author: GREMILLION, Judge.

text:
    Debra MILLER and Ed Geaslin v. PNK, d/b/a L’Auberge Du Lac Casino and Hotel.
    No. 11-216.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.

      David John Calogero, Philip Andre Fon-tenot, Lindsay Deblois, Davidson, Meaux, Sonnier, McElligot, Fontenot, Gideon & Edwards, L.L.P., Lafayette, LA, for Defendant/Appellee, PNK (Lake Charles), LLC d/b/a L’Auberge Du Lac Casino and Hotel.
    James B. Doyle, Sr., Heath J. Dorsey, Law Offices of James Doyle, APLC, Lake Charles, LA, for PlaintiffiAppellant, Ed Geaslin.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

| jThe plaintiff, Ed Geaslin, appeals the jury’s verdict in favor of the defendant, PNK, d/b/a L’Auberge Du Lac Hotel and Casino. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2007, Geaslin and his companion at the time (who later became his wife), Debra Miller, were gambling at a poker table at L’Auberge. A L’Auberge employee approached Miller, pulled her aside, and informed her that she needed to discontinue drinking alcoholic beverages for a period of eight hours. She was further instructed to gather her chips so that she could redeem them and, thereafter, leave the casino. After cashing out, Miller and Geaslin began arguing with L’Auberge personnel. Geaslin claims that when he attempted to intervene between a security guard who was trying to remove Miller’s cell phone, he was attacked and “tackled ... to the floor with brute force.” Geaslin claimed in his petition that the security guards “began placing their knees in the back of his leg and punching him in the face. A security guard was jumping up and down with his knee on the back of [his] leg.” Geaslin filed suit against L’Au-berge in September 2007 for personal injuries.

Following a four-day trial, the jury rendered a verdict finding that L’Auberge was not at fault in any of the causes of action alleged by Geaslin. Geaslin filed a motion for Judgment Notwithstanding the Verdict (JNOV), which was denied by the trial court. Geaslin now appeals and assigns as error:

1. The jury legally erred by ignoring the instruction of law by the trial court and ruling in favor of the Defendants and against Plaintiff and,
2. The trial court erred by refusing to grant his motion for JNOV.

| .DISCUSSION

A court of appeal may not set aside a jury’s finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989).

The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.

Id. at 844.

Though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Id. “[W]here two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.” Stobart v. State Through DOTD, 617 So.2d 880, 883 (La.1993). “[T]he issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.” Id. At 882.

Geaslin reviews the manifest error standard in this assignment of error but argues that the “legal error of the jury was in failing to follow the clear instructions of the court.” Therefore, he argues, we should discard the manifest error standard and conduct a de novo review. Geaslin never states which instructions the jury failed to follow or provides any other argument in this regard other than the quoted claim above. This argument lacks merit and we, therefore, limit ourselves to a manifest error review of the jury’s finding.

The jury was called upon to decide if L’Auberge exercised reasonable care in removing Geaslin from the casino and if the force used was excessive. In 3Saucier v. Players Lake Charles, LLC, 99-1196, p. 7-8 (La.App. 3 Cir. 12/22/99), 751 So.2d 312, 317, we stated:

A determination of excessive or unnecessary force is a finding of fact which may not be disturbed unless: (1) the record evidence does furnish a sufficient basis for the finding; or (2) that finding is clearly wrong. See Arceneaux v. Domingue, 365 So.2d 1330 (La.1978)....
In Kyle v. City of New Orleans, 353 So.2d 969 (La.1977), the supreme court sets forth several factors to consider in making a determination of whether the force used was reasonable under the circumstances. The factors include: (1) the known character of the arrestee; (2) the risks and dangers faced by the officer; (3) the nature of the offense or behavior involved; (4) the chance of escape if the particular means are not employed; (5) the existence of alternative methods of arrest or subduing the arrestee; (6) the physical size, strength and weaponry of the officers as compared to that of the arrestee; and (7) the exigencies of the moment. See Picou v. Terrebonne Parish Sheriff's Office, 343 So.2d 306 (La.App. 1 Cir.), writ denied, 345 So.2d 506 (La.1977).

Having reviewed the evidence, we find that reasonable people could conclude that L’Auberge exercised reasonable care and did not use excessive force in removing Geaslin from the casino. The following testimony was elicited at trial.

Debra Miller testified that, she was fifty-four years old at the time of the incident. She testified that she had been to the L’Auberge many time before. She said that she and Geaslin gambled at L’Au-berge starting the night before the incident. She admitted that she and Geaslin brought two large insulated “Big Gulp” beverage containers with them to gamble the night before the incident. She said that no one asked them to remove them until the night of the incident. Miller testified that she was not drunk, but had had three, four, or five alcoholic drinks. However, on cross-examination she recalled stating that she had at least five alcoholic beverages that night.

Miller reviewed the videotape, noting that a lady approached her while she was seated at a table in the casino playing “three card poker” and asked if she 14could speak to her. Miller said that the lady informed her that she could not drink any more alcohol for eight hours. Miller said that she was informed that she was unable to gamble if she was not drinking so she had to leave. Miller said she told Geaslin that she needed to leave, collected her chips that remained on the table, and proceeded to the “cashier’s cage” to cash in her chips. Miller was accompanied by Geaslin. Miller stated that she was confused as to why she was being asked to leave and requested to see a manager to clarify to her satisfaction why she was being asked to leave. Miller then said that she requested a wheelchair because her back was hurting.

Miller described the recorded events noting that Geaslin referred to one of the employees as a “lying bitch” because the employee stated that she and Geaslin had been drinking all day. Miller testified that she and Geaslin had new cell phones and she was not sure how to operate hers, but that she was attempting to take a picture of the situation.

Miller said that Geaslin had his back to her and that he saw security officer, David Shelton, reach around her to retrieve the phone. Miller said Shelton told her she could not take pictures and showed her the sign that indicated no pictures were allowed. She said Geaslin never used the “F” word. Miller denied ever slurring her speech. She admitted claiming that one of the officers punched Geaslin in the face in her petition and prior to seeing the videotape. When confronted with the videotape, Miller said was not sure if anyone punched Geaslin in the face.

Geaslin testified that he was sixty-three at the time of the incident. He said that on the first night at L’Auberge he had been drinking “considerably” that evening. He said that he had won about $30,000 in the “high roller room.” He admitted to being inebriated to the point that he requested that the casino bring | ¡¡him a wheelchair to bring him back to his room. Geaslin testified regarding the “Big Gulp” cups. He stated that he brought them back to the room after L’Auberge personnel requested that he do so. Geaslin stated that at the time Miller was asked to leave he had consumed two drinks, which was not a lot for him. Geaslin said that he told Miller the employee was a “lying bitch” loud enough so the employee could overhear him. He denied using any other vulgar language.

Geaslin recalled a conversation with security officer, Willie Dartez, testifying as follows:

He came up and stuck his face right in mine, big flaring nostrils, halitosis that would have gagged a buzzard, and I told him if he didn’t want trouble to back off, because they had made a lunge at Debbie, and I tried to get between them, for all the good it would have done, but it would have at least helped, I think.

Geaslin stated that the security officers “lunged” at Miller. He further stated that he thought they were grabbing Miller so he reached his left arm out and then they came down on him. He said he was handcuffed and taken to the police station and booked.

Although Geaslin claimed to have arrived at the casino sometime around 3:30 p.m. on the date of the incident, on cross-examination, he admitted that he played blackjack from 10:29 a.m. until 1:17 p.m. the day of the incident and that he “could have been” drinking during that time. Geaslin admitted to drinking three-quarters of a pint of rum every day and that he had more than two alcoholic beverages the day of the incident. Geaslin then reviewed the videotape with counsel and denied telling security officer Martha Jefferson to “Shut the ‘F’ up, you bitch, you ain’t nothing but a liar.” He denied being aggressive toward the security officers, instead referring to his behavior as “reactive.” Geaslin said he intervened between Shelton and Miller because Shelton was being aggressive | (¡toward Miller. He admitted that Officer Dartez was holding his right arm and “could have been” preventing Shelton from being punched in the face. He admitted grabbing Shelton’s neck with his left arm and leaving cuts and scratches on his neck.

Dr. Wade D. Schindler, an adjunct criminal justice professor at Tulane University, was tendered as an expert in security practice and procedures. He testified that the security guards surrounded Geaslin and Miller, threatening their personal space. He stated that the security officers were not properly trained and used excessive force against Geaslin. He maintained that the aggressive acts were initiated by the security personnel who surrounded the “old people.” Dr. Schindler described the “triggering events” as Officer Dartez putting his face into Geaslin’s face and Shelton’s reaching to take the cell phone from Miller. On cross-examination, Dr. Schindler reviewed a portion of L’Auberge’s security manual indicating that when involved in a conflict the security personnel should give the person their personal space. However, he said that these officers failed to give Geaslin adequate personal space. He testified that he understood that Geaslin called Jefferson a “fir * * *g liar.” He further agreed the whole situation could have been avoided if Miller and Geaslin had just exited the casino. He admitted he stated that Miller stopped and requested a wheelchair “in a defiant way.” He also admitted when reviewing the video that Miller was yelling at the security officers when they were six to eight feet away and not in her personal space.

Lernest Green, an officer at the Calca-sieu Parish Sheriffs office, responded to L’Auberge’s call following the incident. He testified that he saw the cuts and scratches on Shelton’s neck and that Geas-lin later admitted that he was wrong for grabbing Shelton’s neck. He said that Geaslin claimed he was trying to get his phone back. He said that Geaslin did not indicate that anyone had punched |7him or jumped on him. Green testified that Geas-lin was arrested for the simple battery of Shelton. He further stated that Geaslin was under the influence of alcohol, specifically recalling that his speech was slurred that evening.

