly based on a credibility determination. Id. Our review of the record supports the trial court’s determination that the plaintiffs failed to prove LTI’s conduct was the cause-in-fact of the plaintiffs’ damages. Further, we also find that the trial court’s findings that LTI did not discover the swell potential of the soil “by pure chance” and that no soil tests showed the potential for the swell condition, supported by the record. Mr. Gorsha opined that because neither his soil testings, Mr. Prochaska’s testing, or LTI’s testing detected the kind of swelling the plaintiffs were experiencing, it could not be said that LTI’s results were improperly reported. Further, Mr. Gorsha testified that he used both the “wet prep” method and the “dry prep” method and found “virtually no difference.” Further, our review of the record does not reveal evidence so contradictory to Mr. Gorsha’s testimony to conclude that a reasonable factfinder could not credit his testimony. While Mr. Pro-chaska provided contrary testimony concerning the “wet prep” and “dry prep” method, when asked whether he believed that Mr. Gorsha “had a good report, good data, good engineering,” he replied, “Yes.”

| JDuty

In their third assignment of error, the plaintiffs assert that the trial court erred in finding that LTI did not owe a duty to them to use the “wet prep” procedure. They refer to the ASTM standards book which specifies that the “wet prep” method should be used unless the “requesting authority” specifies the “dry prep” method. They assert that the plaintiffs did not request a method, and, thus, the “wet prep” method was required.

The above discussion concluded that the record supported the trial court’s conclusion that LTI’s conduct was not proven to be the cause-in-fact of the plaintiffs’ damages. Under the duty-risk analysis, all four inquiries must be affirmatively answered for a plaintiff to recover. Rando, 16 So.3d 1065. Thus, even if we were to assume that LTI owed a duty to the plaintiffs to use the “wet prep” procedure, the plaintiffs would nonetheless fail to recover. The trial court noted this in its reasons for judgment, stating: “Even if I were to find that the dry prep [sicj was marginally better, I find that the plaintiffs [sic] have failed to prove that another design would have been utilized and/or the uplifting apparently occurring would not have occurred anyway.”

DECREE

For the forgoing reasons, we affirm the trial court’s judgment. All costs of this proceeding are assessed against the plaintiffs-appellants, Kevin and Kim Campbell.

AFFIRMED.

      ."Atterberg limits” is defined in the 2000 Annual Book of ASTM Standards as follows:
      Originally, six "limits of consistency” of fine-grained soils were defined by Albert Atterberg: the upper limit of viscous flow, the liquid limit, the sticky limit, the cohesion limit, the plastic limit, and the shrinkage limit. In current engineering usage, the term usually refers only to the liquid limit, plastic limit, and in some references, the shrinkage limit.

      . "Plasticity index” is defined in the 2000 Annual Book of ASTM Standards as "the range of water over which a soil behaves plastically. Numerically, it is the difference between the liquid limit and the plastic limit.”

      . Originally, Coast was included in the plaintiffs’ petition but was subsequently dismissed on a motion for summary judgment.


text:
    Dexter MITCHELL v. ARTCRETE, INC.
    No. 10-539.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 3, 2010.
    George Arthur Flournoy, Flournoy & Doggett (APLC), Alexandria, LA, for Plaintiff/Appellant: Dexter Mitchell.
    F. Douglas Ortego, Juneau David, APLC, Lafayette, LA, for Defendant/Ap-pellee: Artcrete, Inc.
    Court composed of MARC T. AMY, BILLY HOWARD EZELL, and DAVID E. CHATELAIN , Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   AMY, Judge.

l,The claimant appeals a judgment denying him an award of sanctions for the alleged untimely payment of a certain prescription bill. For the following reasons, we affirm.

Factual and Procedural Background

The claimant, Dexter Mitchell, was injured in the course and scope of his employment with the defendant, Artcrete, Inc. (Artcrete). The parties previously litigated a workers’ compensation dispute involving the payment of certain indemnity benefits. See Mitchell v. Artcrete, Inc., 09-492 (La.App. 3 Cir. 12/9/09), 24 So.3d 1000.

