author: ROBERT A. CHAISSON, Judge. EDWARDS, C.J.,

text:
    Matthew MASON and Paula Mason v. BANKERS INSURANCE GROUP.
    No. 11-CA-704.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2012.

      William D. Treeby, John Mark Fezio, Attorneys at Law, New Orleans, LA, for Plaintifl/Appellant.
    Matthew J. Ungarino, Emile A. Bagner-is, David I. Bordelon, Attorneys at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and ROBERT A. CHAISSON.
   ROBERT A. CHAISSON, Judge.

IgThis is an appeal by Matthew and Paula Mason (the “Masons”) from a summary judgment in favor of Bankers Insurance Group (“Bankers”) dismissing the Masons’ suit on grounds that their homeowners’ insurance policy does not provide coverage for the damages sustained. For the following reasons, we vacate the judgment and remand the matter to the district court for further proceedings.

FACTS AND PROCEDURAL HISTORY

The facts alleged in the petition are as follows. The residence at issue is a one story brick veneer house built on a cement slab. The Masons experienced several back-ups of a toilet that caused intrusion of raw sewerage, along with resultant bacterial contamination, into the home. The Masons employed Steve Roberts Plumbing and Heating, Inc. to examine the plumbing system and to do the required repairs. A video inspection showed a separation below the toilet and sagging along other parts of the sewer line. Repairs involved tunneling under the |3slab, replacing and rehanging the main sewer lines, and refilling the tunnels. The cost of this work was $14,560.

The Masons submitted a claim to Bankers Insurance Group, their homeowners’ insurer. The claim was denied on grounds that the damage was not caused by a covered peril, or was otherwise excluded, and this suit followed. Cross motions for summary judgment were urged. Defendant’s motion was granted, while that of plaintiffs was denied. Plaintiffs now appeal both rulings.

ANALYSIS

The law as to summary judgments involving insurance coverage was well summarized in Smith v. Reliance Ins. Co. of Illinois, 01-888 (La.App. 5 Cir. 1/15/02), 807 So.2d 1010, as follows:

Summary judgment shall be rendered if there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The burden of proof on a motion for summary judgment is on the movant to establish that no material factual issues exist. La. C.C.P. art. 966(C)(2); Schroeder v. Board of Supervisors of La. State Univ., 591 So.2d 342, 345 (La.1991). Only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law on the facts before the court is a summary judgment warranted. Chaisson v. Domingue, 372 So.2d 1225, 1227 (La.1979). 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. Westerfield v. LaFleur, 493 So.2d 600, 605 (La.1986). An insurer seeking to avoid coverage through summary judgment must prove that some exclusion applies to preclude coverage. Jackson v. Frisard, 96-0547 (La.App. 1st Cir.12/20/96), 685 So.2d 622, 629, writs denied, 97-0193 and 97-0201 (La.3/14/97), 689 So.2d 1386 and 1387. Appellate review of summary judgment is de novo, utilizing the same criteria that guide the trial court’s grant of the judgment. Guillory v. Interstate Gas Station, 94-1767 (La.3/30/95), 653 So.2d 1152.

Bankers’ first contention is that the underground plumbing system of the Mason’s home is not a part of the “Covered Property” for which the Bankers’ policy affords coverage. In support of this contention, Bankers argues that the plumbing system is not a “structure attached to the dwelling” because it is not “a|4structure in which the insureds are capable of inhabiting, i.e., a building.” The pertinent provision relied on by Bankers provides:

Section 1 — Property Coverages

A. Coverage A — Dwelling

1. We cover:

a. The dwelling on the “residence premises” shown in the Declarations, including structures attached to the dwelling (emphasis added).

The plain language meaning of “structure”, as found in the Oxford English Dictionary, is “a building or object constructed from several parts” (emphasis added). The plumbing system is clearly an object constructed from several parts and it is necessarily attached to the Masons’ dwelling. Although Bankers attempts to read into the policy the requirement that an “attached structure” be habitable, the policy does not state, nor does it imply, that an attached structure must be habitable. If Bankers had intended to limit the definition of “structures attached to the dwelling” to structures that are habitable, it could have expressly done so when it drafted the policy. Words cannot be added, and the terms of the policy cannot be unreasonably constrained, to enlarge the policy’s provisions beyond what is reasonably contemplated by the unambiguous terms. Cugini, Ltd. V. Argonaut Great Central Ins. Co., 04-795 (La.App. 5 Cir. 11/30/04), 889 So.2d 1104, 1112.

Bankers additionally attempts to support its contention that the plumbing system is not part of the “Covered Property” based upon policy language contained in a subsection entitled “Exception to e.(6).” The pertinent language provides: ‘We do not cover loss to the system or appliance from which this water or steam escaped.” Bankers appears to interpret this language as a blanket exclusion of any damages to the plumbing system. However, Bankers’ reliance on this language to Dread such a blanket exclusion into the policy is misplaced. This provision, as its title suggests, provides coverage for damages that would otherwise be excluded under the provisions of Subsection A.2.c.(6). Therefore, this exception to the exclusions contained in Subsection A.2.c.(6) only becomes relevant if Bankers proves an exclusion from coverage for a cause of loss listed in Subsection A.2.c.(6). As will be discussed, Bankers has not proven that the damages to the plumbing system are excluded under Subsection A.2.c.(6).

Because Bankers is seeking to avoid coverage, it bears the burden of showing that an exclusion applies. Bankers relies essentially on two clauses in the policy which it claims excludes coverage, Subsection A.2.c.(6) and a provision entitled “Exception to c.(6),” which provide in pertinent part:

A. Coverage A-Dwelling and Coverage B-Other Structures
1. We insure against risks of direct physical loss to property described in Coverages A and B.
2. We do not insure, however, for loss:
(c) Caused by:
(6) Any of the following:
(a) Wear and tear, marring, deterioration;
(b) Mechanical breakdown, latent defect, inherent vice, or any quality of the property that causes it to damage or destroy itself;
Exception To c.(6)
Unless the loss is otherwise excluded, we cover loss to property covered under Coverage A or B resulting from an accidental discharge or overflow of water or steam from within a:
(ii) Plumbing, heating, air conditioning or automatic fire protective sprinkler systems or household appliance on the “residence premises.” This includes the cost to tear out and replace any part of the building, or other structure, on the “residence premises,” but only when necessary to repair the system or | fiappliance. However, such tear out and replacement coverage only applies to other structures if the water or steam causes actual damage on the “residence premises.”
We do not cover loss to the system from which this water or steam escaped, (emphasis added).

In order for Bankers to prove that the damage to the plumbing system is excluded from coverage pursuant to subsection A.2.c.(6), Bankers must prove the cause of the damage. Bankers introduced the affidavit of its adjuster, Eddie Horrell. Mr. Horrell inspected only the interior of the Masons’ home and did not inspect the plumbing system. Mr. Horrell does not offer any opinion as to the cause of the damage to the plumbing system and clearly he is not in a position to do so. Bankers contends that the affidavit of the Masons’ expert, Stephen Roberts, establishes the cause of the damage to the plumbing system. However, although Mr. Roberts’ affidavit states that damage has occurred to the plumbing system and describes that damage, Mr. Roberts does not offer any opinion as to the cause of that damage. There is no evidence whatsoever in the record to establish what caused the damage to the plumbing system. Since Bankers has not proven the cause of the damage, there exists a genuine issue of material fact as to whether the damage to the plumbing system itself is excluded from coverage under Subsection A.2.c.(6). Therefore, summary judgment is not appropriate on the issue of whether the damages to the plumbing system itself are excluded from coverage.

