author: CARAWAY, J.

text:
    Deborah LeBLANC and Teri Shirey, Plaintiffs-Appellees v. Ray PYNES, Sr. and Linda Mills, Defendants-Appellants.
    No. 46,393-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 13, 2011.

      Smithbush, L.L.P. by S. Christie Smith, IV, Leesville, LA, Elizabeth Brummet Carr, for Appellants.
    Don Weir, Jr., Walker & Walker, L.L.P. by Henry C. Walker, Jr., Shreveport, LA, for Appellees.
    Before CARAWAY, DREW and MOORE, JJ.
   CARAWAY, J.

1,After the plaintiffs left the employment of the defendants’ loan business, they were accused by defendants of theft. The theft accusations led to plaintiffs’ arrest; yet the prosecution against them was dismissed nine months later. Plaintiffs then instituted this action for malicious prosecution against defendants. Following a bench trial, the trial court rendered judgment in plaintiffs’ favor, and the defendants appeal. Finding no manifest error in the trial court’s judgment, we affirm.

Facts

Plaintiffs, Deborah LeBlanc and Teri Shirey, were employed by Cash Back Loans, L.L.C. (“Cash Back”), doing business as Payday Money with locations in Bossier City and Leesville. Payday Money is a high-interest, short-term loan company owned by defendant Ray Pynes of Leesville. LeBlanc and Shirey were employed as manager and loan officer respectively at the Bossier office. In November 2004, they were the only employees at the Bossier store. Defendant, Linda Mills, was the “manager” at the Leesville location.

In a telephone conversation on November 30, 2004, Pynes fired LeBlanc due to the poor collections performance of the Bossier office. Pynes authorized LeBlanc to write herself a check for the salary she was owed up to that day, for vacation time she had accrued, and for an additional two weeks’ pay as a severance agreement. Le-Blanc wrote herself the check. When Le-Blanc was fired, she had outstanding personal loans with the company totaling $1,175.12.

|2In the weeks prior to LeBlanc’s termination, Pynes had asked Shirey if she wanted to assume the manager position once he let LeBlanc go. Shirey testified that she spoke to Pynes over the phone immediately after he fired LeBlanc and claimed to tell Pynes that she did not feel comfortable taking over LeBlanc’s position. Shirey then resigned the same day LeBlanc was fired. She left a letter of resignation on the desk but did not communicate her resignation in any other way to Pynes. Prior to leaving the office, Shi-rey also received her final wages and accrued vacation pay by a check written by LeBlanc. The resignation letter indicated that the check received by Shirey reflected a deduction for a portion of the money she owed to Payday Money. After the firing and resignation, the Plaintiffs left the office and deposited the business cash at the bank. At the time of Shirey’s resignation, she had outstanding personal loans which she repaid after her subsequent arrest.

After Pynes fired LeBlanc, he claimed that he did not know that Shirey had resigned. He was unable to contact her, and eventually discovered that his office had been shut down after contacting the neighboring pizza shop. Pynes and Mills traveled to Bossier the next day to open the office and hire new employees. Mills remained in Bossier for several weeks. The Defendants testified that the Bossier office’s records were extremely unorganized when they arrived. There were computer loan records pertaining to Shreveport customers kept separately from the records for the Bossier customers. During this time, Mills combined the accounts of Shreveport and Bossier customers into one computer system.

| a While reorganizing and combining the accounts, Mills allegedly uncovered evidence of 19 loans, in 16 different customers’ names, which she suspected to be “bogus” loans. The outstanding balances on the loans totaled approximately $3,800. Mills suspected that the Plaintiffs had stolen the principal amount of the unauthorized loans. She also uncovered evidence of multiple personal loans that LeBlanc and Shirey had taken out in their names and in the names of members of their families.

During this time of investigation, Mills was in constant contact with Pynes and reported her findings to him daily. Mills indicated to Pynes that she believed the discrepancies were consistent with a pattern of internal theft similar to schemes she had seen previously while working for a different lending institution. He instructed her to review the documentation again and to contact the police if she felt that a theft had occurred.

On March 17, 2005, Mills reported the alleged theft to the Bossier City Police Department. Patrol Officer Lindsey Kutz met with Mills and created the initial police report. Detective Shane Waites later took over the investigation. Waites interviewed Mills once in person and multiple times over the phone. Mills also provided him with documentation to support her assertion that the Plaintiffs had committed an internal theft.

Based on Mills’s statements and the documentation that she provided, Waites arrested LeBlanc and Shirey on May 3, 2005, and charged them with felony theft. Both Plaintiffs spent that night in jail. They then posted bail and were released the following afternoon. Following the incarceration, Plaintiffs made approximately nine court appearances in which they were | represented by multiple court-appointed attorneys. Shirey eventually borrowed money to hire an attorney. On February 13, 2006, the charges against both Plaintiffs were ultimately nol prossed by the Bossier District Attorney’s office.

On May 1, 2006, LeBlanc and Shirey filed this action against Pynes and Mills for malicious prosecution, defamation, and intentional infliction of emotional distress. Cash Back was made an additional defendant by amended petition. A bench trial was held on two days in May and August of 2009.

The trial testimony and documentary evidence indicated that Mills’s investigation into the 19 loans was inadequate. Evidence also indicated that some of the documentation that Mills provided to the police was likely fabricated. Testimony from three of the “bogus” loan customers indicated that they did in fact have legitimate loans from the Bossier office and that Mills had not contacted any of them prior to Plaintiffs’ arrests. Kristi Hart, one of the suspected “bogus” customers, testified that she had legitimate loans and had made payments toward those loans prior to the time that Mills spoke with the police. Evidence presented indicated that Mills did not provide the police with the information regarding Hart’s loan payments. Another “bogus” customer who testified at trial, Lorraine Wilson, had her legitimate loan discharged in Chapter 7 bankruptcy. At trial, Detective Waites testified that he primarily relied on Mills’s statements and the documentation she provided to build the case against the Plaintiffs.

|fiIn written reasons, the trial court found Pynes and Mills liable for malicious prosecution and defamation. In the ruling, the trial court made the following statement with which the Defendants take issue:

The evidence produced at trial -by the defendants was soundly rebutted by the plaintiffs and fell short of proving any of the allegations by Linda Mills to the Bossier City Police Department even by a preponderance of the evidence, much less beyond a reasonable doubt.

