author: PEATROSS, J.

text:
    Marvin BECK, Plaintiff-Appellee v. NEWT BROWN CONTRACTORS, LLC, Defendant-Appellant.
    No. 46,523-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 21, 2011.

      Snellings, Breard, Sartor, Inabnett & Trascher, L.L.P., Monroe, LA, by Donald J. Anzelmo, for Appellant.
    Fischer & Associates, Shreveport, LA, by Mark K. Manno, for Appellee.
    Before BROWN, WILLIAMS & PEATROSS, JJ.
   PEATROSS, J.

|! Claimant, Marvin Beck, filed suit in December 2009 against Defendants, Newt Brown Contractor, LLC, and LUBA Casualty Insurance Company (collectively, “Newt”), for failure to pay indemnity benefits and medical bills resulting from a work-related accident in October 2009. After trial of the case in September 2010, the workers’ compensation judge (‘WCJ”) took the matter under advisement. Then, in October 2010, the WCJ ruled in favor of Mr. Beck, awarding temporary total disability (“TTD”) benefits in the amount of $338.77 per week, retroactive to the date of the injury, $54,046.01 for past medical bills and $6,150 for the helicopter transport, plus legal interest on all amounts, with credit for previous amounts paid totaling $3,816.40.

Newt appeals from the WCJ’s ruling in favor of Mr. Beck. For the reasons set forth herein, we affirm.

FACTS

On October 3, 2009, Mr. Beck sustained a work-related injury in an accident while working for Newt. At the time, Newt had undertaken a road building contract job in Grand Cane, DeSoto Parish, Louisiana. While working on the road building job, Mr. Beck operated a water truck. Johnny Boyd, another employee for Newt, operated a piece of large equipment called a “stabilizer,” along with another employee, “his helper,” who helped operate the stabilizer.

On the day of the accident, Mr. Boyd and his helper were preparing to clean the stabilizer when Mr. Beck walked over to them and inquired about some dirt which was covering an open hatch on the front side of the |¡.stabilizer. Mr. Boyd told Mr. Beck not to worry about the dirt. Then, while the stabilizer was still running, Mr. Beck stuck his foot through the open hatch on the front of the machine, presumably to kick off the dirt. The auger blades rotating inside the open hatch caught Mr. Beck’s foot, severing his ankle until his foot was nearly amputated. Mr. Boyd was able to remove Mr. Beck from the stabilizer, avoiding further injury to the rest of Mr. Beck’s leg and body.

Mr. Beck was immediately taken via helicopter transport to LSU Medical Center in Shreveport where he received medical treatment for his injuries. While he was at the trauma unit on the day of the accident, the ER staff asked Mr. Beck if he used “street drugs” and Mr. Beck responded that he did not. Mr. Beck then received a urine drug screen and tested positive for marijuana. The urine drug screen administered to Mr. Beck indicated a positive result for cannabinoids, ie., marijuana, at a level in excess of 50 ng/mL. This level is considered the legal threshold for intoxication due to the ingestion of marijuana and precludes the possibility of passive inhalation. See La. R.S. 23:1081(9). At the time of the accident, Newt had in effect a written “substance abuse policy,” previously signed by Mr. Beck, which prohibited the use of illegal substances by employees.

As previously stated, Mr. Beck ultimately filed a workers’ compensation claim for TTD benefits and medical expenses. Citing the “intoxication defense,” Newt denied Mr. Beck’s claims on the grounds that he had tested positive for marijuana on the day of the accident. The matter went to trial in September 2010; and, after taking the matter under | (¡advisement, the WCJ ruled in favor of Mr. Beck awarding TTD benefits in the amount of $388.77 per week, retroactive to the date of the injury, $54,046.01 for past medical bills and $6,150 for the helicopter transport, plus legal interest on all amounts, with credit for previous amounts paid totaling $3,816.40.

In his written reasons for judgment, the WCJ found that the drug screen administered to Mr. Beck had never been verified or confirmed as required by La. R.S. 23:1081(9). The WCJ further concluded that the evidence did not support a finding that Mr. Beck had been intoxicated on the day of the accident because no one had witnessed him smoking marijuana that day or acting in a strange or impaired manner. The WCJ noted Mr. Beck’s admission that he had smoked marijuana at a party two weeks prior to the day of the accident, but determined that doing so could not have had an effect on Mr. Beck on the date of the accident, when it had been two weeks since he consumed the drug.

After considering this evidence, the WCJ ruled that Newt had failed to meet its burden of proof under La. R.S. 23:1081, thereby failing to prove by a preponderance of the evidence that Mr. Beck was intoxicated at the time of the accident on October 3, 2009.

The WCJ further determined that Mr. Beck’s false statement to the hospital staff that he did not use “street drugs” was immaterial and irrelevant to his claim for benefits because the drug screen would have been administered regardless of how he answered the question. The WCJ held that the statement was, therefore, inconsequential to the case and not of |4sufficient weight to warrant the harsh remedies imposed by La. R.S. 23:1208, i.e., forfeiture of the right to compensation when a fraudulent or false statement is made by a claimant for the purpose of securing benefits or payments under the statute.

Finding that Newt initially had reasonable grounds to controvert Mr. Beck’s claims for compensation, however, the WCJ declined to award penalties and attorney fees against Newt for nonpayment of benefits to Mr. Beck.

This appeal ensued.

DISCUSSION

In its first assignment of error, Newt argues that the WCJ erred in finding that Mr. Beck was entitled to recover full benefits under the Louisiana Workers’ Compensation Act in spite of the evidence of his intoxication at the time of the accident.

In support of this argument, Newt submits that Mr. Beck failed the drug screen administered to him at LSU Medical Center with a positive result exceeding 50 ng/mL, thereby excluding the possibility of passive ■ inhalation. Additionally, Newt points out that Mr. Beck admitted at trial that he smoked marijuana two weeks before the accident. Newt concludes that, since Mr. Beck failed the drug screen, a statutory presumption should apply that he was intoxicated at the time of the accident.

Factual findings in workers’ compensation cases are subject to the manifest error rule. Buxton v. Iowa Police Dept., 09-0520 (La.10/20/09), 28 So.3d 275; Winford v. Conerly Corp., 04-1278 (La.3/11/05), 897 So.2d 560. Whether the claimant has carried his burden of proof and whether the testimony at trial is credible are questions of fact to be determined by the fact finder. Buxton v. Iowa Police Dept., supra; Taylor v. Hollywood Casino, 41,196 (La.App.2d Cir.6/28/06), 935 So.2d 293. Under the manifest error rule, the reviewing court does not decide whether the fact finder was right or wrong, but only whether its findings are reasonable. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993); Spires v. Raymond Westbrook Logging, 43,690 (La.App.2d Cir.10/22/08), 997 So.2d 175, writ denied, 08-2771 (La.2/20/09), 1 So.3d 495.

In order for the claimant to receive workers’ compensation benefits, he must establish by a preponderance of the evidence, “personal injury by accident arising out of and in the course of his employment.” La. R.S. 23:1031(A); Spires v. Raymond Westbrook Logging, supra. In the case sub judice, it is undisputed that Mr. Beck was injured by an accident during the course of his employment.

Commonly referred to as the “intoxication defense,” La. R.S. 23:1081(l)(b) provides that an employer is not liable for workers’ compensation benefits where an employee, who is working under the influence of drugs or alcohol, is injured and the injury can be attributed to the employee’s intoxication. Spires v. Raymond Westbrook Logging, supra; Deal v. Bancroft Bag, Inc., 28,188 (La.App.2d Cir.4/3/96), 671 So.2d 1264, writ denied, 96-1102 (La.6/7/96), 674 So.2d 977. If there was, at the time of the accident, evidence of either on or off the job use of a Rnonprescribed controlled substance, it shall be presumed that the employee was intoxicated. La. R.S. 23:1081(5); Spires v. Raymond Westbrook Logging, supra.

La. R.S. 23:1081(7)(a) provides that the employer has the right to administer drug and alcohol testing or demand that the employee submit himself to drug and alcohol testing immediately after the alleged job accident. If the employee refuses to submit to a drug and alcohol test immediately after the job accident, it shall be presumed that he was intoxicated at the time of the accident. La. R.S. 23:1081(7)(b). The collection, handling and testing process must be trustworthy. Spires v. Raymond Westbrook Logging, supra; Deal v. Bancroft Bag, Inc., supra. In order to support a finding of intoxication due to drug use, and a presumption of causation due to such intoxication, the employer must prove the employee’s use of the controlled substance by a preponderance of the evidence. La. R.S. 23:1081(8).

La. R.S. 23:1081(9) provides:

All sample collection and testing for drugs under this Chapter shall be performed in accordance with rules and regulations adopted by the director which ensure the following:
(e) Sample testing shall conform to scientifically accepted analytical methods and procedures. Testing shall include verification or confirmation of any positive test result by gas chromatography, gas chromatography-mass spectroscopy, or other comparably reliable analytical method, before the result of any test may be used as a basis for any disqualification pursuant to this Section. Test results which do not exclude the possibility of passive inhalation of marijuana may not be used as a basis for disqualification under this Chapter. However, test results which indicate that the concentration of total urinary cannabinoids as determined by immunoassay equals or exceeds fifty nanograms/ml shall 17exclude the possibility of passive inhalation. (.Emphasis added).