The claimant again brought suit, which is the subject of this appeal, against Art-crete seeking an award of sanctions under La.R.S. 23:1201(F) for an alleged untimely payment of certain medical expenses. Specifically at issue in this case is a $20.95 bill for a prednisone prescription incurred on June 10, 2008. The claimant alleged that he made demand for payment of this bill at the previous trial on September 25, 2008, but that payment was not made until January 12, 2009. Following a hearing, the workers’ compensation judge denied the claimant’s request for sanctions, finding that it did not become clear the balance of what Artcrete owed to the claimant until the workers’ compensation judge executed judgment on December 12, 2008. Thus, the workers’ compensation judge found that the January payment was timely. The claimant appeals, challenging whether sanctions for the alleged untimely bill should have been awarded. For the following reasons, we affirm.

| ¡¿Discussion

Louisiana Revised Statutes 23:1201(F) allows for the imposition of sanctions against an employer who fails to timely pay medical benefits. Under La. R.S. 23:1201(E), medical benefits “shall be paid within sixty days after the employer or insurer receives written notice thereof.”

Here, neither party disputes that the prescription bill at question was paid by |athe defendant on January 12, 2009. The claimant alleges that because he demanded payment of this bill at the initial trial on this matter, September 25, 2008, that the January payment, in excess of sixty days of that date, was untimely, and thus, penalties should have been awarded.

In Authement v. Shappert Engineering, 02-1631, pp. 11-12 (La.2/25/03), 840 So.2d 1181, 1188-89, the supreme court stated:

The purpose of imposition of penalties and attorney fees is to discourage indifference and undesirable conduct by employers and insurers. The crucial inquiry in determining whether to impose penalties and attorney fees on an employer is whether the employer had an articulable and objective reason to deny benefits at the time it took action. Id. [Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41.]
The determination of whether an employer or insurer should be cast with penalties and attorney fees in a workers’ compensation action is essentially a question of fact. Factual findings are subject to the manifest error or clearly wrong standard of review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556.

In his oral reasons for judgment, the workers’ compensation judge stated, in pertinent part:

I saved every note I made from Mr. Mitchell’s previous trial, including every note I made as I went through the previous evidence at the other trial as well as the post-trial suggestions of counsel from both party, both parties. In my view, because the demands of the previous trial were made that all of the exhibits for medical expenses were untimely paid for each and every bill, perhaps with the exception of 6/10/08 because there was no evidence at the previous trial that there was ever any demand on the employer for that bill. It was just given to the Court as an exhibit at the trial, which was held September 25th, 2008. But the suggested findings of fact submitted on behalf of Mr. Mitchell subsequent to that trial and the work this Court did trying to ascertain from the payment log of medical expenses, as well as other logs of payments to Mr. Mitchell, what may be the outstanding sums due for any medical expense. It wasn’t clear to this Court what sum of money was due, because if we consider P-10 alone as a demand, P-10 says total price — total amount due is One Hundred and Thirteen Dollars and Nineteen Cents ($113.19) with a notation thereon from the | bookkeeper in Causey’s Pharmacy, says, “No payments have been made on this account.” And the Court, this Court’s ruling in the previous matter, I found payments were made. I don’t know if they were made to Mr. Mitchell. I found that they were, based on some circumstantial evidence in the payment log submitted by Mr. Mitchell. It says “Penalty provisions are harsh and to be strictly construed.” And given the great confusion over what sums of money may have been paid or not paid with respect to any prescription, I decline to award a penalty and attorney fee with respect to any underpayment or non-timely payment of the 6/10/08 service. This did not become clear, the balance of the claims made for untimely payments, until the Court issued its oral ruling and judgement [sic] was signed. The record reflects that it was paid within 60 days of the date the judgment was signed.

The record indicates that at the September 2008 trial the claimant alleged that Arterete had a balance of $182.05 in unpaid prescription expenses and requested sanctions on that unpaid amount. The claimant, in brief, explains that at that trial, he also demanded payment of the $20.95 predisone prescription, but did not seek penalties because “I had just received the bill the day before trial, I recognized that there could be no claim for 23:1201(F) sanctions, and did not so argue after the initial trial nor in the initial appeal, since defendant had not received written notice of this particular prescription (DOS-6/10/08) until the day of trial, September 25, 2008.” The record indicates that the December 2008 judgment found that the defendant was responsible for the claimant’s pharmaceutical expenses. Thus, the record supports the workers’ compensation judge’s determination that it was not clear until after judgment was executed in December 2008 that the defendant knew it was obligated to pay the pharmaceutical expenses. The parties do not dispute that the $20.95 bill [ 5was paid by the defendant in January 2009, within sixty days of the executed judgment.