The trial court’s judgment awarded Shi-rey $16,615.71 in special damages and $25,000 in general damages. The trial court’s opinion indicated that the special damages included awards of $685.00 in bail fees, $40.00 for the indigent defender board fee, $22.25 for copy fees, $4,368.46 for the deficiency judgment on the repossession of an automobile, $1,500 in attorney’s fees, and $10,000.00 for loss of future income. LeBlanc was awarded $10,747.25 in special damages and $20,000 in general damages. LeBlane’s special damages included $685.00 in bail fees, $40.00 for indigent defender board fees, $22.25 for copy fees, and $10,000 for loss of future income. Total damages awarded equaled $72,363.96. Defendants subsequently filed a motion for a new trial. The motion was granted in part, so as to add as an additional judgment debtor, Cash Back. Defendants now appeal.

Discussion

I.

In the Defendants’ first two assignments of error, they argue that the Plaintiffs failed to prove malice, the Defendants’ falsification of the charges, or their intent to mislead the police. They also argue that the trial court’s [¿written ruling revealed that “it imposed a burden of proving the criminal charges against the Plaintiffs on the Defendants beyond a reasonable doubt, rather than merely requiring a showing of probable cause, in both the malicious prosecution and defamation claims.” In that connection, they assert protection of “a conditional privilege for reporting criminal conduct to the police with no intent to mislead.”

Never favored in our law, a malicious prosecution action must clearly establish that the forms of justice have been perverted to the gratification of private malice and the willful oppression of the innocent. Johnson v. Pearce, 313 So.2d 812 (La.1975).

A successful claim for malicious prosecution requires proof of six elements: 1) the commencement or continuance of an original criminal or civil judicial proceeding; 2) its legal causation by the present defendant against plaintiff who was defendant in the original proceeding; 3) its bona fide termination in favor of the present plaintiff; 4) the absence of probable cause for such proceeding; 5) the presence of malice therein; and 6) damages conforming to legal standards resulting to plaintiff. Hibernia Nat’l Bank of New Orleans v. Bolleter, 390 So.2d 842 (La.1980); Robinson v. Goudchaux’s, 307 So.2d 287 (La.1975); Arledge v. Sherrill, 32,189 (La. App.2d Cir.8/18/99), 738 So.2d 1215, 1222, writ denied, 99-2713 (La.12/10/99), 751 So.2d 255. The Defendants concede the first element but contest the remaining five.

It is well settled that an appellate court may not set aside a trial court’s finding of fact “in the absence of manifest error or unless it is clearly |7wrong.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989), citing Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978); Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973); see also, Sevier v. United States Fidelity & Guar. Co., 497 So.2d 1380, 1383 (La.1986); West v. Bayou Vista Manor, Inc., 371 So.2d 1146, 1150 (La.1979); Davis v. Owen, 368 So.2d 1052, 1056 (La.1979); Cadiere v. West Gibson Products Co., Inc., 364 So.2d 998, 999 (La.1978). Further, “reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review.” Rosell, supra.

The primary criminal charge, for which the Plaintiffs were arrested, was that the Plaintiffs created so-called “bogus” loans and then stole the cash that would have funded those loans. Mills reported to the police 19 such loans which stood in the names of 16 customers. The initial police report stated:

Mills said that they have found several loans that are in customer’s [sic] names, that have used the business, but when the customer is called, they don’t know anything about the loan.

Additionally, the police reports reflect that Mills reported that Plaintiffs “were not allowed under any circumstance to withdraw a loan in there [sic] name.” Yet, the Plaintiffs had “taken out ... numerous loans” in violation of that policy. Finally, the reports also identified vaguely “an internal theft of money” for which Plaintiffs were suspected. Mills later denied making that charge to the police.

At Payday Money, there were no written office policies. However, there were loan authorization procedures that were passed down from | ^employee to employee. According to Shirey and LeBlanc, when a customer applied for a loan, several documents were required. Those included a check stub for the customer’s account, a driver’s license or some form of identification, a bank statement, and a bill with the customer’s address. Also, for the “bogus” loan customers, there were social security numbers for each. Additionally, an employee would then run a Tel-A-Track report, which is similar to a mini-credit check. If the customer is approved for the loan, the customer would then be required to write a check for the principal and interest and sign a standardized loan contract. The office would file and retain the check as “collateral” until the loan was due. Mills explained that the checks were filed in a “check box” that was organized according to the due date of the loan. When the due date arrived and the loan was delinquent, the office would deposit the check. Checks that were returned for insufficient funds were filed in a separate “NSF check box.”

The loan proceeds for the Payday Money loans were not disbursed by check. Instead, cash was maintained in the office for funding the loans. Each week Pynes received reports for the new loans and the delinquent loans. The charge of theft from the “bogus” loans was thus not based upon any accounting discrepancies identified by the cash withdrawal and deposit records of the business account. In fact, Defendants did not present the bank account records for the business into evidence.

Regarding the “bogus” loans, Mills provided inconsistent testimony on whether she actually attempted to contact the customers whose personal data were allegedly used by Plaintiffs in setting up the “bogus” loans. | nlnitially, she told Detective Waites that she had attempted to contact the customers but was unable to reach any of them. Yet, in her deposition she stated that she did not try to contact any of them. Later, at trial, she testified that she did try, unsuccessfully, to contact some of them. Plaintiffs were able to contact and obtain affidavits from several of the “bogus” loan customers in preparing their defense for the criminal trial. To contact these customers, the Plaintiffs used the actual information that Mills provided to the police, information which they obtained through discovery for the criminal case.

