author: PICKETT, Judge.

text:
    Dwayne OLIVIER v. CITY OF EUNICE.
    No. 11-1054.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2012.

      Randall B. Keiser, D. Heath Trahan, Reiser Law Firm, P.L.C., Alexandria, LA, for Defendant/Appellant, City of Eunice.
    Kevin L. Camel, Cox, Cox, Filo, Camel & Wilson, LLC, Lake Charles, LA, for PlaintiffAppellee, Dwayne Olivier.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, MARC T. AMY, ELIZABETH A. PICKETT, and PHYLLIS M. KEATY, Judges.
   PICKETT, Judge.

| Employer appeals judgment denying its exception of prescription and awarding firefighter medical benefits, a penalty, attorney fees, and costs. We reverse in part and affirm in part.

FACTS

The facts in this case are not in dispute. Dwayne Olivier was employed as a firefighter by the City of Eunice (the City) from 1985 until 2007. He injured his back in 2006 and has been disabled due to that injury since that time.

Prior to that, in 2004, Mr. Olivier began experiencing chest pain for which he sought treatment. He was ultimately diagnosed as having aortic valve bicuspid stenosis and underwent surgery in 2010 to replace his bicuspid aortic valve to relieve the symptoms of the stenosis. Mr. Olivier made several written requests to the City for reimbursement of his medical expenses and authorization for medical treatment. The City denied his requests, contending his heart condition was not work-related. Mr. Olivier was a beneficiary under a Blue Cross Blue Shield of Louisiana (Blue Cross) health insurance plan provided through his wife’s employer, and he submitted his medical expenses to Blue Cross for payment when the City did not pay or authorize the expenses. Blue Cross paid his claims.

In 2008, Mr. Olivier filed this action for workers’ compensation benefits, seeking authorization for medical treatment and reimbursement for medical expenses for his heart-related problems pursuant to the Heart and Lung Act. La.R.S. 33:2581. He also sought penalties and attorney fees for not providing medical treatment and not paying his medical expenses. Mr. Olivier’s medical expenses associated with his heart condition for the period 2006 through the date of trial totaled $121,247.48; Blue Cross paid $115,653.17 of those expenses. The remaining $5,594.31 represents deductibles and co-payments for which Mr. Olivier |2was responsible. In addition, Mr. Olivier spent $2,260.86 on lodging, meals, and mileage in connection with treatment he received from 2006 to the time of trial.

The City filed an exception of prescription which the Workers’ Compensation Judge (WCJ) denied. The City applied for supervisory writs to the Third Circuit Court of Appeal and for writ of certiorari to the Louisiana Supreme Court. Both applications were denied. See Olivier v. City of Eunice, an unpublished writ bearing docket number 09-1325 (La.App. 3 Cir. 3/2/10), and Olivier v. City of Eunice, 10-757 (La.6/4/10), 38 So.3d 304, respectively.

Four issues were presented at the trial on the merits:' (1) whether the claim for medical expenses had prescribed; (2) whether the medical expenses were causally related to an injury/illness arising out of employment; (8) if the medical expenses were related, whether the City was entitled to a medical expense offset under La.R.S. 23:1212(A); and (4) if related, whether penalties and attorney fees should be imposed.

At the conclusion of the trial, the WCJ took the matter under advisement. Thereafter, he issued Oral Reasons for Judgment in which he held: (1) he would not re-examine the prescription issue because of the writ denials; (2) the presumption of the Heart and Lung Act was not rebutted, and the City was obligated to pay for all treatment and expenses related to Mr. Olivier’s “cardiac condition”; (3) the City was entitled to a 64.5% medical expense offset in the amount of $74,596.29 under La.R.S. 23:1212(A); (4) Mr. Olivier was entitled to an award of $41,056.88, which is the percentage (35.5%) of the medical expenses already paid by Blue Cross that was not subject to the offset; and (5) Mr. Olivier was entitled to recover $5,594.31 attributable to co-payments on his medical expenses, $928.26 in meals and lodging, and $1,332.60 in mileage; (6) Mr. Olivier |3was entitled to a $2,000.00 penalty for the City’s denial of benefits; and (7) Mr. Olivier was entitled to an attorney fee award of $12,600.00.

After a judgment was signed, the City filed a Motion for New Trial, seeking to: (1) replace language in the judgment regarding Mr. Olivier’s “heart condition” with his precise medical condition; (2) insert language into the judgment specifically granting the City a La.R.S. 23:1212(A) offset in the amount $74,596.29; and (3) reverse the $41,056.88 award of Mr. Olivier’s medical expenses paid by Blue Cross.

After a hearing on the Motion for New Trial, the WCJ: (1) granted the City’s request to replace the phrase “heart condition” with precise language; (2) denied the motion’s request to specifically insert the $74,596.29 figure into the judgment; and (3) denied the City’s request to reverse the $41,056.88 award to Mr. Olivier. An Order granting in part and denying in part the Motion for New Trial and an Amended Judgment were signed the same day. This appeal followed. Mr. Olivier answered the appeal, seeking an increase in the trial court’s award of attorney fees and an additional award of attorney fees for work performed on appeal.

ASSIGNMENTS OF ERROR

The City of Eunice assigns four errors:

1) The trial court committed legal error by employing an incorrect legal standard to govern the burden of persuasion necessary to rebut the presumption of causation under the Heart and Lung Act. Consequently, this Court should conduct a de novo review of the record on the issue of causation.
2) The trial court committed manifest error when it found that the City’s evidence did not rebut the presumption that Mr. Olivier’s aortic stenosis was causally related to employment.
3) The trial court committed legal error when it denied the City’s Exception of Prescription and refused to reconsider it at trial.
|44) The trial court committed legal error when it awarded Mr. Olivier $41,056.88 in medical expenses already paid by Blue Cross.

DISCUSSION

Did the WCJ apply the wrong burden of proof to the City’s defense?

In his reasons for judgment, the WCJ stated that to overcome the presumption of the Heart and Lung Act, an employer must present “positive medical evidence that a firefighter’s heart condition was caused solely by something other than his employment and was not aggravated or accelerated in any way by that employment.” The City complains that this was error.

The Heart and Lung Act provides that after an employee has been employed five years as a firefighter, any heart or lung ailments suffered by the firefighter are presumed to be related to their employment. La.R.S. 38:2581. In McClure v. City of Pineville, 06-279 (La.App. 3 Cir. 12/6/06), 944 So.2d 795, writ denied, 07-40 (La.3/9/07), 949 So.2d 445, this court explained the application of the Heart and Lung Act:

The Heart and Lung Act provides that once a fireman has established that the presumption is applicable, i.e., lung disease manifested after he had been employed for five years, his employer must prove that the disease did not develop during his employment to relieve itself from the obligation of paying workers’ compensation benefits. La. R.S. 33:2581. It does not require “conclusive evidence” that exposure during his employment caused his heart or lung condition as argued by LWCC. To successfully defend a claim under the Heart and Lung Act, the employer must produce affirmative evidence to establish that the fireman’s heart or lung condition did not develop during his employment. This is an almost impossible burden because the employer must prove a negative, i.e., the fireman’s heart or lung disease or infirmity “could not have resulted from his service as a firefighter.”
Medical testimony to the effect that a firefighter’s employment probably did not contribute to a fireman’s lung disease, which is tempered by an acknowledgment that his employment cannot be ruled Lout as a contributing factor, is not sufficient to rebut the Heart and Lung Act’s presumption.

Id. at 802 (quoting Rothell v. City of Shreveport, 626 So.2d 763, 766 (La.App. 2 Cir.1993), writ denied, 93-3191 (La.2/11/94), 634 So.2d 379) (citations omitted).

McClure reiterated with approval the jurisprudential rule that to overcome the Heart and Lung Act presumption, the City had to prove that the employee’s “heart disability could not have resulted from his service as a firefighter.” Id. The court then explained that the probability that a firefighter’s employment did not contribute to his lung disease is insufficient to rebut the presumption if his employment cannot be ruled out as a contributing factor. While the WCJ’s terminology is not the same as that employed in McClure and other Heart and Lung Act cases, the resulting standard is. Accordingly, this assignment of error is without merit.

Did the WCJ commit manifest error in finding the City did not rebut the presumption of the Heart and Lung Act?

The City complains that the WCJ erred in concluding that the medical evidence did not establish that it rebutted the Heart and Lung Act presumption. Review of the medical evidence shows no error with that conclusion.

Mr. Olivier’s surgeon, Dr. Basel Ram-lawi, testified that Mr. Olivier was born with a bicuspid aortic valve and that the normal aortic valve is tricuspid. He explained that bicuspid valves “are predisposed to become calcified” and “to develop premature aortic stenosis.” While Dr. Ramlawi believed this is what happened to Mr. Olivier, he further explained, “There’s no way to prove that but ... [Mr. Olivier] fits into the typical form of patients with bicuspid aortic valves with premature calcification.”

|fiDr. Ramlawi testified there is no evidence that firefighting contributes to or leads to aortic stenosis, but he also testified that there is no evidence firefighting does not aggravate, contribute to, accelerate, or cause aortic stenosis. Despite not being aware of any study which shows “there is no possible way that employment as a firefighter can aggravate, contribute to, accelerate or cause aortic stenosis,” Dr. Ramlawi opined, “I don’t think anybody can rule it out.” Dr. Ramlawi, however, also testified that because he was not aware of any evidence that employment as a firefighter can aggravate, contribute to, accelerate or cause aortic stenosis, he does not think that it does. He further explained that there is some thought that stress or increased vigorous activity could potentially increase the likelihood that a person would have premature degeneration of a particular valve, but there is no proof that it does.