As explained above, “[t]he crucial inquiry in determining whether to impose penalties and attorney fees on an employer is whether the employer had an articulable and objective reason to deny benefits at the time it took action.” Authement, 840 So.2d at 1188. As reflected in his oral reasons for judgment, the workers’ compensation judge found that there was great confusion following the initial trial as to what Arterete owed to the claimant. The workers’ compensation judge found that it did not become clear to Arterete that it was obligated to pay for this prescription until judgment was executed. As explained above, the record supports the workers’ compensation judge’s finding in this regard, thus we cannot say it was error for the workers’ compensation judge to decline to award penalties.

DECREE

For the foregoing reasons, the judgment is affirmed. All costs are assessed against the appellant, Dexter Mitchell.

AFFIRMED.

      . There is a discrepancy in the record of whether this bill is for $20.95 or $19.95. In his oral reasons for judgment, the workers' compensation judge noticed this discrepancy. For the purposes of this review, the disputed bill will be referred to in the amount of $20.95.

      . Louisiana Revised Statutes 23:1201(F) provides:
      F. Failure to provide payment in accordance with this Section or failure to consent to the employee's request to select a treating physician or change physicians when such consent is required by R.S. 23:1121 shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars. An award of penalties and attorney fees at any hearing on the merits shall be res judicata as to any and all claims for which penalties may be imposed under this Section which precedes the date of the hearing. Penalties shall be assessed in the following manner:
      (1) Such penalty and attorney fees shall be assessed against either the employer or the insurer, depending upon fault. No workers’ compensation insurance policy shall provide that these sums shall be paid by the insurer if the workers' compensation judge determines that the penalty and attorney fees are to be paid by the employer rather than the insurer.
      (2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.
      (3) Except as provided in Paragraph (4) of this Subsection, any additional compensation paid by the employer or insurer pursuant to this Section shall be paid directly to the employee.

        (4) In the event that the health care provider prevails on a claim for payment of his fee, penalties as provided in this Section and reasonable attorney fees based upon actual hours worked may be awarded and paid directly to the health care provider. This Subsection shall not be construed to provide for recovery of more than one penalty or attorney fee.
      (5) No amount paid as a penalty or attorney fee under this Subsection shall be included in any formula utilized to establish premium rates for workers’ compensation insurance.

      . We note that the record does not contain either the September 2008 trial transcript or the December 2008 judgment. However, as explained in Mitchell, 24 So.3d 1000, the workers' compensation judge found that Art-erete was responsible for the pharmaceutical expenses but had properly reimbursed the claimant the $182.05 in its payments of other benefits. However, a panel of this court found that the claimant had not been reimbursed for the pharmaceutical expenses and reversed that judgment, ordering Arterete to pay the pharmaceutical expenses and assessing an $8,000.00 penalty for the failure to pay that amount.


author: THIBODEAUX, Chief Judge. PICKETT, J.,

text:
    Ralph WARE v. GEMINI INSURANCE COMPANY.
    No. 10-594.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 24, 2010.
    Rehearing Denied Jan. 12, 2011.
    Joseph Payne Williams, Williams Family Law Firm, LLC, Natchitoches, LA, for Plaintiff/Appellee, Ralph Ware.

      James Alex Mijalis, Lunn, Irion, Salley, Carlisle & Gardner, Shreveport, LA, for Defendant/Appellant, Gemini Insurance Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and ELIZABETH A. PICKETT, Judges.
   THIBODEAUX, Chief Judge.

| Appellant, Gemini Insurance Company (Gemini), asserts that the trial court erred by granting a summary judgment in favor of Ralph Ware and by denying a summary judgment in its favor. The trial court found that Ware’s employer did not properly select the uninsured/underinsured motorist (UM) coverage that is lower than the limit of its liability insurance policy. For the following reasons, we affirm.

I.

ISSUE

We shall consider whether the employer properly selected a UM coverage that is lower than the limit of its liability policy where the insurance agent entered the lower limit without a discussion with the insured, but the employer initialed, signed, and dated the form.

II.