If Bankers is able to prove that the cause of the damages to the plumbing system is “wear and tear, marring, deterioration” or “mechanical breakdown, latent defect, inherent vice, or any quality and property that causes it to damage or destroy itself’, then the subsection entitled “Exception to c.(6)” still provides coverage for damages, other than damages to the plumbing system itself, caused by the escaping water. As previously stated, the subsection entitled “Exception to |7c.(6)” only becomes relevant should Bankers prove that the cause of the damages to the plumbing system itself is one of the listed causes in Subsection A.2.c.(6). Nevertheless, we note that there are factual matters in dispute as to this exception, particularly as to the issue of “actual damage on the ‘residence premises.’” Matthew Mason stated in his affidavit that the toilet had actually overflowed on numerous occasions. Stephen Roberts, the Masons’ plumber, stated in his affidavit that such overflows necessarily cause damage in the form of bacterial contamination. Eddie Horrell, Bankers’ adjuster, stated in his affidavit that it was his understanding that the toilet had never overflowed, but was only draining slowly. He also stated that he found no damage in the bathroom. Because these are factual disputes related to coverage under the “Exception To c.(6)” clause, summary judgment is also not appropriate on the issue of coverage for damages other than those to the plumbing system itself.

Additionally, the Masons contend that the reasonable costs of necessary repairs to their plumbing system are covered under “Coverage E — Additional Coverages”. Subsection 2.a of Coverage E states:

We will pay the reasonable cost incurred by you for the necessary measures taken solely to protect covered property that is damaged by a peril insured against from further damage.

However, Subsection 2.b specifically provides that Bankers will only pay for such repairs “if that property is covered under this policy.” Therefore, whether or not Bankers is responsible under Coverage E for any of the repairs to the plumbing system itself is necessarily dependent upon a determination of whether damages to the plumbing system are excluded under Subsection A.2.c.(6).

Because of these factual disputes, it was error for the trial court to grant Bankers’ Motion for Summary Judgment. Also because of these factual disputes, the denial of plaintiffs’ cross motion for summary judgment was proper.

|sFor the foregoing reasons, the judgment of the trial court granting summary judgment in favor of Bankers Insurance Group is hereby vacated, the judgment denying Matthew and Paula Mason’s cross motion for summary judgment is affirmed, and the matter is remanded to the district court for further proceedings.

JUDGMENT VACATED IN PART AND AFFIRMED IN PART; MATTER REMANDED

EDWARDS, C.J., concurs.

EDWARDS, C.J.,

concurs.

[fl concur in the finding that there appear to be questions of material fact which preclude summary judgment at this stage of the proceedings.

      . The Masons were able to timely clean the sewerage back-ups and it does not appear that any damage was done to the interior of the home other than the alleged bacterial contamination.


source: Caselaw Access Project

author: WALTER J. ROTHSCHILD, Judge.

license: Public Domain

text:
    SOUTH TEXAS PIONEER MILLWORK v. FAVALORA CONSTRUCTORS, INC. and Laurence P. Favalora.
    No. 11-CA-722.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2012.

      Timothy W. Cerniglia, Attorney at Law, New Orleans, LA, for Plaintiff/Appellee.
    Jerry W. Sullivan, Attorney at Law, Me-tairie, LA, for Defendant/Appellant.
    Panel composed of Judges WALTER J. ROTHSCHILD, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   WALTER J. ROTHSCHILD, Judge.

12This is an appeal from a judgment rendered by the trial court in this suit for payment for materials. For the reasons stated herein, we affirm the trial court’s judgment. We also award attorney’s fees for this appeal.

South Texas Pioneer Millwork, d/b/a Pioneer Architectural Millwork, (hereinafter “Pioneer”) filed the instant suit against Favalora Constructors, Inc. (“Favalora”) for breach of contract and damages for unpaid amounts due for materials sold and supplied to it. Pioneer also claimed civil penalties for the alleged non-payment pursuant to La. R.S. 9:4814 and La. R.S. 9:2784, as well as attorney’s fees and court costs. Prior to trial, the parties stipulated to certain facts and referenced exhibits, and these stipulations were considered by the trial court in a bench trial. Following trial, the court rendered judgment in favor of Pioneer for amounts due under the contract, for penalties pursuant to La. R.S. 9:4814 and La. R.S. 9:2784, and for attorney’s fees and costs. Favalora sought a new trial, which was denied by the trial court. Favalora now files this suspensive appeal from the | judgment, on the basis that the award of penalties and attorney’s fees was unwarranted and excessive. Pioneer filed in this Court a Motion to Award Attorney’s Fees for time and costs incurred on appeal.

Facts and Procedural History

The Trial Stipulations contained in the record indicate that Favalora, a Jefferson Parish general contractor, was hired by the RC Corporation to renovate a building on Magazine Street in New Orleans for use as the dentist office of Dr. Elizabeth Riggs. Favalora contracted with Pioneer, a millworker located in Texas, to fabricate and furnish cabinets, countertops, shelving and a reception desk at a cost of $24,245.00 to be installed by Favalora in the Magazine Street property. Favalora accepted delivery of the materials on October 4, 2007, and was invoiced by Pioneer the following day. On October 9, 2007, Favalora submitted to the RC Corporation an application for payment of the amount due to Pioneer for materials and supplies, and on October 30, 2007, Favalora received payment for these amounts. However, Favalora failed to settle the account of Pioneer, and in June of 2008, Pioneer filed a lien on the Magazine Street property where the materials had been installed. On November 8, 2008, in consideration of payment by the building owners of the sum of $19,905.00, Pioneer agreed to release the lien on the property, reserving all rights against Favalora. The amount Favalora still owed to Pioneer under the contract was $4,340.00. The parties also stipulated that Pioneer was not the only subcontractor and supplier of materials to whom Favalora failed to apply funds received from the building owner to settle accounts.

In addition to these Trial Stipulations, both parties filed pre-trial memoranda. At the trial, the parties submitted the stipulations and the exhibits, and submitted argument on the matter without any testimony. In written reasons, the trial court found that Favalora, in violation of La. R.S. 9:4814, knowingly ^misapplied funds of $24,245.00 that it received from the building owner, entitling Pioneer to the full amount still due, as well as attorney’s fees, costs and statutory penalties. The trial court further found that Favalora, in violation of La. R.S. 9:2784, failed to make payment to Pioneer within fourteen days of receiving payments from the building owner, entitling Pioneer to a penalty therefor, along with attorney’s fees and costs. The trial court rendered judgment against Favalora and in favor of Pioneer as follows:

1. Payment of the amount still due of $4,340.00.
2. Payment of a penalty pursuant to La. R.S. 9:4814 of $500 per $1,000 that were knowingly misapplied, for a total of $12,000.
3. Payment of a penalty pursuant to La. R.S. 9:2784 for failure to timely pay Pioneer, which is capped at 15% for a total of $3,000.00.
4. Payment of attorney’s fees of $29,201.50.
5. Payment of costs of $1,387.58.

Discussion

By this appeal, Favalora contends the trial court failed to properly consider evidence that shows that Pioneer acted in bad faith and is therefore not entitled to penalties. Favalora also contends that Pioneer failed to mitigate its damages by settling with the building owner for less than the total amount due. In support of this argument, Favalora points out that Pioneer removed the lien it placed on the subject property for less than the total amount due, or $19,905.14. Favalora contends that some portion of the debt was reserved solely for the reason of securing statutory penalties and attorney’s fees. In support of its bad faith argument, Favalora also relies on email correspondence between Robert Crane, a principal of Pioneer, and Elizabeth Riggs, the building owner, in which the two discuss the non-payment of the amount due from Favalora. Favalora contends that |sthe two were working together in bad faith to ensure that Favalora would not have sufficient funds to pay Pioneer.