Once the employer has satisfied its burden of proving intoxication at the time of the accident, a presumption of causation due to the intoxication arises. La. R.S. 23:1081(12). The burden of proof is then placed on the employee to prove that the intoxication was not a contributing cause of the accident. Id. If he does so, the intoxication defense of the employer is defeated. La. R.S. 23:1081(12); Johnson v. EnviroBlast, 01-0200 (La.App.1st Cir.12/28/01), 804 So.2d 924.

In the case sub judice, as pointed out by the WCJ in his written reasons for judgment, “there is no evidence that [Mr. Beck’s] drug screen was verified or confirmed by gas chromatography, gas chromatography-mass spectroscopy, or other comparably reliable analytical method.” As stated, La. R.S. 23:1081(9)(e) provides that only confirmed, verified drug tests may be used as a basis for disqualification pursuant to Section 1081. Accordingly, we see no error in the WCJ’s ruling that the unconfirmed, unverified drug test administered to Mr. Beck could not be used to assist Newt in meeting its burden of proof by creating a presumption of intoxication against Mr. Beck. Spires v. Raymond Westbrook Logging, supra.

Additionally, Newt has failed to provide any other reliable evidence that Mr. Beck was intoxicated at the time of the accident. Although Mr. Beck had been at work the entire day, Newt was unable to provide evidence that anyone had seen Mr. Beck smoking marijuana or acting strangely on the day of the accident. While it is true that Mr. Beck ^exhibited extremely poor judgment when he kicked through the open hatch on the front of the stabilizer, his decision to do so is not proof that he was intoxicated at the time of the accident. Mr. Beck admitted during trial that he had smoked marijuana two weeks prior to the accident; however, this admission does not prove that he was intoxicated on the day of the accident. As a result, we find that Newt failed to meet its burden of proving that Mr. Beck was intoxicated when the accident happened on October 3, 2009. La. R.S. 23:1081. Newt’s first assignment of error is without merit.

Newt submits in its second assignment of error that the WCJ erred in declining to rule that Mr. Beck forfeited his right to compensation by making false statements and representations in furtherance of his claim for benefits in violation of La. R.S. 23:1208.

With regard to misrepresentation, La. R.S. 23:1208(A) provides:

It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.

La. R.S. 23:1208(E) provides:

Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

The only requirements for a forfeiture of benefits under La. R.S. 23:1208 are: (1) a false statement or representation, (2) willfully made, and (3) made for the purpose of obtaining or defeating any benefit or |9payment. Resweber v. Haroil Const. Co., 94-2708 (La.9/5/95), 660 So.2d 7; Thomas v. Hollywood, Casino, 44,271 (La.App.2d Cir.5/13/09), 13 So.3d 717; Freeman v. Chase, 42,716 (La.App.2d Cir.12/5/07), 974 So.2d 25. Forfeiture is a harsh remedy and must be strictly construed. Wise v. J.E. Merit Constructors, Inc., 97-0684 (La.1/21/98), 707 So.2d 1214; Thomas v. Hollywood Casino, supra; Freeman v. Chase, supra; Risk Management Services v. Ashley, 38,431 (La.App.2d Cir.5/14/04), 873 So.2d 942, writ denied, 04-1481 (La.9/24/04), 882 So.2d 1138. An inadvertent and inconsequential false statement will not result in forfeiture of benefits. Thomas v. Hollywood Casino, supra; Freeman v. Chase, supra; Mitchell v. Brown Builders, Inc., 35,022 (La.App.2d Cir.8/22/01), 793 So.2d 508, writ denied, 01-2649 (La.12/14/01), 804 So.2d 636. Section 1208 does not penalize any false statement, but only those willfully made for the purpose of obtaining benefits. Resweber v. Haroil Const. Co., supra; Thomas v. Hollywood Casino, supra. The WCJ’s finding or denial of forfeiture will not be disturbed on appeal absent manifest error. Thomas v. Hollywood Casino, supra; Freeman v. Chase, supra.

When Mr. Beck was in the emergency room on the day of the accident, he denied having used “street drugs” when questioned by the ER staff. Later, during trial, Mr. Beck admitted that he smoked marijuana two weeks before the accident. Since Mr. Beck would have been administered a drug screen regardless of how he answered the questions from the ER staff, the WCJ found that the false statements were inconsequential to the case |inand, therefore, not of sufficient weight to invoke the harsh remedies imposed by La. R.S. 23:1208.

As previously noted, when Mr. Beck denied having used “street drugs,” he was under the influence of morphine, unable to sign his own signature on the hospital consent forms and still under severe shock and distress from the accident, with his foot in a state of near amputation. In light of these circumstances, we do not consider Mr. Beck’s false statements to be the type contemplated by Section 1208 which would give rise to forfeiture of benefits under the statute. Accordingly, we see no error in the WCJ’s ruling to that effect. Newt’s second assignment of error is, therefore, without merit.

CONCLUSION

For the forgoing reasons, the judgment of the WCJ in favor of Marvin Beck is affirmed. Costs of this appeal are assessed to Newt Brown Contractor, LLC, and LUBA Casualty Insurance Company.

AFFIRMED.

      . We are further unpersuaded by Newt's argument that Mr. Beck’s statement that he did not take "street drugs” somehow equates to a refusal to submit to drug and alcohol testing after an accident, thereby creating a statutory presumption of intoxication under La. R.S. 23:108 l(7)(b).


source: Caselaw Access Project

author: STEWART, J.

license: Public Domain

text:
    OUACHITA PARISH POLICE JURY and Stephen T. Odom, Plaintiffs-Appellants v. OUACHITA PARISH FIRE PROTECTION DISTRICT NO. 1 CIVIL SERVICE BOARD, Defendant-Appellee.
    No. 46,480-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 21, 2011.

      Jerry B. Jones, District Attorney, Jay B. Mitchell, Assistant District Attorney, for Appellant Ouachita Parish Police Jury.
    Hammonds & Sills, by Elmer G. Noah, II, Monroe, LA, for Appellee Ouachita Parish Fire Protection District No. 1 Civil Service Board.
    Breithaupt, Dunn, DuBos, Shafto & Wolleson, Monroe, LA, by Michael L. Du-Bos, for Appellee Stephen T. Odom.
    Before STEWART, GASKINS and DREW, JJ.
   STEWART, J.

| iPlaintiff/Appellant, Ouachita Parish Police Jury (“police jury”), is appealing a judgment granted in favor of Defendant/Appellee, Stephen T. Odom (“Odom”). For the reasons discussed below, we affirm.

FACTS

In September of 2009, the executive board of the Local 1694 of the International Association of Firefighters discovered that its president, Captain Steve Odom, had made unauthorized debit card purchases and ATM withdrawals from the association’s bank account, dating back to early 2006. These unauthorized debit card purchases and ATM withdrawals went unnoticed because the association had opted to receive online bank statements, and the association’s secretary/treasurer, Tina Carlisle, failed to monitor the statements monthly. Carlisle did not notice these unauthorized transactions until September 2009, when she reviewed the online bank statements in order to prepare for an upcoming audit.

The executive board notified Chief Pat Hemphill, the Fire Chief of the Ouachita Parish Fire Department, of their discovery of these unauthorized purchases. Hemp-hill advised the executive board to conduct an internal investigation. This investigation resulted in the executive board finding that more than $10,289.95 of Odom’s expenditures and withdrawals were not business related. Odom failed to present receipts for the majority of the purchases to prove their purpose. He resigned from his position as the association president, but not from employment with the Ouachi-ta Parish Fire Department.

|2On November 2-3, 2009, the executive board presented its internal investigation findings to the association’s members. The members elected to forgo criminal charges and to provide Odom with the opportunity to make restitution. On November 9, 2009, Odom repaid the association $10,289.95.

On November 13, 2009, Chief Hemphill received a letter from the executive board, informing him of the board’s internal investigation, as well as how the matter was resolved. After reviewing the letter, Chief Hemphill decided that the fire department also needed to conduct an investigation.

On November 16, 2009, Chief Hemphill gave Odom written notice of the investigation and placed him on administrative leave with pay. Chief Hemphill also ordered Odom to appear for interrogation at a pre-disciplinary hearing on December 1, 2009.

On December 1, 2009, Odom and his attorney appeared at the pre-disciplinary hearing. At the hearing, Odom signed an acknowledgment of his rights and answered Chief Hemphill’s questions.

After the hearing, Chief Hemphill determined that Odom’s conduct warranted termination pursuant to La. R.S. 33:2560, and submitted his findings and recommendation to the police jury.

On December 3, 2009, the police jury notified Odom that Chief Hemphill’s recommendation would be addressed at the public police jury meeting, which would take place on December 7, 2009. At this meeting, the police jury voted to discuss Chief Hemphill’s recommendation in an executive session, which Odom had the option to attend. Odom was present Rat the executive session, and he answered questions asked by the police jury. The police jury then deliberated briefly and returned to the public police jury meeting. The police jury decided to uphold Chief Hemphill’s recommendation to terminate Odom’s employment with the Ouachita Parish Fire Department.

