author: GUIDRY, Justice.

text:
    MCI COMMUNICATIONS SERVICES, INC. v. Wayne HAGAN and James Joubert.
    No. 2011-CQ-1039.
    Supreme Court of Louisiana.
    Oct. 25, 2011.

      Phelps Dunbar, LLP, Baton Rouge, Allen D. Darden, Karen Janise Blakemore, Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., James John Proszek (Pro Hac Vice), For Plaintiffs-Appellants.
    Pelleteri & Weidorn, LLC, Alexander Richard Saunders, Raymond A. Palleteri, Jr., The Rowe Law Firm, LLC, Baton Rouge, Derek Michael Tanner, William C. Rowe, Jr., For Defendants-Appellees.
   GUIDRY, Justice.

We accepted the certified question presented to this court by the United States Court of Appeals, Fifth Circuit, in MCI Communications Services, Inc. v. Hagan, 641 F.3d 112 (5th Cir.2011). The question is this: “Is the proposed jury instruction in this case, which states that ‘[a] Defendant may be held liable for an inadvertent trespass resulting from an intentional act,’ a correct statement of Louisiana law when the trespass at issue is the severing of an underground cable located on property owned by one of the alleged trespass[e]rs, and the property is not subject to a servitude by the owners of the underground cable but only to the contractual right to keep it, as an existing cable, underneath the property?” For the reasons that follow, we answer this question in the negative.

FACTS and PROCEDURAL HISTORY

We decide this certified question on the facts as presented to us by the Court of Appeals. This case arose out of an incident in which an underground cable owned by MCI Communications Services, Inc. (hereinafter, “MCI”), was allegedly severed. MCI filed suit against Wayne Ha-gan and James Joubert alleging theories of negligence and trespass. MCI alleged that Joubert was negligently excavating |2with a backhoe in violation of the Louisiana Damage Prevention Act (Louisiana Underground Utilities and Facilities Damage Prevention Law), La.Rev.Stat. 40:1749.11 et seq. MCI alleged Hagan was vicariously liable because Joubert was | sacting as his agent at the time. The underground cable at issue was buried in part under land owned by Hagan. After a trial in the United States District Court for the Eastern District of Louisiana, the jury found for Hagan and Joubert. The district court awarded attorneys’ fees to Hagan and Joubert under La.Rev.Stat. 40:1749.14(F) of the Damage Prevention Act. MCI appealed to the Court of Appeals, Fifth Circuit, asserting four separate grounds, only one of which is relevant to our decision today: MCI contended the district court erred when it refused to give the jury MCI’s proposed instruction on trespass.

According to the Court of Appeals, on January 20, 2006, defendant Joubert allegedly severed MCI’s underground fiber-optic cable while using a backhoe on defendant Hagan’s property. MCI contended at trial that the backhoe was being used to install a concrete boat ramp. Hagan and Joubert contended that in the week prior, the two friends decided to go duck hunting on property owned by Hagan. When hunting together, they typically launched an airboat from a boat ramp into a canal on the property. Joubert alleged that he went to Hagan’s property on January 20, 2006, to see if Hagan had cleared driftwood from the canal, which needed to be done before they could launch the airboat. Joubert contended that he then drove Ha-gan’s backhoe onto a concrete boat ramp to clear the driftwood before leaving the property. The defendants returned the next day to hunt and found MCI contractors on the property working on repairing the severed cable.

Hagan had acquired the property in 2004 from Illinois Central Gulf Railroad (hereinafter, “Illinois Central”). MCI alleges that in 1984, its predecessor entered into an agreement with Illinois Central to install and operate a telecommunication system on Illinois Central’s property, and that the property in question was added 14to the agreement in 1985. MCI contends that in Hagan’s purchase agreement with Illinois Central, Hagan agreed not to interfere with any previously bargained for rights to continue operating all existing utilities.

As evidence of Hagan’s negligence, MCI asserted Hagan had violated the requirements of the Damage Prevention Act. Ha-gan asserted a counterclaim against MCI for trespass on his property. The district court ruled that MCI had failed to establish that it had a servitude over Hagan’s property, but that MCI did have a right to keep its existing cable on Hagan’s property due to the contents of the Act of Sale between Hagan and Illinois Central. The district court dismissed Hagan’s counterclaim on these grounds. Hagan did not appeal from that ruling. The case was tried to a jury, which returned a verdict finding that Joubert and Hagan were not negligent. No other findings were made, according to the Court of Appeals, because the remaining jury questions submitted were all contingent on a finding of negligence on the part of at least one of the two defendants. The district court awarded attorneys’ fees to Hagan and Joubert under the provision in the Damage Prevention Act that allows for such fees if the “excavators” prevail in a suit to enforce the act. La.Rev.Stat. 40:1749.14(F).

During the trial, MCI objected to the district court’s refusal to submit to the jury MCI’s proposed instruction regarding trespass to the cable. The district court judge responded that he felt “that it’s a part of the negligence aspect of the case” and that because MCI did not have a servitude, he thought it was not “an appropriate charge.” MCI’s requested instruction on trespass reads in relevant part:

Trespass is an unlawful invasion of the property or possession of another person without consent. Damage to property is a trespass regardless of whether the Defendants intended the damage to the property or were negligent. A Defendant may be held liable for an inadvertent trespass resulting from an intentional act. Therefore, the basic standard applicable to the Defendants is that they must refrain from taking intentional action that results in harm to the Plaintiff.

| .^According to the Court of Appeals, the evidence presented at trial would, in its view, be sufficient to support a finding that the MCI cable was struck and damaged by movement of the backhoe intentionally made by Joubert as he operated it with Hagan’s permission, and on his behalf, although Joubert and Hagan did not intend for the backhoe to strike the underground cable, which they did not see and the precise location of which they did not know. MCI contended the district court erred when it refused to submit to the jury its proposed instruction on trespass and the requisite intent therefor. MCI’s view was that Louisiana law defines trespass as an unlawful physical invasion of property in the possession of another, and the only intent required is the trespasser’s intent to perform the act which constitutes the trespass.

Because the district court ruled before trial that MCI did not have a servitude, the Court of Appeals found MCI was not entitled to recover for a trespass to land. However, though MCI apparently did not assert as much, the Court of Appeals opined that MCI may be entitled to have the jury instructed on a claim of trespass to chattels, which that court described as a claim for damages to personal property of the plaintiff — the personal property in this case being MCI’s underground cable. Because it believed that Louisiana courts have not considered the intent standard applicable to claims of trespass to underground cables, and because it found no clear consensus either within the Fifth Circuit or across all jurisdictions as to whether strict liability in a trespass action is an appropriate standard for damage to underground utilities by excavators, the Court of Appeals declined to determine whether MCI’s proposed jury instruction was an accurate statement of Louisiana trespass law as it pertains to damage to underground utilities.

|fiIn deciding to invoke the certification privilege granted by Louisiana Supreme Court Rule XII, the Court of Appeals reasoned that, if MCI’s requested jury instruction was a substantially correct statement of Louisiana law, then it was reversible error for the trial court not to have given that instruction, and MCI would be entitled to a new trial on the theory of trespass. Otherwise, if the requested jury instruction is not a substantially correct statement of Louisiana law, a new trial on the merits would not be required.

DISCUSSION

Inherent in the Fifth Circuit’s question is whether Louisiana law provides for a distinct tort of trespass to movables akin to that of the common law claim of trespass to chattels. As the Fifth Circuit noted, MCI did not cite, nor does it do so in this court, to any Louisiana court cases that deal specifically with the intent standard for trespass to chattels. More pertinently, however, MCI has not cited to any Louisiana case recognizing a tort of trespass to chattels, much less one in the form of a trespass to underground cable, which the Fifth Circuit understandably presumed was a chattel, or a movable under Louisiana law, rather than immovable property. It is this latter issue on which our decision today turns.

In its presentation to this court, MCI makes two arguments. MCI first argues that it has some possessory interest in Mr. Hagan’s immovable property by virtue of either the agreement among MCI’s and Mr. Hagan’s predecessors, which agreement was perpetuated in the Act of Cash Sale, or, as MCI stressed in oral argument, simply because of its cable’s physical proximity to and direct contact with the dirt underlying Mr. Hagan’s property. MCI thus argues that Hagan and 17Joubert committed a trespass by unlawfully and physically invading upon MCI’s possessory interest in immovable property when the backhoe they were intentionally operating inadvertently came in contact with the cable and the dirt surrounding it. We dispose of this first argument by noting the federal district court already determined that MCI had no servitude over Mr. Ha-gan’s land, and thus, under Louisiana law, MCI had no possessory interest in Mr. Hagan’s land. The Court of Appeals accepted the district court’s finding; thus, the federal courts have previously found that MCI had merely a contractual right to leave its cable on Mr. Hagan’s land at the time of the incident involving the backhoe. Indeed, the Court of Appeals repeatedly pointed out in its opinion that MCI did not have a servitude over Mr. Hagan’s property. Consequently, we decline to decide anew or otherwise review a factual and legal determination that was settled in the federal courts.