FACTS

Ware, a driver of a tractor trailer rig, was in an accident while in the course and scope of his employment. The other driver had a liability coverage with a minimum limit that was insufficient to compensate Ware for his injuries.

Gemini provided liability coverage to Ware’s employer with the limit of $1,000,000.00. Gemini tendered $50,000.00 to Ware, claiming that this amount was the limit of the UM coverage Ware’s employer chose. Ware, on the other hand, argued that his employer did not properly select the lower coverage, and, therefore, the $1,000,000.00 limit should apply.

The following are the circumstances surrounding the selection of the $50,000.00 UM coverage. Randall Murphy, on behalf of Ware’s employer, signed an Uninsured/Underinsured Motorist Bodily Injury Coverage Form (UM form). This 12form lists five UM coverage options an insured may choose from by initialing each choice: (1) allows the insured to select a UM coverage with the same limit as the liability policy; (2) allows the insured to select a UM coverage with a limit that is lower than the liability limit. This choice also has two sub-options. The first sub-option allows the insured to enter the amount of the limit per each person, and the second sub-option allows the insured to enter the amount of the limit per each accident; (3) allows the insured to select an economic-only UM coverage with the same limit as the liability coverage; (4) allows the insured to select an economic-only UM coverage but with the limit lower than the liability coverage. This option, like the second option, has two sub-options that allow the insured to enter the amount of the limit per each person or per each accident; and, (5) allows the insured to reject the UM coverage entirely.

On January 22, 2007, Randall Murphy, on behalf of Ware’s employer, initialed choice number two and signed the form. The insurance agent, Dorothy Ladd, who has been working for the insurance industry for over thirty years, wrote $“50,000” in the sub-option “each person” and in the sub-option “each accident.”

According to Ladd, after she faxed this form to the underwriter, she received a phone call from the underwriter’s assistant, Laurie Bonds, who told Ladd that she needed to redo the UM form. Ladd testified: “[s]he [Bonds] told me exactly what was wrong with the form and that it had to be redone” because “we don’t write in anything under the each person.” (Emphasis added).

Thus, on January 26, 2007, another UM form was executed. Again, Ladd wrote $“50,000,” but solely in the “each accident” sub-option. Then, Murphy initialed option number two and signed the form. There is no dispute that Ladd and Murphy did not discuss the amount of the limit. Likewise, there is no dispute that |,sMurphy initialed choice number two and signed the form after Ladd entered the amount of the limit.

Both parties motioned for summary judgment on the issue of the UM coverage limit. The trial court granted Ware’s motion and denied Gemini’s motion. The trial court concluded that the issue in this case was “whether the insured has to personally fill in the amount of the reduced coverage, should he select a lower limit, or whether it is satisfactory for the insurance agent to fill in the amount and the insured only initial it.” The trial court reasoned that the form the Commissioner of Insurance promulgated and the Insurance Code mandated commanded the insured to fill out the form. Then, the court noted the pronouncements in Duncan v. U.S.A.A. Ins. Co., 06-363 (La.11/29/06), 950 So.2d 544, that the expression of a desire not to have a UM coverage does not necessarily constitute a valid rejection if the rejection does not meet the formal requirements of the law. The trial court concluded that because Murphy did not physically write in the amount, the selection of the lower limit was invalid.

Gemini appealed and filed an application for supervisory review arguing the trial court erred by granting Ware’s motion and by denying its motion for summary judgment. The appeal and the writ have been consolidated.

III.

STANDARD OF REVIEW

Appellate courts review summary judgments de novo. Guilbeaux v. Times of Acadiana, Inc., 96-360 (La.App. 3 Cir. 3/26/97), 693 So.2d 1183, writ denied, 97-1840 (La.10/17/97), 701 So.2d 1327. Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material |4fact and the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B).

Because the denial of a motion for summary judgment is an interlocutory ruling from which no appeal may be taken, the only practical remedy available is to request the appellate court’s exercise of its supervisory jurisdiction to review the propriety of this ruling. Louviere v. Byers, 526 So.2d 1253 (La.App. 3 Cir.), writ denied, 528 So.2d 153 (La.1988).

IV.