A review of evidence in the record fails to support appellant’s argument. The record shows that the parties in this case stipulated that on October 9, 2007, Favalo-ra submitted a pay request to the building owner which included the amounts due to Pioneer and was paid by cashier’s check dated October 30, 2007. The parties also stipulated that Favalora failed to apply any of the amounts received this date to settle the account and claim of Pioneer in the amount of $24,245.00. Copies of the pay request and the cashier’s check were submitted into evidence.

The record also indicates that in February of 2008, Robert Crane, the principal of Pioneer, began corresponding by email with Laurence Favalora regarding the non-payment of his account. On June 5, 2008, Crane received an email from Fava-lora indicating that “the client would not fund any payments for which he [Favalora] had already been paid,” but that Favalora was attempting to pay Pioneer from funds received from another job. No payment was made, but Crane clearly stated on numerous occasions his intentions to seek statutory penalties and attorney’s fees as a result of Favalora’s failure to pay his account.

Subsequently, Pioneer filed a Labor and Materials Lien on the subject property. The parties stipulated that on November 8, 2008, Pioneer agreed to release the lien on the property, in consideration of payment by the property owners of the sum of $19,905.00. In the release, Pioneer reserved all rights against Favalora.

The record in this case contains no factual or legal support for appellant’s argument that Pioneer failed to mitigate its damages by settling with the building owners for less than the amount owed to Pioneer. Further, the record is completely | (¡devoid of any evidence that Pioneer was in bad faith in corresponding with Elizabeth Riggs regarding the non-payment by Favalora and Pioneer’s claim of entitlement to statutory penalties as a result thereof. Rather, the record clearly supports the trial court’s factual determination that Favalora misapplied funds received from the building owner in October of 2007 by failing to pay the amounts due to Pioneer which were included in those funds. The correspondence between Crane and Riggs did not occur until May of 2008, several months after the misapplication of funds had occurred. We fail to find that the email correspondence constitutes a bad faith effort to prevent Favalora from paying the claim.

The record also clearly shows that Pioneer, after a more than reasonable period of attempting to have the account paid directly by Favalora, pursued its rights granted by law to place a lien on the subject property. Although Favalora contends that Pioneer was in bad faith in accepting less than the full amount due from the property owner, there is no support in the record for this argument. Rather, we find Pioneer was legally entitled to seek statutory penalties for the contractor’s failure to timely remit payment and for misapplication of funds. This assignment of error is without merit.

Appellant next argues that the trial court erred in awarding penalties in an amount exceeding the contested amount due. Appellant contends that penalties cannot be awarded on the amounts that were settled by the parties, in this case $19,905.00, and the maximum amount of the claim at the time the suit was filed was $4,339.86. Appellant argues that the trial court erred in imposing penalties based on the total amount claimed by Pioneer in its lawsuit. We find no merit in this argument.

La. R.S. 9:4814 provides in part:

|7A. No contractor, subcontractor, or agent of a contractor or subcontractor, who has received money on account of a contract for the construction, erection, or repair of a building, structure, or other improvement, including contracts and mortgages for interim financing, shall knowingly fail to apply the money received as necessary to settle claims to sellers of movables or laborers due for the construction or under the contract. Any seller of movables or laborer whose claims have not been settled may file an action for the amount due, including reasonable attorney fees and court costs, and for civil penalties as provided in this Section.

(Emphasis added).

Appellant contends the above-cited provision, specifically the emphasized section, precludes Pioneer as a seller of movables from filing suit or seeking penalties on claims that have been settled. Appellant submits that the settlement of Pioneer’s lien with the property owner in the amount of $19,905.00 limits the recovery to the amount remaining after settlement of the lien. However, Pioneer’s claims against Favalora were not settled by the contractor prior to the filing of suit despite much urging on the part of Pioneer. Rather, the settlement came from the property owner following the filing of a separate lien claim. We fail to find that the settlement with the property owner of Pioneer’s lien against the property reduces the amount of the statutorily-mandated penalty that Pioneer may claim against the contractor pursuant to La. R.S. 9:4814. By stipulation of the parties, the record indicates that the contractor misapplied the amount of $24,245.00 which was contractually due to Pioneer although the contractor received payment from the property owner. Based on a strict application of La. R.S. 9:4814, we find that the trial court correctly assessed penalties on this amount pursuant to the statute.

1 sAppellant also advances the same argument with regard to the penalties imposed pursuant to La. R.S. 9:2784. Appellant contends that the trial court erred in awarding penalties on an amount greater than “the amount due.” However, as previously stated herein, appellant’s interpretation of “the amount due” is misplaced. By stipulation of the parties, Fa-valora as contractor failed to make any payment to the account of Pioneer prior to the filing of this suit, although Favalora received payment for this work in October of 2007. Although Pioneer exercised its rights to file a lien on the subject property and settled this claim with the property owner, Pioneer is nevertheless entitled to seek legal action against Favalora for the non-payment, and penalties are mandated by statute. According to the clear terms of the statute, the penalties apply when the contractor fails to make payment within fourteen days of the receipt of payment by the owner. We do not interpret the statute to provide that the amount of the penalty specified is reduced when the supplier is able to secure payment from the property owner through the lien process. We therefore find that the trial court’s award of penalties pursuant to La. R.S. 9:2784 is appropriate.

Finally, appellant contends that the trial court erred in awarding attorney’s fees to Pioneer in the amount of $29,201.50, reiterating its assertion that the total amount due was “a mere $4,339.86.” However, we have determined that the amount of funds which were misapplied was $24,245.00 and that the eon-tractor 19made no payment toward this account. Although the amount of attorney’s fees exceeds the amount of the main demand, we find that the amount of time and effort required to collect the outstanding amount due warranted the award of attorney’s fees.

The record contains ample evidence to support the trial court’s award in this case. The applicable statutes each contain provisions allowing the award of reasonable attorney’s fees based on a contractor’s misapplication of funds or failure to timely pay a supplier of materials. Pioneer’s attorney prepared and submitted into evidence a contemporaneous record of his time and charges expended in prosecuting this matter. As indicated by this evidence, this litigation required substantial correspondence, as well as many pleadings, court appearances, trial memoranda and a hearing. The record indicates that sendee of the original petition on Favalora required the appointment of a special process server, and that Pioneer was required to compel Favalora to provide complete discovery. The trial court was also made aware of Pioneer counsel’s extensive experience, expertise and ability both in the pleadings contained the record and in oral argument before the court. Under the circumstances presented here, we find the award of attorney’s fees is reasonable and we find no abuse of the trial court’s discretion in making such an award.

Pioneer also moves for an award of attorney’s fees on appeal and submits a certified time sheet of the amount of costs expended in connection with the appeal. As Pioneer did not file an answer to the appeal as set forth in LSA-C.C.P. art. 2133, we are unable to amend the trial court’s judgment to award additional attorney’s fees. However, this Court has authority to make such an award pursuant to LSA-C.C.P. art. 2164 and may “render any judgment which is just, legal, and proper upon the record on appeal.” See, Gandy v. United Services Auto. 11 Association, 97-1095 (La.App. 5 Cir. 10/14/98), 721 So.2d 34, writ denied, 98-2836 (La.1/15/99), 736 So.2d 208. Smith v. Pilgrim’s Pnde Corp., 44,080 (La.App. 2 Cir. 2/25/09), 4 So.3d 983, unit denied, 09-0961 (La.6/19/09), 10 So.3d 739. We find that an award of $3,000 for counsel’s work on this appeal to be equitable upon the record on appeal.

For the reasons assigned herein, the judgment of the trial court in favor of South Texas Pioneer Millwork is affirmed. We also find that counsel for Pioneer is entitled to an award of $3,000 in attorney’s fees for additional work done on appeal. Further, all costs of this appeal are rendered against Favalora Constructors, Inc.