MCI next argues that it can recover in trespass regardless of whether Hagan and Joubert were negligent so long as they intended to perform the act of operating the backhoe, which resulted in the trespass, i.e., contact with its cable or that Isportion of Mr. Hagan’s land in which MCI had some possessory interest. However, the issue of whether MCI had some possessory interest in the property has already been resolved against MCI.

Essentially, the Fifth Circuit’s inquiry is whether Louisiana law recognizes a distinct tort of “trespass to chattels” and, if so, can a “trespass to chattels” be committed inadvertently if it results from an otherwise intentional act. No party has cited to any case or treatise discussing the common law claim of trespass to chattels. Black’s Law Dictionary defines trespass to chattels as “[t]he act of committing without lawful justification, any act of direct physical interference with a chattel possessed by another. The act must amount to a direct forcible injury.” Black’s Law Dictionary, p. 1643 (9th ed.2009). Some Louisiana commentators have discussed the claim of trespass to chattels. “Trespass to chattels is the intentional intermeddling with a chattel (movable) in the possession of another that damages the chattel, reduces its value, or deprives the possessor of the use of the chattel for a significant period of time.” Frank L. Maraist and Thomas C. Galligan, Jr., Louisiana Tort Law, § 2.06[8], p. 2-34 (2004) (emphasis supplied). These commentators note the tort of trespass to movables is generally treated as a conversion in Louisiana. Id., p. 2-35. See also 12 William E. Crawford, Louisiana Civil Law Treatise; Tort Law (2d ed. 2009) (“The taking or damage of movable property in the possession of another is regarded as a trespass. It happens often when repossession through self-help is exercised.”). The Restatement (Second) of Torts explains that a trespass to chattel “may be committed by intentionally (a) dispossessing another of the chattel, or (b) using or intermeddling with a chattel in the possession of another.” Restatement (Second) of Torts, § 217 (1965) (emphasis supplied). Thus, the common law claim of trespass to chattels appears to require intent to interfere with another’s interest in movable property before an action for trespass to chattels may lie.

|1ftAt any rate, in Louisiana, the victim of an intentional intermeddling with a movable in the possession of another, or even accidental damage to a movable that belongs to another, which is the more apt description under the facts of this case, has an adequate remedy under the law of tort without recourse to the common law trespass to chattels. La. Civ.Code art. 2315(A) provides that “[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” As we noted in Dual Drilling Co. v. Mills Equipment Investments, Inc., 98-0343 (La.12/1/98), 721 So.2d 853, 856, in rejecting the adoption of the strict liability remedy of the common law action of conversion, “[o]ur civilian remedies amply protect personal and real rights in movable property and should not be obscured by an application of common law ... principles.” Thus, MCI had available to it, as the owner of a movable allegedly damaged by the fault of another, the delictual action in tort. Moreover, the Louisiana legislature has created specific statutes regarding damage to underground cables in the above-described Damage Prevention Law, placing certain statutory duties upon the excavator. However, a violation of the statute does not result in either strict civil liability or negligence per se; instead, the failure of an excavator to detect the presence of an underground utility as required by statute subjects the excavator to | n delictual liability under the theory of negligence, and any statutory violation is considered in the traditional duty-risk analysis. See, e.g., Bellsouth Telecommunications, Inc. v. Eustis Engineering Co., Inc., 07-865 (La.App. 4 Cir. 12/9/07), 974 So.2d 749. Thus, the federal district court was correct in determining that MCI’s “trespass” claim was “part of the negligence aspect of the case — or the claim of negligence.”

We therefore answer the question certified to us in the negative: The proposed jury instruction in this case, which states in part that “[a] Defendant may be held liable for an inadvertent trespass resulting from an intentional act,” is not a correct statement of Louisiana law when the “trespass” at issue is the severing of an underground cable located on property owned by one of the alleged trespassers, and the property is not subject to a servitude by the owners of the underground cable but only to the contractual right to keep it, as an existing cable, underneath the property.

DECREE

We answer the certified question as set forth in this opinion. Pursuant to Rule XII, Supreme Court of Louisiana, the judgment rendered by this court upon the question certified shall be sent by the clerk of this court under its seal to the United States Court of Appeals for the Fifth Circuit and to the parties.

CERTIFIED QUESTION ANSWERED

      . MCI Communications Services, Inc. v. Hagan, 11-1039 (La.07/01/11), 64 So.3d 234.

      . The Damage Prevention Act sets forth the public policy of this state, which is to promote the protection of property, workmen, and citizens in the immediate vicinity of an underground facility or utility from damage, death, or injury and to promote the health and well-being of the community by preventing the interruption of essential services which may result from the destruction of, or damage to, underground facilities or utilities. La.Rev. Stat. 40:1749.11(B). Regarding excavation, demolition, and prohibitions thereof, La.Rev. Stat. 40:1749.13, at the time relevant to the case before us, provided in pertinent part:
      A. Except as provided in this Section, no person shall excavate or demolish in any street, highway, public place, or servitude of any operator, or near the location of an underground facility or utility, or on the premises of a customer served by an underground facility or utility without having first ascertained, in the manner prescribed in Subsection B of this Section, the specific location as provided in R.S. 40:1749.14(D) of all underground facilities or utilities in the area which would be affected by the proposed excavation or demolition.

        B. (1) Except as provided in R.S. 40:1749.15, prior to any excavation or demolition, each excavator or demolisher, including cable television owners or operators, shall serve telephonic notice of the intent to excavate or demolish to the regional notification center or centers serving the area in which the proposed excavation or demolition is to take place. Such notice shall be given to the notification center at least forty-eight hours....
      (2) This notice shall contain the name, address, and telephone number of the person filing the notice of intent, and, if different, the person responsible for the excavation or demolition, the starting date, anticipated duration, and description of the specific type of excavation or demolition operation to be conducted, the specific location of the proposed excavation or demolition and a statement as to whether directional boring or explosives are to be used....

      (4) Notice shall be given and shall include a specific location request for excavation or demolition work to be performed at least forty-eight hours,.... The marking of an operator’s facility or utility shall be provided for excavation or demolition purposes only.
      (5) The excavator or demolisher shall wait at least forty-eight hours following notification before commencing any excavation or demolition activity, except in the case of an emergency as defined in the provisions of this Part or if informed by the regional notification center that no operators are to be notified....
      Following the giving of statutory notice, the regional notification center notifies "all member operators having underground facilities in or near the site of the proposed excavation.” La.Rev.Stat. 40:1749.14(B). The operator then must provide the excavator with the specific location and type of underground facilities and may visit the site and mark the location and type of utilities involved. See La. Rev.Stat. 40:1749.14(C). La.Rev.Stat. 40:1749.20 sets forth civil penalties for excavators who violate these provisions. La.Rev. Stat. 40:1749.21(A) further provides: "Except as otherwise specifically provided herein, the provisions of this Part shall not affect any civil remedies for personal injury or property damage, including damage to underground facilities or utilities.”

      . Verizon Business Global filed the lawsuit against Hagan and Joubert. The district court later allowed MCI to be substituted as plaintiff once that company was determined to be the owner of the cable.

      . Though not specifically articulated as such, MCI seems to be suggesting that its cable has become a component part of the land, see La. Civ.Code art. 465 ("Things incorporated into a tract of land, a building, or other construction, so as to become an integral part of it, such as building materials, are its component parts.”), and thus MCI has some possessory interest in an immovable, such that a trespass to immovable property might lie. However, we find no merit to the implicit suggestion that the MCI-owned cable itself is anything but a movable. See generally, 2 A.N. Yianno-poulos, Louisiana Civil Law Treatise; Property, §§ 141 et seq., p. 318 (4th ed. 2001) ("According to the Louisiana Civil Code[,] constructions permanently attached to the ground, other than buildings, are component parts of a tract of land when they belong to the owner of the ground and movables when they belong to another person.”) (footnotes omitted).

      . There are two kinds of servitudes: personal servitudes and predial servitudes. La. Civ. Code art. 533. A personal servitude is a charge on a thing for the benefit of a person. La. Civ.Code art. 534. There are three kinds of personal servitudes: usufruct, habitation, and rights of use. Id. The right of use is a “limited personal servitude” that "confers in favor of a person [or legal entity, La. Civ.Code art. 641,] a specified use of an estate less than full enjoyment.” La. Civ.Code art. 639. See also 3 A.N. Yiannopoulos, Louisiana Civil Law Treatise; Personal Servitudes, § 223, p. 455 (4th ed.2000). Here, the district court found that MCI had no servitude of any kind over Mr. Hagan’s property. Further, there has been no showing that the mere existence of the cable itself created a limited personal servitude in favor of MCI. Consequently, MCI can show no possessory interest in immovable property.