Christopher Lennette, Director of Security Risk and Transportation at L’Au-berge, testified that he created all of the step-by-step guides and security procedures used by the casino. Lennette testified that he hired Martha Jefferson to be the security manager because he had trained her and she had sixteen years of experience in the gaming industry. He testified that he hired Edrick Boling, another security officer at the scene, who had sixteen years of experience as a security supervisor and sixteen years of experience as a deputy in Jefferson Davis Parish. Lennette said that Boling continued to work for both the casino and as a deputy. Lennette also hired Willie Dartez, who had graduated with a criminal justice degree from McNeese. Dartez is also employed with the Calcasieu Parish Sherriff s Office. Finally, Lennette hired David Shelton, who had a military background and had also worked at correctional facilities. Shelton testified in detail regarding the extensive training and testing security officers undergo. He described scenario training in which employees have to act out real situations that may be encountered such as what occurred here, otherwise known as a COA (cut off of alcohol). Lennette said that COAs are a common occurrence with about ten COAs occurring per every twenty-four hour period.

Lennette further testified that all COAs are recorded on videotape by the surveillance department, which is completely separate from the security department. Lennette then reviewed the step-by-step procedure entitled “Handling Intoxicated Guests,” which he prepared. Lennette testified that he reviewed the tape and would even use it training new officers because:

|8You can see the team, how they’re very patient, they’re very cordial, none of them are emotionally involved, they keep their space, they’re polite with the guests, to include all the way to the actual take-down. It’s as smooth and as safe as it possibly can be.

Lennette went on to testify that the policy is generally two officers per person if the patron becomes threatening. However, if the officers are female and the patron male, or as otherwise determined on a case-by-case basis, that number can be adjusted. He then testified regarding the no-photograph policy in place at the casino.

Martha Jefferson testified that she was the security manager on the day of the incident. She stated that she received training from the Louisiana State Police, the local sheriffs department, and the casino. She discussed on-going quarterly training, as well as daily fifteen minute pre-shift training that occurs at the start of every shift. She described training in using handcuffs, defense tactics, and various policies and procedures including COAs, and guest evictions. Jefferson described asking Geaslin and Miller to remove the Big Gulp cups. Then she described her arrival on the scene after Miller had been cut-off from alcohol. Jefferson said Miller did not understand why she was being cut-off. Jefferson described both Miller and Geaslin as having slurred speech, red faces, continually asking the same questions over and over again, eyes dilated, and breathing heavily.

Jefferson narrated a portion of the tape where she backed away from Geaslin and Miller because she said that Geaslin was spitting as he talked. She then stated that Geaslin told her to “shut up you f* * *ing bitch.” Jefferson said that they were loud and disruptive and needed to be removed from the casino. At that point, she said Miller requested a wheelchair. She said Geaslin then called her a “f* * *ing bitch” again. A minute later Jefferson said Geaslin was calling her a “lying bitch,” and telling her to “shut the f* * * up” when she advised Miller that she could not |9take a picture in the casino. Jefferson testified that she had told Miller at least twice that she could not take pictures in the casino. She further said that Officers Granger and Shelton also told Miller multiple times that she could not take pictures in the casino. She described the take-down as following L’Auberge policy and further described the arrival of two additional male officers as the hand-off technique because Geaslin indicated he did not want to talk to anymore “bitches.”

Shelton described his extensive training that included take-down procedures. He stated that he was involved in two to three COAs per night. Shelton confirmed the profanity that Jefferson testified to. He further stated that after he first advised Miller not to take any pictures, she stated, “F* * * that, I’m going to take these moth-erf* * * *r’s” pictures. He stated that he again advised her that no pictures were allowed, at which point Geaslin raised his right hand and pointed it into Shelton’s face. Shelton said that Officers Boling and Dartez arrived on the scene shortly thereafter as it was escalating. He indicated that Jefferson gave him the nod to remove the phone from Miller, which, he did, placing it behind his back. Shelton described what ensued:

At that point Mr. Geaslin turns toward me, reaches up with his left hand on the back side of my neck, started to come forward with his right hand. At that time I just put my right hand under his left arm pit, pushed him forward, and Mr. Dartez took control of his right arm, spun back around because he started to trip. I grabbed ahold of his belt buckle and start to help lower him down and Edrick Boling, Mr. Boling, grabbed his head and we lowered him down; get him to the floor; placed his hands behind his back and handcuffed him and stand him up.

Shelton said that his left hand remained behind his back during the entire take-down. He denied any punching, body slamming, or jumping up and down on Geaslin’s leg.

ImWillie Dartez described his training. He testified that as he arrived on the scene, Geaslin was repetitively calling Jefferson a “bitch.” As the situation escalated and Geaslin reached for Shelton, Dartez said that he grabbed Geaslin’s right arm to prevent Geaslin from reaching Shelton. He went on to describe the take-down and denied punching, kicking, or jumping up and down on Geaslin.

Alan Zajic was tendered as an expert in the field of security practices with an emphasis on use of force. He discussed the detailed procedures and practices that L’Auberge has in place to conduct COAs and guest evictions. He described Geas-lin as the aggressor with the security personnel responding by moving into a “protective mode.” He noted that prior to Geaslin’s escalating the situation all of the officers stood far back and kept the sides wide open, allowing a clear path for Geas-lin and Miller to leave.

Zajic testified that Shelton adeptly removed the phone from Miller without even touching her hand. He then reviewed the video and concluded that excessive force was not used against Geaslin. He testified that Geaslin was brought down slowly and the entire incident was supervised by Jefferson. He further testified that physical force was used as a last resort in this case after attempting to solve the problem in many different ways. Zajic said that Geaslin and Miller did not give the security personnel any other options as they continued to provoke the situation beyond what it had to be and never exercised their option to walk out of the door. Zajic testified that he was going to ask for permission to use the video in his training because the L’Auberge personnel handled the situation so well.

The video tape evidence shows a multi-step, orderly, procedure in place by the casino to handle unruly and dangerous patrons. What started out with one officer eventually led to five as Miller and Geas-lin’s aggressive behavior intensified. All of the officers continually evidence calm, non-threatening |n demeanors and actions. At most points during the videotape, the officers have their hands behind their backs and stand far away from Miller and Geaslin while they are being yelled at by them. Geaslin and Miller are often pointing their fingers in the officers’ faces. Although the tape does not have audio, it is clear from the body movements that Geas-lin and Miller were the only people behaving aggressively in any way. Moreover, the “takedown” lasted less than fifty seconds and involved no punching or jumping up and down on Geaslin as alleged in his petition. An officer has his knee on the back of Geaslin’s knee while he is being handcuffed. Then several officers assist Geaslin in getting back to his feet.

Geaslin called his credibility into question many times on the stand. Although Geaslin argues that casino personnel should not be surprised that they have to deal with patrons who curse at them and are “loud and boisterous” (as was the plaintiff in Saucier), reasonable people could have found that Geaslin far surpassed the “loud and boisterous” level when he attempted to grab Shelton with his right arm and eventually did so -with his left arm, leaving Shelton with cuts and scratches. L’Auberge personnel repeatedly demonstrated restraint in the face of Geaslin’s escalating aggression, until he went too far and placed the safety of others in jeopardy. Reasonable people easily could have found that this entire situation was of Geaslin’s own doing, and that the L’Auberge personnel responded appropriately and with minimal force. Accordingly, there is no manifest error in the jury’s finding, and this assignment of error is without merit.

JNOY

In Love v. Lewis, 00-06, pp. 4-5 (La.App. 3 Cir. 10/11/00), 771 So.2d 220, 222, writ denied, 00-3506 (La.2/16/01), 786 So.2d 102, we stated:

La. Code Civ.P. art. 1811 provides the basis for filing a Motion for JNOV. However, Article 1811 does not set forth any specific 1 ^grounds on which a trial court may set aside a verdict. Therefore, we rely on the well-settled jurisprudence that a JNOV may only be granted when the evidence points so strongly and overwhelmingly in favor of the moving party that reasonable people could not arrive at a contrary verdict on the facts at issue. Peterson v. Gibraltar Sav. & Loan, 98-1601(La.5/18/99); 733 So.2d 1198. Additionally, “[t]he trial court may not weigh the evidence, pass on the credibility of witnesses, or substitute the reasonable inferences of the facts for those of the jury.” McBride v. H. Brown Machine Shop, 98-1271, p. 3 (La.App. 3 Cir. 3/31/99); 732 So.2d 650, 652, writ denied, 99-1288 (La.7/2/99); 747 So.2d 20, quoting Webb v. Goodley, 512 So.2d 527, 530 (La.App. 3 Cir.1987). In reviewing the grant of a JNOV, an appellate court must first determine whether the trial court erred in granting the JNOV. The appellate court does this by applying the same criteria as the trial court. Anderson v. New Orleans Public Service, Inc., 583 So.2d 829 (La. 1991). If reasonable people could have arrived at the same verdict, given the evidence presented to the jury, then the JNOV is improper. Id.

At the conclusion of Geaslin’s Motion for JNOV, trial court stated that there was a reasonable basis for the decision of the jury, and it declined to grant a JNOV. In Lastrapes v. Progressive Security Insurance Co., 10-51, p. 5 (La.11/30/10), 51 So.3d 659, 662 (quoting Joseph v. Broussard Rice Mill, Inc., 00-0628, pp. 4-5 (La.10/30/00), 772 So.2d 94, 99, the supreme court recently stated (emphasis added)):

The motion should be denied if there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions. In making this determination, the trial court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. This rigorous standard is based upon the principle that when there is a jury, the jury is the trier of fact.

The case before us presents classic credibility determinations and assessments of the evidence by the jury. Any reasonable person considering the evidence before the jury could find that L’Auberge did not use excessive force. As our foregoing review of the evidence shows, there is no error in the trial court’s denial of Geaslin’s motion for JNOV. This assignment of error is without merit.