Odom appealed his termination to the Ouachita Parish Fire Protection District No. 1 Civil Service Board (“civil service board”). The civil service board determined that even though Chief Hemphill acted in good faith and had just cause for terminating Odom, Odom’s appearance at the police jury’s executive session violated La. R.S. 33:2181(B)(4), which requires that any interrogation of a firefighter be recorded. As a result, the civil service board overturned Odom’s termination.

The police jury and Odom appealed the civil service board’s decision to district court. The district court agreed with the civil service board’s determination that Odom’s uni'ecorded appearance at the police jury’s executive session violated La. R.S. 33:2181(B)(4). Further, the district court affirmed the civil service board’s decision to reinstate Odom’s employment pursuant to La. R.S. 33:2181(C). The district court did not address the arguments raised in Odom’s appeal.

The police jury has filed this instant appeal.

STANDARD OF REVIEW

An employee under classified service may appeal from any decision of the civil service board that is prejudicial to him. La. R.S. 33:2501(E)(1). Such an appeal shall be taken to the district court wherein the civil service |4board is domiciled. Id. The hearing “shall be confined to the determination of whether the decision made by the board was made in good faith for cause” and “[n]o appeal shall be taken except upon these grounds.” La. R.S. 33:2501(E)(3).

If made in good faith and for statutory cause, a decision of the civil service board cannot be disturbed on judicial review. Lee v. City of West Monroe, 39,611 (La.App. 2 Cir. 5/11/05), 902 So.2d 1202; McDonald v. City of Shreveport, 26,877 (La.App. 2 Cir. 5/10/95), 655 So.2d 588. Good faith does not occur if the appointing authority acts arbitrarily or capriciously, or as a result of prejudice or political expediency. Moore v. Ware, 2001-3341 (La.2/25/03), 839 So.2d 940. Arbitrary or capricious behavior means without a rational basis for the action taken. Id.

The district court should accord deference to a civil service board’s factual conclusions and must not overturn them unless they are manifestly erroneous. Moore, supra. Likewise, the intermediate appellate court’s review of a civil service board’s findings of fact is limited. Id. Those findings are entitled to the same weight as findings of fact made by a trial court and are not to be overturned in the absence of manifest error. Id.

DISCUSSION

In the police jury’s first assignment of error, it asserts that the trial court erred in determining that Odom’s voluntary appearance and participation in its executive session constituted an “interrogation” that must be recorded under La. R.S. 33:2181. The police jury asserts in its second assignment of error that the trial court erred in failing to find that Odom |swaived the “recording requirement” of La. R.S. 33:2181 by allowing it to consider his matter in the executive session and voluntarily participating in that session. Since both of these assignments relate to Odom’s participation in the police jury’s December 7, 2009, executive session, we will discuss them together.

La. R.S. 33:2181 includes certain rights of fire employees. Under this statute, whenever a fire employee is under investigation, certain minimum standards shall apply. Bergeron v. Kenner, 10-229 (La.App. 5 Cir. 10/26/10), 51 So.3d 143. La. R.S. 33:2181 states in pertinent part:

(2) “Interrogation” includes but is not limited to any formal interview, inquiry, or questioning of any fire employee by the appointing authority or the appointing authority’s designee regarding misconduct, allegations of misconduct, or policy violation. An initial inquiry conducted by the fire employee’s immediate supervisors shall not be considered an interrogation.
B. Whenever a fire employee is under investigation, the following minimum standards shall apply:
(4) All interrogations of any fire employee in connection with the investigation shall be recorded in full.
C. No fire employee shall be disciplined, demoted, dismissed or be subject to any adverse action unless the investigation is conducted in accordance with this Subpart. Any discipline, demotion, dismissal or adverse action of any sort taken against a fire employee without complete compliance with the provisions of this Subpart is an absolute nullity.

When a law is clear and unambiguous and its application does not lead to absurd consequences, it shall be applied as written, with no further interpretation made in search the legislative intent. La. C.C. art. 9; La. R.S. 1:4. After carefully reading this statute, we can easily ascertain the definition of “interrogation” as being clear and unambiguous.

1 fiDuring the December 7, 2009, executive session, Odom was questioned by the police jury. This action clearly falls within the definition of an “interrogation.” Further, during oral arguments that took place at this court, counsel for the police jury conceded that an interrogation took place during this executive session.

Since Odom’s interrogation during the police jury’s executive session was related to Odom’s disciplinary matter, it should have been recorded. The police jury did not act in good faith for cause due to its failure to record the executive session. Odom’s voluntary participation in the unrecorded executive session cannot be viewed as a waiver of the recording requirement pursuant to La. R.S. 33:2181.

The district court and the civil service board did not err in determining that the police jury’s failure to record the December 7, 2009, session was a violation of Odom’s rights pursuant to La. R.S. 33:2181. This statute was created to protect fire department employees in disciplinary proceedings, and the police jury failed to uphold his rights pursuant to this statute when it failed to record his interrogation during the executive session. Therefore, we affirm the district court’s ruling upholding the civil service board’s decision.

Since the police jury did not comply with La. R.S. 33:2181, the disciplinary actions taken against Odom are absolutely null and deemed to never have existed. However, after a careful review of La. R.S. 33:2181, et seq., also known as the Firefighters Bill of Rights, we fail to find any provision prohibiting the police jury from reinstituting an investigation of [7this matter. Additionally, since this case involves a civil matter, a new investigation regarding Odom’s conduct would not constitute double jeopardy. See Butler v. Department of Public Safety and Corrections, 609 So.2d 790 (La.1992); La. State Bd. of Medical Examiners v. Booth, 76 So.2d 15 (La.App. 1 Cir.1954). Chief Hemphill can initiate a second investigation regarding Odom’s actions.

Since we find that the police jury’s failure to record Odom’s interrogation during their December 7, 2009, executive session rendered the disciplinary actions taken against Odom absolutely null, and affirm the ruling of the district court, the remainder of the assignments of error are preter-mitted.

CONCLUSION

The district court’s ruling that upheld the civil service board’s decision is affirmed.

AFFIRMED.


author: GASKINS, J.

text:
    Steven GONZALES, Plaintiff-Appellee v. Dr. James GEISLER and Progressive Security Insurance Company, Defendants-Appellants.
    No. 46,501-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 21, 2011.

      Blue Williams, L.L.P., Metairie, LA, by Thomas G. Buck, David B. Parnell, Jr., John C. Henry, Brett W. Tweedel, for Defendant-Appellant Economy Premier Assurance Company.
    Davenport, Files & Kelly, L.L.P., Monroe, LA, by M. Shane Craighead, for Defendant-Appellee Dr. James Geisler and Progressive Security Insurance Company.
    McKeithen, Ryland, Champagne & Do-mangue, Columbia, LA, by Louis V. Champagne, Dina F. Domangue, Ashley P. Thomas, for Plaintiff-Appellee Steven Gonzales.
    Before GASKINS, MOORE and LOLLEY, JJ.
   GASKINS, J.

11 Economy Premier Assurance Company (“Economy”) appeals from a trial court ruling which granted summary judgment in favor of its insured, Dr. James Geisler, holding that Economy provided coverage to him under the facts of the instant case. We reverse and remand.

FACTS

On April 3, 2009, Dr. Geisler was operating a 2007 GMC Yukon XL in the parking lot of E.A. Conway Memorial Hospital when he struck a paint or push cart, which then hit Steven Gonzales. Mr. Gonzales claims injury from the incident.

The GMC Yukon was owned by Geisler Funeral Homes, a separate corporate entity, and operated by Dr. Geisler with that company’s full permission and authorization. The vehicle was insured by Progressive Security Insurance Company (“Progressive”). In March 2010, Mr. Gonzales filed suit against Dr. Geisler and Progressive.

Mr. Gonzales later amended his petition to add Economy, an insurance company that issued a personal automobile liability policy to Dr. Geisler and his wife for a 2007 BMW station wagon. In its answer, Economy denied that the Yukon driven by Dr. Geisler at thé time of the accident was an insured vehicle under its policy.

Dr. Geisler filed a motion for summary judgment and/or for declaratory judgment, asserting that the corporate-owned Yukon was covered under the Economy policy because the Yukon met the “exception” 12to the “non-owned automobile” definition. The Economy policy stated, in relevant part:

We will pay damages for bodily injury and property damage to others for which the law holds an insured responsible because of an accident which results from the ownership, maintenance or use of a covered automobile, a non-owned automobile or a trailer while being used with a covered automobile or non-owned automobile.

On the same page, the policy defined “non-owned automobile” as:

1. [A]n automobile which is not owned by, furnished to, or made available for regular use to you or any resident in your household.
EXCEPTION: An automobile owned by, furnished to, or made available for regular use to any resident in your household, is considered a non-owned automobile when used by you. [Emphasis theirs.]

Dr. Geisler and his wife are listed on the declarations page of the policy as the named insureds. Therefore, under the general definitions section of the policy, the terms “you” and “your” in the policy refer to them.

Essentially, Dr. Geisler argued that coverage was afforded to the Yukon as a non-owned automobile under the policy exclusion because — even if made available to him for his regular use — it was being used by a resident of his household, i.e., himself. In support of his motion for summary judgment, Dr. Geisler filed his own affidavit in which he stated that the Yukon was owned by Geisler Funeral Homes, that he was operating it with that company’s permission, and that he had a policy of automobile liability insurance issued by Economy at the time of the accident. He also stated that at the time of the accident, he was a resident of his own | ahousehold. He also filed a list of undisputed facts and a copy of the Economy insurance policy.