      . See 3 A.N. Yiannopoulos, Louisiana Civil Law Treatise; Personal Servitudes, § 227, p. 464 (4th ed. 2000) ("In transactions concerning immovable property, ... questions frequently arise whether an instrument was intended to transfer ownership, to establish a dismembership of ownership [such as a servitude], or to impose merely personal obligations. The resolution of these questions is a matter of contractual interpretation governed by the general rules of construction of juridical acts as well as by rules applicable specifically to instruments that purport to create servitudes.”) (footnotes omitted).

      .The cases cited by MCI with regard to whether a trespasser must intend to trespass on the property or intend to cause damage thereon, or whether the trespasser may be liable for an inadvertent trespass which results from an intentional act, involved trespasses to land owned or possessed by another. See Harrison v. Petroleum Surveys, Inc., 80 So.2d 153 (La.App. 1st Cir.1955); Terre Aux Boeufs Land Co. v. J.R. Gray Barge Co., 00-2754 (La.App. 4 Cir. 11/14/01), 803 So.2d 86, writ denied, 01-3292 (La.3/8/02), 811 So.2d 887. Accordingly, these cases are inapplicable in determining our answer to the certified question.

      . "A conversion is committed when any of the following occurs: (1) possession is acquired in an unauthorized manner; (2) the chattel is removed from one place to another with the intent to exercise control over it; (3) possession of the chattel is transferred without authority; (4) possession is withheld from the owner or possessor; (5) the chattel is altered or destroyed; (6) the chattel is used improperly; or (7) ownership is asserted over the chattel.” Dual Drilling Co. v. Mills Equipment Investments, Inc., 98-0343 (La.12/1/98), 721 So.2d 853, 857. But, as we explained in Dual Drilling, "[t]he conversion action is predicated on the fault of the defendant and directed to the recovery of the movable or, in the alternative, the plaintiff may demand compensation.” Id. Thus, in Dual Drilling, we found that civil law remedies, including a delictual action in tort, effectively protect victims without the necessity of adopting the common law version of conversion. Accordingly, we declined to adopt strict liability, but instead required the plaintiff to prove the fault of the defendant under La. Civ.Code art. 2315. Id., n. 3.

      . The Restatement sets forth the liability to the possessor of the chattel as follows:
      One who commits a trespass to chattel is subject to liability to the possessor of the chattel if, but only if, (a) he dispossesses the other of the chattel, or (b) the chattel is impaired as to its condition, quality, or value, or (c) the possessor is deprived of the use of the chattel for a substantial time, or (d) bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest.”
      Restatement (Second) of Torts, § 218 (1965).

      .One Louisiana commentator has explained the common law claim as follows:
      Damages for unprivileged interferences with the possession of tangible personal property may be recovered in trespass. However, in contrast with real property, the action here lies only for intended injurious interferences. Negligent interferences may be actionable under the law of negligence and, if they fulfill the requirements of conversion, by an action under that name.
      2 A.N. Yiannopoulos, Louisiana Civil Law Treatise; Property § 346, p. 687(4th ed.2001) (footnotes omitted).
      Additionally, and perhaps more pertinently, Comment (b) to § 217 of the Restatement (Second) of Torts explains:

        Necessity of intent. Under early common law pleading, the form of action for trespass to a chattel would lie for any direct and immediate interference with the chattel, whether the trespass was intentional, or negligent, or even accidental. With the passage of time and the abolition of the common law forms of action in many states, and their modification in others, the word "trespass,” so far as it applied to interference with chattels, has come to be limited to intentional interferences. Some vestiges of the earlier usage remain in some jurisdictions, where it is possible to speak of a negligent “trespass” to a chattel. Even in such jurisdictions, however, such "trespasses” are governed by the ordinary rules of negligence actions.
      This Section follows the commonly accepted terminology, by which there can be no unintended "trespass” to a chattel. Under the rules stated in Chapter 12 of this Restatement, the actor may be subject to liability for harm resulting from a negligent interference with a chattel. Such liability is dealt with as in other cases of negligence, in which the word "trespass" usually is not even mentioned. Under the rules stated in Chapters 20 and 21, there may also be liability for harm to a chattel resulting from strict liability, without either intent or negligence. Again any such liability is nearly always rested upon the nature of the actor’s conduct itself, without any reference to "trespass.”
      Restatement (Second) of Torts, Ch. 9, § 217, pp. 417-18 (1965).

      . We do not address whether MCI may have had an action sounding in contract for an alleged breach of the agreement between the parties.

      . Even though the term "trespass” is occasionally used in Louisiana jurisprudence, our civil law traditions fully safeguard the rights of owners and possessors of immovable property. See 2 A.N. Yiannopoulos, Louisiana Civil Law Treatise; Property, § 293, p. 579 (4th ed. 2001) ("Actions for damages on account of interference with one’s ownership or possession of immovable property, including unauthorized use of a predial servitude, and unlawful taking of timber, minerals, or dirt, are often styled ‘trespass' actions. However, despite the use of common law terminology, such actions are firmly grounded on Louisiana legislative texts governing delictual actions and ownership or possession of immovable property.”)(footnotes omitted).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Kirk RICHARD, et al. v. Kimberly Babin RICHARD, et al.
    No. 2011-C-0229.
    Supreme Court of Louisiana.
    Oct. 25, 2011.
    James D. Caldwell, Attorney General, Taylor & Trosclair, Earl B. Taylor, Charles T. Cravins, Laura T. Marler, Frank P. Trosclair, Jr., Special Assistant Attorneys General, for Applicant.
    Allen A. Krake, Elizabeth Ann Dugal, Samuel David Abraham, Lafayete, Richard Allen Spears, New Iberia, McKeithen, Ry-land & Champagne, Columbia, Dina Fae Domangue, for Respondent.
   PER CURIAM.

hWe granted certiorari in this ease to determine whether the court of appeal erred in reversing the district court in part, finding plaintiff’s claim for false arrest was not prescribed. For the reasons that follow, we now reverse the court of appeal’s judgment, and reinstate the district court’s judgment in its entirety.

UNDERLYING FACTS AND PROCEDURE

The State of Louisiana, Department of Social Services (“DSS”) conducted an investigation of Kirk Richard in response to reports of child abuse. The first DSS investigation concluded April 12, 2006, and the second investigation concluded May 29, 2008, at which time the DSS reported its findings to the district attorney and closed its file. On June 13, 2008, the Iberia Parish Sheriffs Department arrested Mr. Richard for aggravated rape of his minor children.

On June 11, 2009, Mr. Richard filed suit against several defendants, including DSS, its Iberia Parish office, and three of its Iberia Parish employees, Jannenne Tra-han, Brandi Derouen, and Shanequa Keal-Lewis (hereinafter referred to collectively as “the DSS defendants”). In his petition, Mr. Richard alleged his former wife and others “began a campaign of false accusations and manufactured false evidence in order to deprive him of access to his children.” The petition further ^asserts that as a result of actions by the DSS defendants, he was subsequently arrested and falsely imprisoned. According to Mr. Richard’s petition, the DSS defendants became caught up in his former wife’s campaign to falsely discredit him, and in doing so, negligently and/or intentionally breached duties owed to him as part of their investigative obligations.

In response to the petition, the DSS defendants filed several exceptions, including a peremptory exception raising the objection of prescription. The district court conducted a hearing on the exception, at which time it received testimony from Ms. Trahan and Ms. Derouen.

Ms. Trahan, a supervisor of the Iberia Parish child protection investigators, testified that the initial investigation of Ms. Richard’s complaints terminated when the office closed its file on April 12, 2006, after transferring the matter to a foster care unit. She testified a second investigation begari on November 19, 2007, and was closed May 29, 2008. In that investigation, DSS validated a complaint against Mr. Richard, and reported its findings to the district attorney’s office, but the district attorney’s office took no further action. In fact, the foster care unit never became involved in the second investigation.

Ms. Derouen, who is employed in the foster care unit of DSS, testified that her unit had not been involved in any activity involving Mr. Richard and/or his children since May of 2008.

The DSS defendants also offered two exhibits as evidence: (1) the minutes from an August 18, 2006 hearing; and (2) the resulting interim stipulated judgment on rules. These exhibits indicate the children were adjudicated to be in need of care, and that the parents were to have joint custody. The judgment made no mention of any further duty the DSS would have in relation to the Richards or the children. |3Mr. Richard offered three civil court records as additional evidence: 1) the divorce proceedings; 2) a proceeding in which Ms. Richard sought to resolve issues of visitation; and 3) the entire record of the current proceedings.