^CONCLUSION

The judgment of the trial court in favor of the defendant-appellee, PNK, d/b/a L’Auberge Du Lac Hotel and Casino, is affirmed. All costs of this appeal are assessed against the plaintiff-appellant, Ed Geaslin.

AFFIRMED.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    Dallas RICHARD v. COASTAL CULVERT & SUPPLY, INC.
    No. 11-232.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.
    Michael Benny Miller, Miller & Miller, Crowley, LA, for Plaintiff/Appellant, Dallas Richard.
    Matthew Robert Richards, Johnson, Stiltner & Rahman, Baton Rouge, LA, for Defendant/Appellee, Coastal Culvert & Supply, Inc.

      Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and PHYLLIS M. KEATY, Judges.
   THIBODEAUX, Chief Judge.

_|jThe claimant, Dallas Richard, appeals the judgment of the Office of Workers’ Compensation (OWC) denying him penalties and attorney fees for the employer’s failure to timely pay an amount awarded pursuant to a Consent Judgment between the parties. Finding that the underpayment at issue was not due to a condition beyond the employer’s control, we reverse the judgment of the OWC and render the statutory penalty of $3,000.00 and attorney fees of $3,000.00.

I.

ISSUE

We must decide whether the OWC manifestly erred in denying Mr. Richard’s motion for penalties and attorney fees due to the employer’s underpayment of an expense item on a Consent Judgment.

II.

FACTS AND PROCEDURAL HISTORY

Dallas Richard sustained a work-related injury to his left knee on March 5, 2008, while working for the defendant, Coastal Culvert & Supply, Inc. (Coastal Culvert).

On April 14, 2009, the parties stipulated to and executed a Consent Judgment requiring the defendant to pay Mr. Richard expenses of $208.70, attorney fees of $8,500.00, and a penalty of $6,000.00, all totaling $14,708.70.

|2On April 16, 2009, the defendant issued two checks to counsel for Mr. Richard in the amounts of $8,707.80 and $6,000.00. The total amount received was $14,707.80, resulting in a ninety-cent shortage, which Mr. Richard attributes to an underpayment of the expenses of $208.70. The defendant attributes the shortage to an accidental transposition of the figures ($208.70 versus $207.80) due to an adjuster oversight.

On August 21, 2009, the defendant issued a check for ninety cents ($0.90) to counsel for Mr. Richard.

A hearing was held on October 16, 2009, on Mr. Richard’s motion for penalties and attorney fees for various untimely payments of amounts awarded in the Consent Judgment. On October 14, 2010, the OWC issued a judgment denying Mr. Richard’s motion for penalties and attorney fees.

III.

STANDARD OF REVIEW

In worker’s compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the “manifest error-clearly wrong” standard. Brown v. Coastal Construction & Engineering, Inc., 96-2705 (La.App. 1 Cir. 11/7/97), 704 So.2d 8, 10 (citing Alexander v. Pellerin Marble & Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 710). Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander, 630 So.2d at 710.

Angelle Concrete, Inc. v. Sandifer, 06-38, p. 2 (La.App. 3 Cir. 5/24/06), 930 So.2d 1200, 1201-02 (quoting Dean v. Southmark Const., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117).

_k.iv.

LAW AND DISCUSSION

Mr. Richard alleges that “[t]he Worker[s’] Compensation Judge erred in failing to award a penalty for failure to timely pay the expenses.” The record reveals that the Consent Judgment was primarily funded on April 16, 2009, two days after the agreement in open court on April 14, 2009, as indicated above. The shortage, however, was not paid until August 21, 2009, which was over four months after the Consent Judgment was executed, and over three months after the Consent Judgment was signed and mailed by the OWC on May 19, 2009. Mr. Richard argues that the ninety-cent shortage on the expense payment was paid after the thirty-day deadline of La.R.S. 23:1201(G), and it is therefore subject to a $3,000.00 penalty plus reasonable attorney fees and all court costs. Specifically, Subsection (G) provides:

If any award payable under the terms of a final, nonappealable judgment is not paid within thirty days after it becomes due, there shall be added to such award an amount equal to twenty-four percent thereof or one hundred dollars per day together with reasonable attorney fees, for each calendar day after thirty days it remains unpaid, whichever is greater, which shall be paid at the same time as, and in addition to, such award, unless such nonpayment results from conditions over which the employer had no control.... The total one hundred dollar per calendar day penalty provided for in this Subsection shall not exceed three thousand dollars in the aggregate.

La.R.S. 23:1201(G) (emphasis added).

Mr. Richard contends that the only way for the defendant to escape the $3,000.00 penalty is to show that the “nonpayment results from conditions over which the employer had no control.” Mr. Richard argues that the defendant’s allegation that the shortage was an oversight, or a mistake made by the adjuster, provides no basis for escaping the penalty under La. R.S. 23:1201(0). We agree.

|/The defendant responds that it paid an additional $750.34 on May 5, 2009, which was within the thirty-day period of La.R.S. 23:1201(G), and that it should receive a credit from that payment to cover the expense shortage. Mr. Richard, however, correctly points out that the $750.34 was for two weeks of wage benefits at $375.17 per week, not for the underpayment of the expenses.

Mr. Richard argues that, while the amount of the underpayment was low, it was still a violation of section (G). He cites Guillory v. Bofinger’s Tree Service, 06-86 (La.App. 1 Cir. 11/3/06), 950 So.2d 682, where the court held that penalties and attorney fees were due on an underpayment of thirty-nine cents ($0.39). In Guillory, the underpayment was due to the employer’s use of the wrong rate in calculating a mileage expense payment, an error that could have serious consequences.

Here, while we recognize that the underpayment of ninety cents seems like an insubstantial amount, the penalty assessed in La.R.S. 23:1201(G) is mandatory, and the statute makes no distinction between small infractions versus large infractions where the employer fails to pay the full amount of a judgment. As indicated, in order to avoid a penalty under La.R.S. 23:1201(G), the employer must show that the underpayment is due to a condition beyond the employer’s control. A clerical error or adjuster’s oversight is not a condition “beyond the employer’s control,” which is the standard to which we are confined in this case. If the standard under La.R.S. 23:1201(G) were “arbitrary and capricious,” as it is under La.R.S. 23:1201(1), a different result may have been warranted.

l.qAs previously indicated, the Consent Judgment in this case awarding the expenses of $208.70 was agreed to by the parties in open court on April 14, 2009, and it was signed and mailed by the OWC on May 19, 2009. On April 16, 2009, the defendant issued checks totaling $14,707.80 for payment of a penalty, for attorney fees, and for the expenses awarded in the Consent Judgment. These payments were ninety cents short, and the shortage was not corrected until August 21, 2009, several months after the thirty-day deadline mandated by La.R.S. 23:1201(G).

The subsequent hearings on Mr. Richard’s motion, and the post-hearing briefs, dealt primarily with the timeliness of the SEB payments under La.R.S. 23:1201(F) and (G), and with issues relating to Mr. Richard’s other injury and a second insurer, but also addressed the underpayment of the expenses awarded. The oral ruling on Mr. Richard’s motion, however, stated merely that no penalties were due under La.R.S. 23:1201(F) or (G), and no reasons were articulated to distinguish the SEB payments from the underpayment of the expenses. Likewise, the October 14, 2010, judgment being appealed stated only that Mr. Richard’s “Motion for Penalties and Attorney’s fees” was denied.

“The decision to assess a defendant with penalties and attorney’s fees is essentially a question of fact, which will not be disturbed absent manifest error.” Batiste v. Crowley Mills/Farley, 98-1784, p. 3 (La.App. 3 Cir. 3/31/99), 735 So.2d 740, 742 (citing Culbert v. ConAgra, Inc., 98-238 (La.App. 3 Cir. 6/3/98), 716 So.2d 43, writ denied, 98-1817 (La.10/16/98), 726 So.2d 908). Because the OWC did not find that the underpayment of the expense item was a condition beyond the employer’s control, and the record does not implicitly support such a finding, the OWC was manifestly erroneous in its denial of Mr. Richard’s motion for penalties and attorney fees.

JfiV.

CONCLUSION

Accordingly, we reverse the OWC’s denial of penalties and attorney fees on the underpayment of the expense item and award the $3,000.00 penalty and attorney fees in the amount of $3,000.00 for work at the trial and appellate levels as mandated by La.R.S. 23:1201(G). Costs of this appeal are assessed to the defendant, Coastal Culvert.

REVERSED AND RENDERED.

      . The Consent Judgment also awarded Mr. Richard a supplemental earnings benefit (SEB) of $375.17. While the timely payment of SEB’s was an issue at trial, it was not briefed on appeal.

      . See King v. Travelers Ins. Co., 553 So.2d 1072 (La.App. 3 Cir.1989), writ denied, 558 So.2d 570 (La.1990). There, under an arbitrary and capricious standard, we found that the defendant, who voluntarily corrected its clerical error by immediately paying an omitted medical bill upon notice of the error, did not proceed with an "attitude of indifference,” and we affirmed dismissal of the plaintiff’s suit. Id. at 1074.


author: AMY, Judge.

text:
    Regina LLORENCE v. BROADMOOR SHOPPING CENTER, INC.
    No. 11-233.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.

      James B. Reichman, Reichman Law Firm, Alexandria, LA, for Defendants/Ap-pellees, Broadmoor Shopping Center, Inc., Watson Enterprises and Employer’s Mutual Casualty Insurance Company.
    D. Scott Kendrick, Natchitoches, LA, for Plaintiff/Appellant, Regina Llorence.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and PHYLLIS M. KEATY, Judges.
   AMY, Judge.

|,The plaintiff filed suit against a shopping center and its insurer, alleging that while walking in a parking lot, she tripped in a pothole, fell, and broke her knee. The trial court subsequently granted the defendants’ motion for summary judgment and dismissed the plaintiffs claims. The plaintiff appeals. For the following reasons, we affirm.