Meche v. City of Crowley Fire Department, 96-577 (La.App. 3 Cir. 2/12/97), 688 So.2d 697, writ denied, 97-632 (La.4/25/97), 692 So.2d 1088, presented a claim similar to Mr. Olivier’s. There, the firefighter was diagnosed with “sick sinus syndrome,” a condition which required that a pacemaker be implanted. Several doctors testified that the firefighter’s employment did not contribute to his condition but also testified that his condition resulted from an unknown cause. This court concluded that the expert testimony regarding causation of the firefighter’s condition was “equivocal”; therefore, “the employer [had] not sustained its burden of proving by affirmative evidence that Meche’s employment as a fireman could not have contributed to his condition.” Id. at 702.

As explained in McClure and Meche, Dr. Ramlawi’s testimony that he did not think Mr. Olivier’s aortic stenosis was caused by his employment as a firefighter was insufficient to rebut the Heart and Lung Act’s presumption because |7he could not rule out that firefighting contributed to, accelerated, or aggravated the aortic stenosis. Accordingly, we find no error with the WCJ’s determination to this effect.

Did the WCJ err in refusing to reconsider the exception of prescription?

In its third assignment of error, the City urges that the WCJ erred in not reconsidering its exception of prescription when re-urged at trial on the basis that his denial of the exception was the law of the case. Application of the law of the case doctrine is discretionary; it should not be applied if palpable error occurred or an injustice would occur. Arceneaux v. Amstar Corp., 10-2329 (La.7/1/11), 66 So.3d 438.

The City’s writ application on this issue was denied by a panel of this court, which included the writer of this opinion, because the panel found “no error with the trial court’s ruling.” Olivier v. City of Eunice, an unpublished writ bearing docket number 09-1325 (La.App. 3 Cir. 3/2/10). The supreme court thereafter denied the City’s application for supervisory and/or remedial writs. Olivier v. City of Eunice, 10-757 (La.6/4/10). We find no palpable error in our prior ruling on this issue and, therefore, find the law of the case doctrine is applicable. This assignment of error lacks merit.

Reimbursement of Medical Expenses

Mr. Olivier sought to recover and was awarded the percentage of his medical expenses that corresponded to the percentage of premium he paid for health insurance through his wife’s employer. The City complains that this was error.

No statute specifically provides Mr. Olivier with a right of action to recover the medical expenses he seeks. His claim is based indirectly upon La.R.S. 23:1203 and La.R.S. 23:1212 as interpreted by jurisprudence. Section 1203 requires | ^employers to furnish all medical treatment for injured employees subject to the Workers Compensation Act (WCA). Section 1212 provides, in pertinent part:

(A) Except as provided in Subsection B, payment by. any person or entity, other than a direct payment by the employee, a relative or friend of the employee, or by Medicaid or other state medical assistance programs of medical expenses that are owed under this Chapter, shall extinguish the claim against the employer or insurer for those medical expenses. This Section shall not be regarded as a violation of R.S. 23:1163. If the employee or the employee’s spouse actually pays premiums for health insurance, either as direct payments or as itemized deductions from their salaries, then this offset will only apply in the same percentage, if any, that the employer of the employee or the employer of his spouse paid the health insurance premiums.

The City’s defense to Mr. Olivier’s claim for reimbursement is premised upon Section 1212 and La.R.S. 23:1205, which provides health insurers that have paid medical expenses for injured employees a right of reimbursement for 100% of medical expenses against employers responsible for workers’ compensation benefits. La.R.S. 23:1205(B), 1205(C)(2). It argues that it could be required to pay Mr. Olivier $41,056.88 pursuant to the judgment and to reimburse Blue Cross $115,653.17 in medical expenses it paid, which together exceed Mr. Olivier’s total medical expenses. The City further argues that Section 1212 does not provide Mr. Olivier a right to recover these medical expenses.

Jurisprudence predating the enactment of Section 1212 and Section 1205 interpreted La.R.S. 23:1163, which prohibits an employer from requiring an employee to contribute toward the cost of workers’ compensation, as prohibiting an offset or credit for employers against medical expenses paid for by group health insurance which was provided as a fringe benefit to the injured employee or was paid for by the employer of the employee’s spouse. Bryant v. New Orleans Pub. Serv., Inc., 414 So.2d 322 (La.1982); Theriot v. Am. Employees Ins. Co., 482 So.2d 648 (La.App. 3 Cir.1986); Woolsey v. Cotton Bros. Bakery Co., Inc., 535 So.2d 1119 (La.App. 2 Cir.1988), writ denied, 537 So.2d 1168 (La.1989). See also, McKenzie v. City of Bossier City, 585 So.2d 1229 (La.App. 2 Cir.1991). In these cases, the employer sought to offset medical insurance benefits provided by group health insurance against medical expenses due under the WCA.

In Bryant, 414 So.2d 322, the employee also sought reimbursement from his employer for medical benefits paid by his group health insurer. The trial court granted the employer’s request for an offset. The court of appeal reversed the offset, finding that the collateral -source rule applied to workers’ compensation claims, as well as tort claims, and prohibited an offset against an employer’s duty to furnish medical care under the workers’ compensation statute. The supreme court affirmed the court of appeal’s holding on the basis that La.R.S. 23:1163 prohibits an employer from requiring an employee to contribute toward the cost of workers’ compensation.

Three justices dissented in Bryant. Justice Marcus opined that the employee would be permitted to enjoy a double recovery if she recovered medical expenses she did not pay and that neither Section 1163 nor the collateral source rule was applicable to her claim, while Justices Lemmon and Blanche observed that the employer did not collect anything from the claimant to fund its workers’ compensation coverage.

Section 1212 was enacted in 1989 to provide the offset sought by employers but rejected in Bryant, 414 So.2d 322, Theriot, 482 So.2d 648, Woolsey, 535 So.2d 1119, and McKenzie, 585 So.2d 1229. It specifically addressed the supreme court’s finding in Bryant that to allow an offset would be a violation of Section 1163 and provides that it does not.

In Principal Mutual Life Insurance Co. v. Progressive United Corp., 28378 (La.App. 2 Cir. 5/8/96), 674 So.2d 1073, writ denied, 96-1474 (La.9/20/96), 679 So.2d 436, a health insurer sought to have Section 1205 applied retroactively to recover medical expenses it paid for an employee injured in the course and scope of his employment. The court refused to apply the statute retroactively because it made substantive changes to the WCA. Although the employee had not made a claim for reimbursement of medical expenses, the court stated in dicta that the employee “retained the right to claim from his employer a percentage of the medical expenses that were paid by [his health insurer], equal to the percentage of [his] direct monetary contribution toward the group health insurance premiums.” Id. at 1075.

In Parfait v. Gulf Island Fabrication, Inc., 97-2104 (La.App. 1 Cir. 1/6/99), 733 So.2d 11, the employer sought a credit under La.R.S. 23:1212. The court awarded only a portion of the credit sought. As provided in Section 1212, the court denied a credit as to the portion of medical expenses paid by the health insurer that corresponded to premiums paid by the employee or his spouse. As in Principal, the employee had not made a claim for reimbursement of medical expenses. The court, however, stated in dicta that because the employee had paid a portion of the premiums for his group health insurance, he retained the right to be reimbursed by his employer for medical expenses that were paid by his health insurer “equal to the percentage of [his] contributions toward the group health insurance premiums,” as well as medical expenses that were not paid by his health insurer. Id. at 23. The court noted that the employer’s Section 23:1203 medical expense obligation to the employee had not been offset or extinguished pursuant to Section 1212. Id.

InNeither Principal nor Parfait is authority for the WCJ’s award, as an employee’s right to recover medical expenses paid by his health insurer was not at issue in either case and Section 1212 specifically limits the credit in favor of an employer to the percentage of medical expenses that correlates to the percentage of premium not paid by the employee or his spouse’s employer. Bryant, 414 So.2d 322, Theriot, 482 So.2d 648, Woolsey, 535 So.2d 1119, and McKenzie, 585 So.2d 1229, are not authority for the WCJ’s award, as they predated the enactment of Sections 1205 and 1212.

The exact issue presented here has not been addressed, but the claims of insurers under Section 23:1205(B) were addressed in Chailland Business Consultants v. Duplantis, 03-2508, 03-2509 (La.App. 1 Cir. 10/29/04), 897 So.2d 117, writ denied, 04-2922 (La.2/4/05), 893 So.2d 878, and in Ryan v. Blount Bros. Construction, Inc., 40,845 (La.App. 2 Cir. 4/19/06), 927 So.2d 1242, writ denied, 06-1219 (La.9/15/06), 936 So.2d 1272. Although not directly on point, they provide some guidance to the resolution of this issue. Health insurers sought to recover 100% of the health insurance benefits they paid on behalf of injured workers from the workers’ employers or their workers’ compensation insurers. Without success, the employers argued that pursuant to Section 1212(B), payment by anyone other than an employee or on the employee’s behalf by someone designated in the provision extinguished the health insurers’ claims against them.

The courts awarded recovery to the insurers as requested because Section 1205 was enacted after Section 1212 was enacted and because Section 1205 specifically provides that a health insurer is entitled to be reimbursed 100% of the benefits it paid. Additionally, the courts noted that the legislative history of Section 1212 indicates that it was enacted to prevent windfall recovery by | ^employees when an employer and a health insurer paid the same medical expenses and held that Section 1205(B) was a specific exception to the general rule provided in Section 1212.

The purpose of the WCA, the history of Sections 1205 and 1212, and the legislature’s enactment of Section 1205 after jurisprudence awarded or indicated workers’ compensation claimants had a right to be paid medical expenses they did not pay lead us to conclude that the legislature did not intend for workers’ compensation claimants to recover medical expenses they did not pay. Recent supreme court decisions in Cutsinger v. Redfern, 08-2607 (La.5/22/09), 12 So.3d 945, and Bellard v. American Central Insurance Co., 07-1335, 07-1399 (La.4/18/08), 980 So.2d 654, reinforce that conclusion.