LAW AND DISCUSSION

UM insurance is provided for by statute that embodies a strong public policy to give full recovery for the automobile accident victims. Duncan, 950 So.2d 544 (citing Roger v. Estate of Moulton, 513 So.2d 1126 (La.1987); A.I.U. Ins. Co. v. Roberts, 404 So.2d 948 (La.1981); Tugwell v. State Farm Ins. Co., 609 So.2d 195 (La.1992); Henson v. Safeco Ins. Cos., 585 So.2d 534 (La.1991); Hoefly v. Gov’t Employees Ins. Co., 418 So.2d 575 (La.1982)). “Thus, under the UM statute, the requirement of UM coverage is an implied amendment to any automobile liability policy, even when not expressly addressed, as UM coverage will be read into the policy unless validly rejected.” Id. at 547 (citations omitted). The

rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance. The prescribed form shall be provided by the insurer and signed by the named insured or his legal representative.... A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage.

La.R.S. 22:1295.

|fiThe UM statute must be liberally construed. Duncan, 950 So.2d 544 (citing Daigle v. Authement, 96-1662 (La.4/8/97), 691 So.2d 1213; Roger, 513 So.2d 1126). This requires a strict interpretation of the exceptions to coverage. Id. (citing Roger, 513 So.2d 1126). The insurer bears the burden of proving that the insured rejected the UM coverage or selected a lower limit. Id. (citing Tugwell, 609 So.2d 195).

The form the Commissioner prescribed involves six tasks:

(1) initialing the selection or rejection of coverage chosen; (2) if limits lower than the policy limits are chosen (available in options 2 and 4), then filling in the amount of coverage selected for each person and each accident; (3) printing the name of the named insured or legal representative; (4) signing the name of the named insured or legal representative; (5) filling in the policy number; and (6) filling in the date.

Duncan, 950 So.2d at 551. If the insurer uses the prescribed form and “makes certain that it is properly completed and signed, then the insurer receives a presumption that the insured’s waiver of coverage was knowing.” Id. at 552.

While we affirm the trial court’s judgment, we disagree with its reasoning. The issue in this case is not whether the insured has to personally fill in the amount of the reduced coverage but whether the selection of the lower amount of coverage by someone other than the insured invalidates the properly fi lied out form.

Here, there is no dispute that the insurance agent did not discuss with the insured the limit of the lower coverage. There is no dispute that the insurance agent unilaterally filled in the amount of the limit. This is not the case where the agent performed a clerical task of filling in the amount after a discussion in which the insured selected the amount of the coverage. Instead, the agent selected and entered the amount, thereby effectively vitiating the insured’s choice.

|fiMurphy initialed and signed the form in which Ladd selected and filled in $50,000.00 as the limit of the UM coverage in both the “per person” and “per accident” slots. Murphy also initialed and signed the “corrected” form. He did so not because he felt that the previous form incorrectly reflected his desires and intentions, but because it was not, based on Ladd’s testimony, the way the insurance company did business. This circumstance provides additional support to bur conclusion that Murphy did not understand and did not knowingly select the amount of the UM coverage.

The underwriter assistant’s statement, based on Ladd’s testimony, that “we don’t write in anything under the each person” further demonstrates who made the selection of the UM coverage in this case. (Emphasis added). From this statement, it appears that even if an insured wanted to have a “per person” coverage, the insured would not have been able to select it.

Finally, Ladd testified that in some cases the agent fills out the form outside the insured’s presence altogether and sends the filled-out form to the customer for signature.

We are cognizant of the opinion from our sister jurisdiction in Taylor v. U.S. Agencies Cas. Ins. Co., 09-1599 (La.App. 1 Cir. 4/7/10), 38 So.3d 433. The court held that the insured failed to rebut the presumption that he knowingly selected the lower limit of the UM coverage. There, as in this case, the insurance agent filled out the blanks on the form selecting the lower limit of the UM coverage. The insured initialed and signed the filled out form. Nevertheless, the opinion is silent as to who selected the lower coverage.

Here, it is undisputed that the insurance agent selected the amount. While the form was properly filled out thereby creating a rebuttable presumption that 17Murphy knowingly and voluntarily selected the lower UM coverage, the undisputed evidence in this case is sufficient to rebut that presumption.

Although the insured does not need to perform the clerical task of filling in the numbers, it must be the insured who makes the selection of the amount of the limit. It is unclear from the opinion in Taylor who made the selection of the amount. The court simply concluded that the insured failed to rebut the presumption.