Factual and Procedural Background

According to the record, the plaintiff, Regina Llorence, and her grandson stopped at the Broadmoor Shopping Center in Natchitoches, Louisiana on May 1, 2008 to purchase pet food from a grocery store. On her way into the store, Mrs. Llorence tripped and fell. Mrs. Llorence testified that she broke her knee as a result of the fall and was in a brace for six to eight weeks. Mrs. Llorence subsequently filed suit against the owner of the shopping center, Watson Enterprises, and its insurer, Employer’s Mutual Casualty Company, alleging that her fall occurred when she tripped in a pothole in the parking lot.

The defendants filed a joint motion for summary judgment, asserting that the plaintiff could not satisfy her burden of proof at trial because she could not prove that the parking lot was in a dangerously defective condition and that she could not prove that her fall was the result of that condition, if one existed. After a hearing, the trial court found there was no genuine issue of material fact regarding the condition of the parking lot. Further, the trial court found that the plaintiff would not be able to meet her burden of proof regarding the cause of her fall. Thus, the trial court granted the defendants’ motion for summary judgment and dismissed the plaintiffs claims.

The plaintiff appeals, asserting as her sole assignment of error that the trial court erred in granting the defendants’ motion for summary judgment because “there |2is a genuine issue of material fact as to the negligence of Broadmoor Shopping Center.”

Discussion

Motions for summary judgment are reviewed de novo on appeal using the same criteria that governs the trial court’s determination of the appropriateness of summary judgment. Samaha v. Rau, 07-1726 (La.2/26/08), 977 So.2d 880. Summary judgment shall 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.Code Civ.P. art. 966(B). Summary judgment is favored in our law. La.Code Civ.P. art. 966(A)(2).

The burden of proof is on the moving party. La.Code Civ.P. art. 966(C). Article 966(C) creates a shifting burden of proof in cases where the moving party is not the party bearing the burden of proof at trial. The supreme court discussed Article 966(C) in Samaha, 977 So.2d at 888, stating that it:

first places the burden of producing evidence at the hearing on the motion for summary judgment on the mover (normally the defendant), who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case. At that point, the party who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates he or she will be able to meet the burden at trial.... Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. (Emphasis omitted; citation omitted).

A “genuine issue” is one upon which reasonable persons could disagree. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 689 So.2d 730. If, based on the evidence, reasonable persons could only reach one conclusion, the issue is not genuine. In determining whether an issue is genuine, the courts cannot make | .-¡credibility determinations, consider the merits, evaluate testimony, or weigh evidence. Id. Further, a fact is “material” when it would matter on the trial on the merits; i.e., it could insure or preclude recovery, affect the litigant’s ultimate success, or determine the outcome of the legal dispute. Id.

The plaintiffs petition, claiming an injury caused by a thing’s condition, advances theories of recovery for negligence, governed by La.Civ.Code art. 2315, or strict liability, governed by La.Civ.Code art. 2317. See Stiebing v. Romero, 07-723 (La.App. 5 Cir. 12/27/07), 974 So.2d 752. The duty-risk analysis, applied on a case-by-case basis, is appropriate for both theories. Id. Further, La.Civ.Code art. 2317.1 eliminates the distinction between strict liability and negligence for the owner or custodian of property, stating in relevant part:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

See Dupree v. City of New Orleans, 99-3651 (La.8/31/00), 765 So.2d 1002. Thus, in cases of premises liability, the plaintiff must prove that: “1) the defendant either owned or had care, custody, or control of the thing in question; 2) the thing was a cause-in-fact of the plaintiffs injuries; and 3) the thing presented an unreasonable risk of harm.” Bethea v. Great Atl. & Pac. Tea Co., 07-1385, p. 3 (La.App. 4 Cir. 9/30/09), 22 So.3d 1114, 1115.

With regard to whether there was a defect that presents an unreasonable risk of harm, Mrs. Llorence alleges that she tripped in a pothole in the grocery store parking lot. The supreme court addressed whether variations in the surface of parking lots, sidewalks, and the like constitute an unreasonable risk of harm in Reed v. Wal-Mart Stores, Inc., 97-1174 (La.3/4/98), 708 So.2d 362. The court stated:

|4It is common for the surfaces of streets, sidewalks, and parking lots to be irregular. It is not the duty of the party having garde of the same to eliminate all variations in elevations existing along the countless cracks, seams, joints, and curbs. These surfaces are not required to be smooth and lacking in deviations, and indeed, such a requirement would be impossible to meet. Rather, a party may only be held liable for those defects which present an unreasonable risk of harm.

Id. at 363. In determining whether a defect presents an unreasonable risk of harm, the fact finder must balance the gravity and risk of harm against the cost and feasibility of repair, social utility, and individual and societal rights and obligations. Id. In the case of sidewalk and parking lot defects, the supreme court considered the size of the defect, its location, and the accident history of the defect. Id.

In Reed, 708 So.2d 362, the plaintiff tripped over a one-half-inch crack in the parking lot outside a supermarket. The supreme court noted that the defect was “minimal” and it would be unreasonable to require the landowner to remedy all such defects. Further, the defect was in a high traffic area and had no history of accidents. Therefore, the supreme court determined that the defect did not present an unreasonable risk of harm. Id.

Mrs. Llorence photographed the area where she fell a few days after the accident. The photographs are of the parking spaces and area immediately adjacent to the entrance of the grocery store. Some of the photographs are marked with an arrow and the notation “tripped + fell” next to a marked curb. In its reasons for judgment, the trial court described the area as “at best[,] slightly uneven. It does not indicate any potholes, whatsoever.”

In addition, the defendants submitted the affidavits of the manager of the shopping center and the maintenance supervisor of the shopping center. The manager, James Durham, stated that the area is a high pedestrian traffic area “with dozens of store patrons traversing it daily.” The maintenance supervisor, A1 Anthony, Jr., stated that he had not made any repairs since the accident and that if the parking lot had been [fin an unreasonably harmful condition he would have repaired it. Further, both Durham and Anthony stated that there had been no claims, complaints, or suits arising out of that area either before or since the plaintiffs claim.

Further, the defendants contend that if an unreasonably harmful defect did exist, the plaintiff would not be able to establish that it was the cause-in-fact of her injuries. In support of this argument, the defendants point to the plaintiff and her grandson’s deposition testimony. In her deposition, Mrs. Llorence repeatedly stated that she did not know why she fell. She testified that her grandson told her she tripped on an “uneven thing.” However, in his deposition testimony, Mrs. Llorence’s grandson could not identify what in particular caused Mrs. Llorence to fall. Notably, he testified that Mrs. Llorence “was just walking and she started to stumble.” Beyond her allegations and the photographs showing where she tripped and fell, Mrs. Llorence did not offer any evidence to contradict the defendants’ contentions.

Mrs. Llorence argues that the existence of potholes in the parking lot creates a genuine issue of material fact that warrants submittal of this matter to a jury. Based on the evidence submitted in support of the motion for summary judgment, we do not find that a reasonable fact finder could find that the area in question presented an unreasonable risk of harm. Instead, the evidence supports the defendants’ assertion that the defect, if any, did not present an unreasonable risk of harm. Further, the evidence supports the defendants’ assertion that Mrs. Llorence would not be able to prove that the defect, if any, was the cause-in-fact of Mrs. Llorence’s injuries.

Thus, the burden of proof shifted to the plaintiff to show that she could be able to satisfy her evidentiary burden at trial. In addition to the evidence submitted by the defendants, Mrs. Llorence only submitted photographs of the area where the accident | (¡occurred into evidence. As discussed above, the photographs do not establish a genuine issue of material fact with regard to the existence of an unreasonably harmful defect in the area where Mrs. Llorence fell. Additionally, the trial court noted that the plaintiff did not have an expert who would testify regarding any defect. See Beckham v. Jungle Gym, L.L.C., 45,325 (La.App. 2 Cir. 5/19/10), 37 So.3d 564; Underwood v. Best Western Westbank, Inc., 04-243 (La.App. 5 Cir. 8/31/04), 881 So.2d 1271. Compare Joseph v. City of New Orleans, 02-1996 (La.App. 4 Cir. 3/5/03), 842 So.2d 420. With regard to whether any defect was the cause-in-fact of her injuries, the plaintiff cannot say what caused her to trip and fall. See Mooty v. Centre at Westbank, LLC, 10-792 (La.App. 5 Cir. 3/29/11), 63 So.3d 1062.

We conclude that Mrs. Llorence has failed to meet the burden of proof required of her pursuant to La.Code Civ.P. art. 966. The defendants are, therefore, entitled to summary judgment.

The plaintiffs assignment of error is without merit.

DECREE

For the foregoing reasons, the trial court’s grant of summary judgment in favor of the appellees, Watson Enterprises and Employer’s Mutual Casualty Company, is affirmed. Costs of this proceeding are taxed to the appellant, Regina Llo-rence.

AFFIRMED.

      . We note that the parties only introduced five photographs into evidence at the hearing. However, other evidence is contained in the record, including depositions and affidavits which are attached to the defendants' motion for summary judgment.


author: PICKETT, Judge.

text:
    MAXUM SERVICES, INC. v. ISLAND BOATS, INC., et al.
    No. 11-222.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.
    Michael W. Campbell, Caffery, Oube, Campbell & Garrison, LLP, New Iberia, LA, N. Jerae Carlson, Strasburger & Price, LLP, Houston, TX, for Defendant/Appellee, Gulfmark Americas, Inc.
    Thomas R. Juneua, Sr., Tonya R. Smith, Juneau Law Firm, Lafayette, LA, for Plaintiff/Appellant, Maxum Services, Inc.
    Joseph A. Tabb, Aloise, Baudry, & Bau-dy, LLC, Franklin, LA, for Plaintiff/Appellant, Estes Refractory & Insulation of Louisiana, Inc.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   PICKETT, Judge.