In Bellard, the supreme court determined that an uninsured motorist (UM) insurer was entitled to credit for medical and disability wage benefits paid on behalf of the plaintiff, an injured employee, by her employer’s workers’ compensation insurer. The UM insurance was purchased by the employer. In Cutsinger, although the employee purchased the UM insurance herself, the supreme court reached the same conclusion. The court’s holdings in these cases were premised on its determination that the collateral source doctrine did not apply; therefore, the employee was not entitled to recover medical and disability wage benefits already paid by her employer.

In each case, the supreme court began with an analysis to determine whether the UM insurer and the workers’ compensation insurer were solidary obligors, as provided in La.Civ.Code art. 1794, because performance by one solidary obligor satisfies any other solidary obligor’s liability to the obligee. La.Civ.Code art. 1794. The court identified three factors required for a solidary obligation: “the | ^obligors (1) are obliged to the same thing, (2) so that each may be compelled for the whole, and (3) when payment by one exonerates the other from liability toward the creditor.” Bellard, 980 So.2d at 663-64. See also Cutsinger. The UM insurers and the workers’ compensation insurers in Bellard and Cutsinger were determined to be soli-dary obligors because under their insuring agreements and the law, they shared coextensive obligations to reimburse the employee/tort victim for lost wages and medical expenses which resulted from the tortfeasors’ behavior.

As the supreme court did in Bellard and Cutsinger, we now consider whether the City and Blue Cross are soli-dary obligors. With regard to the first element of solidarity, the City’s and Blue Cross’s insuring agreements are not in the record. Nevertheless, under the terms of Sections 1203 and 2505(C)(1), the City and Blue Cross are both obligated to provide Mr. Olivier his medical expenses for the treatment of his heart condition.

In Bellard and Cutsinger, the obligations of UM insurers and workers’ compensation insurers were at issue, and to the extent that their obligations to the plaintiff employees overlapped, they were found to be obliged for the same thing. The obligations of health insurers and employers or workers’ compensation insurers are similar to, but not the same as, those of UM insurers and workers’ compensation insurers. The central purpose of workers’ compensation insurance and health insurance is protection of an injured or ill person. The WCA protects the person when his injury or illness is related to his employment. Health 114insurance protects the person in all situations when he is injured or ill. For these reasons, we find the City and Blue Cross are obliged for the same thing.

Next, we consider whether the City and Blue Cross can each “be compelled for the whole of their common liability.” Bellard, 980 So.2d at 665. Neither the City nor Blue Cross can plead the benefit of division as if it were alone; therefore, “each may be compelled for the whole of their common liability.” Id. “[Obligations may be solidary even though the debtors are bound differently from each other, and even if their obligations are subject to different terms and conditions.” Bellard, 980 So.2d at 666 (citing La.Civ.Code arts. 1791, 1798). Therefore, although the City’s liability is set forth by law, Blue Cross’s liability is set forth by the terms of its policy and the law, and both are not liable for 100% of Mr. Olivier’s medical expenses, they can be solidary obligors.

Lastly, payment of Mr. Olivier’s medical expenses by either the City or Blue Cross exonerates the other as to their common liability to Mr. Olivier’s health care creditors. Accordingly, we conclude that the City and Blue Cross are solidary obligors.

In Cutsinger, 12 So.3d at 952, the supreme court concluded as it had previously in Bellard and in Fertitta v. Allstate Insurance Co., 462 So.2d 159 (La.1985), that “the collateral source rule does not apply to override the principles of solidarity expressly provided by our Civil Code.” The fact that the plaintiff had paid for her UM insurance, but the plaintiffs in Bellard and Fertitta had not, did not result in a different conclusion.

Important considerations concerning the collateral source rule noted by the supreme court in Cutsinger are applicable here. The purpose of the collateral source rule is to deter tortious behavior by preventing tortfeasors from benefitting 11sfrom victims’ receipt of monies from independent sources. The plaintiff did not suffer a diminution in her patrimony because workers’ compensation benefits were available to her; therefore, the court concluded that the plaintiff would “receive a windfall or double recovery of lost wages and medical benefits if the collateral source rule [was] applied to” deny the UM insurer a credit for the medical expenses already paid by the workers’ compensation carrier. Id. at 954. The court continued and explained:

[W]e cannot say that [the plaintiff] paid for uninsured motorist coverage to compensate her for benefits such as lost wages and medical payments previously paid by her employer’s workers’ compensation insurer or that applying the collateral source rule and disallowing the credit would not result in a windfall or double recovery. That is because the uninsured motorist policy she purchased contained language specifying that any amount payable under uninsured motorist coverage shall be reduced by any amount paid under workers’ compensation benefits. Consequently, when she paid the premium for the uninsured motorist coverage, she did not pay for it to cover benefits paid by the workers’ compensation insurer.

Id. at 954-55.

While the converse of the situation in Cutsinger is presented here, i.e., the health insurer paid the employee’s medical expenses, the logic remains applicable. The City is legally obligated to pay 100% of Mr. Olivier’s medical expenses related to injuries. or illness resulting from his employment, and Blue Cross has a right to be reimbursed by the City for 100% of the benefits it paid. La.R.S. 23:1205(B), 1205(C)(2). Accordingly, Mr. Olivier did not pay for health insurance to cover workers’ compensation benefits owed to him by the City. ■

For the following reasons, we find as the supreme court did in Cutsinger, Bellard, and Fertitta, that the collateral source rule does not apply here. First, the purpose of the rule, tort deterrence, is not furthered by application here, as no tort occurred. Second, Section 1212 was enacted, at least in part, to prevent the | ¶(¡windfall recovery of medical expenses by employees when the same medical expenses were paid their employers and their health insurers. Chailland, 897 So.2d 117. Third, Section 1205 provides health insurers a right of 100% reimbursement against employers and their workers’ compensation insurers for medical expenses they paid for employees that are the responsibility of the employers or their workers’ compensation insurers. Fourth, employees are entitled to penalties and attorney fees when employers or workers’ compensation insurers do not pay covered medical expenses. Fifth, “[t]he purpose of the [WCA] was to create a compromise in which both employees and employers surrender certain advantages in exchange for others which are more valuable to both parties and society,” Deshotel v. Guichard Operating Co., Inc., 03-3511, p. 7 (La.12/17/04), 916 So.2d 72, 76-77, and to make an employer pay an employee a percentage of medical expenses paid by his health insurer when the insurer has a right to 100% reimbursement of all medical expenses it paid, resulting in the employer paying more than the employees total medical expenses, is contrary to the purpose of the WCA!

For these reasons, we conclude the WCJ’s award of $41,056.88, 35.5% of the medical expenses already paid by Blue Cross, was error, and it is reversed.

Attorney Fees

Mr. Olivier answered the City’s appeal, seeking an increase in the amount of attorney fees awarded by the WCJ and an award of attorney fees for work performed by his attorney on appeal.

First, Mr. Olivier urges that the award of $120.00 per hour for work performed before the WCJ should be increased to $200.00 per hour. He seeks to increase the WCJ’s award from $12,600.00 to $21,000.00. The WCJ was in a [17better position than this court to assess both the time and the quality of counsel’s work in this case, as compared with other cases, and we find he did not abuse his discretion in awarding $12,600.00. Accordingly, we will not disturb the award. See Evergreen Presbyterian Ministries v. Wallace, 07-313 (La.App. 3 Cir. 10/10/07), 968 So.2d 256. We award $3,500.00 in attorney .fees for work performed on appeal.

DISPOSITION

For the reasons discussed herein, the WCJ’s award of $41,056.88 to Mr. Olivier is reversed; the remainder of judgment is affirmed. Mr. Olivier is awarded $3,500.00 in attorney fees for work performed on appeal. Costs of $873.50 are assessed 75% to the City of Eunice and 25% to Mr. Olivier.

REVERSED IN PART; AFFIRMED IN PART; AND RENDERED.

COOKS, J., agrees in part and dissents in part and assigns written reasons.

COOKS, J., agrees in part and dissents in part.

hThe majority’s decision reversing the medical expense award represents a fundamental departure from and misunderstanding of the Supreme Court’s prior rulings.

      . Louisiana Revised Statutes 23:1205(C)(1) provides, in pertinent part:
      In the event that the workers' compensation payor has denied that the employee’s injury is compensable under this Chapter, then any health insurer which contracts to provide health care benefits for an employee shall be responsible for the payment of all medical benefits pursuant to the terms of the health insurer's policy.


source: Caselaw Access Project

author: KEATY, Judge. AMY, J.,

license: Public Domain

text:
    Lynton O. HESTER, IV v. BURNS BUILDERS, et al.
    No. 11-1537.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2012.
    Lauren Gay Coleman, Attorney at Law, Alexandria, LA, for Plaintiff/Appellant, Lynton O. Hester, IV.

      Wade T. Visconte, All American Law Firm of Louisiana, LLC, Shreveport, LA, for Defendant/Appellee, Malcolm Burns d/b/a Burns Builders.
    Karl H. Schmid, Sidney W. Degan, III, Degan, Blanchard & Nash, New Orleans, LA, for Defendant/Appellee, Gemini Insurance Company.
    David Moragas, Richard E. King, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, LA, for Defendant/Appellee, Zurich North America.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, BILLY HOWARD EZELL, J. DAVID PAINTER, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

_JjThe parties entered into a contract for the construction of a new home. Contending that the quality of the defendant’s work was sub-par, the plaintiff refused to issue a scheduled progress payment. The defendant allegedly did not fix the defective construction. The plaintiff filed suit after the parties failed to resolve their dispute, seeking damages for the alleged shoddy construction among other remedies. The defendant filed a reconventional demand, seeking payment of sums he alleged were due under the contract and subsequently filed a motion for summary judgment, seeking dismissal of the plaintiffs claims and judgment in his favor on the reconventional demand. The trial court granted the defendant’s motion for summary judgment, and the plaintiff now appeals. For the following reasons, we reverse the trial court’s grant of summary judgment and remand the matter for further proceedings consistent with this opinion.