At the conclusion of the hearing, the district court granted the DSS defendants’ exception of prescription. In reasons for judgment, the district court concluded the DSS defendants had no legal responsibility for the case after May 29, 2008. Therefore, it found Mr. Richard’s June 11, 2009 suit against the DSS defendants was prescribed.

Mr. Richard devolutively appealed this judgment. The court of appeal affirmed in part, reversed in part, and remanded the case in a split decision. Richard v. Richard, 10-464 (La.App. 3 Cir. 12/30/10), 54 So.3d 808.

The majority of the court of appeal found the DSS established two distinct investigations involving plaintiff and his children. It found that any cause of action involving the first investigation was prescribed, because the DSS closed its file on April 12, 2006.

However, the court found Mr. Richard’s claim for false arrest based on the second DSS investigation was not prescribed. Although the court found the second DSS investigation terminated on May 29, 2008, when the DSS validated the complaint and relayed its findings to the district attorney, it concluded Mr. Richard did not suffer any harm until June 13, 2008, when he was arrested. Finding plaintiffs June 11, 2009 suit was filed within one year of the date of his arrest, the court of appeal reversed the district court’s judgment in part, and remanded the case to the district court for further proceedings relating to the claim for false arrest. In all other respects, the majority of the court of appeal affirmed the district court’s judgment.

iJJpon the DSS defendants’ application, we granted certiorari to consider the correctness of this ruling. Richard v. Richard, 11-0229 (La.4/25/11), 62 So.3d 67. The sole issue presented for our review is whether the court of appeal erred in reversing the district court’s judgment with regard to Mr. Richard’s false arrest claim.

DISCUSSION

On the trial of a peremptory exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. La.Code Civ. P. art. 931; Denoux v. Vessel Management Services, Inc., 07-2143 (La.5/21/08), 983 So.2d 84. When evidence is received at the trial of the peremptory exception, the factual conclusions of the trial court are reviewed by the appellate court under the manifest error-clearly wrong standard, as articulated in Stobart v. State Through Dept. of Transp. and Development, 617 So.2d 880 (La.1993); Katz v. Allstate Ins. Co., 2004-1133 (La.App. 4 Cir. 2/2/05), 917 So.2d 443; Smith v. Slattery, 38,693 (La.App.2d Cir.6/23/04), 877 So.2d 244, writ denied, 04-1860 (La.10/29/04), 885 So.2d 592. If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed evidence differently. Stobart, supra.

In the instant case, the district court received evidence in the form of testimony from Ms. Trahan, a supervisor of the child protection investigators in the Iberia Parish Office of Community Services, and Ms. Derouen, who works in the DSS foster care unit. Both of these witnesses testified the foster care unit had not been involved in the case since the second investigation closed on May 29, 2008. Additionally, the DSS defendants introduced documentary evidence establishing they had no further ^responsibility in the case after the investigation was closed. Mr. Richard produced no evidence to the contrary. Based on our review of the record, we see no manifest error in the district court’s factual finding that the DSS defendants had no legal liability in this case after May 29, 2008.

In finding Mr. Richard’s false arrest claim remained viable, the court of appeal reasoned that although the DSS defendants did not take any action in the case after May 29, 2008, Mr. Richard did not suffer any harm from their actions until June 13, 2008, thereby making his June 11, 2009 suit timely. We see no support for such a conclusion.

A claim for false arrest requires the following elements: (1) detention of the person; and (2) the unlawfulness of the detention. Kennedy v. Sheriff of East Baton Rouge, 05-1418 (La.7/10/06), 935 So.2d 669. Mr. Richard does not allege the DSS defendants unlawfully detained him on June 13, 2008; rather, his petition alleges he “was arrested and charged with the crime of aggravated rape of his minor children by the Iberia Parish Sheriff’s Department” [emphasis added]. We see no legal ground to impute the actions of the Iberia Parish Sheriffs Department to the DSS defendants. There was no evidence introduced in this matter to link the arrest by the sheriffs department to the report of the DSS defendants.

In summary, we find Mr. Richard’s claims against the DSS defendants prescribed one year after May 29, 2008, the date the DSS closed its file on the second investigation. Mr. Richard’s suit was filed more than one year later on June 11, 2009. Accordingly, any claims Mr. Richard had against the DSS defendants are prescribed.

| ^DECREE

For the reasons assigned, the judgment of the court of appeal reversing the district court’s judgment in part as to a claim for false arrest is reversed. The district court’s judgment dismissing the suit of Kirk Richard against the State of Louisiana, Department of Social Services, its Iberia Parish office, and Jannenne Trahan, Brandi Derouen, and Shanequa Keal-Lew-is, is reinstated in its entirety.

      . Arguably, Mr. Richard failed to state a cause of action against the DSS defendants for false arrest. However, because we find any claims he had against the DSS defendants are prescribed, we need not reach this issue.


author: JOHNSON, Justice. VICTORY, J., KNOLL, Justice,

text:
    Ginger Hinch DURIO v. HORACE MANN INSURANCE COMPANY, et al.
    No. 2011-C-0084.
    Supreme Court of Louisiana.
    Oct. 25, 2011.

      Milling Benson Woodward, LLP, New Orleans, Michael E. Holoway, for Applicant.
    Joseph Anthony Delafield, Lundy, Lun-dy, Soileau & South, Jackey White South, Rudie Ray Soileau, Jr., Hunter William Lundy, Lake Charles, The Barret Law Firm, Winfred Thomas Barrett, III, for Respondent.
   JOHNSON, Justice.

11 This writ application arises from Plaintiffs claims for property damage to her home following Hurricane Rita and for damages and penalties against her homeowner’s insurer pursuant to La. R.S. 22:658 and La. R.S. 22:122o. We granted the writ application primarily to review the correctness of the rulings of the lower courts applying the penalty provision of La. R.S. 22:1220(0 to contractual damages, and awarding attorney fees pursuant to the amended version of La. R.S. 22:658. For the reasons that follow, we affirm in part, reverse in part and amend in part.

FACTS AND PROCEDURAL HISTORY

In September of 2005, Plaintiff, Ginger Hinch Durio (“Ms. Durio”), owned and lived with her three children in a home on East Banbury Drive in Lake Charles, Louisiana. Plaintiffs home was covered by a homeowner’s insurance policy issued by defendant, Horace Mann Insurance Company (“Horace Mann”). The policy provided the following coverage limits: Coverage A (Structure/Dwelling) — $173,300.00; Coverage B (Other Detached Structures)— $17,330.00; Coverage C [¡.(Contents)— $103,980.00; and Coverage D (Additional Living Expenses) — $103,980.00.

On September 24, 2005, Plaintiffs home was damaged by Hurricane Rita. The home had an attached garage, and the majority of the damage occurred when winds dislodged the garage door, causing the main support beam to collapse, resulting in a partial collapse of the garage structure. The extent of damage to the rest of the structure and to the interior of the home was disputed, other than water damage caused when a hot water heater in the attic overturned. Ms. Durio was in the process of a divorce at the time of the hurricane, and obtained ownership of the home through the community property settlement. Due to financial difficulties, she had recently signed a contract to sell the home. In anticipation of their move, the Durios had packed up many of their belongings and stored them in the garage. When the ceiling inside the garage collapsed, their stored belongings were destroyed.

Ms. Durio filed suit against Horace Mann on June 13, 2006. In her Petition for Damages, she alleged the “dwelling, contents and appurtenant structures [shed] were completely destroyed by Hurricane Rita,” but Horace Mann “consistently arbitrarily and capriciously refused to classify [the] home as a total loss.” Ms. Durio asserted bad faith claims under La. R.S. 22:658 and La. R.S. 22:1220. At trial, conflicting evidence was presented regarding the extent of damage to the property. In addition, expert testimony was presented regarding Ms. Durio’s claims for emotional distress damages and lost wages as a result of Horace Mann’s bad faith adjustment of her claim. The relevant evidence in the record is generally summarized below.

Plaintiff initiated a claim with Horace Mann on September 27, 2005. On October 1, 2005, Horace Mann issued a $2,500.00 check to Ms. Durio as an advance on additional living expenses (“ALE”). Ricky Fine, an independent claims adjuster | ¡hired by Horace Mann, testified he did a full inspection of the property on October 12, 2005. He noted the garage was severely damaged, and noted some interior damage from the hot water heater. His estimate also allowed for an electrical inspection of the garage and home to assess the amount of damage caused by the garage collapsing. Mr. Fine testified there was no storm related damage to the slab, and he did not believe the house needed to be rebuilt. He opined the structural damage was limited to the garage. The Horace Mann adjuster’s reports dated November 2, 2005, reflect estimated damages of $19,293.70 under Coverage A and $8,217.03 under coverage B. On November 4, 2005, Horace Mann issued a check for damage to the dwelling (Coverage A) in the amount of $18,293.70 (estimate less deductible), and a check for damage to other structures (Coverage B) in the amount of $8,217.03. These checks were never negotiated. The record reflects that Ms. Durio did not negotiate the checks because her ex-husband was also listed as a payee on the checks (the Horace Mann policy was issued in both names), and there was no indication on the checks that the payments were intended as an unconditional tender.