Lin these consolidated cases, two companies that provided materials and/or labor for the construction of a vessel appeal the trial court’s grant of summary judgment dismissing claims they asserted against the vessel. Finding the defendants failed to prove they were entitled to summary judgment, we reverse the judgment.

FACTS

Gulfmark Americas, Inc. (Gulfmark) entered into a construction contract with Island Boats, Inc. (Island) for the construction of two 170-foot water jet crew/supply vessels. Estes Refractory & Insulation of Louisiana, Inc. (Estes) provided labor and materials, and Maxum Services, Inc. (Maxum) provided labor to Island for the construction of one of the vessels, the M/V Swordfish. Gulfmark took possession of the vessels on February 22, 2009. Island did not pay Estes or Maxum for their services and filed for bankruptcy. On April 22, 2009, Maxum filed suit against Gulfmark and Island, seeking in part to have the privilege La.Civ.Code art. 3287(8) provides material men and workmen employed in the construction of a vessel recognized on the M/V Swordfish. Estes thereafter filed suit on May 22, 2009, seeking recognition of the same privilege in its favor on the M/V Swordfish.

Gulfmark filed peremptory exceptions of prescription and no cause of action which were dismissed. Gulfmark then had the suits consolidated, after which it filed a motion for summary judgment seeking to have Estes’ and Maxum’s claims dismissed. The trial court denied the motion for summary judgment. Gulfmark |2re-urged the motion, however, and the trial court granted it. Estes and Maxum appealed the trial court’s judgment.

ASSIGNMENTS OF ERROR

On appeal, Estes and Maxum assign six errors with the trial court’s judgments granting summary judgment in Gulfmark’s favor:

1. The trial court erred in determining that prior jurisprudence interpreting Civil Code Articles 3237-3245 does not apply.
2. The trial court erred in distinguishing between steamships and motor vessels.
3. The trial court erred in determining that there was no genuine issue of material fact preventing summary judgment.
4. The trial court erred in determining that the M/V Swordfish made a voyage as contemplated by Civil Code Article 3237(8).
5. The trial court erred in determining that Appellants do not have a privilege on the price of the vessel.
6. The trial court erred in dismissing Appellants’ claims against Gulfmark.

SUMMARY JUDGMENT

Appellate courts review summary judgments de novo, using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. La. Safety Ass’n of Timbermen-Self Insurers Fund v. La. Ins. Guar. Ass’n, 09-23 (La.6/26/09), 17 So.3d 350. 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.Code Civ.P. art. 966(B). Summary judgment is favored and shall be construed “to secure the just, speedy, and inexpensive determination of every action.” La.Code Civ.P. art. 966(A)(2).

|/The initial burden of proof is on the movant to show that no genuine issue of material fact exists. La.Code Civ.P. art. 966(C)(2). However, if the movant will not bear the burden of proof at trial, he need not negate all essential elements of the adverse party’s claim, but he must point out that there is an absence of factual support for one or more elements essential to the claim. Id. Once the movant has met his initial burden of proof, the burden shifts to the adverse party “to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial.” Id.

DISCUSSION

Estes and Maxum each seek to enforce a privilege provided by La.Civ.Code art. 3287(8) to material men and workmen who provide materials and labor for the construction of ships and vessels. A privilege is “stricti juris” and “can be claimed only for those debts to which it is expressly granted.” La.Civ.Code art. 3185.

Article 3237, previously Article 3204, provides in pertinent part:

The following debts are privileged on the price of ships and other vessels, in the order in which they are placed:
8. Sums due to sellers, to those who have furnished materials and to workmen employed in the construction, if the vessel has never made a voyage; and those due to creditors for supplies, labor, repairing, victuals, armament and equipment, previous to the departure of the ship, if she has already made a voyage.
The term of prescription of privileges against ships, steamboats and other vessels shall be six months.

A material man or workman can enforce the privilege provided by Article 3237 against a vessel after it has been sold to a voluntary purchaser if the vessel is in port and it has not made a voyage “in the name and at the risk of the purchaser.” La.Civ. Code art. 3242. If the vessel has made a voyage before the privilege is |4asserted, the privilege is “lost and extinct.” La.Civ. Code art. 3243. “Voyage” is defined in Article 3245 as when a “ship” has departed from one port and arrived at another or been out more than sixty days without returning to the same port, or as when a ship has been out more than sixty days without any claim for a privilege being asserted.

Gulfmark urges that the privileges provided to Estes and Maxum by Article 3237 were extinguished when they filed suit because the M/V Swordfish made numerous voyages before that time. Estes and Maxum contend Gulfmark is not entitled to summary judgment because the evidence submitted by Gulfmark in support of the motion is insufficient to warrant summary judgment in light of jurisprudence applying Article 3237. They argue the M/V Swordfish did not make a voyage before they filed suit and they filed suit within six months of providing material or labor to it; therefore, summary judgment is inappropriate.

Jurisprudence

The plaintiffs assert that a long line of jurisprudence which held, pursuant to former Article 3204, now Article 3237, that prior to 1858, vessels trading on the inland waters of Louisiana and the Mississippi River were not making voyages within the “sense of the statute.” Learned v. Brown, 94 F. 876, 881 (5th Cir.1899) (rev’d on other grounds). In those cases, material men and laborers had sixty days to file liens against a vessel. Id.; Shirley v. Fabrique, 15 La. 140 (1840). In 1858, Article 3204, now Article 3237, was amended to provide: “The term of prescription of privileges against ships, steamboats and other vessels shall be six months.” After passage of this amendment, state and federal courts held that material men and laborers had six months to assert the privilege provided in Article 3237 on vessels that sailed on inland waters, e.g., steamboats. In Re Red River Line, 115 La. 867, 40 So. 250 (1905); Learned, 94 F. 876.

|fiCiting Millaudon v. Martin, 6 Rob. (LA) 534 (La.1844), Estes and Maxum contend that a vessel must sail on the sea to make a voyage. This argument has no merit, though, as counsel for the plaintiff in Millaudon, not the court, stated the definition of voyage was “the passage of a ship upon the sea and from one port to another.” Indeed, the court did not consider whether a voyage had been made.

We find the jurisprudence does not require a vessel to sail “on the sea” to have made a voyage; nevertheless, we do find that when a vessel sails only within the inland waters of Louisiana, material men and laborers have six months to assert the privilege provided by Article 3287. Shirley, 15 La. 140; Learned, 94 F. 876. Max-um and Estes argue on one hand that jurisprudence governs this matter but argue on the other hand that the plain language of the 1858 amendment to Article 3204, now Article 3237, governs our determination, i.e., the applicable term of prescription here is six months. They cannot have it both ways. The pre-1858 jurisprudence relied upon by Estes and Maxum led to the amendment, and post-amendment jurisprudence continued to hold that the privilege ceased once a vessel made a voyage. See Graeme Spring & Brake Serv., Inc. v. De Felice 98 So.2d 314 (La.App.Orl.1957); Learned, 94 F. 876. Therefore, we will consider whether Gulf-mark proved it made a voyage beyond the inland waters of Louisiana as contemplated by La.Civ.Code arts. 3237 and 3245.

Did the M/V Swordfish Make a Voyage Before Plaintiffs Filed Suit?

Under the facts of this case, the applicable definition of voyage hinges on the term “port,” and we must decide whether the M/V Swordfish departed one port and arrived at another port outside the inland waters of Louisiana. Inland waters have been determined to extend three miles from the Louisiana coastline. U.S. v. La., 394 U.S. 11, 89 S.Ct. 773, 22 L.Ed.2d 44 (1969). “Port” is not defined in the Civil Code. Therefore, we look to other sources to determine its definition.

|fiBlack’s Law Dictionary 5th & 6th Editions 1979,1990, defines “port” as:

A place for the loading and unloading of the cargoes of vessels, and the collection of duties or customs upon imports and exports. A place, either on the seacoast[, great lakes,] or on a river, where ships stop for the purpose of loading and unloading cargo, or for purpose of taking on or letting off passengers, from when they depart, and where they finish their voyage. A port is a place intended for loading or unloading goods; hence includes the natural shelter surrounding water, as also shelter water produce by artificial jetties.

The Merriam-Webster Online Dictionary defines “port” as “a place where ships may ride secure from storms” and “a harbor town or city where ships may take on or discharge cargo.” Similarly, Dictionary.com defines “port” as “a city, town, or other place where ships load or unload”; “a place along a coast in which ships may take refuge from storms; harbor”; “any place where persons and merchandise are allowed to pass, by water or land, into and out of a country and where customs officers are stationed to inspect or appraise imported goods”; or “a geographical area that forms a harbor.”

Gulfmark supported its motion for summary judgment with an affidavit by its Director of Technical Service, James R. Whitley. Mr. Whitley averred in his affidavit that the Swordfish “made its maiden voyage ... traveling from Amelia, Louisiana to Port Fourchon, Louisiana” and, after being chartered, “made the first of many voyages from Port Four-chon, Louisiana to the EW-998 field in the Gulf of Mexico and back.” Mr. Whitley’s affidavit further states the M/V Swordfish carried cargo and/or crew to specific points throughout the Louisiana Gulf Coast region. Logs for the M/V Swordfish attached to Mr. Whitley’s affidavit show departure and arrival times as well as destinations. The logs also contain remarks which are apparently intended to show the M/V Swordfish’s activities during those 17times; however, unexplained abbreviations are used in some cases, e.g., O/L and B/L.