Factual and Procedural Background

According to the record, in December of 2005, the plaintiff, Lynton 0. Hester, IV (Hester), entered into a contract with the defendant, Malcolm L. Burns d/b/a Burns Builders (Burns), for the construction of a new home in Rapides Parish. The contract price was initially $303,287.00. However, an addendum signed in January of 2006 increased the contract price to $322,287.00. The financing of the home was closed in March 2006, and construction began shortly thereafter. The contract between the parties called for progress payments (or draws) to be made when the construction reached various stages of completion and conditioned payment upon “substantial completion” of those phases. On March 16, 2006, the first payment was made by Hester in the amount of $18,447.46. The second payment in the amount of $96,686.10 was made on April 20, 2006, and the third payment in the amount of $88,000.00 was made on June 22, 2006. Thereafter, tissues arose between Hester and Burns concerning the workmanship of the trim portion of the construction. Burns contends that when the trim stage was completed, Hester refused to tender the progress payment for that stage of construction. Hester contends that because there were issues with the workmanship, he hired an expert, Philip Beard (Beard), to conduct an inspection of the residence and, based on Beard’s report, refused to authorize further payment to Burns. Burns refused to do any further work. According to the briefs, the parties were unable to reach any agreement concerning correction of the alleged defects.

Hester then filed the instant suit alleging breach of contract, defects in construction, and general damages for cost and injuries that resulted from delay in completion of the home. Burns filed an answer and reconventional demand, seeking sums that he alleged were due under the terms of the contract. Hester filed an answer to the reeonventional demand, denying that additional sums were due. Burns filed a motion for summary judgment, alleging he was entitled to judgment dismissing Hester’s claims and granting Burns’ relief as a matter of law because there was no genuine issue of material fact. After a hearing, the trial court granted judgment in favor of Burns on his reeonventional demand in the amount of $96,686.10 with eighteen percent judicial interest, pursuant to the terms of the contract. It dismissed Hester’s claims against Burns. Hester appeals, asserting that:

1. The trial court erred in granting Summary Judgment in favor of Burns Builders and dismissing the claims of the Appellant for breach of contract.
2. The trial court erred in granting Judgment in favor of Burns Builders and awarding him $96,686.10 representing sums it determined to be due under the contract.

|sDiscussion

In Wright v. Louisiana Power & Light, 06-1181, p. 16 (La.3/9/07), 951 So.2d 1058, 1069 (quoting Babin v. Winn-Dixie Louisiana, Inc., 00-78 (La.6/30/00), 764 So.2d 37), the supreme court discussed the standard for granting a motion for summary judgment, stating:

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.C.C.P. art. 966(B).

Appellate courts review summary judgments de novo. Supreme Servs. & Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827 (La.5/22/07), 958 So.2d 634. In that review, we must determine whether “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B).

Hester’s assignments of error address the trial court’s grant of summary judgment. Hester contends that his expert’s report on construction defects creates genuine issues of material fact remaining that would defeat Burns’ motion for summary judgment. We agree.

The parties entered into a written contract to build before construction began. Generally, a contract has the effect of law between the parties. Paddison Builders, Inc. v. Turncliff, 95-1753 (La.App. 1 Cir. 4/4/96), 672 So.2d 1133, writ denied, 96-1675 (La.10/4/96), 679 So.2d 1386. When a contract is clear, unambiguous, and does not lead to absurd consequences, the court should not infer beyond the written agreement to gather the parties’ true intentions. Lyons v. Coleman, 31,866 (La.App. 2 Cir. 5/5/99), 743 So.2d 213. In the contract to build between Hester and Burns, paragraph five allows the plaintiff to withhold funds if |4the work performed by the builder is defective and not remedied. Paragraph ten requires the builder to fix any and all defects. Hester’s expert signed an affidavit outlining numerous construction defects. Burns did not submit evidence showing that he fixed the defects. Pursuant to the contract, only when the alleged defects are fixed does plaintiff have a duty to pay the builder.

Burns filed a reeonventional demand asserting that payment was owed pursuant to the contract. In order for Burns to succeed on his claim, he would have to prove that payment was owed. Under paragraphs five and ten, Hester had the right to withhold payment if he believed the construction was defective. Whether there were defects is a question of fact for the trial court to determine. The scope of damages is another determination for the fact finder. If there were no defects, Burns would be entitled to payment. Hester’s assertion that there were damages presents a question of material fact that should have been addressed by the trial court. Accordingly, summary judgment was inappropriate.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed, and the matter is remanded for further proceedings consistent with this opinion. Costs of this appeal are assessed to defendant/ap-pellee, Malcolm Burns d/b/a Burns Builders.

REVERSED AND REMANDED.

AMY, J., dissents and assigns written reasons.

AMY, J.,

dissenting.

|tI respectfully dissent from the majority’s opinion in this case, as I would affirm the trial court’s grant of summary judgment.

Louisiana Code of Civil Procedure Article 966(C)(2) addresses the burden of proof in a motion for summary judgment. Per Article 966(C)(2), “[t]he burden of proof remains with the movant.” However, if the movant is not the party who will bear the burden of proof at trial, the movant must only “point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim.... Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” Id. See Wright v. La. Power & Light, 06-1181 (La.3/9/07), 951 So.2d 1058.

Hester’s suit alleged both breach of contract and defective workmanship claims. In order to succeed on these claims, Hester had to prove his damages. See, e.g., Maxwell v. Cayse, 10-680, p. 3 (La.App. 3 Cir. 12/8/10), 54 So.3d 118, 121 (Stating, in a breach of contract case, “[t]o establish a contractor’s liability for damages due to defective workmanship, the owner must prove: (1) the existence and nature of the defects; (2) that the defects are due to faulty materials or workmanship; and (3) the cost of repairing the defects.”).

The record indicates that Hester submitted evidence that creates a genuine issue of material fact with regard to the existence of construction defects. | gSpecifically, Hester submitted an expert’s report that indicates that are several architectural and structural defects, including garage settlement, problems with several windows and a handrail, and walls that are not straight. Burns did not submit any evidence that would contradict the expert’s conclusions that architectural and structural defects existed. Further, the record indicates that Burns replaced some of the drywall that Hester considered defective, indicating that Burns attempted to remedy at least some of the alleged defects.

However, the record reveals that Hester did not submit any evidence establishing the cost of completion or correction of the alleged defects. After Burns pointed out the lack of factual support for that element, the burden of proof then shifted to Hester to show that he would be able to meet his burden at trial. In my view, the record indicates that he failed to do so. Of particular note, Hester admitted that he had not contacted any other contractors about repairing the alleged construction defects and/or completing the project, nor had he obtained any bids or estimates concerning the cost of repair or completion. Further, in addition to damages, Hester requested specific performance. However, the record indicates that the property was sold at foreclosure, thus, at a minimum, abrogating the possibility of specific performance in this case.

Further, I find no error with regard to the trial court’s grant of summary judgment on Burns’ reconventional demand for the payments due under the contract. In my view, Hester failed to rebut Burns’ evidence showing that the “trim” stage of construction was complete and that, therefore, Burns was entitled to the third draw payment. My review of the record reveals that Burns submitted evidence indicating that the “trim” stage of construction was complete, including documents and a deposition from Hester’s bank to that effect.

Hester contends that Burns had been slightly overpaid, and that, therefore, Burns was not entitled to any additional payments. In support of that contention, |RHester submitted evidence indicating that construction was 72% complete and that Burns had been paid slightly more than 72% of the contract price. However, the contract specifies that “[pjrogress payments will be made in the following amounts on the following Completions schedule.” The “Completions schedule” lists four “completed tasks,” including “Completion.of Trim,” and an “Amount to be Paid” upon completion of the associated stage.' Thus, pursuant to the contract, Burns’ payments are not pegged to the percentage of construction completed, but are tied to the completion of discrete stages under the contract.

Accordingly, in my view, Burns demonstrated his entitlement to summary judgment dismissing Hester’s claims and awarding him the third draw payment due under the contract. See Wright, 951 So.2d 1058.

For these reasons, I dissent.


author: PETERS, J.

text:
    James BERGERON v. LIBERTY MUTUAL INSURANCE CO.
    No. CA 12-86.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2012.

      Harry Karl Burdette, Lafayette, LA, for Plaintiff/Appellant, James Bergeron.
    Judy Y. Barrasso, Edward R. Wicker, Jr., Kristin L. Beckman, Barrasso, Usdin, Kupperman, Freeman & Sarver, L.L.C., New Orleans, LA, for Defendant/Appellee, Liberty Mutual Insurance Company.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   PETERS, J.

hThe plaintiff, James Bergeron, appeals the trial court’s grant of summary judgment in favor of the defendant, Liberty Mutual Insurance Company, dismissing his claims against the insurer because its policy at issue did not provide underin-sured/uninsured motorist (UM) coverage for the vehicle involved in the accident sued upon. For the following reasons, we affirm.