AFFIRMED; JUDGMENT RENDERED ON ATTORNEY’S FEES FOR APPEAL AND COSTS

      . The amount of statutory penalties are set forth in La. R.S. 9:4814 as follows:
      B. When the amount misapplied is one thousand dollars or less, the civil penalties shall be not less than two hundred fifty dollars nor more than seven hundred fifty dollars.
      C. When the amount misapplied is greater than one thousand dollars, the civil penalties shall be not less than five hundred dollars nor more than one thousand dollars, for each one thousand dollars in misapplied funds.
      D. A contractor, subcontractor, or agent of a contractor or subcontractor who is found by the court to have knowingly failed to apply construction contract payments as required in Subsection A shall be ordered by the court to pay to plaintiff the penalties provided in Subsection B or C, as may be applicable, and the amount due to settle the claim, including reasonable attorney fees and court costs.

      . La. R.S. 9:2784 provides in pertinent part:
      C. If the contractor or subcontractor without reasonable cause fails to make any payment to his subcontractors and suppliers within fourteen consecutive days of the receipt of payment from the owner for improvements to an immovable, the contractor or subcontractor shall pay to the subcontractors and suppliers, in addition to the payment, a penalty in the amount of one-half of one percent of the amount due, per day, from the expiration of the period allowed herein for payment after the receipt of payment from the owner. The total penalty shall not exceed fifteen percent of the outstanding balance due. In addition, the contractor or subcontractor shall be liable for reasonable attorney fees for the collection of the payments due the subcontractors and suppliers. However, any claim which the court finds to be without merit shall subject the claimant to all reasonable costs and attorney fees for the defense against such claim.


author: MARION F. EDWARDS, Chief Judge.

text:
    Bianca GIOVINGO v. David DUNN, M.D., Browne-McHardy Clinic, and East Jefferson General Hospital.
    No. 11-CA-781.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2012.

      Betsy J. Barnes, Richard L. Root, Barnes & Root, L.L.C., New Orleans, LA, for Plaintiff/Appellant.
    Don S. McKinney, Katie F. Wollfarth, Adams and Reese LLP, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, MARC E. JOHNSON, and ROBERTA. CHAISSON.
   MARION F. EDWARDS, Chief Judge.

12Plaintiff/appelIant, Bianca Giovingo (“Ms. Giovingo”), takes this appeal from a judgment by the trial court dismissing her cause of action for medical malpractice against defendant/appellee, David Dunn, M.D. (“Dr. Dunn”), on grounds of abandonment. We affirm the judgment of the trial court for reasons herein.

Ms. Giovingo filed a medical malpractice action against Dr. Dunn individually and as David Dunn, M.D., L.L.C., as well as against other defendants on June 5, 2005. According to the petition, Ms. Giovingo had long-standing complaints of abdominal pain for which she was treated by Dr. Dunn. On July 25, 1998, Dr. Dunn performed exploratory laparoscopic surgery in an attempt to diagnose Ms. Giovingo’s condition. During the procedure, a retroperi-toneal hematoma was encountered, and a laparotomy was immediately performed to inspect the area. The laparotomy revealed small defects in the mesentery of the small bowel and colon. The defects were repaired without incident, and Ms. Giovingo was released from the hospital four days later.

| sHowever, the pain continued, and Ms. Giovingo was unable to get pregnant, despite taking medication to facilitate pregnancy. Ms. Giovingo sought treatment with Dr. Eric Schultis, a fertility specialist who diagnosed her with a blocked left fallopian tube. Dr. Schultis performed a second laparotomy that revealed intestinal and tubal-ovarian adhesions. Surgery to correct this was performed by Dr. Schultis on May 23, 2000. However, the prognosis is that the probability of her fallopian tubes functioning normally, despite the release of the adhesions, is minimal.

Ms. Giovingo filed for a medical review panel on May 16, 2001 that convened on March 7, 2005 and found in favor of defendants. Ms. Giovingo filed this action in district court on June 7, 2005 against Dr. Dunn, Dr. Dunn’s L.L.C., East Jefferson General Hospital (“East Jefferson”) and Brown-McHardy Clinic, but held service of all defendants. Subsequently, service on defendants was requested. On July 28, 2005, Ms. Giovingo requested service on David Dunn, M.D., L.L.C. through an attorney, Brown-McHardy Clinic, and East Jefferson. East Jefferson answered the petition.

After discovery, the hospital moved for a summary judgment. Although Ms. Giovin-go filed a motion to re-set the hearing on the motion for summary judgment, she did not oppose it and, ultimately, the motion was granted, dismissing all claims against East Jefferson in November 2007.

Service on David Dunn, M.D., L.L.C. was made through an attorney on August 1, 2005. On November 17, 2010, Ms. Giov-ingo requested service on Dr. Dunn personally. Personal service was made on Dr. Dunn on November 30, 2010. Neither Dr. Dunn’s L.L.C. nor Dr. Dunn has answered or participated in the lawsuit until filing the motion to dismiss as abandoned at issue herein on December 15, 2010.

|4The matter was taken up by the trial court on April 4, 2011. According to the judgment and the record, there was a “discussion with counsel,” and the court took the matter under advisement. There is no transcript of that discussion for this Court to review. However, along with the grant of the motion of abandonment and the dismissal of all claims against Dr. David Dunn, the trial court gave extensive written Reasons.

The factual findings in the Reasons for Judgment are that Ms. Giovingo’s original petition, filed on June 7, 2005, withheld service of all defendants. Subsequently, on June 28, 2005, Ms. Giovingo requested service on David Dunn, M.D., L.L.C.; East Jefferson; and Brown-McHardy Clinic. On December 15, 2010, Ms. Giovin-go requested that the Clerk of Court “reserve the original petition on defendant David Dunn.... ” Dr. Dunn was personally served with the petition and citation on November 30, 2010. The trial court found that Ms. Giovingo “clearly demonstrated her intent to abandon the case as to defendant Dr. David Dunn who was never served with process during the three-year abandonment period.” Consequently, the motion to dismiss the suit as to Dr. Dunn was granted as abandoned.

Ms. Giovingo concedes that Dr. Dunn was never personally served and gives no explanation as to why an attorney was served as Dr. Dunn’s agent. However, she argues that service was on Dr. Dunn, not his L.L.C. Furthermore, Ms. Giovingo avers that East Jefferson’s actions, as a co-defendant, preclude the judgment of abandonment. Ms. Giovingo also asserts that service on Dr. Dunn in November 2010 was within three years of the motion for summary judgment filed by East Jefferson, making it timely. Ms. Giovingo asserts that Dr. Dunn’s bankruptcy in federal court serves either as an interruption of the abandonment period and/or a step in the prosecution of the case sufficient to waive defendant’s |5claim of abandonment. Finally, Ms. Giovingo states that the abandonment articles do not apply to un-served parties. We are not persuaded by Ms. Giovingo’s arguments.

An action ... is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years.... Abandonment is self-executing; it occurs automatically upon the passing of three-years without a step being taken by either party, and it is effective without court order. To avoid abandonment, it is required (1) that a party take some “step” in the prosecution or defense of the action; (2) that it be done in the trial court and, with the exception of formal discovery, on the record of the suit; and (3) that it be taken within three years of the last step taken by either party. Taking an action “before the court,” so as to have taken a “step” in the prosecution or defense of a case, for purposes of abandonment statute, means that the step must appear in the court record.

It is well established that proper citation is the cornerstone of all actions, and actual knowledge cannot supplant the need for strict compliance with the requisites of proper citation. Abandonment is a form of liberative prescription that exists independent from the prescription that governs the underlying substantive claim. Abandonment has been construed as subject to prescription-based exceptions.