As argued by Estes and Maxum, neither Mr. Whitley’s affidavit nor the logs attached thereto show that the waters in which the EW-998 field is located are not inland waters such that the M/V Swordfish was not engaged in inland navigation during the time in question. Moreover, Mr. Whitley’s affidavit and the attachments thereto do not show what the EW-998 field is or that it satisfies the definition of port. The same is true of Amelia and Port Fourchon. In other words, the documents do not establish that the M/V Swordfish made a voyage prior to Estes and Maxum filing suit. Accordingly, we find the trial court erred in granting summary judgment dismissing Estes’ and Maxum’s claims.

DISPOSITION

The judgment of the trial court granting summary judgment in favor of Gulfmark Americas, Inc. is reversed. All costs are assessed to Gulfmark Americas, Inc.

REVERSED.

      . The contract was actually between Rigdon Marine Holdings, LLC and Island; however, Rigdon is now known as Gulfmark.

      . The bracketed term does not appear in the 1979 Edition’s definition of “port.”


text:
    DORSEY INSURANCE AGENCY LTD., et al. v. ISLAND BOATS, INC., et al.
    No. 11-223.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.
    Michael W. Campbell, Caffery, Oubre, Campbell & Garrison, LLP, New Iberia, LA, N. Jerae Carlson, Strasburger & Price, LLP, Houston, TX, for Defendant/Appellee, Gulfmark Americas, Inc.
    Thomas R. Juneau, Sr., Tonya R. Smith, Juneau Law Firm, Lafayette, LA, for Plaintiff/Appellant, Maxum Services, Inc.
    Joseph A. Tabb, Aloise, Baudry, & Bau-dy, LLC, Franklin, LA, for Plaintiff/Appellant, Estes Refractory & Insulation of Louisiana, Inc.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   PICKETT, Judge.

_|jFor the reasons discussed in the companion case in this consolidated matter, Maxum Services, Inc. v. Island Boats, Inc., 11-222 (La.App. 3 Cir. 10/5/11), 76 So.3d 139, the judgment granting summary judgment in favor of Gulfmark Americas, Inc. and dismissing the claims of Maxum Services, Inc.’s and Estes Refractory & Insulation, Inc.’s claims against it with prejudice are reversed. Costs of this appeal are assessed against Gulfmark Americas, Inc.

REVERSED.


text:
    ESTES REFRACTORY & INSULATION OF LOUISIANA, INC. v. ISLAND BOATS, INC., et al.
    No. 11-224.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.
    Michael W. Campbell, Caffery, Oubre, Campbell & Garrison, LLP, New Iberia, LA, N. Jerae Carlson, Strasburger & Price, LLP, Houston, TX, for Defendant/Appellee, Gulfmark Americas, Inc.
    Thomas R. Juneau, Sr., Tonya R. Smith, Juneau Law Firm, Lafayette, LA, for Plaintiff/Appellant, Maxum Services, Inc.
    Joseph A. Tabb, Aloise, Baudry, & Bau-dy, LLC, Franklin, LA, for Plaintiff/Appellant, Estes Refractory & Insulation of Louisiana, Inc.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   PICKETT, Judge.

_JjFor the reasons discussed in the companion case in this consolidated matter, Maxum Services, Inc. v. Island Boats, Inc., 11-222 (La.App. 3 Cir. 10/5/11), 76 So.3d 139, the judgment granting summary judgment in favor of Gulfmark Americas, Inc. and dismissing the claims of Maxum Services, Inc.’s and Estes Refractory & Insulation, Inc.’s claims against it with prejudice are reversed. Costs of this appeal are assessed against Gulfmark Americas, Inc.

REVERSED.


text:
    Jackie R. GONZALES, et al. v. SHELTER MUTUAL INSURANCE CO., et al.
    No. 11-198.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.

      Barry Ray Laiche, Patrick B. Sadler, Provosty, Sadler, deLaunay, Fiorenza & Sobel, Marksville, LA, for Plaintiffs/Appellants, Jackie R. Gonzales, Ruby Gonzales.
    Steven D. Crews, Corkern, Crews, & Guillet, L.L.C., Natchitoches, LA, for Defendant/Appellee, Travis Broadway.
    David A. Hughes, Hughes Law Firm, APLC, Alexandria, LA, for Defendants/Appellees, Shelter Mutual Insurance Co., Rayburn Smith, Emily Smith, Jeremy Richerson, S & S Cattle Company, Inc.
    John E. McAuliffe, Jr., Attorney at Law, Metairie, LA, for Defendant/Appellee, State Farm Fire & Casualty Co.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

| T Jackie R. Gonzales and his wife, Ruby Gonzales, individually and on behalf of their minor children, appeal the grant of summary judgment in favor of defendant, Travis Broadway, dismissing their demands against Broadway. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Broadway raises cattle in Echo, Louisiana. He intended to sell some cattle and, some date before December 10, 2007, contacted Jeremy Richerson, a solicitor who arranges for the sale of cattle by Rayburn Lee Smith. Smith is a representative of both Red River Livestock Auction in Arm-stead, Louisiana, and Superior Livestock Auction of Fort Worth, Texas, and Brushy, Colorado. Smith pays Richerson a commission on the cattle sold.

Richerson and his brother arrived at Broadway’s ranch and helped Broadway take the cattle to Rush Farms, which Smith leased. Broadway left Rush Farms once the cattle were delivered. Broadway paid Richerson for gathering and loading the cattle at his ranch, and unloading the cattle at Rush Farms.

Once the cattle were unloaded at Rush Farms, they were sorted and tagged by Richerson and his brother. The cattle were loaded onto a cattle trailer for transport to the sale barn. As this was taking place, one calf fell and was trampled by other cattle. Richerson and his brother thought the calf was dead and, to facilitate the loading of the remaining cattle, dragged it outside the pen, up a chute, and into an open yard.

The calf was not dead, however. At about 7:00 p.m., approximately two hours after Broadway had left Rush Farms, it wandered through an open gate and onto Louisiana Highway 1, where it was hit by a vehicle driven by Robert T. | gLamelle. Mr. Gonzales’s vehicle then struck the calf. The open gate was located from between 300 yards to one-half mile from the highway.

The Gonzaleses filed suit against several defendants, including Broadway. Broadway filed a motion for summary judgment. The Gonzaleses opposed the motion, which the trial court granted. This appeal ensued.

ASSIGNMENTS OF ERROR

The Gonzaleses assert generally that there existed genuine issues of material fact precluding summary judgment. Specifically, they point to three: 1) Broadway should be held liable for his own negligence in failing to close the gate as he left Rush Farms; 2) Richerson was acting in furtherance of Broadway’s enterprise as to render Broadway vicariously liable for Richerson’s negligence; and, 3) Richerson was an employee of Broadway.

ANALYSIS

The law of summary judgment is so ingrained as to require no recitation. See La.Code Civ.P. arts. 966 and 967. Summary judgments are reviewed de novo by courts of appeal. Louviere v. Ace Hardware Corp., 05-259 (La.App. 3 Cir. 11/2/05), 915 So.2d 999.

The Gonzaleses assert that Broadway is liable for his independent negligence in violating Louisiana Revised Statute 3:2803(19), which prohibits the owner from knowingly, willfully, or negligently permitting his livestock to go at large upon Louisiana Highway 1 from its intersection with U.S. Highway 190 (near Erwinville) to Shreveport. The area of Highway 1 where the Gonzales accident occurred is undis-putedly within the proscribed area. The Louisiana Supreme Court has held that when livestock are struck upon a “stock law” highway, the owner is saddled with a presumption of negligence and must demonstrate not only that he took all reasonable precautions, but also the he is free from fault by | -¡showing the means by which the animal escaped. See Hines v. Garrett, 04-806 (La.6/25/04), 876 So.2d 764. This presumption of negligence precludes application of the shifting burden of production found in Louisiana Code of Civil Procedure article 966(c)(2).

Broadway has unequivocally demonstrated the means by which the animal escaped. It was trampled by other cows as it was being unloaded. Richerson thought it was dead and dragged it to the side. The animal revived and wandered a considerable distance onto Highway 1. When Broadway left Rush Farms, the cattle were inside an enclosure and were under the supervision of Richerson. Had the calf not been trampled and removed from the enclosure, it would not have wandered onto the highway. The only real question about Broadway’s independent negligence is whether it was negligent for him to leave Rush Farms without closing the main gate to the facility behind him.

When Broadway arrived at Rush Farms, the main gate was open. The farm was leased by Smith. Smith’s deposition makes it clear that while ranchers like Broadway would deliver their sale cattle to the farms, their control over the cattle and, more importantly, the facilities ended at that point. Only Richerson had permission from Smith to use the pens at Rush Farms. Smith also testified that the gate was not intended to retain cattle, but to limit vehicle access to the farms. The gate controls a road leading into the farms, and that road is lined on both sides by fences. The last person to leave at the end of the day was to close and lock the gate.

Under these circumstances, we find that Broadway has demonstrated that he was free from independent fault. When he left the cattle under Richerson’s control, they were secured within an enclosure from which they could not escape under normal circumstances. Only when this calf was removed from the enclosure — two hours after Broadway left — did it gain access to the road. And the calf still had to 14wander a quarter to a half mile before it even reached the main gate to the farms. Smith, as the proprietor of Rush Farms, controlled the main gate.

The remaining issues are the plaintiffs’ contentions that Broadway was vicariously liable for Richerson’s actions either under an “enterprise liability” theory or as Richerson’s master under Louisiana Civil Code article 2820. The - Gonzaleses cite Morgan v. ABC Manufacturer, 97-956 (La.5/1/98), 710 So.2d 1077 as authority for liability under the enterprise theory. Specifically, the Morgan decision quoted from Ermert v. Hartford Ins. Co., 559 So.2d 467, 476 (La.1990), the proposition that a “master’s vicarious liability for the acts of its servant rests ... in a deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents which may be fairly said to be characteristic of its activities.” However, in Morgan, the supreme court was establishing the context for determining whether a temporary service was vicariously liable for the tort of a worker it had procured for its customer. The temporary service’s stock in trade was providing employees for its customers. Both the temporary service and its customers exercised “contemporaneous control” over the employee; therefore, it was “reasonable that considering the overlapping control and shared financial interest that they share liability.” Morgan, 710 So.2d at 1083. Because the temporary service’s product was the labor it provided, it should bear the risk associated with its product.