The motion for summary judgment was granted on October 11, 2010. However, there is no transcript of the hearing in the record. The signed judgment of October 25, 2010, states:

Judgment is hereby entered declaring the policy of insurance issued by Economy Premier Assurance Company, Policy No. 361037466-0, provides coverage for and defense of Dr. James Geisler, Sr. for the claims being made by Plaintiff, Steven Gonzales, against him in this civil action (subject to and consistent with the other terms and provisions of that contract of insurance).
Economy appealed.

LAW

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Elliott v. Continental Casualty Company, 2006-1505 (La.2/22/07), 949 So.2d 1247; Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180. 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 the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

In an action under an insurance contract, the insured bears the burden of proving the existence of policy and coverage. The insurer, however, bears the burden of showing policy limits or exclusions. Tunstall v. Stierwald, 2001-1765 (La.2/26/02), 809 So.2d 916; Curry v. Taylor, 40,185 (La.App.2d Cir.9/21/05), 912 So.2d 78; Whitham v. Louisiana Farm Bureau Casualty Insurance Company, 45,199 (La.App.2d Cir.4/14/10), 34 So.3d 1104. Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Elliott v. Continental Casualty Company, supra; Reynolds v. Select Properties, Ltd., supra; Palmer v. Martinez, 45,318 (La.App.2d Cir.7/21/10), 42 So.3d 1147, writs denied, 2010-1952, 2010-1953, 2010-1955 (La.11/5/10), 50 So.3d 804, 805.

An insurance policy is a contract between the parties and should be construed using ordinary contract principles. The parties’ intent, as reflected by the words of the policy, determines the extent of coverage. An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. However, if after applying the other rules of construction an ambiguity remains, the ambiguous provision is to be construed against the drafter and in favor of the insured. Curry v. Taylor, supra; Whitham v. Louisiana Farm Bureau Casualty Insurance Company, supra.

Insurance companies have the right to limit coverage in any manner they desire, so long as the limitations do not conflict with statutory provisions or public policy. Elliott v. Continental Casualty Company, supra; Reynolds v. Select Prop erties, Ltd., supra; Chretien v. Thomas, 45,762 (La.App.2d Cir.12/15/10), 56 So.3d 298.

[sThe jurisprudence of Louisiana has held that the purpose of the type of exclusionary clause involved here is to exclude from coverage non-owned automobiles over which the insured has “general authority of use.” Curry v. Taylor, supra. The phrase “available for regular use” encompasses the vehicle which is accessible, obtainable and ready for immediate use. The phrase, “furnished for regular use” means that the vehicle is provided, supplied or afforded to the individual according to some established rule or principle or used in steady or uniform course, practice or occurrence as contrasted with being furnished for use only on casual, random, unpredictable or chance occasions. Curry v. Taylor, supra; Whithorn v. Louisiana Farm Bureau Casualty Insurance Company, supra.

The so-called “regular use” exclusion for non-owned autos is a typical and common policy provision. It relieves the insurance company of the unfair burden of insuring an automobile not listed in the policy which an insured uses regularly but for which the insured pays no premium. In other words, the “regular use” exclusion prevents the insurance company from being exposed to a risk for which it is not compensated. Seymour v. Estate of Karp, 2005-1382 (La.App. 4th Cir.7/31/08), 996 So.2d 1. See also Romano v. Girlinghouse, 385 So.2d 352 (La.App. 1st Cir. 1980).

DISCUSSION

Economy argues that the Yukon was not covered under its policy because (1) it was not listed as a covered auto and (2) it was not a “non-owned automobile,” as defined in the policy, since it was furnished to or made available for Dr. Geisler’s regular use by Geisler Funeral Home. |fiUnder the policy language, Economy maintains that a vehicle regularly made available for Dr. Geisler’s use would be excluded from coverage.

Dr. Geisler argues that the exception to the definition of “non-owned automobile” applies in the instant case to afford him coverage. Specifically, the exception allows coverage when the vehicle involved in the accident is one made available for regular use to any resident in the insured’s household and is used by the insured. Dr. Geisler maintains that since he is a resident of his own household and the vehicle was made available for his regular use, there is coverage.

We disagree. As previously noted, an insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. We find no ambiguity in the Economy policy. It provides coverage for a “non-owned automobile.” However, the policy definition for a “non-owned automobile” does not include a vehicle “made available for regular use” by the insured. The reason for this is obvious — if the insurance company were to be exposed to that risk on a regular basis throughout the term of the policy, it would require an additional premium. The policy does, however, provide coverage if the insured temporarily or infrequently uses a non-owned automobile provided to a resident of the insured’s household. Such occasional exposure to risk is more acceptable to the insurer because it does not provide constant coverage for such a vehicle for the duration of the policy. Instead, the insurer briefly provides additional ■ coverage in rare situations, i.e., the child |7of the insured who is a household resident has a company car made available for his or her regular use which the insured moves out of the driveway or drives to the store on a quick errand.

See and compare Seymour v. Estate of Karp, supra, in which the decedent’s husband sought coverage under his auto insurance policy for the vehicle his wife was driving at the time of her death — an auto owned by her parents and provided to her for her regular use during an almost five-month period when she lived with her parents. The husband’s policy defined “you” and “yours” as the named insured — the husband — and his spouse if she resided in the same household. The police also excluded coverage for a vehicle other than the covered auto which was “furnished or available for your regular use.” In affirming the granting of summary judgment in the insurer’s favor, the court stated:

We are not called upon to establish a bright line time period necessary to establish the “regular use” of a non-covered auto. It is sufficient that we state that the consistent, repetitive use of such an auto for a period in excess of four months is, under the facts of this case, as a matter of law, “regular use” as that term is used in the policy. The fact that such use may be for a definite, finite term as opposed to an indefinite term of no fixed duration does not mean that the use cannot be considered to be “regular.” In view of the purpose underlying such exclusion, we conclude that [the decedent’s insurer] did not undertake to insure the decedent’s regular use of this unlisted vehicle for such an extended period of time, a time period that encompassed better than one-third of the stated policy period.... [The decedent’s insurer] received no premium for the use of that vehicle. It was not as though the decedent borrowed a friend’s vehicle to run an errand, the type of random, occasional use of another’s auto for which an insured or family member might reasonably expect to be insured and for which the insurer would reasonably expect to provide coverage. [Emphasis added.]

The interpretation offered by Dr. Geis-ler of the exception to the “non-owned automobile” definition is convoluted and would lead to an absurd Rresult. The insurer has the right to limit coverage as long as those limitations do not conflict with statutory provisions or public policy. It also has the right to be compensated for the coverage it provides to its insureds.

Based upon our de novo review, we find that Dr. Geisler is not entitled to summary judgment as a matter of law on the issue of coverage under the Economy policy. Accordingly, we must reverse the trial court ruling that granted summary judgment in his favor.

CONCLUSION

The judgment of the trial court granting summary judgment in favor of Dr. Geisler is reversed, and the matter is remanded to the trial court for further proceedings. Costs of this appeal are assessed against Dr. Geisler.

REVERSED AND REMANDED.

      . In the record, Economy is sometimes referred to as “MetLife” or "Metropolitan Property and Casualty Insurance Services, Inc.”


text:
    STATE of Louisiana, Appellee v. Christopher Emmanuel ELZIE (a/k/a Christopher Miller, a/k/a Lil Chris), Appellant.
    No. 46,503-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 21, 2011.

      Louisiana Appellate Project, Lafayette, LA, by G. Paul Marx, for Appellant.
    Jerry L. Jones, District Attorney, Ellen R. Eade, John Freeman Aplin, Assistant District Attorneys, for Appellee.
    Before PEATROSS, DREW & MOORE, JJ.
   PEATROSS, J.

|! Defendant, Christopher Emmanuel El-zie, was charged with armed robbery in violation of La. R.S. 14:64, two counts of aggravated burglary in violation of La. R.S. 14:60, conspiracy to commit armed robbery in violation of La. R.S. 14:26 & 14:64, two counts of conspiracy to commit aggravated burglary in violation of La. R.S. 14:26 & 60 and aggravated battery in violation of La. R.S. 14:34. Pursuant to a plea bargain, Defendant pled guilty to armed robbery and was sentenced to 13 years’ imprisonment at hard labor without the benefit of probation, parole or suspension of sentence. Defendant now appeals. Defendant’s appellate counsel has filed a motion to withdraw, together with a Benjamin brief in support of the motion.

For the following reasons, the motion to withdraw is granted and Defendant’s conviction and sentence are affirmed.

DISCUSSION

As stated, Defendant was charged by bill of information with one count of armed robbery, two counts of aggravated burglary, one count of conspiracy to commit armed robbery, two counts of conspiracy to commit aggravated burglary and one count of aggravated battery. On July 12, 2010, as part of a plea agreement, Defendant pled guilty as charged to one count of armed robbery in exchange for the State’s agreement to drop the remaining charges and not to file a habitual offender bill against Defendant.