While it is true that service of process will interrupt prescription, the proper person, as designated by law, must be served.

|fiThis lawsuit was filed on June 7, 2005. As to Dr. Dunn, service was made on William W. Waring, Jr. Attorney at Law, and accepted by “Debbie Bordelon” on November 29, 2005. There is no indication, neither in the record nor in Ms. Giov-ingo’s arguments to this Court, that either Mr. Waring or Ms. Bordelon is in any way connected to either Dr. Dunn or his L.L.C. Therefore, Dr. Dunn was not properly served until November 30, 2010, over five years after the lawsuit was filed. Further, Dr. Dunn did nothing in this lawsuit until filing the motion for dismissal based on abandonment in December 2010. We find the trial court properly dismissed Ms. Giovingo’s action against Dr. Dunn on the basis of abandonment, and we affirm that judgment.

AFFIRMED.

      . La. C.C.P. art. 561(A)(1).

      . Clark v. State Farm Mut. Auto. Ins. Co., 00-3010 (La.5/15/01), 785 So.2d 779, 784.

      . Lewis v. Comm’r of Ins. for State, Dep't of Ins., State, 11-347, p. 3 (La.App. 5 Cir 12/13/11), 81 So.3d 890.

      . Id.

      . La. C.C.P. art. 1201; Johnson.v. Brown, 03-0679 (La.App. 4 Cir. 6/25/03), 851 So.2d 319, 326.

      . Clark, supra, at 787.

      . Jinright v. Glass, 06-888 (La.App. 5 Cir. 2/27/07), 954 So.2d 174, 178, writ denied, 07-0570 (La.5/4/07), 956 So.2d 618 (citation omitted).


author: JUDE G. GRAVOIS, Judge.

text:
    Keith JOHNSON v. Regina TREGRE and Allstate Insurance Company and XYZ Insurance Company.
    No. 11-CA-782.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2012.
    Pius A. Obioha, Alistair A. Adkinson, Michal J. Harris, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellant.
    Martin A. Belanger, Jr., Attorney at Law, Metairie, LA, for Defendant/Appel-lee.
    Panel composed of Judges JUDE G. GRAVOIS, MARC E. JOHNSON, and ROBERT A. CHAISSON.
   JUDE G. GRAVOIS, Judge.

12Plaintiff, Keith Johnson, appeals a trial court judgment rendered after a bench trial in favor of defendant, Regina Tregre, finding that plaintiff failed to prove that defendant was at fault in causing a vehicular accident in which they were involved. On appeal, plaintiff argues two assignments of error.. First, he argues that the trial court erred in finding defendant’s version of the accident more credible than his version. Second, he argues that the trial court erred in finding that the accident occurred in the left lane of travel, rather than in the right lane. For the following reasons, we affirm.

FACTS

The record shows that on Friday, April ,6, 2007, plaintiff, Mr. Johnson, and defendant, Ms. Tregre, were involved in a vehicular accident on Causeway Boulevard southbound in Metairie, Louisiana, on the overpass that crosses Veterans Memorial Boulevard. Both parties testified that the accident occurred in the evening after dark, during a period of heavy, congested traffic. Mr. Johnson | ¡¡testified that the heavy traffic caused him to come to a complete stop, whereupon he was rear-ended by Ms. Tregre’s vehicle, damaging the driver’s side rear bumper of his vehicle and causing him neck and back injuries for which he received treatment for approximately six months. He testified that both vehicles were traveling in the right lane on the overpass when the accident occurred, and that following the accident, neither vehicle was moved until a deputy arrived on the scene to investigate the accident.

Ms. Tregre testified, on the other hand, that she was traveling in the left lane on the overpass and Mr. Johnson was ahead of her in the right lane. She stated that traffic was heavy, but was flowing, not stopping. She did not see Mr. Johnson until he came into her lane, resulting in his driver’s side rear bumper striking the front passenger corner of her vehicle. She testified that this impact pushed her into the left guardrail, which she struck with the driver’s side of her vehicle. Instinctively and because she was afraid of going over the guardrail, she immediately turned hard right and ended up in the right lane directly behind Mr. Johnson’s vehicle, where both vehicles stopped and remained until the investigating officer arrived on the scene and had them move their vehicles off of the overpass. Both Ms. Tregre and Mr. Johnson called 911 following the accident. An ambulance responded before the deputy arrived and parked directly behind both vehicles in the right lane so that they would not be hit by other vehicles. Ms. Tregre testified that no other vehicles were involved in the accident.

Ms. Tregre testified that she was not hurt in the accident. Mr. Johnson testified that he was in extreme pain following the accident, but did not tell such to the ambulance personnel or the deputy because he was “kind of shocked.” He did not receive medical treatment at the scene, but later received medical treatment for the injuries he alleges he received in the accident.

[4Mr. Johnson introduced the medical records of his treatment following the accident into evidence. Ms. Tregre introduced photographs showing the damages to her vehicle, both on the front passenger corner and on the driver’s side. The deputy who responded to the accident testified but had no independent recollection of the accident. He stated that he was not an accident reconstructionist, and that his report of the accident merely showed where he found the vehicles when he arrived on the scene and was not a depiction of the actual impact location itself.

STANDARD OF REVIEW

A trial court’s findings of fact will not be disturbed on appeal unless the reviewing court finds that they are clearly wrong or manifestly erroneous. Stobart v. State, Through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La.1993). This standard of review does not allow the appellate court to reweigh the evidence or substitute its own factual findings. Salvant v. State, 05-2126 (La.7/6/06), 935 So.2d 646, 650. In order to reverse a district court’s determination of a fact, a reviewing court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Stobart, 617 So.2d at 882. The issue to be resolved by the reviewing court is not whether the fact finder was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Garrity v. St. Paul Fire & Marine Ins. Co., 07-965 (La.App. 5 Cir. 4/15/08), 984 So.2d 900, 904, writ denied, 08-1051 (La.8/29/08), 989 So.2d 106.

[«ANALYSIS

Bearing the above standard of review in mind, our review of the record convinces us that the trial court’s conclusions were not manifestly erroneous. The trial court explained, in its reasons for judgment, that it found Ms. Tregre’s version of the events of the accident more credible than Mr. Johnson’s because the evidence of the damages to her vehicle, on both the left and right sides, was consistent with her testimony that she was in the left lane when Mr. Johnson struck her vehicle on the front passenger side, propelling her into the left guardrail, which damaged the driver’s side of her vehicle. The evidence of the damages to plaintiffs vehicle is not consistent with Mr. Johnson’s version of the accident. We accordingly ñnd no merit to this assignment of error.

Mr. Johnson next argues that the trial court erred in finding as a matter of fact that the accident occurred in the left lane, when “[b]oth parties testified that their vehicles never moved from the position they were in immediately following the accident up until the time when the investigating police officer arrived at the scene.” However, the record shows that the trial court’s conclusion on this issue is supported by the testimony of Ms. Tregre and the location of the damages to her vehicle, as noted above. Further, while the parties’ testimony does in fact concur that both vehicles ended up in the right lane following the accident and were not moved until the investigating officer arrived, this fact does not contradict the trial court’s factual finding that the accident occurred in the left lane and the vehicles ended up at rest in the right lane, as the parties testified. We thus also find no merit to this assignment of error.

\ «CONCLUSION

For the reasons stated above, we find no manifest error in the trial court’s factual findings that defendant’s version of the accident was more credible than plaintiffs and was further supported by the evidence showing the location of damages to defendant’s vehicle. Further, the trial court’s conclusion that the accident happened in the left lane of travel is fully supported by the record and is thus not manifestly erroneous. Accordingly, the trial court’s judgment in favor of defendant is hereby affirmed.