DISCUSSION OF THE RECORD

On December 21, 2004, Mr. Bergeron was proceeding westward on Highway 14 in Abbeville, Louisiana, in a 2003 Ford Crown Victoria furnished to him by his employer, Murphy Oil USA, Inc. (Murphy Oil), and insured by Liberty Mutual Insurance Company (Liberty Mutual). While stopped at a red light, his vehicle was struck from behind by a vehicle driven by Barbara Montet. Mr. Bergeron sustained personal injuries as a result of the accident.

On January 19, 2005, Mr. Bergeron and his wife, Angela Bergeron, filed a petition to recover the damages they sustained in the accident. In their suit, they named as defendants Barbara S. Montet and her husband, Leo Montet; the Montet’s liability insurer, State Farm Insurance Company (State Farm); Murphy Oil; and Liberty Mutual in its capacity as the UM coverage carrier for the vehicle Mr. Ber-geron was driving at the time of the accident.

The issue now before us arises from an October 27, 2010 motion for summary-judgment filed by Liberty Mutual wherein it asserted that the policy it issued to Murphy Oil did not provide UM coverage. By this time, Liberty Mutual was the only defendant remaining in the litigation. Following an August 29, 2011 shearing, the trial court rendered judgment granting Liberty Mutual’s motion for summary judgment and dismissing the insurer from the litigation.

In his appeal, Mr. Bergeron asserts seven assignments of error addressing the correctness of the trial court’s determination that the Liberty Mutual policy did not provide for UM coverage for the December 21, 2004 accident.

OPINION

The motion for summary judgment is a procedural device whose purpose is to avoid a full-scale trial when there is no genuine issue of material fact. Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963). Summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except certain domestic actions; the procedure is favored and shall be construed to accomplish those ends. La.Code Civ.P. art. 966(A)(2); Racine v. Moon’s Towing, 01-2837 (La.5/14/02), 817 So.2d 21. The burden of proof on the motion for summary judgment remains with the movant. La. Code Civ.P. art. 966(C)(2).

However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

La.Code Civ.P. art. 966(C)(2). The motion for summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). Appellate review of a summary judgment is de novo, applying the | Ssame standard as the trial court. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730.

UM insurance is provided for by a statute, La.R.S. 22:1295, that embodies a strong public policy to give full recovery for the automobile accident victims. Tugwell v. State Farm Ins. Co., 609 So.2d 195 (La.1992). “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.” Duncan v. U.S.A.A. Ins. Co., 06-363, p. 4 (La.11/29/06), 950 So.2d 544, 547.

Our supreme court has held that the UM statute must be liberally construed, which requires a strict interpretation of the statute’s exceptions to coverage. Duncan, 950 So.2d 544. The insurer bears the burden of proving that the insured rejected the UM coverage or selected a lower limit. Id. UM coverage may be rejected “only on a form prescribed by the commissioner of insurance.” La.R.S. 22:1295(l)(a)(ii). The form the commissioner of insurance has prescribed involves specific tasks, all of which are related to the rejection of UM coverage:

The insured initials the selection or rejection chosen to indicate that the decision was made by the insured. If lower limits are selected, then the lower limits are entered on the form to denote the exact limits. The insured or the legal representative signs the form evidencing the intent to waive UM coverage and includes his or her printed name to identify the signature. Moreover, the insured dates the form to determine the effective date of the UM waiver. Likewise, the form includes the policy number to demonstrate which policy it refers to.

Duncan, 950 So.2d at 552. 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.

The issue before the court in this matter relates to the authority of the individual who executed the rejection form on behalf of Murphy Oil. Mr. LBergeron argues that Murphy Oil’s rejection is invalid because there is no evidence that the Murphy Oil employee who executed the rejection form for Murphy Oil, John W. Dumas, had specific written authority to sign the UM rejection form on its behalf.

In support of its motion for summary judgment, Liberty Mutual introduced two affidavits: one executed by Mr. Dumas, Murphy Oil’s Director of Corporate Insurance; and one executed by Walter K. Compton, Murphy Oil’s Vice President and General Counsel. In his affidavit Mr. Dumas stated that he had held his position with Murphy Oil since October 1998, and that in 2001, he was a legal representative of Murphy Oil authorized to accept or reject UM coverage on behalf of his employer. He further stated in his affidavit that it was his practice and policy to sign UM rejection forms only after they had been completed, and that he would not have signed a blank, inaccurate, or incomplete UM rejection form. Mr. Compton stated in his affidavit that in 2001, he was Murphy Oil’s Corporate Secretary and Mr. Dumas had corporate authority to make insurance decisions for Murphy Oil. Liberty Mutual also introduced Mr. Dumas’ deposition, taken on June 17, 2011, in which Mr. Dumas was questioned about the UM form and his authority to reject UM coverage.

Mr. Bergeron relies on this court’s decision in Holloway v. Shelter Mutual Insurance Co., 03-896 (La.App. 3 Cir. 12/10/03), 861 So.2d 763, writ denied, 04-87 (La.3/19/04), 869 So.2d 854, to assert that the UM rejection form was not properly completed because there was no written authorization from Murphy Oil giving Mr. Dumas the authority to reject UM coverage for the corporation. In Holloway, the insured’s mother had executed the insurance documents on her son’s behalf, including signing the form rejecting UM motorist coverage. The insured was deceased, and the insurer submitted affidavits from the insured’s mother and the | ¡¡insurance agent who wrote the policy, asserting that she had the insured’s authorization to reject UM coverage on his behalf. This court held that the insured’s mother was not acting as a “legal representative” within the meaning of La.R.S. 22:1406(D)(l)(a) because the authority of representation was not conferred in writing. However, we find that Holloway is distinguishable from the facts in this case, because here the insured is a corporation and the person who signed the form rejecting UM coverage is an employee of that corporation who has the authority to accept or reject insurance coverage for it. A corporation acts only through its officers, employees, and other agents. Kevin Associates, L.L.C. v. Crawford, 08-211 (La.1/30/04), 865 So.2d 34. In Harper v. Direct General Insurance Company, OS-2874, (La.2/13/09), 2 So.3d 418, and Banquer v. Guidroz, 09-466 (La.5/15/09), 8 So.3d 559, our supreme court recognized that when a corporation is rejecting UM coverage, the requirement that the insured or the insured’s legal representative sign the form is met when an officer or employee of the corporation who has the authority to reject UM coverage signs the form. Mr. Bergeron attempts to distinguish Harper and Banquer by asserting that in those cases the court did not explicitly reach the question of whether the corporation’s authorization for an officer or employee to waive UM coverage must be in writing. We reject this distinction; in this case, as in Harper and Banquer, the issue is whether the person who signed the form was authorized by the corporation to reject UM coverage.

DISPOSITION

For the foregoing reasons, we affirm the trial court judgment. We assess all costs of this appeal to the plaintiff, James Ber-geron.

AFFIRMED.

      . It appears that Angela Bergeron died while this lawsuit was pending. Accordingly, we refer to Mr. Bergeron as the sole plaintiff throughout the opinion.

      . The Bergerons settled their claims against the Montets and State Farm, and those defendants were dismissed from the litigation on March 9, 2006. Additionally, after significant litigation at the trial level which need not be considered to resolve the issue now before us, the trial court executed an order on August 30, 2010, dismissing Murphy Oil as a party defendant.


text:
    George R. HARRIS v. TWIN CITY ELECTRIC, LLC.
    No. 12-88.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2012.

      Joseph J. Bailey, Provosty, Sadler, de-Launay, Fiorenza & Sobel, Alexandria, LA, for Plaintiff-Appellee, George R. Harris.

      Michael D. Bass, Guglielmo, Lopez, Tuttle, Hunter & Jarrell, LLP, Opelousas, LA, for Defendant-Appellant, Twin City Electric, LLC.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   PICKETT, Judge.

hThe appellant, Twin City Electric, LLC, appeals a judgment of the workers’ compensation judge (WCJ) awarding their former employee, George Harris, temporary total disability benefits, penalties, and attorney fees. Harris answers the appeal seeking additional attorney fees for work done on appeal.

STATEMENT OF THE CASE

Harris filed a disputed claim for compensation alleging he was injured while working for Twin City at Fort Polk on December 7, 2009. He claims that while bending electrical conduit with a hand bender he felt a pop in his back. Since that date, he has suffered pain in his lower back radiating down his left leg. Harris continued to work for Twin City until February 3, 2010, when he was laid off one day after telling Twin City that he was receiving treatment from Dr. Troy Vaughn for the back injury.

Twin City initially denied an accident occurred. Twin City also attempted to show that Harris had lied in an attempt to fraudulently obtain workers’ compensation benefits, in violation of La.R.S. 23:1208, by denying that he ever had previous back pain similar to the pain he claims was caused by the on-the job injury. Twin City further alleged that Harris lied when filling out a Second Injury Fund Questionnaire by failing to disclose previous back injuries or a diagnosis of arthritis, thus forfeiting benefits pursuant to La.R.S. 23:1208.1.

Following trial, the WCJ found that Harris was entitled to medical benefits and temporary total disability (TTD) benefits. The WCJ also found that Twin City failed to reasonably controvert Harris’ claims and awarded Harris penalties of $2,000.00 or twelve percent of the unpaid benefits, up to $8,000.00, and $18,000.00 in attorney fees. Twin City appeals that judgment. Harris has answered the appeal.

| ASSIGNMENTS OF ERROR

Twin City asserts five assignments of error:

1. The trial court committed manifest error in finding that Harris did not forfeit his workers’ compensation benefits by violating § 1208 of the Louisiana Workers’ Compensation Act.

2. The trial court committed manifest error in finding that Harris did not forfeit his workers’ compensation benefits by violating § 1208.1 of the Louisiana Workers’ Compensation Act.

3. Alternatively, the trial court committed manifest error in finding that Harris is temporarily totally disabled and in awarding him temporary total disability payments.