During the plea colloquy, Defendant admitted that, on February 4, 2009, he and his brother and two other acquaintances went to someone’s Rapartment with the intent of breaking into the residence. His brother was armed with a revolver when the two men encountered Brian Dushense exiting a vehicle. Defendant grabbed and held Dushense while Defendant’s brother struck the victim with a “long pipe” revolver and demanded access to the apartment. Defendant went through Dushense’s vehicle and took unspecified items of value. Meanwhile, Defendant’s brother attempted to break into the apartment, but an occupant used a bat to disarm him. In a post-arrest statement, Defendant told police he had broken into the apartment on a prior occasion and taken a PlayStation and that he and the other perpetrators had come to steal items from the apartment again.

After a thorough colloquy with Defendant regarding his constitutional rights under Boykin , Defendant pled guilty and the trial judge accepted the guilty plea as free and voluntary. A sentencing hearing was held on December 7, 2001, wherein the trial judge noted his review of the presen-tence investigation report, Defendant’s status as a second-felony offender and his social history. The judge further noted that Defendant’s brother had also entered a guilty plea for his participation in the crime under an agreement that capped his sentencing exposure at 15 years at hard labor. While the sentencing range for Defendant’s conviction exposed him to imprisonment for a term of no less than 10 and no more than 99 years, the trial judge imposed a lesser sentence on Defendant than his brother had received-13 years’ imprisonment at hard labor without the benefit of probation, parole or suspension of sentence. The sentence was ordered to |sbe served consecutively to a previously imposed 5-year sentence for which Defendant’s probation had been revoked as a result of the instant offense.

As previously stated, Defendant’s appellate counsel has filed an Benjamin brief seeking to withdraw, which alleges that he could find no non-frivolous issues to raise on appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241; State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176; and State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990). The brief outlines the procedural history and the Boykin-compli-ant plea colloquy leading to Defendant’s conviction. The brief also contains “a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.” Jyles, supra. In addition, defense counsel has verified that he has mailed copies of the motion to withdraw and his brief to Defendant in accordance with Anders, Jyles, Mouton, and Benjamin, supra. Defendant was given an opportunity to file a brief, but has not done so.

This court has conducted an error patent review of the appellate record and no errors patent were found. The bill of information and arraignment were correctly done. No errors patent were found in the guilty plea or sentencing proceedings. The motion to withdraw is granted.

Furthermore, the record supports Defendant’s sentence of 13 years at hard labor without the benefit of probation, parole or suspension of sentence. The trial judge considered the circumstances of Defendant’s crime and the fact that the armed robbery was committed while Defendant 14was serving a probated sentence on a prior felony conviction. He also noted as an aggravating circumstance that actual violence was committed against the victim who, according to the presentence investigation, was pistol-whipped on the shoulder. The trial judge reviewed Defendant’s social history and noted as mitigating circumstances that Defendant was raised by his sister due to his mother’s imprisonment and the fact that Defendant was the father of a young child. Defendant was 19 years old at the time of the offense and had no significant employment history other than some work with a lawn care company. As noted earlier, Defendant was a second-felony offender having previously been convicted for illegal possession of stolen things, for which he was serving a five-year probated sentence.

In addition, the trial judge noted that, while there was no sentencing agreement between the State and Defendant in exchange for the plea, Defendant’s brother had pleaded guilty with a 15-year sentencing cap. In light of the brother’s conduct in the offense being equally as reprehensible as, if not worse than, Defendant’s conduct and the fact that the brother’s criminal history was lengthier than that of Defendant, the trial judge stated his belief that imposing a sentence on Defendant in excess of the cap applicable to his brother would have been unfair. The 13-year sentence imposed on Defendant is not grossly disproportionate to the seriousness of the offense and does not shock our sense of justice. La. Const. Art. 1, § 20; State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.(1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

CONCLUSION

The motion to withdraw is granted and the conviction and sentence of Defendant, Christopher Emmanuel Elzie, are affirmed.

AFFIRMED.

      . State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir. 1990).

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Robert Earl FORTUNE, Appellant.
    No. 46,522-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 21, 2011.

      Peggy J. Sullivan, Louisiana Appellate Project, Monroe, LA, for Appellant.
    Robert W. Levy, District Attorney, John F. Belton, Laurie L. Whitten, Assistant District Attorneys, for Appellee.
    Before BROWN, CARAWAY and LOLLEY, JJ.
   LOLLEY, J.

| t This criminal appeal arises from the Third Judicial District Court, Parish of Lincoln, State of Louisiana. The defendant, Robert Earl Fortune, was charged by bill of information with three offenses: possession or introduction of contraband into a penal institution — a violation of La. R.S. 14:402; possession of marijuana with intent to distribute — a violation of La. R.S. 40:966; and illegal carrying of a weapon on school grounds — a violation of La. R.S. 14:95.2. He entered a plea of guilty to each charge, reserving his right to seek appellate review of the trial court’s denial of the motion to suppress the evidence, pursuant to State v. Crosby, 338 So.2d 584 (La.1976). Fortune was sentenced to one year of imprisonment at hard labor for the illegal carrying of a weapon on school grounds. For both the possession or introduction of contraband into a penal institution and the possession of marijuana with intent to distribute he was sentenced to five years of imprisonment at hard labor, all but one year suspended, five years of supervised probation, as well as a fine of $1,000.00, plus costs of court. This prison time was ordered to run concurrently. Fortune now appeals the denial of his motion to suppress. For the following reasons, we amend Fortune’s conviction and sentence, and as amended, affirm.

Facts

On April 20, 2010, Tommy Clark, Jr., Chief of Police for the City of Grambling, was driving on Grambling University’s campus when he spotted a vehicle driving toward him going the wrong way down a one-way street. The vehicle driving the wrong way as well as Chief Clark’s police vehicle both stopped, facing each other head-on. Chief Clark exited his vehicle and | {.approached the passenger side of the other vehicle where Fortune was seated. Chief Clark testified that after noticing that Fortune was “extremely nervous” he asked him to exit the vehicle. He advised Fortune that he was going to frisk him for officer safety, and he also asked both Fortune and the driver to show him identification. Chief Clark testified that at this time Fortune informed him that he had “weed” in his pocket for his personal use on “Smoke Weed Day.” Fortune testified that he did not tell Chief Clark about the marijuana, but that the officer discovered it during the pat-down. Chief Clark subsequently arrested both Fortune and the driver of the vehicle.

Chief Clark next conducted a search of the vehicle and discovered a loaded firearm in a backpack in the passenger compartment. Fortune was transported to the detention center. Once there, Fortune was asked to remove his shoes as part of the booking procedure. At this point he told Chief Clark that he had more marijuana in his sock. Twenty-three individual bags of marijuana were retrieved from Fortune’s sock.

Fortune was charged with possession or introduction of contraband into a penal institution — a violation of La. R.S. 14:402, possession of marijuana with intent to distribute — a violation of La. R.S. 40:966, and illegal carrying of a weapon on school grounds — a violation of La. R.S. 14:95.2. Fortune filed a motion to suppress claiming the evidence to be used against him in trial was obtained through an unconstitutional search and seizure. After hearing the testimony of both Chief Clark and Fortune at [sthe suppression hearing, the trial court denied the motion to suppress. Subsequently, Fortune entered pleas of guilty to all three charges. This appeal ensued.

Discussion

Fortune argues that the trial coui't erred in denying his motion to suppress because the evidence was obtained as the result of an illegal search and seizure. He claims Chief Clark did not articulate any grounds upon which a reasonably prudent person would have believed he was in danger; therefore, it was unconstitutional for the officer to frisk Fortune, which led to the discovery of the marijuana in his pocket, the arrest, the discovery of the firearm, and the discovery of the marijuana in his sock. Additionally, Fortune contends that even if Chief Clark had the right to frisk him for officer safety, it was illegal for him to reach into his pocket and retrieve the marijuana, also leading to the arrest and series of discoveries. Fortune also claims the search of the vehicle that led to the discovery of the firearm was illegal because it was not a true inventory search and it was not done in good faith — Chief Clark admitted that only contraband was inventoried. For the following reasons, we disagree.

Article 1, Section 5 of the Louisiana Constitution as well as the Fourth Amendment to the United States Constitution protect individuals from unreasonable searches and seizures. Generally, a search warrant is required for a search to be considered constitutional; however, over time historical and practical exceptions have developed justifying warrantless |4searches under certain circumstances. State v. Escoto, 2009-2581 (La.07/06/10), 41 So.3d 1160.

It is permissible for a police officer to detain an individual for investigative purposes if the officer has a reasonable and articulable suspicion that the individual has committed or is about to commit a crime. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Boyer, 2007-0476 (La.10/16/07), 967 So.2d 458. For a traffic stop to be justified at its inception, an officer must have an objectively reasonable suspicion that some sort of illegal activity, such as a traffic violation, occurred or is about to occur, before stopping the vehicle. U.S. v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985); State v. Pena, 43,321 (La.App.2d Cir.07/30/08), 988 So.2d 841. Reasonable cause for an investigatory stop is something less than probable cause, but the officer must be able to articulate knowledge of particular facts, which in conjunction with reasonable inferences drawn therefrom provide reasonable grounds to suspect the detainee of criminal activity. State v. Flowers, 441 So.2d 707 (La.1983), cert. denied, 466 U.S. 945, 104 S.Ct. 1931, 80 L.Ed.2d 476 (1984). Nervousness may be one of the factors leading to a finding of reasonable cause to stop. State v. Willis, 31,561 (La.App.2d Cir.01/20/99), 728 So.2d 493.