Of the 19 loans that Mills reported to the police, at least four originated at a time when Shirey was not employed by Payday Money. At least one of the 19 originated in December 2004 after Le-Blanc was fired and after Shirey resigned. In March 2004, as Mills first contacted the police, Kristi Hart, one of the “bogus” loan customers, made a partial payment on a loan. Of the 14 remaining “bogus” loan customers, the record reflects the statement or affidavit of 7 of those customers admitting the loans in question. Finally, some of the “bogus” loans were shown as new loans in the documentation provided to the police when in fact the loans were renewals. When questioned about this evidence, Mills submitted that there may have been some mistakes due to the disorganization of the office.

Regarding the Plaintiffs’ personal loans, Mills initially told the police that she was a regional manager and that employees such as Plaintiffs were not allowed to take out any personal loans. She later testified that she was not a regional manager and that the employees were not prohibited fromJjjjtaking out loans. The police report also indicated that Mills said that there was no documentation relating to Shirey’s personal loans, when in fact there were copies of Mr. and Mrs. Shirey’s driver’s licenses and check stubs on file. Shirey’s •written letter of resignation contained clear acknowledgment of her debt to the business. Mills testified that the police misunderstood her.

Did the Legal Causation for the Criminal Prosecution Result from Defendants’ Actions?

To fulfill the second element for the legal causation of malicious prosecution, the original defendant must have caused the prosecution. An independent investigation by law enforcement of a complaint made by a citizen may break the chain of causation between the complaint and the ultimate commencement of a criminal proceeding. Adams v. Harrah’s Bossier City Inv. Co., L.L.C., 41,468 (La.App.2d Cir.1/10/07), 948 So.2d 317, 320, writ denied, 07-0639 (La.5/11/07), 955 So.2d 1281. However, there are cases in which there may not have been enough of an intervening police investigation to break the chain of causation. See, Craig v. Carter, 30,625 (La.App.2d Cir.9/23/98), 718 So.2d 1068, 1070, writ denied, 98-2698 (La.12/18/98), 734 So.2d 636.

In this case, Detective Waites testified that the arrest and charges against the Plaintiffs were based solely on the information Mills provided him. This testimony did not indicate a separate, independent investigation to such a degree that the chain of causation is broken. Significantly, the details, documentation, and accounting procedure that might justify a belief that $3,800 had been stolen through the “bogus” loan process were not | n apparently clear to the officers. In Detective Waites’s police report concerning the arrest, he listed only the dollar amounts for the Plaintiffs’ “unauthorized loans” to themselves as the basis for each charge of theft. Yet, a loan allowance for each Payday Money employee was permitted in the business. Therefore, the arrests made on the basis that such loans were “not allowed under any circumstances” were caused by the inaccuracy of Mills’s statements. The second element of legal causation is fulfilled.

Was there a Bona Fide Termination of the Criminal Proceeding?

To fulfill the third element of malicious prosecution, the original case must have been legitimately terminated in favor of the present plaintiff. A nolle prosequi has been held to constitute a bona fide termination. Banken v. Locke, 136 La. 155, 66 So. 763 (1914).

The continuation of a criminal proceeding by the prosecution would be an impediment to a malicious prosecution claim against the party reporting the crime to the police. Such impediment had ended when this action commenced. We disagree with Defendants’ assertion that the prosecution’s perception of the merits of the criminal case against the Plaintiffs at the time of its dismissal had to be proven by the Plaintiffs, suggesting that the district attorney must testify as to the use of his prosecutorial discretion. When proven by a plaintiff, the other elements for the malicious prosecution cause of action, as reviewed below, demonstrating the defendant’s lack of probable cause and his malice, are sufficient to show that the state’s dismissal of a criminal action was a “bona fide” dismissal. Additionally, we note that the law enforcement official who | ^testified at trial, Detective Waites, indicated that the lack of evidence led to the dismissal of the criminal actions.

Was there an Absence of Probable Cause for the Criminal Proceeding?

The jurisprudence demonstrates that this element of probable cause focuses on the present defendant’s mindset in instituting the original action against the plaintiff. Robinson, supra; Hibernia Nat’l Bank of New Orleans, supra; Young Oil Co. of Louisiana, Inc. v. Durbin, 412 So.2d 620 (La.App. 2d Cir.1982). “Probable cause focuses as much on the reasonable state of mind of [the defendant] in bringing the charge as the actual fact.” Young Oil of Louisiana, Inc., supra at 627. Did the complainant have an honest and reasonable belief in the guilt of the accused when he pressed charges? Jones v. Soileau, 448 So.2d 1268 (La.1984).

In Robinson, supra, the Supreme Court found a department store liable for malicious prosecution for failing to advise its attorney that a collection action against a customer was no longer needed after the customer’s payment of the account. Addressing the department store’s lack of probable cause for the institution of the proceeding, the court said:

There was, therefore, insofar as [the defendant was] concerned, a total want of probable cause for instituting suit to collect an account fully paid eight months before.

This probable cause analysis of the complainant/tortfeasor’s state of mind applies equally in the wrongful institution of either a civil or criminal proceeding. Therefore, it must be distinguished from the “probable cause” analysis of the law enforcement officials’ mindset in making the plaintiffs arrest under the influence of the complainant/tortfeasor who is ultimately 11Rdetermined to have harbored malice or been reckless in presenting the charge to police. For this fourth element of the cause of action for malicious prosecution— the absence of probable cause for such proceeding — the police’s state of mind upon receiving the complaint is not crucial. Any arrest and prosecution followed by a bona fide termination of the criminal action allows for the proof of the complainant’s lack of probable cause and malice in making the charge.