To the extent that one may infer from Taylor that the insured only needs to initial and sign the pre-filled-out form for there to be an effective selection of the lower limit, we respectfully disagree. Under this interpretation the presumption becomes irrebuttable.

Furthermore, the supreme court explicitly addressed this issue in Duncan. It is not enough to simply check one of the options and sign the form. Duncan, 950 So.2d 544. If the insured wants the UM coverage to be lower than the policy limit, then the first two tasks are: “(1) initialing the selection or rejection of coverage chosen; (2) if limits lower than the policy limits are chosen (available in options 2 and 4), then filling in the amount of coverage selected for each person and each accident_” Id. at 551. Thus, if the insured chooses option two or four, task number two requires: (1) the insured to select the amount of the limit; and, (2) to enter the amount of the limit selected. Unlike the form options one, three, and five, options number two and four require the insured to perform, in addition to initialing and, thereby, selecting the option, an additional act, i.e., to choose a limit and enter it on the form. While someone other than the insured may perform the clerical task of entering the amount on the form, only the insured must decide what that amount needs to be.

Islnitialing the option fulfills task number one. Entering the amount of the selected limit partially fulfills task number two. For the second task to be complete, the insured must select the amount of the limit. The insured cannot select the option of the lower limit by initialing it without selecting “the exact limits for each person and each accident.” Id. at 552.

Acquiescence to the insurance agent’s selection is not the same as making the selection of the limit. An insurance agent is perceived to have greater knowledge and bargaining power. Thus, the agent may consciously or unconsciously influence the insured’s choice, and this may cast serious doubt on the voluntariness of the choice. Moreover, an agreement where an agent selects and enters the limit and then submits the form to the customer for signature without a discussion of the limit appears more like a contract of adhesion than a bargained-for exchange the forra contemplates.

Considering the reasons above as well as the statutory policy that favors coverage and the insurer’s burden to show a valid selection of the lower limit, this court concludes that the trial court did not err by granting Ware’s motion for summary judgment and by denying Gemini’s motion.

V.

CONCLUSION

Summary judgment in favor of Ralph Ware is affirmed. For the reasons expressed above, the trial court’s denial of Gemini Insurance Company’s motion for Insummary judgment is affirmed, and Gemini Insurance Company’s writ is denied. Costs of this appeal are assessed to Gemini.

AFFIRMED.

PICKETT, J., dissents and assigns written reasons.

PICKETT, J.,

dissents and assigns written reasons.

hi would find that Mr. Ware’s employer executed a valid UM coverage form which selected the lower coverage limit of $50,000.00. I do not find that the evidence submitted rebuts the presumption that the lower coverage limits were knowingly and voluntarily selected. I would reverse the trial court’s grant of summary judgment in favor of Mr. Ware and the denial of the summary judgment motion filed by Gemini. I respectfully dissent.

      . Each of the five options in the form Commissioner prescribed and Murphy signed, begins with the number of the option and a space for the initials. Then, the first four options have the following language: "I select UMBI [UM Bodily Injury] Coverage which will....” The fifth option’s language is: "I do not want UMBI Coverage.”


text:
    Ralph WARE v. GEMINI INSURANCE COMPANY, et al.
    No. 10-3.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 24, 2010.
    Rehearing Denied Jan. 12, 2011.
    Joseph Payne Williams, Williams Family Law Firm, LLC, Natchitoches, LA, for Plaintiff/Respondent-Ralph Ware.
    James Alex Mijalis, Lunn, Irion, Salley, Carlisle & Gardner, Shreveport, LA, for Defendant/Applicant-Gemini Insurance Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and ELIZABETH A. PICKETT, Judges.
   THIBODEAUX, Chief Judge.

hFor the reasons discussed in the consolidated case of Ware v. Gemini Insurance Co., 10-594 (La.App. 3 Cir. 11/24/2010), 51 So.3d 179, 2010 WL 4740294, the Gemini Insurance Company’s writ application requesting a summary judgment is denied. Costs are assessed to Gemini Insurance Company.

WRIT DENIED.

PICKETT, J., dissents and would grant the writ for the reasons assigned in her dissent in the consolidated appeal.