AFFIRMED

      . The deputy’s accident report was not admitted into evidence, but was proffered by Mr. Johnson.


author: CLARENCE E. McMANUS, Judge.

text:
    MRB MORTGAGE, INC. v. Sheriff, Wayne L. JONES, Tax Collector, St. John the Baptist Parish, Janet J. Sam and Femon J. Sam.
    No. 11-CA-845.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2012.

      Robert R. Faucheux, Jr., Attorney at Law, Laplace, LA, for Defendants/Appellants.
    Jules A. Carville, III, Attorney at Law, Laplace, LA, for Defendant/Appellee-2nd Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and MARC E. JOHNSON.
   CLARENCE E. McMANUS, Judge.

|pOn August 10, 2010 plaintiff, MRB Mortgage, Inc. (hereinafter “MRB”), filed a “PETITION FOR DAMAGES, AND RULE TO SHOW CAUSE WHY THE SHERIFF TAX SALE HELD ON MAY 28, 2003 SHOULD NOT BE DECLARED AN ABSOLUTE NULLITY.” In the petition, MRB named as defendants Sheriff Wayne L. Jones of St. John the Baptist Parish in his capacity as Sheriff and Tax Collector (hereinafter “Sheriff Jones”), Janet J. Sam and Femon J. Sam (hereinafter “the Sams”) and Eldridge Bartholomew, Sr. (hereinafter “Bartholomew”). MRB alleged that it had a mortgage “interest” in the property located at 652 West 2nd Street, Laplace, Louisiana, and that the property was sold at a tax sale on December 28, 2003, without proper notification to it. MRB did not allege who the landowner was or who purchased the property in the petition. MRB further alleged that defendants “acted with malice and prior knowledge of Plaintiff interest and intentionally omitted to make a diligent search of the record to contact ^Plaintiff” and it requested damages and attorney fees. In addition, MRB filed a motion in which it requested a preliminary injunction prohibiting “the St. John The Baptist Parish Government, its agents, assigns and representatives from denying services” (utilities and/or permits) to the property as requested by MRB.

In his answer, Sheriff Jones alleged that there were three properties owned by Ernest Bartholomew. The first parcel, identified as Tax Parcel No. 0400029715 was not sold at a tax sale. The second parcel, Tax Parcel No. 0400029723 was sold at a tax sale and subsequently redeemed. The third parcel, Tax Parcel No. 040009145 contained commercial improvements (a bar), owned by Juanita Roussel. It was that commercial improvement that was sold at a tax sale on May 28, 2003 to the Sams.

Although not styled as a reconventional demand, the answer also contains a request for nullity of a judgment. In the answer, Sheriff Jones alleges that the Sams filed suit to quiet their title, but instead of suing Juanita Roussel, they filed suit against Bartholomew. Sheriff Jones requests that the resultant judgment be declared a nullity alleging that the wrong party was sued.

The trial court conducted a hearing on September 30, 2010. No testimony was taken and no evidence was admitted during the hearing. On November 30, 2010, the trial court rendered judgment granting MRB’s petition to annul the May, 2003 tax sale, and ordered the tax collector to return the purchase price to the Sams. The court also vacated part of a judgment rendered on February 1, 2010 which had granted the Sams’ motion to quiet title. The court further stated that it did not reach the issue of preliminary injunction.

Pursuant to motions for new trial, the court on March 25, 2011, clarified its judgment. The court first noted that the previous hearing had not been a trial and that no testimony was given. The court addressed the Sams’ contention that MRB |4did not have standing in the suit and found it to be without merit. The court then reaffirmed its judgment vacating the tax sale ordering the tax collector to return the purchase price to the Sams.

Both the Sams and Sheriff Jones as tax collector have appealed from these decisions of the trial court. The Sams argue that MRB has no standing to bring suit, that the hearings of September 30, 2010 and January 21, 2010 were materially defective, and that the trial court erred in declaring the tax sale an absolute nullity. Sheriff Jones argues that the trial court erred in ordering the Parish, instead of the recipient, to return the purchase price. MRB as appellee failed to file a brief in this matter. Because we find merit to the argument that the proceedings were fatally defective and the judgments must be vacated, we pretermit the other issues raised by the appellants.

LSA-R.S. 47:2286 provides

No tax sale shall be set aside except for a payment nullity, redemption nullity, or a nullity under R.S. 47:2162, all of which are relative nullities. The action shall be brought in the district court of the parish in which the property is located. In addition, the action may be brought as a reconventional demand or an intervention in an action to quiet title under R.S. 47:2266 or as an intervention in a monition proceeding under R.S. 47:2271 through 2280.

Tax sales are presumed valid and the party attacking it bears the burden of proving its alleged invalidity. 3525 North Causeway Blvd. Corp. v. Penney, 07-883 (La.App. 5 Cir. 3/11/08), 982 So.2d 195, writ denied, 08-0771 (La.5/30/08), 983 So.2d 905.

In this case, MRB asserts it is the mortgage holder of property and that it failed to receive notice of the pending tax sale on property. However, MRB challenged the validity of the sale by a rule to show cause. As a result, there was no trial held, but only a hearing at which no testimony was taken and no evidence was admitted. In its amended judgment, the court notes that there was no trial. 1¡/Thus, there was no evidence introduced to show whether there was any service, or any attempt at service to MRB.

At the hearing, it was argued that the tax sale encompassed the commercial improvement on the property, and not the immovable property itself. However, MRB argues that it has a mortgage on the immovable property, and not on the commercial interest which was allegedly the object of the tax sale. Again, there was no evidence introduced to support MRB’s claim that it had an interest in the property, or even what property, was subject to the tax sale.

In addition, the trial court also vacated a portion of a prior judgment, in a separate proceeding, which had granted a motion to quiet title on behalf of the Sams, again without any evidence introduced by any party. The trial court made reference to that court proceeding; however, the record of that proceeding also was not introduced in this matter.

A review of the judgments at issue reflects that they are final in nature, because they vacate both the tax sale in favor of the Sams, and a portion of the judgment that quieted title in favor of the Sams. To be final, a judgment must determine the merits in whole or in part, and it need not dispose of all contested issues to be ap-pealable. LSA-C.C.P. art. 1841. We find that the trial court’s actions, in rendering a final judgment without conducting a trial at which all parties were allowed to produce evidence, to be error.

Accordingly, we vacate the trial court’s judgments of September 30, 2010 and March 25, 2011 and we remand this matter for further proceedings.

VACATED AND REMANDED


author: SUSAN M. CHEHARDY, Judge.

text:
    Larry TWINER v. Christina V. DINVAUT, Barry Dinvaut, Laura F. Soileau, Ted A. Soileau, Sheryl Soileau, Government Employees Insurance Company, Liberty Mutual Insurance Company and Progressive Security Insurance Company.
    No. 11-CA-854.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2012.

      David I. Coureelle, Attorney at Law, Metairie, LA, for Plaintiff/Appellee, Larry Twiner.
    Jennifer A. Gelder, Maria Rabieh, Attorneys at Law, Metairie, LA, for Defendant/Appellant, Progressive Security Insurance Company.
    Panel composed of SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD, Judges.
   SUSAN M. CHEHARDY, Judge.

| ¿This ⅛ an automobile accident case in which the plaintiffs uninsured/underin-sured motorist insurance carrier appeals the judgment against it. We affirm. FACTS

On December 11, 2009, Larry Twiner filed suit against Christina Dinvaut, Barry Dinvaut, and their insurer, Government Employees Insurance Corporation (also known as GEICO), as well as against Laura F. Soileau, Sheryl Soileau, Ted Soileau, and their insurer, Liberty Mutual Insurance Company (“Liberty Mutual”), and his own uninsured/underinsured motorist insurer, Progressive Security Insurance Company (“Progressive”).