Regardless of the question of actual malice or an ulterior motive of Mills and Pynes, their decision to present the charge of theft to the police was based upon a drastic insufficiency of facts to justify a reasonable belief of theft. The overall loose cash accounting system of Payday Money required that Mills contact the 16 “bogus” loan customers to determine that a cash advance was not made to each, and therefore presumably pocketed by Plaintiffs. Mills and Pynes understood the weakness of the accounting and internal controls for the business and could not reach a reasonable conclusion about theft under the circumstances. The evidence supports the trial court’s ruling of the Defendants’ absence of probable cause in seeking the arrests.

Was there Proof of Malice?

Even in the absence of a showing of the department store’s ill will or ulterior motive, the Supreme Court in Robinson, supra, made the following observation about malice:

114Negligence is not malice ordinarily, but when, in this case, it amounts to recklessness and inexcusable indifference of the rights of plaintiff, malice is presumed.

Robinson, supra at 290 (citations omitted).

As discussed above, the Defendants’ absence of probable cause was apparent from the deficiencies in their own accounting system. Thus, the Defendants demonstrated a recklessness and inexcusable indifference in accusing Plaintiffs under those circumstances.

Moreover, the trial court as fact finder could determine from the circumstantial evidence an ulterior motive or malice underlying the Defendants’ pressing for the Plaintiffs’ arrests. Mills did not make a reasonable and suitable inquiry of the 16 customers, and certain blatant problems and inaccuracies with the 19 reported loans could be considered by the fact finder as a false reporting to the police. The undisputed fact that employees could have personal loans with the company was not the report given to the police. The inconveniences resulting from the Plaintiffs’ abrupt shutting down of the business and the delinquencies in their personal loans circumstantially raised the possibility of ill will by Mills and Pynes. Mills’s credibility was impeached by her prior statements and inconsistencies. Finally, Derona Walton, who had become employed at Payday Money, testified that Mills stated that “she was going to get [LeBlanc and Shirey],” around the time of the pending criminal proceedings.

115Accordingly, under the manifest error standard of review, the trial court’s determination of malice and its finding of the tort of malicious prosecution is affirmed.

II.

The Defendants also assign as error the trial court’s award of damages. They contest the special damage award for lost income and for the $4,368.46 award resulting from the deficiency judgment in the repossession of Shirey’s automobile. Defendants also assert the excessiveness of the general damage awards.

In the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury. La. C.C. art. 2324.1. This general principle is further noted in La. C.C. art. 1999 which states, “When damages are insusceptible of precise measurement, much discretion shall be left to the court for the reasonable assessment of these damages.” The role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993). The discretion left with the trier of fact is great, and even vast, so that a court should rarely disturb an award for general damages. Id. Only when the award is beyond that which the trier of fact could assess for the effects for the particular injury that the appellate court should increase or reduce the award. Id. | 1fiWhen the factors necessary for a malicious prosecution cause of action have been satisfied, damages will be presumed. See Robinson, supra at 290.

The Civil Code’s provisions for damages, addressed under the principles of conventional obligations, have application for the assessment of damages in tort. La. C.C. art. 1917 provides as follows: “The rules of this title [Title IV] are applicable also to obligations that arise from sources other than contract to the extent that those rules are compatible with the nature of those obligations.” In Title IV, Chapter 8 of the Civil Code, La. C.C. art. 1995 states that “[d]amages are measured by the loss sustained by the obligee and the profit of which he has been deprived.” An obligor in good faith is liable only for the damages that were foreseeable at the time the contract was made, and an obligor in bad faith is liable for all the damages, foreseeable or not that are a direct consequence of his failure to perform. La. C.C. arts. 1996 and 1997. As noted in Official Comment (b) to Article 1997: “An obligor is in bad faith if he intentionally and maliciously fails to perform his obligation.”

Following the arrest, the Plaintiffs both suffered from self-described depression and sleeping problems caused by the embarrassment and shame of being arrested. Shirey testified that she did not leave her house for two months. In January 2005, Shirey applied for but was not offered a position with the Bossier City Police Department. She was not given a reason for not being offered that position. In October 2005, Mr. and Mrs. Shirey surrendered their car because they could no longer afford the monthly payment. Shirey eventually gained employment and health insurance as a 117receptionist at a law firm around March of 2006. She then visited two different doctors and was prescribed antidepressant, anti-anxiety and sleep aid medications on different occasions. However, Shirey did not tell either doctor about the arrest because she was “ashamed to admit that [she] had been arrested for felony theft.”

LeBlanc also claims the arrest negatively affected her life. She sought medical attention and was prescribed antidepressant and anti-anxiety medications. Le-Blanc did not tell her doctor that she suspected that her depression and anxiety resulted from an arrest. LeBlanc secured employment through a temporary employment agency and was released when she told them she had been arrested. LeBlanc was later employed by LeBossier Hotel and then released when they discovered she had been arrested. LeBlanc has been receiving social security disability benefits for some time prior to a surgery she had in July 2006.

Both women described their overnight stay in the Plain Dealing jail annex as profoundly disconcerting. Each testified to being traumatized by being handcuffed and shackled and having to shower and use the bathroom in front of other people. The women were unable to sleep or eat during their time in the jail. Both women also expressed extreme embarrassment and humiliation after learning that their names and information regarding their arrests had been published in a local newspaper.

Under the ruling in Youn, we do not find that the general damage awards to Plaintiffs demonstrate an abuse of the trial court’s “much discretion.” Plaintiffs’ arrests and incarcerations, and the stigma of the 118charge of theft caused them emotional trauma for which the trial court’s awards compensated. Likewise, the $10,000 award to each plaintiff for wage loss is an amount less than one year’s salary of a minimum wage worker. The Plaintiffs were arrested and their criminal prosecution remained pending for over nine months. During that time and thereafter, the wage earning capacity of each plaintiff was shown directly and circumstantially to have been damaged. Finally, regarding Shirey’s repossession of her automobile and subsequent deficiency, we find that loss directly related to the ordeal and within the broader scope of damages for this intentional tort.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of appeal are assessed to appellants.

AFFIRMED.