4. Alternatively, the trial court committed manifest error in finding that Harris is entitled to medical benefits without reduction under the fee schedule.

5. The trial court committed manifest error in finding that Twin City did not reasonably controvert Harris’ claim and in ordering Twin City to pay penalties and attorney fees.

DISCUSSION

In its first assignment of error, Twin City claims that Harris forfeited his benefits by making false statements to receive workers’ compensation benefits in violation of La.R.S. 23:1208. Twin City specifically alleges that Harris denied ever having lower back pain radiating into his leg before the December 7, 2009 accident at work, when in fact his medical records show a twenty-year history of similar pain, dating back to an automobile accident in 1989. Twin City also introduced hospital records indicating that Harris overextended himself during “unusual activities with his fiancée” following a class reunion in 2003. Those records show Harris complained of severe pain in his lower back radiating down to his leg. He received one pain pill and was back at work the next Monday.

The WCJ found these incidents were inconsequential and should not result in a forfeiture of benefits pursuant to La.R.S. 23.1208. In Douglas v. Grey Wolf Drilling Co., 03-515, p. 9 (La.App. 3 Cir. 11/5/03), 858 So.2d 830, 836 (citation omitted), we stated that “because statutory forfeiture is a harsh remedy, it must be strictly construed. Whether an employee has forfeited his right to workers’ compensation benefits is a question of fact that will not be disturbed on appeal absent manifest error.”

The WCJ found no willful intent to deceive on the part of Mr. Harris in his testimony. He informed his doctors of his medical history. His previous injuries did not cause the same long-term injuries which required ongoing treatment that this workplace injury required. After reviewing the record, we find there is sufficient evidence to support the WCJ’s findings and credibility determinations. This assignment of error lacks merit.

In its second assignment of error, Twin City argues that Harris forfeited benefits because he lied on a pre-employment Second Injury Fund Questionnaire regarding his previous injuries. They also claim he should have admitted on the form that he had been diagnosed with arthritis by a chiropractor in 1989.

In Nabors Drilling USA v. Davis, 03-0136, pp. 5-7 (La.10/21/03), 857 So.2d 407, 414-15, the supreme court explained:

Forfeiture is a harsh remedy; therefore, statutory forfeiture provisions such as LSA-R.S. 23:1208.1 must be strictly construed. Wise v. J.E. Merit Constructors, Inc., 97-0684 (La.1/21/98), 707 So.2d 1214, 1218. By its express terms, LSA-R.S. 23:1208.1 provides for forfeiture under three circumstances. There must be (1) an untruthful statement; (2) prejudice to the employer; and (3) compliance with the notice requirements of the statute. Id, citing Resweber v. Haroil Const. Co., 94-2708, 94-3138 (La.9/5/95), 660 So.2d 7. The employer has the burden of proving each of the elements required by the statute. Wise, 707 So.2d at 1218. The lack of any one of the elements is fatal to the employer’s avoidance of liability under the statute. Id.
The “prejudice” that must be incurred by the employer for forfeiture to apply is specifically defined by the statute. The untruthful statement must “directly relate[] to the medical condition for which a claim for benefits is made,” or it must “affect[ ] the |4employer’s ability to receive reimbursement from the second injury fund.” LSA-R.S. 23:1208.1.

We will not overturn the factual findings of the WCJ in a forfeiture case in the absence of manifest error. Chaisson v. Philip Servs. Corp., 05-340 (La.App. 3 Cir. 11/2/05), 917 So.2d 514.

In this ease, the WCJ found that the previous injuries to Harris’ back were not as severe as the injury at issue in this case and did not require Harris to miss work or receive long-term treatment. The WCJ also found that while Harris claimed he was diagnosed with arthritis, the medical records introduced at trial do not actually indicate that Harris had ever been diagnosed with arthritis. We find that the evidence supports the WCJ’s conclusion that Harris did not intentionally misinform Twin City on the questionnaire and that he passed pre-employment physicals. The WCJ essentially found that Harris did not have a pre-existing condition that he was required to report or that would prejudice his employer. This finding is supported by the evidence, and this assignment of error lacks merit.

In its third assignment of error, Twin City argues that the trial court erred in awarding Harris TTD benefits because Harris applied for and received unemployment compensation benefits. Twin City argues that when receiving workers’ compensation benefits, the employee must certify that he is capable of working, and if he is capable of working he should not receive TTD benefits.

Again, we find no manifest error in the WCJ’s determination that Harris was entitled to TTD benefits. His doctor testified that he should not work until his condition improved. The WCJ properly determined that Twin City did not have to pay benefits for the period of time that Harris received unemployment compensation, from February 20 through December 27, 2010.

|sIn the alternative, Twin City argues that Harris should have been awarded supplemental earnings benefits (SEBs) instead of TTD benefits. The WCJ determined that while Harris thought he could return to a light-duty position such as a salesperson or substitute teacher, Dr. Vaughn disagreed. The record supports the judgment of the WCJ.

In its fourth assignment of error, Twin City claims the medical benefits awarded to Harris should be decreased pursuant to the workers’ compensation fee schedule. The discussion of this assignment of error does not mention the fee schedule. Instead, Twin City argues that Harris did not prove a workplace injury occurred. Thus, we will consider the fee schedule issue abandoned. Uniform Rules—Courts of Appeal, Rule 2-12.4.

Instead, Twin City makes a cursory argument that there was insufficient evidence that the back problems Harris suffers from are related to his workplace injury. His medical records support a finding that he intermittently had back pain before the accident over twenty years before December 7, 2009, but that his pain was more consistent after the workplace accident. We find no manifest error in the WCJ’s finding relating the back injury to a workplace accident and awarding benefits.

Finally, Twin City argues that it reasonably controverted Harris’ claim, and the WCJ erred by awarding penalties and attorney fees. A WCJ’s decision to cast an employer with penalties and attorney fees is a question of fact which will not be reversed on appeal absent manifest error. Ashworth v. Administaff, Inc., 10-318 (La.App. 3 Cir. 10/6/10), 48 So.3d 1178. The WCJ found that Twin City failed to pay any medical benefits or compensation benefits, and that their efforts to dispute the claims were frivolous. While Harris did not immediately tell his employer that he had been hurt at work, when he did inform Twin City, its investigation was Rcursory at best. For a while, Twin City claimed that none of the witnesses who came forward were in the same room with Harris at the barracks when they claim they saw him hurt himself. In fact, there were no walls in the barracks at the time, so everyone could see the entire interior through the studs that separated the rooms. The WCJ found Twin City’s fraud defenses frivolous. We find no manifest error in the award of penalties and attorney fees.

Harris answers the appeal and seeks additional attorney fees for work done on appeal. Because he has successfully defended the Twin City’s appeal, we award an additional $4,000.00 in attorney fees.

CONCLUSION

The judgment of the trial court is affirmed in all respects. We order Twin City to pay Harris $4,000.00 in attorney fees. Costs of this appeal are assessed against Twin City.

AFFIRMED AS AMENDED.


author: SAUNDERS, Judge.

text:
    Jane DOE v. SOUTHERN GYMS, LLC, et al.
    No. 12-140.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2012.

      Robert Jefferson David, Jr., Lafayette, LA, for Defendant Appellant, Southern Gyms, LLC.
    Timmy James Fontenot, Mamou, LA, for Plaintiff Appellee, Jane Doe.
    Douglas Michael Chapoton, Powers, Sellers & Chapoton, Baton Rouge, LA, for Defendant Appellant, Anytime Fitness, Inc.
    A. Simone Manuel, New Orleans, LA, for Defendant Appellant, Lexington Insurance Company.
    Court composed of JOHN D. SAUNDERS, BILLY HOWARD EZELL, and PHYLLIS M. KEATY, Judges.
   SAUNDERS, Judge.

| ¶ This case involves a plaintiff who filed a class action against the assistant manager of a fitness gym, the fitness gym, the parent company of the fitness gym, and the fitness gym’s insurance company. This appeal deals solely with the issue of whether the trial court correctly certified the class. We affirm.

FACTS AND PROCEDURAL HISTORY:

Plaintiff, Jane Doe (Doe), was contacted in April 2010 by the members of the Baton Rouge Police Department. She was asked to identify pictures of herself taken in various stages of undress. These pictures were taken by Terry Telschow (Telschow), as assistant manager at Anytime Fitness, located at 200 Government Street in Baton Rouge, Louisiana. Telschow, using a hidden pen camera, admitted to placing the camera in the ladies locker room on ten to fifteen occasions between November 1, 2009, and April 5, 2010. While meeting with the police, Doe learned that there were several other victims of the actions of the Telschow.

On June 25, 2010, Doe filed a class action petition for damages against Southern Gyms, LLC, Anytime Fitness, Inc., Terry Telschow, and eventually, after amending her original petition on September 28, 2010, Lexington Insurance Company (Southern Gyms, LLC; Anytime Fitness, Inc.; Telschow; and Lexington Insurance Company collectively “Defendants” hereafter). After motions not relevant to this appeal were made and writs taken on other issues, the trial court certified the requested class as “all females who physically entered the women’s restroom/locker room/ changing room at Anytime Fitness, 200 Government Street, Baton Rouge, LA 70802 from November 1, 2009, through and including April 5, 2010.”

Defendants perfected a timely appeal. In the appeal, they raise two assignments of error.

| ^ASSIGNMENTS OF ERROR:

1. The trial court erred and was manifestly erroneous in finding that Jane Doe presented sufficient facts to prove by a preponderance of evidence that class certification was proper under [La.Code Civ.P. art.] 591.
2. The trial court abused its discretion in certifying the class under [La.Code Civ.P. art.] 591.

DISCUSSION OF THE MERITS:

Defendants assert in their two assignments of error that the trial court incorrectly certified the class. We find no merit in this assertion.