Police officers are justified in ordering passengers out of cars for officer safety. It may be a slight inconvenience, but it is not a serious intrusion upon privacy interests. State v. Landry, 588 So.2d 345 (La.1991), The United States Supreme Court explained this in Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009):

For the duration of a traffic stop, we recently confirmed, a police officer effectively seizes “everyone in the vehicle,” the driver and all passengers. Accordingly, we hold that, in a traffic-stop setting, the first Terry condition — a lawful investigatory stop — is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police need not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity. To justify a patdown of the driver or a passenger during a traffic stop, however, just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous. (Citations omitted.)

Id. at 784.

Reviewing courts must look to the totality of the circumstances to determine whether the police officer possessed the requisite justification for such a stop. Officers must be allowed to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person. State v. Temple, 2002-1895 (La.09/09/03), 854 So.2d 856. The standard for investigatory stops and pat-downs for officer safety as set forth in Terry has been codified by the Louisiana legislature in La. C.Cr.P. art. 215.1. In pertinent part, it reads:

A. A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.
B. When a law enforcement officer has stopped a person for questioning pursuant to this Article and reasonably suspects that he is in danger, he may frisk the outer clothing of such | f,person for a dangerous weapon. If the law enforcement officer reasonably suspects the person possesses a dangerous weapon, he may search the person.

The United States Supreme Court has explicitly held that when a car is impounded standard police procedure in making reasonable “inventory searches” to preserve a car owner’s property and protect the police against claims of lost or stolen property does not constitute an unreasonable search which offends the Fourth Amendment to the United States Constitution. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). Louisiana has adopted the United States Supreme Court’s reasoning on the issue of inventory searches. State v. LaRue, 368 So.2d 1048 (La.1979). However, this rule does not allow such a search to be used as a subterfuge for rummaging through an arrestee’s vehicle without a warrant for the primary purpose of seizing evidence. Id. Some of the factors that are significant in determining that a so-called inventory search was merely subterfuge are that: (1) formal impoundment procedures were not followed; (2) the search was conducted “in the field”; (3) a tow truck was not called before commencing the search; (4) the car owner was not asked for his consent to the search, if his car contained valuables, if he would waive an inventory search, or if he could make arrangements to have someone pick up the vehicle. Id.

After making an arrest, an officer has the right to much more thoroughly search a defendant and his wingspan, or lunge space, for weapons or evidence incident to a valid arrest. State v. Sanders, 36,941 (La.App.2d Cir.04/11/03), 842 So.2d 1260, 1263, writ denied, 2003-1695 (La.05/14/04), 872 So.2d 516. The United States Supreme Court explained that the rationale for this is the need to remove any weapon the arrestee might seek to use to resist arrest or to escape, and the need to prevent the concealment or destruction of evidence. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). In New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), the Supreme Court shed light on this rule in regard to vehicles, stating “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” The Belton court went on to state that a police officer may also search a container found in the passenger compartment. Id.

A trial court’s decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Whitehead, 42,677 (La.App.2d Cir.04/02/08), 980 So.2d 243, writ denied, 2008-1096 (La.01/09/09), 998 So.2d 713. When the constitutionality of a warrantless search or seizure is placed at issue by a motion to suppress the evidence, the state bears the burden of proving that the search and seizure were justified pursuant to one of the exceptions to the warrant requirement. State v. Johnson, 32,384 (La.App.2d Cir.09/22/99), 748 So.2d 31. Louisiana C. Cr. P. art. 703(D), governing the burden of proof when a defendant files a motion to suppress evidence obtained without a warrant, states in pertinent part:

D. On the trial of a motion to suppress filed under the provisions of this Article, the burden of proof is on the defendant to prove the ground of his motion, except that the state shall have the burden of proving the admissibility of a 1 purported confession or statement by the defendant or of any evidence seized without a warrant.

Great weight is placed upon the trial court’s ruling on a motion to suppress in regard to the finding of facts because it had the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Crews, 28,153 (La.App.2d Cir.05/08/96), 674 So.2d 1082. This court reviews a district court’s ruling on a motion to suppress under the manifest error standard for factual determinations as well as credibility and weight determinations while applying a de novo review to findings of law. State v. Hemphill, 41,526 (La.App.2d Cir.11/17/06), 942 So.2d 1263, writ denied, 2006-2976 (La.03/09/07), 949 So.2d 441.

In the case sub judice Fortune calls into question the constitutionality of two separate searches. The first search occurred when Chief Clark performed a frisk for officer safety and discovered marijuana in Fortune’s pocket. The second search occurred when, after having arrested Fortune, Chief Clark searched the vehicle in which Fortune had been a passenger and discovered a firearm.

Frisk

Here, the evidence presented at the hearing for the motion to suppress indicates that the search was reasonable and constitutional. Fortune does not dispute that the traffic stop was lawful, nor should he; the vehicle in which he was a passenger was traveling in the wrong direction on a one-way street, which was clearly a traffic violation. Chief Clark observed the traffic violation; therefore, he had reason to stop the vehicle. Chief Clark testified at the suppression hearing about the frisk resulting in the discovery l9of marijuana in Fortune’s pocket. He stated that after making the traffic stop he approached the passenger side where Fortune was seated and noticed that Fortune appeared nervous. He explained:

Question: ... what was he doing that you would characterize as looking extremely nervous?
Answer: Fidgeting, moving around. And it had me uncomfortable because, again, I’m by myself on the back side of campus on a one-way street meeting them coming out the wrong way, and two of them and one of me.
Question: Okay. And so you did ask the passenger to exit, correct?
Answer: I sure did.
Question: And who — who was the passenger?
Answer: Mr. Fortune
Question: And upon his exiting the vehicle, what did you do?
Answer: I advised Mr. Fortune that for my safety and his safety, I was going to do a frisk on him ‘cause he was extremely nervous. And — and I asked him for — I had both to present me I.D., identification. And at the time he pulled his identification out, he — he informed me that he had some — he said, quote, weed, in his — in his pocket, as I was about to search him, that was for his personal use.

Fortune also testified at the suppression hearing. He explained that he was not fidgeting, but trying to locate his identification and putting out a cigarette in the ashtray. His version of the frisk and discovery of the marijuana in his pocket differs from that of Chief Clark. Fortune testified, “He [Chief Clark] — he had frisked me and he got to the back — back of my pockets and he pulled out some marijuana and he asked me what it was and I told him it was National Smoke Day and that’s why I had it.”

110We find that it was reasonable for Chief Clark to suspect that he was in danger and subsequently frisk Fortune. As he articulated through his testimony, he was outnumbered by the two occupants of the vehicle, he was stopped on the back side of the campus — presumably out of sight, and the passenger was acting nervous and fidgeting. It was not improper for him to frisk Fortune in the interest of safety. According to Chief Clark, Fortune volunteered that he had marijuana on his person. At that point Chief Clark had probable cause to arrest Fortune and to search him incident to arrest. The trial court obviously found Chief Clark to have been credible and put great weight on his version of the events that night. This court is not in a position to reweigh the evidence or reassess the credibility of the witnesses, and we give the trial court great deference. Therefore, we find the frisk and seizure of marijuana from Fortune’s pocket to have been constitutional. The trial court did not err in denying the motion to suppress the evidence obtained from this search.

Vehicle Search

In order to determine whether the search conducted on the vehicle in the case sub judice was a valid search, we first must assess whether it falls under the exception to the warrant requirement as a valid inventory search. To do so we must consider the facts of the case in light of the factors as set forth in LaRue, supra, that are significant in determining that a so-called inventory search was merely subterfuge. These factors include whether (1) formal impoundment procedures were not followed; (2) the search was conducted “in the field”; (3) a tow truck was not called before commencing |nthe search; (4) the car owner was not asked for his consent to the search, if his car contained valuables, if he would waive an inventory search, or if he could make arrangements to have someone pick up the vehicle. It is unclear whether or not formal impoundment procedures were followed here. Chief Clark mentioned impoundment in his testimony when describing the procedure for inventory searches, but was not further pressed about the procedures employed on the night in question. The search was conducted “in the field.” It is unclear whether a tow truck was called before commencing the search. It is unclear whether the car owner was asked for his consent to the search, if his car contained valuables, if he would waive an inventory search, or if he could make arrangements to have someone pick up the vehicle. Chief Clark stated that upon viewing the vehicle’s registration, he was uncertain about who actually owned the vehicle. This could have accounted for the lack of questioning on the topic. What is clear here is that according to Chief Clark, only items he deemed as contraband were logged. He testified:

Question: I’m saying if there was something in the backpack that was not illegal, would you have listed that on the inventory form?
Answer: Uh, no.
Question: All right. So there is information about the vehicle and why it’s being towed, but you’re not listing on that form what you found in the vehicle. Right?
Answer: No.
Question: No, that’s not right, or no, it’s not listed?
Answer: It’s not listed.

11?This goes against the nature of an inventory search, which is done for the purpose of preserving a car owner’s property and protecting the police against claims of lost or stolen property. An inventory search may not be used as a subterfuge for rummaging through an arrestee’s vehicle without a warrant for the primary purpose of seizing evidence. From the limited testimony adduced at the suppression hearing, we cannot conclude that this was a valid inventory search.