      . With this analysis of probable cause contrasting law enforcement's understanding with the Defendants' state of mind, we understand the trial court's challenged comment as pertaining to Bossier law enforcement's ultimate conclusions that this theft charge could not be proven in the criminal case. We find no error in the trial court's application of the burden of proof.

      . With the finding of malice, a difficult burden for any plaintiff seeking redress for her arrest, the Defendants’ asserted privilege for reporting criminal conduct has no merit.


source: Caselaw Access Project

author: PEATROSS, J.

license: Public Domain

text:
    Cheryl Denise KENLY & Randy Lee Kenly, Plaintiffs-Appellants v. Sherry D. FULLER, D’Arbonne Water Systems, Inc. & Arch Specialty Insurance Company, Defendants.
    No. 46,398-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 13, 2011.

      Goff and Goff, Ruston, LA, by A. Ken-non Goff, III, A. Kennon Goff, IV, for Appellants.
    Melanie J. Forbes, Prairieville, LA, William A. Jones, Jr., for Appellees/Interve-nors, Stonetrust Commercial Insurance Co. & Union Parish School Board.
    James D. “Buddy” Caldwell, Attorney General, Angelique Duhon Freel, Assistant Attorney General, for the State of Louisiana.
    Before STEWART, CARAWAY & PEATROSS, JJ.
   PEATROSS, J.

1 plaintiffs, Cheryl Denise and Randy Kenly, appeal the judgment of the trial court in favor of Plaintiffs in Intervention, the Union Parish School Board (“School Board”) and Stonetrust Commercial Insurance Company (“Stonetrust”), awarding Stonetrust a credit in the amount of $79,389 against any future workers’ compensation benefits that may be owed Mrs. Kenly. The Kenlys also appeal the judge’s ruling that the credit is subject to interest at a rate of six percent per annum until the credit is exhausted. Finally, the Ken-lys challenge the constitutionality of the Workers’ Compensation Act (“WCA”) as applied to this case. For the reasons stated herein, we amend the judgment awarding the credit to Stonetrust and reduce the credit by the amount of $10,000, representing the net award for Mr. Kenly^s loss of consortium claim. We further amend the ruling to delete the accrual of interest on the credit of six percent per annum. In all other respects, the judgment is affirmed; Stonetrust is entitled to a credit in the amount of $69,389.

FACTS

The underlying facts of this case are undisputed. Mrs. Kenly was employed by the School Board as a school bus driver. She also operated heavy equipment and a dump truck and was a manual laborer in the Kenly family contracting business. On November 1, 2006, while she was driving the school bus, an oncoming vehicle driven by Defendant Sherry Fuller crossed the center line and crashed into the bus causing Mrs. Kenly to sustain serious and permanent injuries. The Kenlys filed suit for personal injury damages against Defendants Sherry Fuller and D’Arbonne Water 12System, Inc. The matter was amicably settled for $150,000. The settlement agreement provided that a minimum of $15,000 of the total settlement was for Mr. Kenly’s loss of consortium claim and a minimum of $75,000 was for Mrs. Kenly’s pain and suffering. As to attorney fees, the Kenlys had a one-third contingency fee arrangement with their attorneys.

Stonetrust is the School Board’s workers’ compensation insurance carrier. Sto-netrust had previously paid $30,690.51 in medical benefits to Mrs. Kenly. Before disbursing settlement proceeds to the Ken-lys, their attorney reimbursed Stonetrust the amount of $20,611.31 by check and a set-off retention of $10,079.20, representing what is commonly referred to as the Moody fee.

Stonetrust intervened in the lawsuit, and subsequently, under La. R.S. 23:1101, et seq., filed a Motion to Determine Credit Against Future Worker’s Compensation Benefits and a supplemental motion seeking six percent interest per year from her annual loss of collateral income ($20,000 from the family contracting business income lost). In response, the Kenlys filed a motion for summary judgment urging that Stonetrust was not entitled to a credit against settlement proceeds of Mr. Kenly for his loss of consortium, from loss of income to the family contracting business or for the amount of general damages received by Mrs. Kenly for her pain and suffering. The trial judge denied the Ken-lys’ motion and awarded a credit | sin favor of Stonetrust in the amount of $79,389. The judge’s calculation was as follows:

$150,000 Plaintiffs’ total settlement
-$ 50,000 Attorney fees paid by Plaintiffs
-$ 20,611.38 To Stonetrust as reimbursement for medical expenses previously paid ($30,611.38 — ((1/3 attorney fees of $10,000)) = $20,611.38)
$ 79,389 Amount Recovered by Plaintiffs/Credit Amount to Stone-trust

In his reasons for ruling, the trial judge recognized the hardship placed on the Kenlys by his ruling; however, the trial judge stated that he was bound by the pronouncement of the legislature in La. R.S. 23:1102, which provides, in pertinent part, that “the insurer receive a dollar for dollar credit against the full amount paid in compromise, less attorney fees and costs paid by employee.” Also in his oral reasons (and later in his written reasons for denying the Kenlys’ subsequent motion for rehearing and new trial), the trial judge further held that the credit was subject to interest in the amount of six percent per annum until the credit has been exhausted under La. R.S. 23:1103, infra.

Finally, in his reasons for ruling, the trial judge deferred to this court the issue of the constitutionality of the WCA as applied to this case. As previously mentioned, the Kenly’s motion for rehearing and for a new trial was denied and this appeal ensued.

\ «DISCUSSION

On appeal, the Kenlys raise seven assignments of error, which primarily concern their challenge to the trial judge’s application of the statutory credit to which Stonetrust is entitled pursuant to La. R.S. 23:1102. They allege the following manifest errors in the trial judge’s calculations:

1. inclusion in the credit of Mr. Kenly’s loss of consortium portion of the settlement, Mrs. Kenly’s pain and suffering portion of the settlement and Mrs. Kenly’s non-school board income;
2. the addition of the six percent per annum interest on the credit; and
3. failure to reduce the credit by the attorney fees and court costs paid by the Kenlys.