PICKETT, J.,

dissents and assigns written reasons.

hi would find that Mr. Ware’s employer executed a valid UM coverage form which selected the lower coverage limit of $50,000.00. I do not find that the evidence submitted rebuts the presumption that the lower coverage limits were knowingly and voluntarily selected. I would reverse the trial court’s grant of summary judgment in favor of Mr. Ware and the denial of the summary judgment motion filed by Gemini. I respectfully dissent.


author: PAINTER, Judge.

text:
    SUCCESSION OF Thelma Cummings GUILBEAU.
    No. 10-1200.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 1, 2010.
    Lester Joseph Zaunbrecher, Paul Daniel Gibson, Amy E. Bringing, Gibson, Grue-nert & Zaunbrecher, Lafayette, LA, for Appellee, University of Louisiana at Lafayette Foundation.
    Harry Joseph Philips, Jr., Taylor, Porter, et al., Baton Rouge, LA, for Appellee, Special Counsel of Succession of Thelma Cummings Guilbeau.

      Richard Lee Becker, Jeremy A. Hebert, Becker and Associates, Lafayette, LA, for Appellant, Sunset Bancorp, Inc.
    Armand J. Brinkhaus, Olivier and Brinkhaus, Sunset, LA, for Appellee, Elsie Caillouet.
    Jimmy L. Dauzat, Dauzat, Falgoust, Ca-viness, Opelousas, LA, for Appellee, Special Counsel of Succession of Thelma Cummings Guilbeau.
    Marc W. Judice, Francine A. Elliot, Ju-dice & Adley, Lafayette, LA, for Appel-lees, June Visser, Dr. Lewis C. Cummings, George Cummings.
    Michael Sean Walsh, Lee & Walsh, Baton Rouge, LA, for Appellees, Darryl and Kalina Cormier.
    Lawrence Lee Lewis, III, Onebane Law Firm, Lafayette, LA, for Appellants, Lynette Elliot, P. Andy Dakin, Caroline D. Bonin, Employee Stock Ownership Trust (ESOP).
    Leslie J. Schiff, Schiff Law Corp., Opel-ousas, LA, for Appellee, University of Louisiana at Lafayette Foundation.
    Carl M. Duhon, Attorney at Law, Lafayette, LA, for Appellee, Special Counsel of Succession of Thelma Cummings Guilbeau.
    Shelton Dennis Blunt, Phelps, Dunbar, Baton Rouge, LA, for Appellee, Karl Brent Vidrine.
    Brad Jeffrey Axelrod, McGlinchey, Stafford, PLLC, Baton Rouge, LA, for Appel-lee, Co-Trustees of the James H. Guil-beau, Jr., Charitable Trust.
    Court composed of JOHN D. SAUNDERS, J. DAVID PAINTER, and DAVID E. CHATELAIN , Judges.

       Judge David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   PAINTER, Judge.

|,On October 5, 2010, this court, sua sponte, issued a rule for the appellants to show cause, by brief only, why the instant appeal should not be dismissed as having been taken from a partial, final judgment not designated immediately appealable with express reasons pursuant to La.Code Civ.P. art. 1915(B), citing R.J. Messinger, Inc. v. Rosenblum, 04-1664 (La.3/2/05), 894 So.2d 1113. On October 8, 2010, the co-trustees of the James H. Guilbeau Charitable Trust (James H. Guilbeau Trust) filed a Motion to Dismiss Appeal asserting that the appellants’ appeal should be dismissed for failure to post the suspensive appeal bond timely, or, alternatively, that this court should dismiss the suspensive appeal and maintain the appeal as devolutive. For the reasons discussed below, we dismiss this appeal as having been taken from a non-appealable, interlocutory order, thereby rendering moot the Motion to Dismiss Appeal filed by the James H. Guilbeau Trust.