Twiner alleged that on December 12, 2008 he was driving his vehicle on Interstate 10 near Williams Boulevard in Ken-ner, Louisiana, when his vehicle was rear-ended by a vehicle operated by Laura Soileau, a minor. Soileau’s vehicle then was rear-ended by a vehicle driven by Christina Dinvaut, causing Soileau’s vehicle to strike the plaintiffs vehicle a second time. He alleged that as a result of these impacts, he sustained personal injuries and property damage, including pain and suffering, medical expenses, lost wages, and damage to his vehicle.

| ¡¡Twiner alleged further that Sheryl Soi-leau and Ted Soileau are Laura Soileau’s parents, are liable on her behalf as parents of a minor, and are owners of the vehicle Laura Soileau was driving. He alleged that Barry Dinvaut is liable as owner of the vehicle Christina Dinvaut was driving.

Prior to trial the Dinvaut defendants reached a settlement with the plaintiff for their policy limits of $10,000.00. The court entered an order that dismissed the plaintiffs claims against the Dinvaut defendants, reserving his rights against all other defendants.

The matter proceeded to a bench trial on May 23, 2011. The only witnesses were the plaintiff, Larry Twiner, and defendant Laura Soileau.

Twiner testified as follows: The accident occurred right at dusk on the eastbound side of 1-10 near Williams Boulevard in Kenner, Jefferson Parish. The traffic was heavy; all three lanes were “pretty well packed.” The car in front of him made a sudden stop, hit her brakes, so he hit his brakes, and got hit from behind a couple of times. The vehicle immediately behind him that hit his vehicle was operated by Laura Soileau, who was around 17 years old. The vehicle behind Soileau was operated by Christina Dinvaut.

Twiner said he was at a complete stop when his vehicle was struck. He did not see Soileau’s vehicle before it hit his, but after the first impact he turned to his right to see what happened, and when he was about halfway around, he got hit again. He had his foot on the brake when the first impact occurred, but had the car in neutral and his foot off the brake when the second impact occurred. Twiner said he had about 10 feet between his car and the vehicle in front of him. Following the first impact, his vehicle was pushed ahead but did not contact the vehicle in front of him; the second impact, however, pushed his car underneath the vehicle in front.

LTwiner testified that after the accident he began having spasms across his shoulders and back. He had a pre-existing back condition from injuries sustained in an air-boat accident. In 2006 he underwent surgery in which two rods were inserted in his back on each side of his spine, from C-4 down to T-7. He had been discharged from treatment for that surgery in October 2006, and eventually had recovered enough to do everything he did before, except to pick up heavy weights.

By the time of the accident in this case, he was feeling fine. Since the accident, however, he has been having spasms, pains going from his shoulders up his neck. After the accident he was taken to the East Jefferson General Hospital Emergency Room, where he was treated and discharged the same night. He continued to feel pain, however, and went back to treatment by Dr. Henry Eiserloh, the surgeon who had performed his 2006 back surgery.

Twiner testified he does not like to take prescription pain medication because it makes him incoherent and he doesn’t feel in control of his body. He takes nonprescription Advil instead. Dr. Eiserloh told him not to take too much Advil, however, because it could “mess up” his stomach. Dr. Eiserloh told him the exacerbation of his pain was due to his prior surgery.

Twiner testified that before this accident he used to do a lot of hunting and fishing. He has had to quit fishing, however, because of the pain. He can still hunt but not for long. He has pain every day; massage helps to relax the shoulder muscles, but other than that he takes only Advil. He also suffers the pain when under stress, and reported he was feeling pain while testifying at the trial.

Twiner acknowledged that he had settled his claims against the Dinvaut defendants for $10,000.00. Since this accident in December 2008, he has had no further accidents or intervening trauma.

| aAt the conclusion of Twiner’s direct examination, his attorney informed the court that the plaintiff was stipulating that his damages are under $50,000.00.

On cross examination, Twiner admitted he had not sustained any loss of earnings because at the time of this accident he was retired. He reiterated that he felt a total of three impacts during the collision: the first one pushed his car halfway toward the car in front of him; the second one pushed his car into the vehicle in front of him; the third impact he felt when his car went under the rear of the vehicle in front of him.

He acknowledged that due to the prior back surgery, the area around his surgical scar — which extends up and down his spine from his neck to approximately his mid-back — is numb. He admitted he had only three treatments over a period of 21 ½ months for injuries related to this accident.

The other witness to testify was defendant Laura Soileau. She testified her car was hit from behind in stop-and-go traffic, and her car hit the plaintiffs car in front of her. She denied hitting Twiner’s car prior to hers being struck by the Dinvaut vehicle. At the time she was coming to a complete stop. She said her car hit Twiner’s car just once. When she got out to look, she saw that Twiner’s car was pushed into the vehicle in front of him. She reiterated that she did not hit his vehicle until after her vehicle was hit by the Dinvaut vehicle. She recalled Twiner’s saying that his back was hurting.

At the conclusion of the plaintiffs case, the Soileau defendants moved for a directed verdict, on the ground that the evidence presented showed that the Soileau vehicle was stopped, rear-ended, and pushed into the plaintiffs vehicle, and there was no evidence to indicate any negligence by Laura Soileau. The court stated from the bench that a directed verdict would be granted.

| sAs to the merits of the case, the court ruled in favor of the plaintiff, with the following oral reasons for judgment:

Unfortunately, Mr. Twiner had a prior back problem that is pretty serious, and it makes it hard to evaluate ... this case that he has, because of that problem.
Now, his back has been fused, but on the other hand the defendant has to take the plaintiff as he finds him, and in this case he was in a weakened condition to begin with, and the accident, being struck in the rear, pushed into another car, is a fairly significant impact.
In a sense it’s like a soft tissue injury, but it’s not, because we’re only dealing with pain and not something that can go away any time real soon.
I find for the plaintiff, Mr. Twiner, in the amount of Forty Thousand Dollars, plus medical expenses, and costs, and interest from date of demand.

The written judgments were signed on June 15, 2011. In one judgment, the court granted the motion for directed verdict and dismissed Laura F. Soileau, Ted A. Soileau, Sheryl Soileau, and Liberty Mutual Insurance Company from the suit with prejudice. In that judgment the court stated there was no evidence presented regarding the alleged negligence of the Soileau defendants.

In a separate judgment signed on the same date, the court found that Christina Dinvaut was solely and exclusively at fault in the accident. The court found that Christina Dinvaut had only a $10,000/$20, 000 automobile liability policy with GEI-CO, and had no other insurance that would provide coverage in this matter. Accordingly, the court rendered judgment in favor of the plaintiff and against Progressive as his uninsured/underinsured motorist insurer in the amount of $40,000.00 for general damages, plus medical expenses in the amount of $5,815.50, for a total of $45,815.50, plus legal interest from date of judicial |7demand and all court costs incurred by the plaintiff, subject to a credit for the $10,000.00 payment made to the plaintiff by the Dinvaut defendants. ARGUMENT

On appeal Progressive contends the trial court erred in the following respects.

1. The trial court erred in granting the motion for directed verdict.

In its first assignment of error, Progressive argues that the trial court erred in granting the directed verdict because that conclusion was not based on a preponderance of the evidence.

Progressive asserts that the trial judge, as factfinder, found on the one hand that Twiner was not a credible witness, but then granted Twiner’s damages claims based solely on his testimony and not on the great weight of the evidence. In essence the court found the plaintiff was credible in his testimony regarding his injuries, but not in his testimony regarding the causation of the accident. Progressive contends that dichotomy requires this Court to overturn either the directed verdict or the damages award in this case.