Ms. Durio was dissatisfied with the estimate of damages, and insisted the home was a total loss. At the request of Ms. Durio, Horace Mann reinspeeted the property on November 18, 2005. On December 5, 2005, Horace Mann issued a supplemental payment for structural damage (Coverage A) in the amount of $1,572.27, and a check in the amount of $6.99 for contents (Coverage C). Horace Mann subsequently issued additional checks for ALE, each in the amount of $1,950.00, on October 1, 2005, November 1, 2005, December 1, 2005, and January 1, 2006, for a total of $7,800.00. No further payments were made by Horace Mann under Coverages A, B or D.

Because she still disagreed with Horace Mann’s estimation of the extent of damages, Ms. Durio hired an engineer to inspect the property. Mr. Charles Norman, |4P.E., inspected the house on January 21, 2006, and issued a report dated January 26, 2006, in which he opined the house was not livable, and the structural and mechanical integrity of the home was compromised. Specifically, his report provides:

• The upper attic frame is compromised and very unstable. Portions have failed and collapsed from storm related damages.
• The home has distorted in both lateral directions and permanently shifted. The upper frame structure will require significant repair and mitigation before the home is livable.
• The ventilation system was severely compromised due to electrical and water problems related to the storm. Ventilation is a major issue inside the home due to mold and moisture. In my opinion, the home is unsafe to live in.
• There are significant issues with electrical wiring and connections throughout the home. Therefore fire safety is an issue.
• There is a significant loss of mechanical and structural integrity in the home due to hurricane winds. In other words, major repairs will be required to restore the home to a livable condition.

On March 25, 2006, Mr. Norman issued a supplemental report based on his January 21, 2006, inspection. His opinion of the damage remained the same, however he also stated that a comprehensive repair plan should be developed for the home which should be weighed against a complete rebuilding. He made an additional recommendation that at least fifty percent of the entire attic frame should be replaced, with the section over the garage and north of the garage rebuilt from the slab upward. He also stated the slab should be evaluated for movement.

On April 28, 2006, Ms. Durio submitted a “Sworn Proof of Loss,” through her attorney, which was received by Horace Mann on May 5, 2006. In the Proof of Loss, Ms. Durio stated, among other things, that the home was totally destroyed along with all contents, and the damages exceeded the value of coverage provided by the insurance policy. Included with the Proof of Loss were the engineering reports from Mr. Norman; an appraisal of the home dated October 8, 2004; Ms. Durio’s [scompilation of damaged contents and their values; and photographs of the damage.

Horace Mann hired its own engineer to evaluate the damage to the house. On May 15, 2006, Rimkus Consulting Group issued an engineering report on behalf of Horace Mann. While noting the structural integrity of the attached garage was compromised by wind forces, and acknowledging problems caused by the partial collapse of the garage structure, the report stated repairs could be made to the structures without requiring demolition of the residence. On August 7, 2006, Rimkus issued a supplemental report outlining in more detail the work to be performed as part of the repairs to the residence. On August 16, 2006, Rimkus issued a repair work plan based on its reports of May 15, 2006, and August 7, 2006.

Craig Rogers an expert in civil engineering and forensic engineering, was employed by Rimkus, and inspected the house on November 29, 2006. He testified there was structural damage to the property, and agreed the house presented a safety hazard and was still uninhabitable at the time of his inspection. However, he disagreed with any opinion that there was damage to the slab of the house as a result of the storm. Mr. Rogers performed tests on the slab, as recommended by Mr. Norman, which showed nothing out of the ordinary. Any cracks in the slab were the result of normal shrinkage and were unrelated to the storm. Mr. Rogers opined there was no evidence of any permanent structural deficiencies in the house beyond the garage. In his expert opinion, the house did not need to be demolished, and the Rimkus repair plan would aid whoever repaired the house.

Ms. Durio proceeded to obtain estimates to repair the home pursuant to Mr. Norman’s reports. In May of 2006, Bayou General Contractors prepared an estimate to replace the home totaling $299,200.00. Paul Young of Bayou General Contractors testified there was structural damage to the home, and testified he also took Mr. | r,Norman’s report into consideration when preparing his cost estimate.

On October 4, 2006, Horace Mann reissued checks for Coverages A and B in the amounts of $19,872.96 and $8,217.03. The original checks had been voided by Horace Mann because they were never negotiated. On that same date, Horace Mann issued a check for the full value of the contents (Coverage C) in the amount of $47,061.44.

Ms. Durio obtained a second repair estimate in November of 2006 in the amount of $46,656.00 from Lewing Construction. Ralph Lewing testified the biggest part of damage was to the garage, where the beam collapsed and joists caved in. He noted other minor damage to the exterior and interior of the home. He did not believe the house was a total loss. He found no unusual or storm related damage to the slab.

On January 8, 2007, Rimkus issued another supplemental report after Mr. Rogers’ inspection of the property on November 29, 2006. This report indicated several instances of defects in the original construction of the house, which Rimkus found to be causes of the partial collapse of the garage structure.

Ms. Durio subsequently hired Mr. Ker-mith Sonnier at Cost Control Services as a consultant/public adjuster to inspect that house and provide an adjustment of total losses. Mr. Sonnier’s initial report dated August 16, 2007, showed total losses as follows: $57,776.30 for the dwelling; $16,578.93 for other structures; $45,180.00 for contents; and $10,950.00 for ALE. Mr. Sonnier was accepted by the court as an expert in property adjusting. He testified this initial report was preliminary, and he did not inspect the entire house. After receiving a copy of Mr. Norman’s engineering report, and reinspecting the house, he issued a supplemental report on February 21, 2008, updating his August 16, 2007, estimate of costs at the request of Ms. Durio’s attorney. Based on Mr. Norman’s 2006 report, he estimated losses of: $188,268.73 |7for the dwelling (Coverage A); $16,578.93 for other structures (Coverage B); $45,180.00 for contents (Coverage C); and $10,950.00 for ALE. Mr. Sonnier noted Mr. Norman’s January 26, 2006, report suggested the integrity of the dwelling was compromised, and based on this report, the dwelling was total loss per the policy limits.

In September of 2007, Ms. Durio sold the home to its original contractor, Joe Seago. Mr. Seago testified he encountered Ms. Durio sometime in late 2005, and she asked him to inspect the damages to the home. He testified the house could be repaired for $35,000.00 to $40,000.00. While he agreed there was structural damage, he found no problem with the slab. He purchased the house for $132,500.00, with a plan to repair it and sell it for a profit. He spent $34,681.97 to repair the house to its pre-storm condition. However, this amount did not include adjustments for overhead or profit, or account for Mr. Seago’s labor costs.

Following a bench trial, the court ruled in favor of Ms. Durio. In oral reasons for judgment, the court ordered payment of policy limits on Coverage A, specifically noting he gave greater credence to Ms. Durio’s expert. The court believed Mr. Norman’s evaluation of the structural damage to the house, and based on damage estimates submitted at trial, the court found the house to be a constructive total loss. The court noted the inflationary rider in the policy, adding an additional $10,109.00 of coverage, making the policy value $183,409.00. Subtracting the amount Horace Mann previously paid, the court awarded Coverage A losses of $163,536.97.

The court also awarded penalties relative to Coverage A. The court found formal notice of the losses was mailed on April 28, 2006, and received in Horace Mann’s home office on May 5, 2006. Thus, satisfactory proof of loss was made as of May 5, 2006. The court found it significant that Horace Mann failed to make any |sadditional tenders, even though Horace Mann relied on cost estimates at trial which all exceeded the amounts its adjusters initially proposed. The trial court also stated: “It basically appears that this file was mismanaged. There is missing correspondence. There are missing photographs, unexplained handwritten notes, additional bureaucratic delays with third-party delays with third-party dealings, apparently a rotating door of adjusters all contributed to Horace Mann’s failure to properly adjust this claim.” Thus, the court found Horace Mann was arbitrary and capricious, and failed to deal with Ms. Durio fairly or in good faith, and awarded penalties under La. R.S. 22:658 and La. R.S. 22:1220.

The court also gave more weight to the estimates of damages under Coverage B provided by Mr. Sonnier, rather than that provided by Horace Mann’s adjuster, Mr. Fine. The court found Coverage B damages totaled $16,578.98, and subtracting the $8,217.03 already paid by Horace Mann, the court awarded $8,361.91. While the court noted Mr. Sonnier’s particular estimate was provided to Horace Mann on February 21, 2008, during the course of litigation, it also noted the full extent of the loss was provided in the original proof of claim on May 5, 2006. Thus, the trial court awarded penalties under both La. R.S. 22:658 and La. R.S. 22:1220.