Louisiana Civil Procedure Article 591 states:

A. One or more members of a class may sue or be sued as representative parties on behalf of all, only if:
(1) The class is so numerous that join-der of all members is impracticable.
(2) There are questions of law or fact common to the class.
(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class.
(4) The representative parties will fairly and adequately protect the interests of the class.
(5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case.
B. An action may be maintained as a class action only if all of the prerequisites of Paragraph A of this Article are satisfied, and in addition:
(1)The prosecution of separate actions by or against individual members of the class would create a risk of:
(a)Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
ls(b) Adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final in-junctive relief or corresponding declaratory relief with respect to the class as a whole; or
(3) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to these findings include:
(a) The interest of the members of the class in individually controlling the prosecution or defense of separate actions;
(b) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(c) The desirability or undesirability of concentrating the litigation in the particular forum;
(d) The difficulties likely to be encountered in the management of a class action;
(e) The practical ability of individual class members to pursue their claims without class certification;
(f) The extent to which the relief plausibly demanded on behalf of or against the class, including the vindication of such public policies or legal rights as may be implicated, justifies the costs and burdens of class litigation; or
(4) The parties to a settlement request certification under Subpara-graph B(3) for purposes of settlement, even |4 though the requirements of Subparagraph B(3) might not otherwise be met.
C. Certification shall not be for the purpose of adjudicating claims or defenses dependent for their resolution on proof individual to a member of the class. However, following certification, the court shall retain jurisdiction over claims or defenses dependent for their resolution on proof individual to a member of the class.

“The appellate courts will only decertify a class where there is an abuse of the trial judge’s vast discretion.” Banks v. New York Life Ins. Co., 98-551, p. 6 (La.12/7/98), 722 So.2d 990, 993-94, cert. denied, 528 U.S. 1158, 120 S.Ct. 1168, 145 L.Ed.2d 1078 (2000). Under La.Code Civ.P. art. 591.

In order for class certification to be proper, “the burden is on the plaintiffs to establish that the statutory criteria for a class certification are met.” Duhe v. Texaco, Inc., 99-2002, p. 11 (La.App. 3 Cir. 2/7/01), 779 So.2d 1070, 1078, writ denied, 01-637 (La.4/27/01), 791 So.2d 637; see also Clark v. Trus Joist MacMillian, 02-676, 02-512 (La.App. 3 Cir. 12/27/02), 836 So.2d 454, 459, writ denied, 03-275 (La.4/21/03), 841 So.2d 793 (“Plaintiffs must establish by preponderance of the evidence that each of the elements for class certification has been met.”). However, “[t]he district court has wide discretion in deciding whether to certify a class and the decision will not be overturned absent a finding of manifest error or abuse of discretion.” Roberson v. Town of Pollock, 05-332, p. 9 (La.App. 3 Cir. 11/9/05), 915 So.2d 426, 432, writ denied, 06-213 (La.4/24/06), 926 So.2d 550. Further, “[t]he court should err on the side of maintaining the class action since the judge may always modify or amend the class at any time prior to a decision on the merits.” Clark, 836 So.2d at 459-60 (citing La. Code Civ.P. art. 592 A(3)(c)).

Gunderson v. F.A. Richard & Assoc., Inc., 07-331, 07-264, 07-400, p. 9 (La.App. 3 Cir. 2/27/08), 977 So.2d 1128, 1136-37, wiits denied, 08-1069, 08-1063, 08-1072 (La.9/19/08), 992 So.2d 953 (alterations in original). The threshold requirements of La.Code Civ.P. art. 591(A) are numerosity, commonality, typicality, designation of class representatives and definition of the class using objective criteria. Clark, 836 So.2d 454.

NUMEROSITY:

| ^Defendants’ objection to this class certification focuses mainly on the assertion that Doe failed to prove numer-osity. “Generally, this requirement is satisfied upon a showing the plaintiffs are so numerous that separate suits would unduly burden the courts and joinder of all claims is impractical.” Clark, 836 So.2d at 461 (citing Duhe, 779 So.2d 1070; Johnson v. Orleans Parish Sch. Bd., 00-825 (La.App. 4 Cir. 6/27/01), 790 So.2d 734).

There is no set number at which a class is considered so numerous as to make joinder impracticable. Whether a class is so numerous as to make joinder impracticable is based upon the facts and circumstances of each individual ease. Dumas v. Angus Chemical Co., 25,632 (La.App. 2 Cir. 3/30/94), 635 So.2d 446, writ denied, 94-1120 (La.6/24/94), 640 So.2d 1349. It is within the trial court’s great discretion to determine if, under the facts and circumstances of the case before it, it is in the best interest of judicial efficiency and economy to certify the action as a class action. See Atkins v. Harcross Chemicals, Inc., 93-1904-1911 (La.App. 4 Cir. 5/17/94), 638 So.2d 302, writ denied, 94-2158 (La.11/11/94), 644 So.2d 396; Dumas, 635 So.2d 446. Therefore, a trial court’s decision on whether a class meets the numerosity requirement will not be disturbed absent an abuse of discretion.

Ducote v. City of Alexandria, 95-1197, p. 14 (La.App. 3 Cir. 3/6/96), 670 So.2d 1378, 1387.

Here, the record provides that Telschow admitted to videotaping women in various states of undress from November 1, 2009, to April 5, 2010, on ten to fifteen occasions. He also admitted that there are at least five other women that he videotaped during that time that he could not identify. Doe submitted evidence of a list approximately 250-300 women that went into Anytime Fitness during that time period. Any of those women that entered into the area Telschow was videotaping could have been exposed to his camera. Thus, each woman could potentially have suffered damages due to the fear of images surfacing depicting them in various states of undress. We note that Anytime Fitness is a nationwide business entity which allows its members to use any location, nationwide. Thus, 1 fithere is potential for aggrieved parties to be located not only in Louisiana, but other states as well and, certainly, from areas outside of Baton Rouge, Louisiana.

The number of women provided by Doe and the various potential locations of aggrieved parties provide a basis for the trial court to find that the lack of a class action could unduly burden the courts and join-der of all interested parties is impractical. Given the above and our directive of erring on the side of maintaining the class action because the judge may always modify or amend the class at any time prior to a decision on the merits, we find no abuse of discretion by the trial court in ruling that Doe has met the numerosity requirement.

COMMONALITY:

This requirement is met if plaintiffs can demonstrate that there is “one issue, the resolution of which will affect all or a significant number of plaintiffs.” Duke, 779 So.2d at 1078. In this case, the common issue for all potential plaintiffs is whether they have suffered harm due to Telschow’s admission to videotaping women in various states of undress from November 1, 2009, to April 5, 2010. Defendants contend that class certification must fail because each plaintiff would have differing degrees of injury. This contention is without merit. It is not necessary that all plaintiffs suffer identical damage and “individual questions of quantum do not preclude a class action when predominant liability issues are common to the class.” McCastle v. Rollins Env’t Servs. of Louisiana, Inc., 456 So.2d 612, 620 (La.1984). Accordingly, we find no abuse of discretion by the trial court in concluding that Doe has met the commonality requirement.

TYPICALITY:

Typicality necessitates that the claims of class representatives are typical of all members. “It satisfies typicality if the representative plaintiffs’ claims arise out of the same event or course of conduct as the class members’ claims and are based |7on the same legal theory.” Duhe, 779 So.2d at 1079. Here, Doe was positively identified in pictures by the Baton Rouge Police Department. Her damages arise out of the same events as the class. Thus, Doe has met the typicality requirement.

DESIGNATION OF CLASS REPRESENTATIVES:

“The test for adequate representation requires that class representatives have sufficient interest in the outcome of the case to insure vigorous advocacy of the cause. Additionally, it must be shown that counsel for the representatives are competent and experienced and will adequately represent members of the class.” Clark, 836 So.2d at 462. Here, defendants have not disputed that Doe has sufficient interest in the outcome of the case, nor have they disputed that Doe’s counsels are competent, experienced, and will adequately handle this case.

DEFINITION OF THE CLASS USING OBJECTIVE CRITERIA:

“This element requires the class be defined objectively in terms of ascertainable criteria for purposes of the conclusiveness of the judgment.” Id. Here, the trial court defined the class as, “all females who physically entered the women’s restroom/locker room/ changing room at Anytime Fitness, 200 Government Street, Baton Rouge, LA 70802 from November 1, 2009, through and including April 5, 2010.” We find no error in this class definition.

CONCLUSION:

Southern Gyms, LLC, Anytime Fitness, Inc., Terry Telschow, and Lexington Insurance Company raise two assignments of error. Both assignments contend that the trial court erred in certifying the class under La.Code Civ.P. art. 591.

We find no error by the trial court in certifying the class. Thus, we find no merit to the assignments of error and affirm the trial court in this regard. All costs | sof these proceedings are assessed to Southern Gyms, LLC, Anytime Fitness, Inc., Terry Telschow, and Lexington Insurance Company.

AFFIRMED.


author: EZELL, Judge.

text:
    Jimmie W. BELGARD v. MANCHAC TECHNOLOGIES, LLC.
    No. CA 12-191.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2012.

      John W. Munsterman, Alexandria, LA, for Defendant/Appellee, IWMM, LLC.
    Mary Olive Pierson, Baton Rouge, LA, for Defendants/Appellees, Manchac Technologies, LLC, Randall Murphy, Monroe Milton.
    Charles David Elliott, Vilar & Elliott, Alexandria, LA, for Plaintiff/Appellant, Jimmie W. Belgard.
    James G. Theus, Jr., Gold, Weems, Bruser, Sues, & Rundell, Alexandria, LA, for Defendant/Appellee, Manchac Technologies, LLC.
    Court composed of JOHN D. SAUNDERS, BILLY HOWARD EZELL, and PHYLLIS M. KEATY, Judges.
   EZELL, Judge.