Progressive asserts that Twiner was a more credible witness than Soileau regarding the facts of the accident, because Twiner has consistently alleged at all phases of this litigation that he felt two impacts, one from Soileau and another from Dinvaut. Twiner was able to recall minute details of the accident and its two impacts, and testified accordingly at trial. He recalled having his foot on the brake for the first impact, thus preventing him from initially striking the car in front of him. Twiner then quickly put the car in neutral and turned his head around to see what had happened. It was then that he was impacted a second time and pushed into the car in front of him.

IsTwiner was clear at all times that he felt two impacts to the rear of his vehicle and one to the front of his vehicle, equaling three total impacts to his vehicle. Progressive asserts that Twiner’s testimony was controverted only by the self-serving testimony of Soileau, who simply said she did not strike Twiner’s vehicle twice. As the rear-ending motorist, Soileau was required to provide evidence to overcome the presumption that she breached the standard of conduct prescribed in La. R.S. 32:81. Progressive contends her testimony was not sufficient evidence to overcome a presumption in the face of the evidence provided by the plaintiff.

Progressive contends the trial court’s ruling that rejected Twiner’s testimony of two impacts from the rear was clearly wrong, manifestly erroneous, and was not reasonable based on the great weight of evidence against Soileau. Progressive asserts the court should have ruled that Soi-leau was partly at fault in the accident, which would have been reasonable given the evidence presented. Thus, Progressive argues, the damages suffered by Twiner should be apportioned evenly between the two defendants.

In opposition to Assignment No. 1, the plaintiff acknowledges it is clear that the trial court accepted Laura Soileau’s version of the accident, which was a reasonable determination. The plaintiff contends the record is devoid of evidence that would allow this Court to find that the trial court’s granting of the Soileau defendants’ motion for directed verdict was manifestly erroneous.

2. The trial court erred in granting the damages award.

In the second assignment, Progressive argues the trial court erred in granting the plaintiff general damages in the amount of $40,000.00.

| progressive asserts the issues are whether a witness can be partially credible, and whether a witness who is discredited in his testimony on liability can then be found credible in his testimony regarding his damages in the same case. If this Court finds that the factfinder did not err in granting the directed verdict in favor of the Soileau defendants, because Soileau was the more credible witness than Twiner, then this Court should also find that the damages award was excessive and was not based on the great weight of the evidence.

Progressive argues that the evidence as a whole shows that more probably than not Twiner recovered from his injuries within two months of the accident. In a span of two and one-half years, Twiner visited the doctor four times. Progressive asserts the $40,000.00 general damages award thus amounts to $10,000.00 per doctor visit, is excessive, and is not based on the great weight of the evidence.

Progressive contends the factfinder did not rule based on a preponderance of the evidence, as is required in these types of cases, and therefore the damages award is manifestly erroneous and clearly wrong.

In opposition to Assignment No. 2, the plaintiff asserts there is no merit to Progressive’s argument that the court erred in awarding the damages when the court did not find Twiner credible in connection with the issue of liability. The plaintiff states he never testified he was absolutely sure that he was first rear-ended by the Soileau vehicle, who was then rear-ended by the Dinvaut vehicle, pushing the Soileau vehicle into Mr. Twiner’s vehicle a second time. He simply testified that he felt two impacts. Progressive failed to call any witnesses; therefore, the plaintiff argues, the court made a credibility determination according to the testimony.

The plaintiff contends the trial court did not find him to be not credible; rather the trial court found that the Soileau vehicle was free from fault. The court |1f)could have reasoned that the Dinvaut vehicle struck the Soileau vehicle twice, causing two impacts.

With respect to the medical treatment and injuries, the plaintiff asserts the trial court correctly stated that the defendants had to take the plaintiff as they found him. He had major back surgery two years before the accident, and his condition was exacerbated by the accident now before us. Prior to this accident, he had no problems, but with this accident he began experiencing pain and other problems. He was still suffering pain 21 months post-accident, and was still suffering with pain through the date of the trial, approximately 29 months post-accident. The defendants offered no evidence or testimony to lead the trial court to make any other determination. The plaintiff argues the general and special damages awards are clearly reasonable and should not be disturbed.

LAW AND ANALYSIS

A court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State Through Dept. of Transp. & Dev., 617 So.2d 880, 882 (La.1993). Credibility is a factual determination that cannot be set aside without a finding of manifest error.

In Stobart, the supreme court applied a two-part test for reversal of a fact finder’s determinations. First, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court. Second, the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Stobart, 617 So.2d at 882, citing Mart v. Hill, 505 So.2d 1120, 1127 (La.1987).

When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb | nthis factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.

Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973).

La. R.S. 32:81(A) provides, “The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.”

The rebuttable presumption regarding rear-end collisions is that a following motorist who strikes a preceding motorist from the rear has breached the standard of conduct prescribed by this statute and is therefore liable for the accident. ‘That rule is based on the premise that a following motorist whose vehicle rear-ends a preceding motorist either has failed in his responsibility to maintain a sharp lookout or has followed at a distance from the preceding vehicle which is insufficient to allow him to stop safely under normal circumstances.’ A following motorist may, however, rebut the presumption of negligence by proving the following things: (1) that he had his vehicle under control; (2) that he closely observed the preceding vehicle; and (3) that he followed at a safe distance under the circumstances. [Citations, omitted.]

Williams v. Melancon, 2008-1155, p. 3 (La.App. 4 Cir. 4/1/09), 9 So.3d 310, 312-313, - writ denied, 2009-0985 (La.6/19/09), 10 So.3d 742.

As pointed out by the plaintiff, neither the Soileau defendants nor Progressive presented any evidence at trial. The testimony of Laura Soileau, presented by the plaintiff as part of his case in chief, was minimal, elicited on examination by plaintiffs counsel. She simply stated that her car struck the | ^.plaintiffs car only once, and that the impact occurred when her car was struck from behind by the Dinvaut vehicle. There was no evidence as to the distance between Soileau’s vehicle and the plaintiffs car. The trial judge obviously chose to believe Soileau. That is a credibility determination, and we do not find the trial court to be clearly wrong.

“Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.” Id.

Similarly, the factfinder has the leeway to choose what to believe in a single witness’s testimony. A factfinder may believe one part of the testimony without believing a different part.

Considering the principles above, we find no manifest error in the trial court’s ruling on liability.

With regard to the damages awarded, our supreme court has held,

‘To modify the amount of an award for general damages, an appellate court must find that the trial judge or jury has abused the ‘much discretion’ accorded by the codal provision; (2) The awards in other cases serve only as an aid in determining whether there has been an abuse of discretion and rivet no steel frame of uniformity.’

Coco v. Winston Indus., Inc., 341 So.2d 332, 334 (La.1976), quoting from Miller v. Thomas, 258 La. 285, 246 So.2d 16, 19 (1971).

As the trial court pointed out, the tortfeasor must take the victim as he finds him. The plaintiff in this case had a history of a prior back injury followed by major back surgery. It is not unbelievable that after a rear-end automobile |iacollision, even where there was only one impact rather than several impacts, ■ the victim’s previously-injured back could have been affected enough to cause continuing back pain thereafter. Further, the amount awarded is not outside the range of reasonableness.

Accordingly, we find no abuse of discretion in the damages awarded.

DECREE

For the foregoing reasons, the judgment is affirmed. Costs of this appeal are assessed against the appellant, Progressive Security Insurance Company.

AFFIRMED

      . Hereafter we refer to the Dinvauts and GEI-CO collectively as "the Dinvaut defendants” and to the Soileaus and Liberty Mutual collectively as "the Soileau defendants.”

      . There were no hearsay objections to the plaintiff’s reporting Dr. Eiserloh’s statements. Dr. Eiserloh's reports and medical record were introduced into evidence.