The trial court noted there was no dispute of quantum under Coverage C. The court found that proof of loss for contents was provided on May 5, 2006, but no payments were made until October 4, 2006. Thus, the court found violations of La. R.S. 22:658 and La. R.S. 22:1220 and awarded penalties under both statutes.

As to Coverage D, the trial court noted Ms. Durio was only paid for four months of ALE, but Horace Mann’s file indicated she was being paid or should be paid for a period of up to six months. The court found it was established that there were health and safety issues making the house unlivable. Further, testimony |fldemonstrated it would be a minimum of six months to a year before the property could be repaired. By its own computations, Horace Mann determined $1,950.00 per month was an appropriate ALE based on the four-month average. The court found ALE losses continued until September of 2007, when Ms. Durio sold the house, and thus awarded an additional twenty months ALE at $1,950.00 per month for a total of $89,000.00. The court did not find there was satisfactory proof of loss under La. R.S. 22:658, so no penalties were awarded under that statute. However, the court found Horace Mann was not in good faith and did not fairly deal with Ms. Durio pursuant to La. R.S. 22:1220. The trial court noted that post-January of 2006, Ms. Durio’s stress and anxiety level clearly increased, demonstrated by expert medical testimony, and continued as the claim proceeded without resolution. The court applied La. R.S. 22:1220 penalties of double the award for ALE, totaling an additional $78,000.00.

The trial court also awarded general and special damages as a result of Horace Mann’s breach of its duties under La. R.S. 22:1220. The trial court found Ms. Durio proved her claim for mental distress damages with medical expert testimony. The court awarded $3,000.00/month for thirty-eight months for a total of $114,000.00. However, the court also found the claims process was only fifty percent responsible for her stress, and thus reduced that amount to $57,000.00. The trial court added penalties under La. R.S. 22:1220 of double the amount of mental distress damages. Regarding lost wages, Ms. Durio was employed as a master teacher for Calcasieu Parish, and was participating in the Teacher Advancement Program (“TAP”). The TAP system is a comprehensive strategy to boost teacher effectiveness through opportunities for career advancement, professional growth, performance evaluations, and competitive compensation. The court noted the record, including testimony by Plaintiffs economist, Dr. Bettinger, showed Ms. Du-rio had to withdraw from the | )nTAP program due to stress and being overwhelmed. The program provided her with an additional $7,000.00/year in income. The court found lost wages of $17,309.00 were established more probable than not. The Court did not find any future loss of wages because the program was only a three-year program. The court did find it more probable than not that Ms. Durio lost future retirement benefits based on the higher wages for three years, and awarded $93,024.00 based on Dr. Betting-er’s calculations. Thus, the trial court awarded total losses of $110,333.00. The court doubled these damages to add penalties pursuant to La. R.S. 22:1220.

Relying on its finding that sufficient proof of loss was received by Horace Mann on May 5, 2006, the trial court declined to apply the amended version of La. R.S. 22:658, which went into effect on August 15, 2006. Thus, the court awarded penalties of twenty-five percent under the pre-amendment version of the statute, and de-dined to award attorney fees.

Horace Mann filed a motion for new trial, which was opposed by Ms. Durio. In her opposition, Ms. Durio noted the trial court awarded penalties pursuant to both La. R.S. 22:658 and La. R.S. 22:1220, and acknowledged this was legal error. Additionally, Ms. Durio argued she was entitled to an award of attorney fees under the amended version of La. R.S. 22:658. At the hearing on the motion for new trial, the court found it erred in awarding penalties under both La. R.S. 22:658 and La. R.S. 22:1220, and thus it vacated its awards under La. R.S. 22:658. Otherwise, the court denied Horace Mann’s motion for new trial. Apparently on its own motion, the court also granted a new trial relative to the attorney fees issue. Noting that newly discovered damages can trigger the amended version of La. R.S. 22:658, the court found there was newly discovered damages as established by the proofs of claim 11 submitted, and those newly discovered damages were subsequent to the amendment. Therefore, the court assessed and awarded fees of one-third of the total award (as adjusted by the removal of La. R.S. 22:658 penalties), totaling $379,905.84.

Thus, final judgment was entered as follows:

CONTRACTUAL DAMAGES L
Coverage A (loss of residence):
$163,536.97 plus 22:1220 penalties of $327,073.94
Coverage B (other structures):
$8,361.91 plus 22:1220 penalties of $16,722.90
Coverage C (contents):
$0 plus 22:1220 penalties of $5,000.00
Coverage D (living expenses):
$39,000.00 plus 22:1220 penalties of $78,000.00
Total contractual damages $210,898.88
Total penalties $426,796.84
GENERAL AND SPECIAL DAMAGES L
Mental anguish $57,000.00 plus 22:1220 penalties of $114,000.00
Lost wages $17,309.00 plus 22:1220 penalties of $34,618.00
Retirement losses $93,024.00 plus 22:1220 penalties of $186,048.00
Total general and special damages $167,333.00
Total penalties $334,666.00
ATTORNEY FEE
One-third contingency fee 379,905.84
TOTALS
Contractual damages 210,898.88
Contractual penalties 426.796.84
General/speeial damages 167,333.00
General/special penalties 334,666.00
Attorney fee 379.905.84
TOTAL AWARD 1,519,600.56

112Horace Mann appealed the judgment in its entirety, and Ms. Durio appealed the award of general damages. The court of appeal affirmed.

The court of appeal found no error in the trial court’s award of damages under the insurance contract. The court primarily noted the varying reports of damage sustained by the house, and found the trial court evaluated the evidence and made credibility determinations in finding Ms. Durio’s evidence more credible.

The court also affirmed the award of general damages of $57,000.00 for Ms. Du-rio’s mental anguish. The court found the actions of Horace Mann to be intentional, in bad faith, and designed to discourage the insured from pursuing her claims. The court noted the trial court’s finding:

[Horace Mann’s conduct was] egregious and included such actions as assigning over eight different adjustors to this claim, facetiously sending Ms. Durio a lone check for $6.99 for loss of contents after noticing a broken flower pot, and relying on the report of an engineer who inspected the house through the photographs and notes of an adjustor. Only when Horace Mann initiated a subrogation action against the builder of the house did the engineer actually visit the premises.

The court reasoned Ms. Durio suffered from anxiety to an extent that she had to take medication, adjust her employment, and seek medical care for a variety of stress-related symptoms.

The court also affirmed the award of $17,309.00 in lost wages and $93,024.00 in lost future retirement benefits for the period of time Ms. Durio was unable to work due to stress-related symptoms caused by the actions of Horace Mann.

The court further found no error in the trial court’s award of penalties. The trial court found satisfactory proof of loss was received in May of 2006. Not only did Ms. Durio send documentation of additional structural damage, but even Horace Mann’s adjustors notified the company that Ms. Durio’s losses exceeded the $19,872.96 Inpayment made in November of 2005. The trial court characterized Horace Mann as having “acted in a dilatory and non-customer service fashion in adjusting or resolving” this claim. The court noted the record supported the factual finding of the trial court that the handling of Ms. Durio’s claim was arbitrary and capricious. Even with adequate information on the increased repair estimates from its own adjustors, Horace Mann refused to tender the undisputed amount of the claim. As to the calculation of penalties, the court cited other cases where courts have awarded La. R.S. 22:1220(0 penalties based on contractual damages. Thus, it found no error in the penalties awarded by the trial court.

The court further affirmed the award of attorney fees under La. R.S. 22:658. The court disagreed with Horace Mann’s argument that the statute authorizing such an award was not in effect at the time Ms. Durio’s proof of claim was received by Horace Mann, and thus could not be applied retroactively. The court noted Horace Mann had a continuing duty of good faith and fair dealing which extended throughout the litigation period. The trial court found Ms. Durio’s final proof of loss was received by Horace Mann in 2008, long after the amendment providing for attorney fees became effective. Therefore, the 2006 amendment applied. The court found no error in this conclusion.

Horace Mann filed the instant writ application with this court, which we granted.

DISCUSSION

Horace Mann raises several assignments of error. After full review of the 114record and law, we ñnd merit in two. Thus, we will address whether the lower courts erred in the calculation of penalties under La. R.S. 22:1220, and whether the lower courts erred in awarding attorneys fees pursuant to La. R.S. 22:658, as amended on August 15, 2006.

Calculation of Penalties under La. R.S. 22:1220

This issue is a question of law involving the correct interpretation of Section (C) of La. R.S. 22:1220. Thus, we review the matter de novo, and render judgment on the record, without deference to the legal conclusions of the courts below. This court is the ultimate arbiter of the meaning of the laws of this state. Red Stick Studio Development, L.L.C. v. State of Louisiana by and Through the Department of Economic Development, 2010-0193 (La.1/19/11), 56 So.3d 181, 187; Cleco Evangeline, LLC v. Louisiana Tax Commission, 2001-2162 (La.4/3/02), 813 So.2d 351, 355.