However, while the search was not a valid inventory search, it was a valid search incident to arrest. See Chimel v. California, supra. As previously described, another exception to the warrant requirement is if a search is conducted incident to an arrest in the wingspan or lunge space of an arrestee in an effort to locate weapons or evidence. The purpose behind this exception is to promote officer safety and to prevent the destruction of evidence. Because the vehicle was in Fortune’s wingspan when he was arrested, the search of the vehicle resulting in the discovery of the firearm was a constitutional search incident to arrest. Thus, the trial court did not err in denying the motion to suppress in regard to either search.

Errors Patent

Pursuant to La. C. Cr. P. art. 920, we have examined the record and we note the presence of three errors patent regarding sentencing. After Fortune entered pleas of guilty to all three charges, the trial court sentenced him as follows:

On the illegal carrying of a weapon on school grounds, one year at hard labor, credit for all time served. On the possession or introduction of contraband into a penal institution, a fine of a | ^thousand dollars ($1,000.00) and costs of court, in default, to serve six months in the parish jail, subject to public works; additionally, one year at hard labor. The hard labor is suspended, you’re placed — no excuse me. Five years at hard labor, all but one year of the hard labor sentence is suspended and you’re placed on supervised probation for five years. The probation is to begin upon your release from incarceration. That one year is concurrent with the one year on the illegal carrying of a weapon. That is the same sentence on the possession of marijuana with intent to distribute.

First, when the trial court handed down Fortune’s sentence for possession of marijuana with intent to distribute, it stated that it was issuing the same sentence as it had ordered for Fortune’s conviction for possession or introduction of contraband into a penal institution. This is unclear. The trial court should have clearly articulated the precise sentence for each individual violation. Therefore, we find that for the charge of possession of marijuana with intent to distribute Fortune is sentenced to five years of imprisonment at hard labor, all but one year suspended, five years of probation beginning upon his release from incarceration, and a $1,000.00 fine plus court.

Second, La. R.S. 14:402 governs the sentence for possession or introduction of contraband into a penal institution. It does not allow for the imposition of a fine, although the trial court assessed Fortune with a $1,000.00 fine as part of its sentence for this conviction. Thus, Fortune’s sentence for possession or introduction of contraband into a penal institution is amended to delete the fine.

Third, for possession of marijuana with intent to distribute Fortune was sentenced to pay a $1,000.00 fine as well as court costs, and “in default, |14to serve six months in the parish jail, subject to public works.” However, an indigent defendant may not be subjected to imprisonment because he is unable to pay a fine which is part of his sentence. Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983); State v. Monson, 576 So.2d 517 (La.1991); State v. Nelson, 44,762 (La.App.2d Cir.10/28/09), 25 So.3d 905. A defendant’s claim of indigence in such situation may be discerned from the record. State v. Williams, 484 So.2d 662 (La.1986). The record shows that Fortune was indigent: he was represented at trial by the indigent defender’s board and represented on appeal by the Louisiana Appellate Project. Accordingly, the defendant’s portion of his sentence imposing six months in parish jail, in lieu of payment of the fíne and court costs is vacated.

Conclusion

For the foregoing reasons, Robert Earl Fortune’s conviction and sentence are amended, and as amended, are affirmed.

AMENDED, AND AS AMENDED, AFFIRMED.


author: TERRI F. LOVE, Judge.

text:
    Cynthia L. REEVES v. George GROVE, et al.
    No. 2010-CA-1491.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 21, 2011.
    Rehearing Denied Oct. 24, 2011.

      David W. Oestreicher II, New Orleans, LA, for Plaintiff/Appellant.
    Scott G. Jones, Lawrence J. Boasso, In-abnet & Jones, L.L.C., Mandeville, LA, for Defendants/Appellees.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge PAUL A. BONIN).
   TERRI F. LOVE, Judge.

| iPIaintiffAppellant, Cynthia Reeves, alleges that she was walking her dog in New Orleans, Louisiana and was attacked by George Grove’s dogs. George Grove, Ap-pellee, stipulated to liability.

Plaintiffs damages were tried by a jury, which awarded her $83,500.00, and Plaintiff appeals.

Appellant maintains that the jury award is so low as to shock the conscience. Appellant contends that the trial judge improperly admitted evidence of monies received during prior litigation and a surveillance video. Appellant also argues that the trial court erred in not allowing Appellant to call a defense witness as an adverse witness in Appellant’s case in chief.

We find that the trial court properly considered the law and evidence in making evidentiary rulings. We further find that the jury considered countervailing evidence in its determination of damages, for which we find a basis. We affirm the trial court’s rulings and the jury’s award.

REACTS AND PROCEDURAL BACKGROUND

Plaintiff/Appellant, Cynthia Reeves, alleges that she was walking her dog in New Orleans, Louisiana, and as she crossed the street, she was attacked by unrestrained German Sheppard dogs that were owned by Defendant/Appellant, George Grove. Appellant maintains that during this attack, she was knocked to the ground by the dogs and landed on her left shoulder. Appellant alleges that the fall resulted in her left shoulder impacting the left side of her face, which caused her lower jaw to move forward and her lower teeth to traumatically contact an incisor, fracturing the tooth. Appellant further alleges that she suffered dental structure, orthopedic, and psychological injuries and that her dog was severely wounded.

Appellee stipulated 100% liability for Appellant’s injuries that were brought about by the actions of his dogs. Appellee further stipulated that if the court awarded damages to Appellant, Appellee and his insurer are fully responsible for damages, subject to a credit for any amounts paid toward damages and veterinary bills prior to the stipulation of liability.

A trial was conducted to determine the quantum of Appellant’s damages, and the jury’s award was comprised of the following: $3,500.00 for past damages and medical and dental expenses; $25,000.00 for future medical and dental expenses; $10,000.00 for past and future medical and dental disability; $30,000 for past and future physical pain and suffering; and $15,000.00 for past and future Rmental pain and suffering. The jury did not award Ms. Reeves any amount for loss of enjoyment of life. Ms. Reeves appeals.

STANDARD OF REVIEW

In reviewing a damages award, an appellate court must look at the individual circumstances of that case first. Riley v. Salley, 03-1601, p. 6 (La.App. 4 Cir. 4/21/04), 874 So.2d 874, 878. Only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury of the particular plaintiff under the particular circumstances, should the appellate court increase or reduce the award. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993).

Moreover, an examination of pri- or awards in similar cases is only proper after an abuse of discretion has been disclosed by an articulated analysis of the facts. Maney v. Evans, 00-0798, p. 5 (La.App. 4 Cir. 2/14/01), 780 So.2d 1136, 1140. An abusively low award is raised to the lowest amount the trier of fact could have reasonably awarded, while an abusively high award is reduced to the highest amount the trier of fact could have reasonably awarded. Id. The proper procedure for examining whether an award is excessive is to determine whether the amount can be supported under the interpretation of the evidence, most favorable to the plaintiff, which reasonably could have been made by the trier of fact. Id.

QUANTUM OF DAMAGES

Ms. Reeves argues that she was awarded an impermissibly low amount for damages although she set forth proof substantiating her claims. Ms. Reeves argues |4that her total award amount is so inadequate that it shocks the conscience and constitutes an abuse of the jury’s discretion.

“General damages” are those damages that are inherently speculative in nature and cannot be fixed with mathematical certainty, including pain and suffering. Parker v. Robinson, 05-0160, p. 1 n. 2 (La.App. 4 Cir. 2/22/06), 925 So.2d 646, 648; Moody v. Blanchard Place Apartments, 34,587, pp. 27-28 (La.App. 2 Cir. 6/20/01), 793 So.2d 281, 297. When damages are not susceptible to precise measurement, much discretion shall be left to the court for the reasonable assessment of these damages. La. C.C. art. 1999. In the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury. Id.; La. C.C. art. 2324.1. This discretion is great, even vast, and an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993).

In Guillory v. Lee, 09-0075, p. 14 (La.6/26/09), 16 So.3d 1104, 1116, the Court reiterated the long-held tenet that a jury has “great discretion” in assessing damages and that a jury’s assessment of damages is “a determination of fact” which is “entitled to great deference on review.” Accordingly, when reviewing general damage awards, our role is to review the trier of fact’s exercise of discretion, not to decide what we consider to be an appropriate award. Youn, 623 So.2d at 1260. If there is no clear abuse of discretion in the jury’s awards, the awards must stand. Coco v. Winston Indus., Inc., 341 So.2d 332, 335 (La.1976).

The jury awarded Ms. Reeves $83,500 in total damages, and $25,000 of that amount was for future medical and dental expenses. Ms. Reeves, however, maintains that the jury did not award her an amount for the value of future dental procedures.

[flMs. Reeves contends that she proved that she had a major tooth fracture that would require oral surgery for an implant. She avers that she entered evidence of past dental expenses incurred and offered testimony from three dentists, which indicated that dental procedures in the approximate amount of $25,000 were necessitated by this incident.

Ms. Reeves testified that she had preexisting problems with the tooth she fractured as a result of the incident. Dr. Myron Sheen, Ms. Reeves’s general dentist, offered expert testimony regarding Ms. Reeves’ dental injury; Dr. Sheen testified that the tooth had been compromised prior to the accident and a dental implant was recommended years before the accident. The testimony of Dr. John Schwartz, a general dentist with expertise in fractures and a master ceramicist, also reflected that the tooth was compromised prior to the accident and that he recommended an implant years prior. Dr. Schwartz opined that if Ms. Reeves had an implant prior to the incident, the post-accident implant would not be necessary.