The Kenlys also raise on appeal the constitutionality of the WCA as applied in this case. We will first address the calculation of the credit due to Stonetrust and interest thereon.

La. R.S. 23:1102 provides, in pertinent part:

B. If a compromise with such third person is made by the employee or his dependents, the employer or insurer shall be liable to the employee or his dependents for any benefits under this Chapter which are in excess of the full amount paid by such third person, only after the employer or the insurer receives a dollar for dollar credit against the full amount paid in compromise, less attorney fees and costs paid by the employee in prosecution of the third party claim and only if written approval of such compromise is obtained from the employer or insurer by the employee or his dependent, at the time of or prior to such compromise....

(Emphasis added.)

La. R.S. 23:1103(A)(1) provides:

A. (1) In the event that the employer or the employee or his dependent becomes party plaintiff in a suit against a third person, as provided in R.S. 23:1102, and damages are \r,recovered, such damages shall be so apportioned in the judgment that the claim of the employer for the compensation actually paid shall take precedence over that of the injured employee or his dependent; and if the damages are not sufficient or are sufficient only to reimburse the employer for the compensation which he has actually paid, such damages shall be assessed solely in his favor; but if the damages are more than sufficient to so reimburse the employer, the excess shall be assessed in favor of the injured employee or his dependent, and upon payment thereof to the employee or his dependent, the liability of the employer for compensation shall cease for such part of the compensation due, computed at six percent per annum, and shall be satisfied by such payment. The employer’s credit against its future compensation obligation shall be reduced by the amount of attorney fees and court costs paid by the employee in the third party suit.

(Emphasis added.)

The Louisiana Supreme Court has recently analyzed and applied the above-quoted provisions of sections 1102 and 1103 in the case of City of DeQuincy v. Henry, 10-0070 (La.3/15/11), 62 So.3d 43. Explaining that the case was one of statutory interpretation, the | fisupreme court held that section 1102 applies only to situations involving the settlement of a third-party tort claim, whether or not suit was filed, while section 1103 applies to those cases which proceed to trial and a judgment is rendered by judge or jury. City of DeQuincy, supra. Referencing the clear wording of the statutes, section 1102 is applicable after “either the employee or his dependent or the employer or insurer brings suit against a third person” when “a compromise with such third person is made by the employee or his dependents.” Section 1103, on the other hand, applies “[i]n the event that the employer or the employee or his dependent becomes party plaintiff in a suit against a third person, as provided in La. R.S. 23:1102, and damages are recovered.” In addition, the supreme court in City of DeQuincy acknowledged that “the courts of this state have applied the statutes inconsistently.” It emphasized, however, that “the plain language of the two statutes convinces us that the legislature intended, and the lower courts were correct in finding, that only La. R.S. 23:1102 applies in cases where, as here, an employer [or its insurer] has intervened in an employee’s suit, and the suit was settled prior to judgment.” Id.

We find, therefore, that, under City of DeQuincy, the trial judge was correct in stating that the controlling statute is La. R.S. 23:1102 because the Kenlys filed suit for damages and the case settled for $150,000; the case 17was not tried to judgment. We further agree with the trial judge that the intent of the legislature was to require that employers and their insurers receive a credit for the entire amount of any compromise or settlement, or for the entire amount of a judgment, no matter how the damages have been characterized. The supreme court expressly stated that “employers and their insurers [are to] receive a credit for the entire amount of any compromise or settlement ... no matter how the damages have been itemized or classified.” City of DeQuincy, supra. Thus, Mrs. Kenly’s separate loss (non-school board income) and Mrs. Kenly’s general damages for pain and suffering, attorney fees and court costs were correctly included in the amount of excess of benefits. No matter how characterized, the specification and itemization of damages awarded for the injured employee’s injury are included in the “entire amount” of the settlement and are subject to the employer/insurer’s credit under the statute.

We do not, however, interpret City of DeQuincy, supra, as suggesting that settlement proceeds representing damages to the injured employee’s spouse for loss of consortium should be included in the “entire amount” of damages for purposes of calculating the credit to the insurance carrier. The appellate decision from the third circuit in City of DeQuincy affirmed the trial court’s reduction of the amount of the credit due to the workers’ compensation carrier by the amount of the spouse’s loss of consortium • award and future medical expenses of the injured employee. City of DeQuincy v. Henry, 09-636 (La.App. 3d Cir.12/9/09), 25 So.3d 237. The supreme court reversed only that portion of the third circuit’s decision that |sexcluded the injured employee’s future medical expenses from the calculation. Furthermore, the supreme court expressly stated that it found no manifest error in the trial court’s finding that the amount of the settlement proceeds for the spouse’s loss of consortium were not to be included in the credit. We, therefore, conclude that, because the consortium portion of the settlement is owed to a party other than the injured employee and not related to the workers compensation in any way, it is not subject to inclusion in the calculation of a credit due to the workers’ compensation carrier. The credit awarded in the case sub judice, therefore, must be reduced by the net amount of Mr. Kenly’s award for loss of consortium, ie., $10,000 ($15,000 less one-third contingent attorney fee).

Specifically regarding attorney fees, section 1102' states that the attorney fees and costs paid by the employee in prosecution of the third-party claim should be subtracted from the excess of the full amount paid by such third persons. The final calculation is as follows:

Plaintiffs’ total settlement: $150,000
Loss of consortium award to Mr. Kenly: -$ 15,000
Award subject to section 1102(B): $135,000
Attorney fees paid on that amount by the Plaintiff: -$ 45,000
Total Amount of benefits pursuant to section 1102(B): $ 90,000
Paid to Stonetrust (reduced by $10,000 Moody fee): -$ 20,611.31
Excess of benefits pursuant to section 1102(B): $ 69,388.69

Following the statutory language of La. R.S. 23:1102(B) and the supreme court’s application of it in City of DeQuincy, sur- pra, the credit due 1 sStonetrust in the case sub judice extends to the $69,388.69 amount, i.e., the entire amount of the settlement due only to Mrs. Kenly.