La. R.S. 22:1220 provides, in pertinent part:

A. An insurer ... owes to his insured a duty of good faith and fair dealing. The insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant, or both. Any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach.
B. Any one of the following acts, if knowingly committed or performed by an insurer, constitutes a breach of the insurer’s duties imposed in Subsection A:
(5) Failing to pay the amount of any claim due any person insured by the contract within sixty days after receipt of satisfactory proof of loss from the claimant when such failure is arbitrary, capricious, or without probable cause.
C.In addition to any general or special damages to which a claimant is entitled for breach of the imposed duty, the claimant may be awarded penalties assessed against the insurer in an amount not to exceed two times the damages sustained or five thousand dollars, 11swhichever is greater.

(Emphasis added)

Horace Mann argues the trial court erred in calculating La. R.S. 22:1220 penalties by doubling contractual amounts due under the insurance contract, rather than calculating the penalties based solely on the consequential damages sustained as a result of a breach of duties under La. R.S. 22:1220. Ms. Durio argues Horace Mann’s position improperly restricts La. R.S. 22:1220, and application of statutory penalties to all amounts due, including contractual damages as well as consequential damages, is consistent with the intent, purpose and policy underlying La. R.S. 22:1220.

This Court provided a detailed summary of guidelines for statutory interpretation in Sultana Corp. v. Jewelers Mutual Ins. Co., 2003-0360 (La.12/3/03), 860 So.2d 1112:

The function of statutory interpretation and the construction given to legislative acts rests with the judicial branch of the government. Principles of judicial interpretation of statutes are designed to ascertain and enforce the intent of the Legislature in enacting the statute. The fundamental question in all cases of statutory construction is legislative intent and the reasons that prompted the Legislature to enact the law. When a law is clear and unambiguous and its application does not lead to absurd eonse-
quences, it shall be applied as written, with no further inquiry made in search of the legislative intent. The meaning and intent of a law is determined by considering the law in its entirety and all other laws concerning the same subject matter and construing the provision in a manner that is consistent with the express terms of the statute and with the obvious intent of the lawmaker in enacting it. The statute must therefore be applied and interpreted in a manner that is logical and consistent with the presumed fair purpose and intention the Legislature had in enacting it. Courts should give effect to all parts of a statute and should not adopt a statutory construction that makes any part superfluous or meaningless, if that result can be avoided. Furthermore, the object of the court in construing a statute is to ascertain the legislative intent and, where a literal interpretation would produce absurd consequences, the letter must give way to the spirit of the law and the statute construed so as to produce a reasonable result. The starting point in the interpretation of any statute is the language of the statute itself. (Internal citations removed).

Sultana, 860 So.2d at 1115-16. Examining La. R.S. 22:1220 in light of these guidelines, we agree with Horace Mann that the lower courts’ application of the statute was erroneous.

While this issue is res nova in this Court, we note that since its enactment in 1990, it appears Louisiana circuit courts consistently applied La. R.S. 22:1220(C) by calculating penalties based solely on consequential damages, or awarding $5,000.00 if no such damages were proven. However, this recently changed in Neal Auction Co. v. Lafayette Ins. Co., 2008-0574 (La.App. 4 Cir. 4/29/09), 13 So.3d 1135, 1147, when a panel of the Fourth Circuit awarded a penalty of double the total damages (including damages due under the insurance contract) pursuant to La. R.S. 22:1220. Relying on Neal Auction, the Fourth Circuit again doubled contractual damages in awarding La. R.S. 22:1220 penalties in Wegener v. Lafayette Ins. Co., 2009-0072 (La.App. 4 Cir. 3/10/10), 34 So.3d 932, judgment vacated, 2010-0810 (La.3/15/11) 60 So.3d 1220, and Buffman, Inc. v. Lafayette Ins. Co., 2009-0870 (La.App. 4 Cir. 4/14/10), 36 So.3d 1004. In line with these Fourth Circuit opinions, the Third Circuit in this case affirmed an award of La. R.S. 22:1220 penalties calculated by doubling all damages awarded, including contractual damages. Interestingly, different panels of the Fourth Circuit reached opposite conclusions in Audubon Orthopedic and Sports Medicine, APMC v. Lafayette Ins. Co., 2009-0007 (La.App. 4 Cir. 4/21/10), 38 So.3d 963, writ denied, 2010-1153 (La.10/8/10), 46 So.3d 1266, and Fer rara, Inc. v. Lafayette Ins. Co., 2009-1681 (La.App. 4 Cir. 8/4/10), 41 So.3d 663 (unpub.), writ denied, 2010-2021 (La.11/12/10), 49 So.3d 889.

La. R.S. 22:1220 legislatively imposes a duty of good faith and fair dealing on insurers, and sets forth certain acts, which if knowingly committed by an insurer, constitutes a breach of that duty. Wegener, 60 So.3d at 1229. Section (A) provides for the mandatory award of any “damages sustained as a result of the breach ” of the duty imposed. Section (C) provides that in addition to these damages, discretionary penalties can be awarded, limited to two times the “damages sustained,” or $5,000.00, whichever is greater. Considering the statute in its entirety and applying the words of the statute as written, the only logical reading is that the “damages sustained” in Section (C) are the same “damages sustained as a result of the breach ” in Section (A).

A comparison of the wording of La. R.S. 22:1220 with La. R.S. 22:658 also supports our holding. Before La. R.S. 22:1220 was enacted in 1990, La. R.S. 22:658 already existed as a penalty provision in the Insurance Code. La. R.S. 22:658 provides that an insured is entitled to penalties if the insurer fails to pay a claim within thirty days after satisfactory proof of loss, and that failure is found to be arbitrary, capricious, or without probable cause. The statute subjects “the insurer to a penalty, in addition to the amount of the loss, of fifty percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured.” La. R.S. 22:658(B)(1). Comparing the wording of La. R.S. 22:1220 to La. R.S. 22:658, it is clear that while La. R.S. 22:6581 ^penalties are calculated based on amounts due under the insurance contract, penalties under La. R.S. 22:1220 are not. The wording of La. R.S. 22:658 specifically provides that the penalty is calculated based on “the amount found to be due from the insurer to the insured” in addition to the amount of the loss. Had the legislature intended that La. R.S. 22:1220 penalties be calculated based on the amount due under the contract, it would have easily and clearly stated so in the statute, as it did in La. R.S. 22:658.

Further, as this Court recently noted, La. R.S. 22:1220 specifically refers to a breach of the duty of good faith and fail' dealing, not a breach of the insurance contract. Wegener, 60 So.3d at 1230. The duties of an insurer under La. R.S. 22:1220 are separate and distinct from its duties under the insurance contract. Id. at 1229. Thus, a claim against an insurer for breach of the insurance contract and a claim against an insurer for breach of its duty of good faith and fair dealing under La. R.S. 22:1220 are two separate causes of action. Because it is a violation of the statute, not a breach of the insurance contract, which triggers the penalty provision, it would be inconsistent to hold that contractual amounts due pursuant to the terms of the contract should be included as “damages sustained” under La. R.S. 22:1220.

Thus, following proper guidelines of statutory interpretation, and being mindful that statutes subjecting insurers to penalties are considered penal in nature and should be strictly construed, we reverse the holdings of the lower courts, and find that La. R.S. 22:1220 penalties are determined with reference to La. R.S. 22:1220 damages only. A logical and consistent reading of the statute mandates a finding that contractual damages due or awarded under the insurance contract should not be used to calculate penalties under the statute. Rather, penalties are calculated by doubling the amount of damages attributable to the insurer’s breach of duties imposed under | 19the statute.

In this case, Ms. Durio was awarded damages of $167,833.00 as a result of Horace Mann’s breach of its duties under La. R.S. 22:1220. Penalties are calculated by doubling this amount, for a total of $334,666.00. Thus, the trial court’s judgment is amended to reflect total penalties in this amount.

Application of the Amended Version of La. R.S. 22:658

We next consider whether Ms. Du-rio is entitled to attorney fees pursuant to La. R.S. 22:658, as amended in 2006. At the time Ms. Durio’s property was damaged by Hurricane Rita, as well as when Horace Mann began adjustment of her claim, La. R.S. 22:658(B) provided for the imposition of a twenty-five percent penalty against insurers who, in bad faith, failed to make payment within thirty days of receiving satisfactory written proof of loss. There was no provision permitting the award of attorney fees. However, effective August 15, 2006, the Legislature amended La. R.S. 22:658(B) to provide for a fifty percent, rather than a twenty-five percent penalty, and to allow for the imposition of reasonable attorney fees and costs. Acts 2006, No. 813, § l.