Rather than enunciating a novel theory for imposing vicarious liability, Morgan presents an analytical framework for determining whether, in a master-servant relationship, a particular activity was the kind for which liability should be imposed. The fundamental basis for liability remains Civil Code article 2820. In Ermert, - for example, the issue was whether a corporation was vicariously liable for its employee, who negligently discharged a shotgun inside a hunting camp. The | Bsupreme court did not draw upon enterprise liability analysis to determine whether the negligent actor was a servant, but whether the recreational pursuit at the hunting camp was the sort of activity for which the master could be held responsible. In both Morgan and Ermert, the existence of a master-servant relationship was a given.

That is not the case here. We must begin our inquiry with a determination of whether a genuine issue of material fact exists regarding the existence of a master-servant relationship between Broadway and Richerson. In this inquiry, the shifting burden of production previously discussed does come into play. See La.Code Civ. P. art. 966(C)(2).

Broadway submitted an affidavit in which he attested that Richerson was not his employee. Further, at the time of the accident, no employee or servant of his was present at the site. Richerson testified in his deposition that he received a call from Broadway, who wanted to sell some cows. Richerson brought two trucks and trailers and at least six helpers to Broadway’s ranch. Broadway had three trucks and trailers and three of his own hands. Broadway paid Richerson for the loading and transport of the cattle to Rush Farms. Once the cattle were delivered to Rush Farms, Richerson had earned his labor fee from Broadway and was working on his sales commission. According to Richer-son, Broadway’s involvement with the process had ended.

While the supreme court in Ermert recognized that vicarious liability between master and servant is seated in the notion that when the master reaps the economic rewards of his servants’ labor, he should also expect to absorb the risk that, in the course of that labor, his servants may cause harm, it also recognized that this notion was not a governing principle of tort law. Id. at 476. Those governing principles of tort law hold that a servant is one employed to perform ^services in the affairs of another and whose conduct in the performance of that service is subject to the other’s right of control. Id., citing Blanchard v. Ogima, 253 La. 34, 215 So.2d 902 (1968). In fact, Blanchard provides an almost perfect framework within which to analyze the present matter.

Ogima was a “bird-dog” car salesman, which meant that he essentially sold cars on consignment. He retained all of the purchase price above an agreed amount. He had taken possession of a Volkswagen from Russo. Ogima parked the Volkswagen on an incline. The Volkswagen rolled downhill and crushed Blanchard against another vehicle. Blanchard sued Ogima, Russo, and Russo’s insurer. The trial court dismissed Russo and his insurer. The fourth circuit affirmed the dismissal. The supreme court agreed to hear the case and affirmed.

The supreme court noted that the right to control another’s actions is determinative of whether the one is the master of the other. The only control Russo exercised over Ogima was fixing the amount of his compensation. Ogima was neither a servant nor an independent contractor, but Russo’s agent. An agency relationship does not form the basis for vicarious liability. All servants may qualify as agents, but not all agents qualify as servants.

When Broadway entrusted the cattle to Richerson’s care, it was like Russo handing over the keys of the Volkswagen to Ogima. His control over Richerson’s actions ended. Richerson was not Broadway’s servant. No vicarious liability attached to Richerson’s actions in sorting and tagging the cattle.

CONCLUSION

The Gonzaleses sued Broadway alleging both his independent negligence and his vicarious liability for Richerson’s alleged negligence. Our de novo review of the evidence supporting and opposing the motion for summary judgment demonstrates no genuine issue for trial on either ground of fault. We find that |7Broadway took every reasonable precaution when he left Rush Farms with his cattle in the care of Richerson inside a corral or pen located a quarter to a half mile from Highway 1. He was free from any independent fault.

Richerson acted as Broadway’s agent from the moment he took custody of the cattle at Rush Farms. Broadway’s control over Richerson’s actions ended at that time.

The judgment of the trial court in favor of Travis Broadway is affirmed. All costs of this appeal are taxed to appellants, Jackie R. Gonzales and Ruby Gonzales.

AFFIRMED.


text:
    Jackie R. GONZALES, et al. v. SHELTER MUTUAL INSURANCE CO., et al.
    No. CA 11-199.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.
    Barry Ray Laiche, Patrick B. Sadler, Provosty, Sadler, deLaunay, Fiorenza <& Sobel, Marksville, LA, for Plaintiffs/Appellants, Jackie R. Gonzales, Ruby Gonzales.
    Steven D. Crews, Corkern, Crews, & Guillet, L.L.C., Natchitoches, LA, for Defendant/Appellee, Travis Broadway.
    David A. Hughes, Hughes Law Firm, APLC, Alexandria, LA, for Defendants/Appellees, Shelter Mutual Insurance Co., Rayburn Smith, Emily Smith, Jeremy Richerson, S & S Cattle Company, Inc.
    John E. McAuliffe, Jr., Attorney at Law, Metairie, LA, for Defendant/Appellee, State Farm Fire & Casualty Co.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

| jThis matter involves the same parties and the same accident as that in docket number 11-198, Jackie R. Gonzales v. Shelter Mutual Insurance Company. Counsel for the Gonzaleses filed an unopposed motion to consolidate in which he verified that the suits were identical and the later matter was filed under the impression that the earlier suit had not been filed.

Therefore, for the reasons set forth in Gonzales v. Shelter Mutual Insurance Company, 11-198 (La.App. 3 Cir. 10/5/11), 76 So.3d 144, the judgement of the trial court is affirmed, and all costs of this appeal are taxed to appellants, Jackie R. Gonzales and Ruby Gonzales.

AFFIRMED.


author: KEATY, Judge. AMY, J.,

text:
    Nathan WRIGHT v. CYPRESS GENERAL CONTRACTORS.
    No. 11-238.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.

      Marcus M. Zimmerman, Attorney at Law, Lake Charles, LA, for Plaintiff/Ap-pellee, Nathan Wright.
    Michael J. Taffaro, W. Michael Stem-mans, M. Todd Alley, Jennifer E. Freder-ickson, Stemmons & Alley, Baton Rouge, LA, for Defendant/Appellant, Cypress General Contractors.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

|,The defendant, Cypress General Contractors (Cypress), appeals from an October 26, 2010 judgment rendered by the workers’ compensation judge (WCJ) in favor of the plaintiff, Nathan Wright (Wright), denying its defense of fraud; reinstating Wright’s indemnity and medical benefits; assessing it with a $8,000 penalty for arbitrary and capricious termination of benefits; awarding Wright $13,500 in attorney fees; and assessing it with all costs.

At issue in this appeal is whether Wright committed fraud and, pursuant to La.R.S. 23:1208, thereby forfeited his right to receive workers’ compensation benefits by failing to report income derived from a business owned by him and/or his wife, Christine. For the following reasons, we find no error in the WCJ’s conclusion that Wright did not commit the fraud alleged by Cypress, and we affirm the judgment in its entirety.

FACTS AND PROCEDURAL HISTORY

In Wright v. Cypress General Contractors, Inc., 05-700 (La.App. 3 Cir. 12/30/05), 918 So.2d 526, writ denied, 06-238 (La.4/24/06), 926 So.2d 553, this court affirmed the WCJ’s finding that Wright suffered a compensable work-related injury to his left knee on March 14, 2002, and was thus entitled to reinstatement of indemnity and medical benefits from Cypress. In late 2007, Cypress began to suspect that Wright may have been producing and selling custom goose calls through a company known as Redbone Custom Calls (Red-bone). It hired private investigator Darryl Scott Johnson in an attempt to determine Wright’s involvement in Redbone. Mr. Johnson corresponded with Redbone over the telephone and purchased four goose calls, which were mailed to him along with instructional videos which depicted Wright instructing purchasers on how to use and maintain the goose calls. Thereafter, Cypress requested that Wright fill out a series of ^Employee’s Monthly Report of Earnings Forms (1020s) covering the period from January 1, 2006 to December 31, 2007. On each of the 1020s, Wright checked “No” in response to the following questions:

2. For the period covered in this report, did you receive a salary, wage, sales commission, or payment, including cash, of any kind?
3. For the period covered in this report, were you self-employed or involved in any business enterprise? These include but are not limited to farming, sales work, operating a business (even if the business lost money), child care, yard work, mechanical work, or any type of family business.

Cypress terminated Wright’s benefits on January 13, 2008, and Wright filed a 1008 Disputed Claim for Compensation (1008) approximately two months later. This matter was tried on June 24, 2010, after which the WCJ requested post-trial memo-randa and took the matter under advisement. On October 4, 2010, the WCJ rendered oral reasons for judgment in open court finding that Wright did not violate La.R.S. 23:1208, and thus denying Cypress’s defense based upon that statute. Wright’s medical benefits were reinstated, and his indemnity benefits were reinstated retroactive to January 14, 2008, based on the weekly indemnity rate of $398. Cypress was assessed a penalty of $8,000 for its arbitrary and capricious termination of Wright’s benefits, and it was ordered to pay Wright’s attorney fees, which were assessed at $13,500. The awards were to include interest, and all costs were assessed against Cypress. Written judgment was signed in conformity with the oral reasons on October 26, 2010.

Cypress now appeals, arguing that the WCJ committed manifest error in finding that Wright did not violate La.R.S. 23:1208 and in finding that it acted arbitrarily and capriciously in terminating Wright’s benefits.