As to the addition of the interest on the credit under section 1103, recall that the statute provides for accrual of six percent per annum interest on the unpaid credit “[i]n the event that the employer or the employee or his dependent becomes party plaintiff in a suit against a third person, as provided in La. R.S. 23:1102, and damages are recovered.” La. R.S. 23:1103(A)(1). Pursuant to City of De-Quincy, supra, and the statute’s express wording, section 1103 applies only to cases tried to judgment. Since the case sub judice was settled prior to trial, section 1103 is inapplicable and it was error for the trial judge to award interest under this section. We note, as mentioned earlier in this opinion and as stated by the supreme court, that appellate courts of the state have treated sections 1102 and 1103 inconsistently, “sometimes applying section 23:1102 to third-party claims which proceeded to judgment, and at other times applying [sjection 23:1103 to third-party claims which were settled.” City of De-Quincy, supra. The inconsistency, however, has now been resolved and we are bound by the holding of the supreme court in City of DeQuincy. The ruling of the trial judge is, therefore, amended to delete the addition of the interest on the credit due to Stonetrust.

Finally, the Kenlys assert that fundamental fairness dictates finding that the application of the WCA in the instant case is unconstitutional. They further urge that the humanitarian spirit of the WCA is offended by the hardship placed on the injured employee in Mrs. Kenl/s situation. We |indisagree, especially in light of our holding that section 1103 is inapplicable; hence there will be no accrual of interest on the credit due to Stonetrust.

All statutory enactments are presumed to be constitutional. Moore v. RLCC Technologies, Inc., 95-2621 (La.2/28/96), 668 So.2d 1135. When interpreting statutory provisions, “if the intent of the legislature is clear, that is the end of the matter; for the courts must give effect to the unambiguously expressed intent of the legislature if its application does not lead to absurd consequences.” Moore v. Gencorp, Inc., 93-0814 (La.3/22/94), 633 So.2d 1268. Further, courts shall not inquire as to the wisdom or policy of legislation, but, rather, examine whether legislative pronouncements run afoul of constitutional protections. We are not persuaded that the WCA, applied to this case within the dictates of the clearly expressed intent of the legislature, constitutes an unconstitutional or fundamentally unfair application of the law.

DECREE

For the foregoing reasons, the judgment of the trial court awarding a credit in the amount of $79,389 in favor of Defendant Stonetrust Commercial Insurance Company is amended to reflect a reduction for Mr. Kenly’s loss of consortium award. The total amount of the credit is $69,389. The judgment is further amended to delete the portion of the ruling adding interest on the credit of six percent per annum until the credit is exhausted. In all other respects, the judgment is affirmed. Costs of appeal are assessed one half to Plaintiffs Cheryl Denise and Randy Kenly and one half to Defendant Stonetrust Commercial Insurance Company.

AMENDED AND, AS AMENDED, AFFIRMED.

      . Moody v. Arabie, 498 So.2d 1081 (La.1986). The Moody fee, now codified in La. R.S. 23:1103(C)(1), represents the proportionate share of an employee’s attorneys fees that is paid by the employer when the employer intervenes in the employee's third party tort suit,

      . We note that the final written judgment of March 23, 2010, is silent as to the interest portion of the trial judge’s ruling; however, as stated, the oral reasons and subsequent written reasons following the hearing on the motion for new trial clearly impose the interest on the credit under section 1103.

      . The supreme court in City of DeQuincy explained:
      The fundamental question in all cases of statutory interpretation is legislative intent. The rules of statutory construction are designed to ascertain and enforce the intent of the legislature. The meaning and intent of a law is determined by considering the law in its entirety and all other laws on the same subject matter and by placing a construction on the law that is consistent with the express terms of the law and with the obvious intent of the legislature in enacting the law. A statute must be applied and interpreted in a manner that is logical and consistent with the presumed purpose and intent of the legislature.
      Further, it is presumed that every word, sentence, or provision in a law was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were employed. As a result, courts are bound, if possible, to give effect to all parts of a statute and to construe no sentence, clause or word as meaningless and surplusage if a construction giving force to, and preserving, all words can legitimately be found. Finally, it is presumed that the legislature acts with full knowledge of well-settled principles of statutory construction. In addition to the above judicial principles which are guides to determine the intent of the legislature, the legislature has enacted rules for the construction of statutes in the provisions of the revised statutes. Louisiana Revised Statutes 1:3 provides:
      Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language. Technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.

        City of DeQuincy, supra. (Internal citations omitted.)


author: CARTER, C.J. DOWNING, J,

text:
    Kathryn WILD v. STATE of Louisiana, DEPARTMENT OF HEALTH AND HOSPITALS.
    No. 2008 CA 1056.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 23, 2008.

      Peter J. Losavio, Jr., Kent S. DeJean, Christopher W. Nielson, Baton Rouge, LA, for Plaintiff-Appellee, Kathryn Wild.
    Neal R. Elliott, Jr., Baton Rouge, LA, for DefendanLAppellant, State of Louisiana, Department of Health and Hospitals.
    Before CARTER, C.J., WHIPPLE and DOWNING, JJ.
   CARTER, C.J.

|2Pefendant, the Louisiana Department of Health and Hospitals (LDHH), appeals the district court’s reversal of LDHH’s administrative denial of Medicaid benefits to plaintiff, Kathryn Campbell Wild. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