Lin this matter, Jimmie Belgard appeals the decision of the trial court granting the motion for summary judgment of Manchac Technologies, LLC, two of its managers, and IWMM, LLC (hereinafter collectively referred to as Manchac). For the following reasons, we affirm the decision of the trial court.

The facts of this case were well described by the trial court as follows:

Manchac, a Louisiana limited liability company, was organized on March 18, 2005, by Randall W. Murphy, Monroe T. Milton and Jimmie W. Belgard (the founders), for the purpose of developing a device for the packing of pharmaceuticals in mass quantities. The founders were each issued one-third of the total membership interests in Manchac. They did not pay cash for their membership interest but rather contributed what they termed as intellectual property and prior services. The three members were at will employees of Manchac and paid a fixed salary. Mr. Belgard is no longer employed by Manchac.
The founders, recognizing their need for capital[,] amended their operating agreement which allowed Manchac to raise capital by selling membership interest in the company. It provided that if new shares were to be sold before December 31, 2008 it would be only the founders’ shares that would be diluted. In other words[,] if Manchac sold 3% of its shares to A then later sold 7% to B, the founders then would each own 30% of Manchac; if afterwards, but before December 31, 2008 Manchac sold 30% to C then each founders’ ownership percentage would be reduced by 10% which would leave each founder with a 20% membership interest; A and B’s percentage would not change. In 2006 and 2007 the LLC had its first offering, referred to as Round A.
In 2008 Manchac needed additional capital and again offered to sell membership interest, which was referred to as Round B. Round B did not raise enough capital; however a group of investors, in exchange for 24% of ownership in Manchac agreed to guarantee a line of credit up to $1.8 million. This group formed IWMM L.L.C., on December 17, 2008. On December 30, 2008, IWMM agreed to guarantee a line of credit in favor of Manchac for $1.8 million. This resulted in the transfer of 24% membership interest in Manchac to IWMM. This 24% interest was transferred from the founders’ interest to IWMM; 8% of this amount came from Mr. Belgard’s ownership interest.

In his petition, Mr. Belgard sought to have the trial court declare that 24% membership interest in Manchac was illegally transferred to IWMM and that his shares were, therefore, improperly diluted. Manchac countered that the transfer to | glWMM was appropriate and that Mr. Belgard’s shares were properly diluted. Both Mr. Belgard and Manchac asserted motions for summary judgment, and the trial court ruled in favor of Manchac, dismissing Mr. Belgard’s claims. From that decision, Mr. Belgard appeals.

Mr. Belgard asserts four assignments of error on appeal. He claims that the trial court erred in finding that the Subscription Agreement was ambiguous; that the trial court erred in holding that IWMM “paid” for the 24% membership interest on December 30, 2008; that the trial court erred in dismissing his claims against the managers of Manchac; and that the trial court erred in dismissing his claims which were not addressed by either party in the cross motions for summary judgment. Because Mr. Belgard’s first three assignments of error all deal with the validity of the transfer of the contested membership interest, we will address them together.

Louisiana Code of Civil Procedure Article 966(B) provides that summary judgment shall be granted where the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. The Louisiana Supreme Court discussed the standard applicable to appellate review of summary judgments in Robinson v. Heard, 01-1697, pp. 3-4 (La.2/26/02), 809 So.2d 943, 945:

A reviewing court examines summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. A reviewing court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Smith, 639 So.2d at 750.

Here, the disputed language in the Subscription Agreement reads: “The Capital Commitment shall be paid upon execution and delivery of this Agreement by either (i) |sdelivery of a check made payable to ‘Manchac Technologies, L.L.C.’; or (ii) delivery into the Company’s account of other immediately available funds acceptable to the Company.” Mr. Belgard’s primary argument with regard to the validity of the transfers to IWMM rests upon the fact that it acquired the 24% ownership interests by credit transactions wherein IWMM promised to secure a $1.8 million line of credit in favor of Manchac in return for the membership interest, despite the language of the Subscription Agreement Mr. Belgard claims required cash or other immediate payment for the interests. Mr. Belgard further claims that the transfer of the membership interest was invalid on December 30, 2008, because no cash was exchanged on the date of transfer or because the line of credit offered in exchange was not completely set up, rendering the dilution of his founder’s membership interest improper. In short, Mr. Belgard believes that the obligation to establish the line of credit was not sufficient consideration for the transfer to have been affected on December 30, 2008. We disagree.

Louisiana Revised Statutes 12:1301(A)(3) states that a “ ‘Capital contribution’ means anything of value that a person contributes to the limited liability company as a prerequisite for, or in connection with, membership, including cash, property, services rendered, or a promissory note or other binding obligation to contribute cash or property or to perform services.” Louisiana Revised Statutes 12:1321 reiterates that “[t]he contribution of a member to a limited liability company may take the form of cash, property, services rendered, or a promissory note or other binding obligation to contribute cash or property or to perform services.”

On December 30, 2008, IWMM contractually bound itself to Manchac to provide a $1.8 million line of credit for Manchac’s benefit, secured by the personal property of IWMM’s members, in return for its membership interest. This obligation was real and became effective immediately when IWMM’s agent signed the ^Subscription agreement. Moreover, this form of consideration was clearly “acceptable to the Company” as required by the Subscription Agreement, as the terms of the transfer agreement were approved by a strong majority of the members in November 2008, before the transfer was effected. No member, not even Mr. Belgard, opposed a transfer of 24% membership interest in return for a $1.8 million line of credit. While IWMM did not pay cash for their acquired interests in Manchac, it did give valid consideration for its interests and this consideration was acceptable to Manchac as required by the Subscription Agreement. See Egle v. Egle, 06-1550 (La.App. 3 Cir. 6/27/07), 963 So.2d 454, writ denied, 07-1596 (La.10/26/07), 966 So.2d 579; Coffee Bay Investors, L.L.C. v. W.O.G.C. Co., 03-M06 (La.App 1 Cir. 4/2/04), 878 So.2d 665, writ denied, 04-1084 (La.6/25/04), 876 So.2d 838.

Additionally, even if consideration had not been sufficient under the language of the Subscription Agreement, Manchac’s actions after the fact ratified the transfer, both implicitly and expressly.

Generally, ratification may be implied from the acquiescence in, or recognition of, the act by the corporation, through its proper officer or agent ... or from its accepting and retaining the benefits of the act ... or from any other acts or conduct which reasonably tend to show an intention to adopt or affirm the act or contract, particularly where it appears that the corporation has repeatedly recognized and approved similar acts done by the officer or agent, provided at the time of such acts or conduct it has full knowledge of the material facts ... and where the unauthorized act or contract is clearly beneficial to the corporation, a ratification may be implied from slight circumstances.

Dunham-Pugh Co., Inc. v. Stephens, 234 La. 218, 231-32, 99 So.2d 88, 93 (1958) (quoting 19 C.J.S Corporations § 1018, 495).

The line of credit was established and the members of IWMM placed their personal property as collateral for the debt. Manchac used the line of credit to operate its business. Manchac clearly accepted, received, and retained the full benefit of this arrangement and operated in accordance with it. Furthermore, if this implicit gratification of the agreement were still not enough, the membership of Manchac overwhelmingly and explicitly ratified the transfer in October 2010 retroactive to December 30, 2008.

It is clear from the record before this court that the creation of an obligation to establish a $1.8 million line of credit was valid consideration for the transfer of 24% of the membership interest in Manchac. This obligation was effective on December 30, 2008, and the transfer of the membership interest was proper on that date as well. Consequently, Mr. Belgard’s membership interest was properly diluted in accordance with Manchac’s operating agreement. Because the transfer and dilution were proper, Mr. Belgard’s claims against the managers of Manchac are clearly devoid of merit. There are no genuine issues of material fact as to these matters. Accordingly, the trial court’s grant of Manchac’s motion for summary judgment was proper.

Mr. Belgard further claims that the trial court erred in dismissing claims of his not addressed in the motions for summary judgment. He claims that the operating agreement did not allow for membership interests to be transferred in exchange for loan guarantees. In light of our above decision that the transfer was valid, we need not address this claim further.

Mr. Belgard additionally claims that the trial court erred in failing to address his assertion that the dilution of the founders’ shares should be adjusted because one of the other founders, Monroe Milton, purchased an additional 0.5% membership interest in the company in a purchase subsequent to the establishment of the company and the founders’ shares.

As noted above, in order to attract new investors, the three founders of Manchac agreed that any new membership interests issued by Manchac prior to December 31, 2008, would only dilute the membership interests of the original three ^founders. This “Founders’ Dilution Provision” is set forth in the Restated Operating Agreement in Section 3.5.3 which provides as follows (emphasis added):

Notwithstanding any other provision of this Agreement to the contrary, any new Membership Interests issued by the Company prior to December 31, 2008, shall only dilute the Membership Interests of Monroe Milton, Randall Murphy and Jimmie Belgard, their successors, heirs and assigns. It is the intention of this Section 3.5.3 that the other Members’ Membership Interests not be diluted by such issuances.

The record established that when Manc-hac was founded, the founders were each given one-third of the company’s membership interest. Mr. Milton’s additional 0.5% was purchased at a later time and, therefore, qualified as a “new Membership Interest” under Section 3.5.3 of the Restated Operating Agreement. There is nothing in the record which sets forth that his additional percentage should be diluted as if it were a founders’ share. This assignment of error is so devoid of merit as to border on frivolity.

For the above reasons, the decision of the trial court is hereby affirmed. Costs of this appeal are assessed against Mr. Belgard.

AFFIRMED.