Horace Mann argues this Court previously determined in Sher v. Lafayette Ins. Co., 2007-2441 (La.4/8/08), 988 So.2d 186, that the amended version of La. R.S. 22:658 could not be applied retroactively, and that the cause of action arises once satisfactory proof of loss is made to the insurer. Here, the trial court found Ms. Durio submitted adequate proof of loss in April of 2006-long before the amended statute took effect on August 15, 2006. Further, there was no evidence of new damage discovered subsequent to the effective date of the statute which would allow for application of the post-amendment version of the statute.

By contrast, Ms. Durio argues the trial court’s decision to apply the amended version of La. R.S. 22:658 was proper under this Court’s decision in Sher. Ms. Durio asserts there was conduct by Horace Mann that occurred after the August 15, 2006, effective date of the amendment which violates the statute. Specifically, because Horace Mann independently elected to conduct a reinspection of the home after August 15, 2006, it was required to adjust the property and act in accordance with the version of La. R.S. 22:658 in effect at that time.

Our decision in Sher made clear that the 2006 amendments to La. R.S. 22:658 are not retroactive. 988 So.2d at 199. This Court found an insurer’s failure to pay is not a continuing obligation that exposes it to liability pursuant to the amended version of La. R.S. 22:658; rather, we held that, as a general rule, the cause of action and, therefore, an insured’s right to recover, comes into existence when and if the insurer fails to pay thirty days after receiving satisfactory proof of loss. Id. However, while this Court held the amendments were not retroactive, we also recognized two situations which might allow for the application of the post-amendment version of La. hiR.S. 22:658: if the plaintiff had not made satisfactory proof of loss prior to the amendment of La. R.S. 22:658, a petition for damages served after the amendment became effective could serve as satisfactory proof, and therefore trigger the amended version of the statute; or, if the plaintiff discovered new damage and made satisfactory proof of loss which the insurer failed to pay after the amendment became effective, the amended version of the statute could apply. Id.

Based on the record in this case, we find no basis to apply the post-amendment version of La. R.S. 22:658. The evidence in the record reflects that Ms. Durio’s cause of action for penalties against her insurer arose prior to the effective date of the amendment, when Horace Mann failed to pay the claim thirty days after satisfactory proof of loss was received on May 5, 2006. Nor do the facts of this case present one of the situations set forth in Sher which may allow application of the amendments. First, Ms. Durio both submitted sufficient proof of loss and filed her petition for damages prior to August 15, 2006. Secondly, there were no new damages discovered subsequent to August 15, 2006.

The record clearly shows that Ms. Durio asserted her house suffered extensive damages resulting in a total loss shortly after she initiated a claim with Horace Mann. Further, Mr. Norman’s January and March, 2006, reports detail extensive structural damage to the house, and Ms. Durio’s Sworn Proof of Loss submitted in April of 2006 states that the home was totally destroyed. Moreover, Ms. Durio’s Petition for Damages filed on June 13, 2006, asserts that the house was completely destroyed by Hurricane Rita, but Horace Mann refused to classify the home as a total loss. Additional information provided to Horace Mann relative to costs to repair and/or replace the house does not equate to new damage, nor does it change the fact that the house was a total loss from the beginning of the claim. Further, we do not find the | ^reinspection of the property initiated by Horace Mann in November of 2006 created a new cause of action.

Based on our decision in Sher, the amended version of La. R.S. 22:658 cannot be applied in this case. Thus, we reverse the lower courts’ rulings applying the amended version of the statute, and vacate the award of attorney fees.

CONCLUSION

For the above reasons, we hold that the lower courts erred in calculating La. R.S. 22:1220 penalties based on contractual amounts due under the insurance contract. Such penalties are properly calculated by doubling the amount of damages sustained as a result of the insurer’s breach of its duties under the statute. Applying the proper statutory interpretation to the facts of this ease, we amend the trial court’s judgment to reflect the correct award of penalties totaling $334,666.00.

We also hold the lower courts erred in applying the amended version of La. R.S. 22:658, thereby allowing attorney fees to be awarded. Thus, we reverse the lower courts’ rulings on this issue, and vacate the award of attorney fees.

In all other respects, the rulings of the lower courts are affirmed.

AFFIRMED IN PART; REVERSED IN PART; AMENDED IN PART.

VICTORY, J.,

additionally concurs in part.

IT concur in the majority opinion but would have addressed the other assignments of error.

KNOLL, Justice,

concurring in part and dissenting in part.

Although I concur with the majority opinion’s interpretation and application of the penalty provisions contained in La. Rev. Stat. § 22:1220(0, with all due respect, I dissent from the majority’s failure to apply the amended version of La.Rev. Stat. § 22:658 to the facts of this case for the reasons expressed in my dissent in Sher v. Lafayette Ins. Co., 07-2441 (La.4/8/08), 988 So.2d 186, 208-09. As I explained therein, the majority’s limited application of the amendment to the filing of a satisfactory proof of loss, rather than based upon the conduct of the insurer, is fundamentally flawed. In my view, such an application both “frustrates and fails to recognize the Legislature’s strong public policy efforts to discourage the arbitrary and capricious conduct of the insurer in dealing fairly and in good faith with the insured.” Id. Moreover, because the insurer’s obligation is a continuing obligation, the application of the amendment is not and should not be limited to the time frame set forth in the statute. Therefore, I would apply the statute as amended and affirm the award of attorney’s fees.

      . These statutes were renumbered pursuant to La. Acts 2008, No. 413 to La. R.S. 22:1892 and La. R.S. 22:1973, respectively. For clarity, we refer to the previous statute numbers in this opinion.

      . La. R.S. 22:658 was amended as of August 15, 2006, to allow for an award of attorney fees, and to increase penalties from twenty-five to fifty percent.

      . Durio v. Horace Mann Ins. Co., 2010-698 (La.App. 3 Cir. 12/8/10) (unpub),

      . The court of appeal cited Morrell v. Fisher, 08-1260 (La.App. 3 Cir. 4/1/09), 7 So.3d 1264; Wegener v. Lafayette Ins. Co., 09-72 (La.App. 4 Cir. 3/10/10), 34 So.3d 932; Neal Auction Co., Inc. v. Lafayette Ins. Co., 08-0574 (La.App. 4 Cir. 4/29/09), 13 So.3d 1135, writs denied, 09-1499, 09-1608 (La.11/6/09), 21 So.3d 313.

      . Durio v. Horace Mann Ins. Co., 2011-0084 (La.7/1/11), 64 So.3d 234.

      . We decline to address the other assignments of error raised by Horace Mann.

      . See, e.g., Harris v. Fontenot, 606 So.2d 72 (La.App. 3 Cir.1992); Midland Risk Ins. Co. v. State Farm Mut. Auto. Ins. Co., 93-1611 (La.App. 3 Cir. 9/21/94), 643 So.2d 242; Hall v. State Farm Mut. Auto. Ins. Co., 94-867 (La.App. 3 Cir. 5/31/95), 658 So.2d 204; Gilpin v. State Farm Mut. Auto. Ins. Co., 99-36 (La.App. 5 Cir. 5/19/99), 735 So.2d 921; Hollier v. State Farm Mut. Auto. Ins. Co., 2001-0592 (La.App. 3 Cir. 10/31/01), 799 So.2d 793; Urrate v. Argonaut Great Central Ins., 04-256 (La.App. 5 Cir. 8/31/04), 881 So.2d 787; Lewis v. State Farm Ins. Co., 41,527 (La.App. 2 Cir. 12/27/06), 946 So.2d 708.

      . This Court granted writs in Wegener to resolve the issue of calculation of penalties under La. R.S. 22:1220. However, finding other errors, this Court vacated the judgment and remanded for new trial without reaching that issue.

      . In Buffman, Lafayette Insurance Company has filed a writ application in this Court challenging the Fourth Circuit’s ruling on this issue.

      . Prior to its amendment on August 15, 2006, the statute provided for a twenty-five percent penalty.

      . Theriot v. Midland Risk Ins. Co., 95-2895 (La.5/20/97), 694 So.2d 184, 186.

      . We have determined that penalties under La. R.S. 22:1220 are greater than those that would be awarded under La. R.S. 22:658. See Calogero v. Safeway Ins. Co., 1999-1625 (La.1/19/00), 753 So.2d 170, 174.

      . The statute provided, in pertinent part: B. (1) Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor or failure to make a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim ... when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of twenty-five percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, or to any of said employees, or in the event a partial payment or tender has been made, twenty-five percent of the difference between the amount paid or tendered and the amount found to be due.

      .The amended statute provides, in pertinent part: B. (1) Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor or failure to make a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim ... when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of fifty percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, or to any of said employees, or in the event a partial payment or tender has been made, fifty percent of the difference between the amount paid or tendered and the amount found to be due as well as reasonable attorney fees and costs. (Emphasis added)