LDISCUSSION

We recently discussed the standard of review to be employed in workers’ compensation cases, noting:

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Smith v. Louisiana Dep’t of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129. In applying the manifest error standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart v. State, 617 So.2d 880 (La.1993). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Id. Thus, “if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).
“The determination of coverage is a subjective one in that each case must be decided from all of its particular facts.” Jackson v. Am. Ins. Co., 404 So.2d 218, 220 (La.1981). This court has held that, in light of that standard of review, “great deference is accorded to the [workers’ compensation judge’s] factual findings and reasonable evaluations of credibility.” Cent. Lumber Co. v. Duhon, 03-620, p. 3 (La.App. 3 Cir. 11/12/03), 860 So.2d 591, 593, writ denied, 04-315 (La.4/2/04), 869 So.2d 880 (quoting Garner v. Sheats & Frazier, 95-39, p. 7 (La.App. 3 Cir. 7/5/95), 663 So.2d 57, 61).

Green v. Nat’l Oilwell Varco, 10-1041, pp. 3-4 (La.App. 3 Cir. 4/27/11), 63 So.3d 354, 357-58 (alteration in original) (quoting Foster v. Rabalais Masonry, Inc., 01-1394, pp. 2-3 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160, 1162, writ denied, 02-1164 (La.6/14/02), 818 So.2d 784).

Fraud

Louisiana Revised Statutes 23:1208(A) provides that it shall be unlawful for any claimant or employer “to willfully make a false statement or representation” “for the purpose of obtaining or defeating” any workers’ compensation benefit or Inpayment. A claimant who violates the statute forfeits his or her right to workers’ compensation benefits. La.R.S. 23:1208(E).

“The requirements for forfeiture of benefits under Section 1208 governing misrepresentations concerning workers’ compensation benefits are that: (1) there is a false statement or representation; (2) it is willfully made; and (3) it is made for the purpose of obtaining or defeating any benefit or payment.” R & R Steel Erectors v. Watson, 01-1322, pp. 3-4 (La.App. 3 Cir. 3/6/02), 809 So.2d 1228, 1231. An appellate court reviews a WCJ’s factual findings with regard to a claim of forfeiture of benefits under the manifest error/clearly wrong standard. Doyal v. Vernon Parish Sch. Bd., 06-1088 (La.App. 3 Cir. 2/7/07), 950 So.2d 902, writ denied, 07-832 (La.6/15/07), 958 So.2d 1190.

Wright’s wife, Christine, testified that her mother had suffered a stroke some years ago which resulted in right side paralysis that left her bedridden and unable to speak or walk. Her father had been her mother’s primary caregiver, but he had gotten ill and died about three years ago. Thereafter, Christine’s mother moved into their home, resulting in Christine quitting her job and taking over her mother’s care.

Wright testified that before his injury and disability, he had won four goose calling world championships using calls that he had built. He stated that when Christine began searching for an at-home business that she could operate while caring for her mother, she decided to start a company specializing in the manufacture and sale of custom goose calls. In December of 2006, she established Redbone. Wright readily admitted that he helped make the goose calls and he sometimes handled phone orders for Redbone. He also admitted to being pictured on the Redbone website giving instructions on how to use the calls and on similar |5videos mailed out with each order. According to Wright, Cypress never had him seen by a vocational rehabilitation specialist to determine what work, if any, he was capable of performing since the first trial of this matter.

Christine testified that she orders all the parts for making the calls. Sometimes her children, a friend, or her husband help her with assembling the parts into the actual goose calls, and her husband, on occasion, helps with phone orders called in to Redbone. Christine stated that she fills and mails out all the orders received by Redbone, that she does all the banking associated with Redbone, and that she is responsible for gathering and submitting information about Redbone to her tax preparer.

The Wrights’ tax preparer, Louise Broussard, testified that Redbone was Christine’s business. Ms. Broussard stated that Redbone did not make any money in 2007 or 2008, and, although she had not completed the 2009 taxes at the time of trial, Redbone was going to have a net loss for that year too. Ms. Broussard confirmed that Redbone did not pay Wright a salary.

Mr. Johnson, the investigator hired by Cypress, testified on behalf of Cypress. Initially, he was not sure of what year he began investigating Wright, although he surmised that it was probably in the beginning of 2008. He was also unsure of whether he had first initiated contact through Redbone or through Wright personally. Mr. Johnson first stated that he received four goose calls “from Mr. Wright,” but later clarified that he actually purchased two calls from Ben Williams, a man whom Wright had referred him to, and the remaining two calls from “Mr. Wright.” According to Mr. Johnson, the goose calls came to him in two packages; one had the return address listed as Red-bone and the other had that of Ben Williams. Mr. Johnson could not recall how many times he spoke to either 16Wright or Mr. Williams. Finally, Mr. Johnson was unsure of what he paid for each of the calls, stating “[t]hey were [$]200, somewhere around in there, I believe, or less.”

Phillip Moory testified that he became the adjuster on Wright’s workers’ compensation claim in 2007. He initially began investigating Wright’s activities because Cypress suspected that he might be working as a hunting and fishing guide. Although he found no evidence of any such activities, Mr. Moory did discover, through an internet search, that Wright’s name “was associated” with a company called Redbone. He then hired Mr. Johnson to look into Wright’s involvement with Red-bone. After Mr. Johnson purchased the four goose calls, Mr. Moory terminated Wright’s benefits on the basis that he was “furnishing us false information in support of his claim” based upon the money that he was paid for the goose calls and his failure to note that money as income on the 1020s.

In denying Cypress’s defense of fraud, the WCJ noted that Cypress had produced no evidence to show that Wright was making any money on the side or that he was capable of doing any physical work. After reviewing the testimony and evidence presented at trial, we find no manifest error in the WCJ’s determination that Cypress failed to prove that Wright was guilty of violating La.R.S. 23:1208 as that determination necessarily required the WCJ to assess the credibility of the witnesses. See Ben v. Holtrachem, Inc., 00-635 (La.App. 3 Cir. 11/2/00), 772 So.2d 326. Cypress’s first assignment of error lacks merit.

| •¡Termination of Benefits

Louisiana Revised Statutes 23:1201(1) is the relevant statute in determining whether an employer should be assessed penalties and attorney fees for the discontinuation of indemnity or medical benefits. The statute provides, in part:

Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims.

Id.

An employer avoids the imposition of penalties and attorney’s fees by satisfying its continuing obligation to investigate, assemble, and assess factual information prior to it denying benefits. Wright v. Cypress Gen. Contractors, Inc., 05-700 (La.App. 3 Cir. 12/30/05), 918 So.2d 526, writ denied, 06-0238 (La.4/24/06), 926 So.2d 553. Furthermore, the decision to award penalties and attorney’s fees is factual in nature and will not be reversed on appeal absent manifest error. Bigge v. The Lemoine Co., 04-1191 (La.App. 3 Cir. 3/2/05), 896 So.2d 269.

Odom v. Kinder Nursing Home, 06-1442, p. 24 (La.App. 3 Cir. 4/25/07), 956 So.2d 128, 141-42.

The WCJ assessed Cypress with an $8,000 penalty for the arbitrary and capricious termination of Wright’s benefits based on its finding that Cypress had proceeded with its decision to terminate benefits after its investigation into Wright’s possible employment yielded no proof of fraud. Attorney fees were assessed against Cypress in the amount of $13,500. The WCJ noted that Cypress had ignored the facts as they developed and had skipped the step of hiring a vocational rehabilitation specialist to determine what, if any, type of labor Wright was capable of performing. On the other hand, after examining one of the goose |scalls entered into evidence, the WCJ remarked that assembling such a device required “virtually no physical exertion.”

The record supports the WCJ’s factual finding that Cypress’s discontinuation of Wright’s benefits was arbitrary and capricious based upon the evidence revealed by its investigation into Wright’s possible income-producing activities. The fact that Cypress failed to have Wright undergo any up to date vocational rehabilitation testing only serves to emphasize the correctness of the WCJ’s finding that Cypress acted arbitrarily and capriciously. Accordingly, we find no error in its $8,000 penalty award or in its $18,500 attorney fee award. Cypress’s second assignment of error has no merit.

Answer to Appeal

Wright answered Cypress’s appeal seeking an award of additional attorney fees for having to defend the appeal and an order that Cypress be cast with all costs incurred in the trial and appellate court.

In Nash v. Aecom Technology Corp., 07-990, p. 8 (La.App. 3 Cir. 2/6/08), 976 So.2d 263, 268, this court held that “[a] workers’ compensation claimant is entitled to an increase in attorney fees to reflect additional time incurred in defending an employer/insurer’s unsuccessful appeal.” We award Wright an additional attorney fee of $4,000 for the work done on appeal.

The WCJ cast Cypress with all costs. An appellate court reviews a WCJ’s assessment of court costs under an abuse of discretion standard. Lambert v. Brookshire Grocery Co., 06-1001 (La.App. 3 Cir. 12/20/06), 945 So.2d 918. Given that Wright prevailed on his claim before the WCJ, we find no error in costs having been assessed against Cypress. Moreover, because Wright was successful |9in defending the judgment in his favor, Cypress is cast with all costs of this appeal. See La.Code Civ.P. art. 1920.

DECREE

For the foregoing reasons, we affirm the October 26, 2010 judgment in its entirety. Wright is awarded additional attorney fees of $4,000 for work performed on this appeal. All costs of this appeal are assessed against Cypress General Contractors.

AFFIRMED. ADDITIONAL ATTORNEY FEES AWARDED TO APPEL-LEE.

AMY, J., concurs and assigns reasons.

AMY, J.,

concurring.

|,I write separately in order to express that, in my opinion, an affirmation is warranted in this case due only to the manifest error standard of review. My review of this matter indicates that the determination of the issues in this case lies at the margins of that standard. I do, however, find that the workers’ compensation judge’s underlying factual findings are supported by the record in light of permissible credibility determinations and factual findings.