Dr. Bradley Gottsegen’s testimony challenged the causal link between the incident and the need for future oral surgery. Also, Dr. Kimberly Meng, an oral surgeon, testified that there was a loss of bone in the tooth years prior to the incident and that some of the future oral surgery may not be necessary.

As to her left shoulder injury and the need for surgery in the future, Ms. Reeves offered the testimony of Dr. Bernard Ma-nale, an orthopedic physician and professor at Tulane University, who treated her prior to the incident. Dr. Manale testified that Ms. Reeves suffered a tear in her rotator cuff, but he could not offer an opinion as to whether the rotator cuff tear occurred prior to the incident with the dogs. Dr. Manale opined that Ms. Reeves will not ever fully recover given her age and a pre-existing deteriorative condition.

IfiMs. Reeves’ own testimony reflected that she had complaints of shoulder issues that arose from two accidents, one in 2004 and another in 2008. Further, Dr. James Butler, a defense expert, opined that based on a 2007 MRI, the tear in Ms. Reeves’ rotator cuff may have occurred prior to the dog attack.

Ms. Reeves testified before the jury, and the jury was able to consider her testimony in light of the expert testimony of several doctors at trial, who offered varying opinions on causation and aggravation of pre-existing conditions. The jury weighed the conflicting evidence and awarded Ms. Reeves $25,000 in future medical and dental expenses. We find a basis for this award and find no abuse in the jury’s award.

Where two permissible views of evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Stobart v. State Through Dept. of Transp. & Dev., 617 So.2d 880, 882 (La.1993). As the fact finder’s future medical expenses award was not manifestly erroneous, we decline to disturb it. See Logan v. Brink’s Inc., 09-0001, p. 15 (La.App. 4 Cir. 7/1/09), 16 So.3d 530, 542. Considering the foregoing, we find no merit in Ms. Reeves’ claim that the award for future medical expenses was not supported by the record. The damage award is within the range that a reasonable trier of fact could assess for the effects of the particular injury of the particular plaintiff under the particular circumstances

ADMISSION OF MEDICAL RECORDS

Ms. Reeves argues that the trial court committed reversible error in refusing to admit medical records from Dr. Felix Savoie, III, who examined Ms. Reeves for the first time a few days prior to trial without notice to Appellee.

|7A trial court is afforded great discretion concerning the admission of evidence at trial, and its decision to admit or exclude evidence may not be reversed on appeal in the absence of an abuse of that discretion. Miller v. Southern Baptist Hosp., 00-1352, p. 15 (La.App. 4 Cir. 11/21/01), 806 So.2d 10, 21.

A few days before trial, counsel for Ms. Reeves submitted medical records from Dr. Savoie about an examination that occurred a few days prior. Dr. Savoie, an orthopedic surgeon and professor at Tulane University, indicated that Ms. Reeves’ torn rotator cuff is permanent and will not fully improve and opined that a $35,000.00 surgery is necessary in order to improve the shoulder.

Defense counsel responded to the receipt of Dr. Savoie’s record by filing a motion in limine. The trial judge did not allow the admittance of Dr. Savoie’s record regarding the need for this surgery as Ms. Reeves’ visit with Dr. Savoie occurred on the eve of trial. Thus, the issue of Ms. Reeves’ damages for a future surgical cost of $35,000.00 was not presented to the jury for consideration. However, the record reflects that the trial judge gave Appellant an opportunity to continue the matter to allow for appropriate discovery, which was rejected. We find no abuse of discretion of the trial judge’s exclusion.

ADMISSION OF PRIOR LITIGATION AWARD INFORMATION

Ms. Reeves argues that the jury improperly considered her wealth or lack of abject poverty as part of their damage calculations. Despite her motion in limine and objections, the trial judge allowed Appellee to enter evidence of checks reflecting the proceeds that Ms. Reeves received from proceedings in another court concerning spinal injuries. Ms. Reeves argues that the trial court committed reversible error in allowing the introduction of this information, which was used to |simpeach Appellant’s claim that she did not have sufficient funds to pay for necessary dental treatment.

Generally, evidence of a compromise or offer to compromise is inadmissible insofar as it may tend to establish liability. See La. C.E. arts. 408 and 413; Belanger v. Employers Mutual Liability Ins. Co., 159 So.2d 500, 508 (La.App. 1st Cir.1963), writ denied, 245 La. 949, 162 So.2d 8 (1964). “However, although generally inadmissible to prove liability, compromises may be admissible for other purposes.” See La. C.E. art. 408(A); Broussard v. State Farm Mut. Auto. Ins. Co., 188 So.2d 111, 121 (La.App. 3rd Cir.), writ denied, 249 La. 713, 190 So.2d 233 (1966), cert. denied, 386 U.S. 909, 87 S.Ct. 855, 17 L.Ed.2d 783 (1967); Launey v. Thomas, 379 So.2d 27, 30 (La.App. 3rd Cir.1979), writ denied, 381 So.2d 1233 (La.1980). In Belanger, the court allowed evidence of settlement agreements because it was “of probative value in determining the veracity” of the plaintiffs testimony at trial. Belanger, 159 So.2d at 508.

The trial court admitted the information for impeachment purposes in that Ms. Reeves’ testimony raised issues with regard to her veracity and credibility.

At trial, when questioned as to why she did not undergo the tooth implant surgery, Ms. Reeves testified that she could not afford it. Thereafter, the trial court allowed the introduction of evidence of funds received by Ms. Reeves during the time frame of her treatment. We find that the information properly admitted as an aid in the jury’s determination of the plaintiffs credibility and veracity.

We find no abuse of the trial judge’s discretion in allowing questioning regarding prior awards.

USE OF SURVEILLANCE VIDEO TO IMPEACH CLAIMS

|9Ms. Reeves argues that the trial court improperly admitted a surveillance video to impeach her claims that she was unable to perform certain physical activities. Ms. Reeves claims that the surveillance video substantially prejudiced the jury. Ms. Reeves avers that the video did not help the jury clarify Ms. Reeves’ need for oral surgery, long-term psychiatric treatment, and she maintains that a depiction of her raised arm “does not un-tear her rotator cuff, thereby eliminating the need for expensive surgery.”

“The determination of whether motion pictures or video tapes are admissible is largely within the discretion of the trial court.” Lafleur v. John Deere Co., 491 So.2d 624, 632 (La.1986); Olivier v. LeJeune, 95-0053, p. 10 (La.2/28/96), 668 So.2d 347, 351.

Ms. Reeves testified that in her treatment Dr. Manale restricted her lifting and repetitive use of her arms above the level of her shoulder. Ms. Reeves also testified that she would rarely lift her arm above her shoulder while using her dog’s leash due to the pain.

We find that the surveillance videotape was admissible for impeachment purposes given plaintiffs testimony that she was unable to perform some physical activities. Thus, we are unable to say that it is so inflammatory that any probative value is outweighed by the danger of unfair prejudice. Thus, we find no abuse of discretion by the trial court in admitting the videotape into evidence.

DENIAL OF REQUEST TO CALL WITNESS IN CASE-IN-CHIEF

|10Ms. Reeves argues that the trial court committed reversible error in denying her request to call Beverly Howze, a psychologist for the defense, as an adverse witness in her case-in-chief.

Ms. Reeves alleged that she will require some amount of assistance from mental healthcare professionals for the rest of her life. Ms. Reeves offered the testimony of Dr. Scot Griffles, a psychiatrist and former professor of clinical psychiatry at Louisiana State University. Ms. Reeves avers that she is a cancer survivor, and Dr. Griffles has extensive experience in the interface between cancer, head/neck/throat problems, and mental illness. Dr. Griffles testified that Ms. Reeves will require monthly visits to a psychotherapist for the remainder of her life to combat a form of Post Traumatic Stress Disorder (“PTSD”), which manifested since the attack. Defendant rebutted this testimony with that of a psychologist, Beverly Howze, who saw Ms. Reeves on one occasion.

Ms. Reeves maintains that because the trial judge did not allow Ms. Reeves to call Beverly Howze as an adverse witness, the jury did not award Ms. Reeves an amount for future psychological damage. The record is unclear as to the trial court’s ruling as to the denial of a request made by Ms. Reeves to call Beverly Howze as an adverse witness. Nevertheless, counsel for Ms. Reeves had an opportunity to cross-examine the witness. See La. C.E. art. 607. Thus, if any error resulted from the trial judge’s ruling, it was harmless error. We find no basis for Ms. Reeves’ argument that the trial court committed reversible error.

DECREE

We find no evidence in the record that the trial court abused its discretion. We further find that the trial court properly considered the law and evidence in | nmaking evidentiary rulings, and the jury considered countervailing evidence in its determination of damages, for which we find a basis. We affirm the jury’s award.

AFFIRMED

      . Appellant filed a Motion to Provide Additional Information to the Panel. We grant Appellant's motion.

      . The surveillance video was not provided to this Court on appeal. However, Ms. Reeves states that the video depicted her walking her dog and raising her arm.