In the course of litigating this succession matter, an issue arose as to the valuation of certain Sunset Bancorp, Inc., stock. The trial court conducted a hearing on the issue and rendered a written judgment on July 12, 2010. On August 23, 2010, the appellants, Sunset Bancorp, Inc., and P. Andy Dakin, Caroline D. Bonin, and Lynette Elliot, trustees of the Sunset Bancorp, Inc., Employee Stock Ownership Trust, filed their Petition/Motion and Order for Suspensive Appeal with Request for Setting of Bond for Suspensive Appeal. The appeal record was lodged in this court, and this court issued its rule for the appellants to show cause why the appeal should not be dismissed. Further, as discussed above, the James H. Guilbeau Trust filed their motion seeking a complete dismissal of the appeal as untimely perfected or, alternatively, seeking dismissal of the sus-pensive appeal, -with this court maintaining the appeal as devolutive only.

|PThe appellants filed a brief responding to this court’s rule to show cause. Although no party disputes that other matters remain to be decided, the appellants argued that this court should not dismiss this appeal. First, they argued that since the judgment adjudicates the fair market value of the stock, this court should find that the judgment is final. Alternatively, the appellants argue that if the judgment was required to be designated as immediately appealable, the trial court had, in effect, designated the judgment appealable by signing the order of appeal. Consequently, the appellants ask that this court find that the factors are present which support a designation of appealability from this judgment pursuant to R.J. Messinger.

As to the appellants’ first argument in support of permitting this appeal, a review of the record reveals that the judgment appealed is a partial judgment that falls under the provisions of La.Code Civ.P. art. 1915(B). After adjudicating the valuation of the shares of stock and other matters related to the stock, the judgment concludes, “IT IS FURTHER ORDERED that the Alternative Motion to Distribute Stock to the Charitable Trust filed by the Trustees of the James H. Guilbeau Charitable Trust and the University of Louisiana at Lafayette Foundation is set for hearing on September 17, 2010, at 9:00 a.m.” Moreover, even appellants recognize that this judgment was only another step in the litigation of this succession. Therefore, this court finds no basis for holding that the appealed judgment is appealable without designation pursuant to any sub-paragraph of La.Code Civ.P. art. 1915(A). Accordingly, we hold that this judgment cannot be appealed without first being designated as appealable with express reasons.

As stated above, the appellants advance the alternative argument that this court should hold that the trial court designated the judgment as appealable by signing the order of appeal. Several Louisiana courts of appeal have held that this argument is | ^without merit. See for instance Pitts v. Fitzgerald, 2001-543 (La.App. 1 Cir. 5/10/02), 818 So.2d 847, and Deal v. Housing Authority of New Orleans, 1998-1530 (La.App. 4 Cir. 2/17/99), 735 So.2d 685. Likewise, we find that the signing of the order of appeal in this case did not constitute a proper designation of this judgment as immediately appealable.

Finally, the appellants make the argument that this court should find that the judgment appealed meets the criteria of appealability set forth in R.J. Messinger, 894 So.2d 1113. However, unlike the instant case, in R.J. Messinger the trial court had designated the partial judgment as final and appealable; the trial court, however, had failed to provide express reasons why the designation was appropriate. Thus, the court specifically stated, “The limited and narrow issue before us is what constitutes an express determination by the court.” Id. at 1117. It was in that context, then, that the supreme court wrote:

In order to assist the appellate court in its review of designated final judgments, the trial court should give explicit reasons, either oral or written, for its determination that there is no just reason for delay. However, if the trial court fails to do so, we find the appellate court cannot summarily dismiss the appeal. For purposes of judicial efficiency and economy, we approve the approach taken by the First, Third and Fifth circuits, and hold the proper standard of review for an order designating a judgment as final for appeal purposes when accompanied by explicit reasons is whether the trial court abused its discretion. If no reasons are given but some justification is apparent from the record, the appellate court should make a de novo determination of whether the certification was proper. Of course, if after examination of the record the propriety of the certification is not apparent, the court of appeal may request a per cu-riam from the trial judge. Alternatively, the court of appeal could issue a rule to show cause to the parties requiring them to show why the appeal should not be dismissed for failure to comply with La.Code Civ. P. art. 1915, when the propriety of the certification is not apparent and the trial court has failed to give reasons for its certification.

Id. at 1122. Since we find that the appealed judgment is not appealable without a designation and without express reasons for the designation, we dismiss this appeal |4at appellants’ cost.

Having ordered the complete dismissal of the appellants’ appeal, we find that the Motion to Dismiss Appeal filed by the James H. Guilbeau Trust has been rendered moot.

APPEAL DISMISSED ON RULE TO SHOW CAUSE. MOTION TO DISMISS APPEAL FILED BY CO-TRUSTEES OF THE JAMES H. GUILBEAU CHARITABLE TRUST DENIED.