In August 2003, Kathryn Campbell Wild entered the Heritage Manor nursing home in Baton Rouge, Louisiana, due to the progression of Alzheimer’s ■ disease. Her husband, Willie E. Wild, Jr., remained in their community home located at 703 Maple Drive in Denham Springs, Louisiana. Allegedly fearing the necessity of an interdiction, Mrs. Wild donated all of her interest in the community home to Mr. Wild as his separate property on September 20, 2003. Also in September 2003, Mr. Wild created a revocable living (inter vivos) trust, which had previously been provided for in an amended and modified trust instrument dated August 29, 2003, wherein Mrs. Wild had donated all of her interest in the assets listed in the couple’s original living trust to Mr. Wild. The corpus or principal of Mr. Wild’s trust included the Denham Springs home. The revocable trust provided that Mr. Wild was the sole beneficiary and that upon Mr. Wild’s death, the trust would become irrevocable. At that point, three of the couple’s children would become the beneficiaries. In October 2003, Mr. Wild unexpectedly became ill and was diagnosed with cancer. Mr. Wild died on November 3, 2003.

| ..¡The next year, on June 2, 2004, Mrs. Wild’s daughter, Mary Kathryn Wild Mea-dors, acting as Mrs. Wild’s authorized representative, made an application for Long-Term Care (LTC) vendor payment benefits under the Louisiana Medicaid Program on behalf of Mrs. Wild. LDHH instituted a routine investigation of Mrs. Wild’s eligibility status. After gathering information, LDHH determined that Mr. Wild’s living trust amounted to a transfer of resources by Mrs. Wild for less than fair market value within a 36-month look-back period. Consequently, LDHH presumed that the transfer was done with the intent to qualify for Medicaid benefits. Based upon that determination, LDHH rejected Mrs. Wild’s application for LTC Medicaid benefits. As a penalty, Mrs. Wild was rendered ineligible for LTC vendor benefits for a certain number of months based on the value of the transferred home.

Mrs. Wild timely filed an appeal with LDHH’s Bureau of Appeals. An administrative hearing was held before an Administrative Law Judge (ALJ), who eventually affirmed LDHH’s denial of Mrs. Wild’s request for LTC Medicaid eligibility, essentially rejecting Mrs. Wild’s rebuttal claim that Mr. Wild died unexpectedly, shortly after he had established the trust for estate planning purposes. Mrs. Wild timely filed a petition for judicial review in the district court pursuant to the provisions of the Louisiana | .Administrative Procedure Act, LSA-R.S. 49:950, et seq. A hearing was held on February 25, 2008, after which the district court scheduled further oral argument. On April 21, 2008, the district court signed a judgment reversing the ALJ decision. The district court ruled that Mrs. Wild had successfully rebutted the presumption that Mr. Wild’s living trust amounted to a transfer of resources by her for less than fair market value and that it was done with the intent to qualify for LTC Medicaid benefits. It is from this judgment that LDHH appeals.

LDHH argues that the district court erred in reversing the ALJ’s ruling upholding LDHH’s ineligibility determination, LDHH maintains that Mrs. Wild was ineligible for LTC Medicaid benefits because once the community residence was permanently alienated by Mr. Wild when he transferred it to the trust, the home was required to be counted as a resource, regardless of whether Mrs. Wild could rebut the presumption that it was transferred for purposes other than qualifying for Medicaid. Mrs. Wild counters that LDHH’s determination is in direct contradiction with the Louisiana Medicaid Eligibility Manual and the facts in this case, because donating an interest in a home to a community spouse living in the home is not considered a transfer of property for less than fair market value. Mrs. Wild further argues that even if it did constitute a transfer, the facts show that the transfer was done for estate planning purposes. Mrs. Wild wanted to avoid the inevitable and embarrassing interdiction due to her declining health from Alzheimer’s disease. Mrs. Wild also maintains that at the time |sthat Mr. Wild created the revocable living trust and placed the home into the corpus of the trust, there was no indication that Mrs. Wild would outlive Mr. Wild, based upon the simple fact that she was sick and he was not. Since Mr. Wild’s death was not anticipated at the time of the transfer, Mrs. Wild claims that Mr. Wild’s establishment of the revocable living trust did not amount to an alienation of the property for purposes of qualifying for LTC Medicaid benefits.

STANDARD OF REVIEW

The Louisiana Administrative Procedure Act (APA), at LSA-R.S. 49:964 G, governs the judicial review of a final decision in an agency adjudication, providing that:

G. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Not supported and sustainable by a preponderance of the evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

Any one of the six bases listed in the statute is sufficient to modify or reverse an agency determination. Doc’s Clinic, APMC v. State ex rel. Dept. of Health and Hospitals, 07-0480 (La.App. 1 Cir. 11/2/07), 984 So.2d 711, 718, writ denied, 07-2302 (La.2/15/08), 974 So.2d 665. The APA further specifies that judicial review shall be conducted by the court without a jury and shall be confined to the record. LSA-R.S. 49:964 F.

When reviewing an administrative final decision, the district court functions as an appellate court. Doc’s Clinic, 984 So.2d at 718. Once a final judgment is rendered by the district court, an aggrieved party may seek review by appeal to the appropriate appellate court. LSA-R.S. 49:965. On review of the district court’s judgment, no deference is owed by the court of appeal to the factual findings or legal conclusions of the district court, just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal. Doc’s Clinic, 984 So.2d at 719; Carpenter v. State, Dept. of Health and Hospitals, 05-1904 (La.App. 1 Cir. 9/20/06), 944 So.2d 604, 608, writ denied, 06-2804 (La.1/26/07), 948 So.2d 174; Maraist v. Alton Ochsner Medical Foundation, 02-2677 (La.App. 1 Cir. 5/26/04), 879 So.2d 815, 817. Consequently, this court will conduct its own independent review of the record in accordance with the standards provided in LSA-R.S. 49:964 G.

This dispute may be analyzed under either LSA-R.S. 49:964 G(5) or (6), because when the issue on review is an administrative agency’s evaluation of the evidence and application of law to facts, our review becomes somewhat intertwined. Credibility determinations of evidence are specifically considered as factual questions under LSA-R.S. 49:964 G(6), but 17the application of the facts to the law at issue is a legal conclusion subject to analysis under LSA-R.S. 49:964 G(5). Carpenter, 944 So.2d at 609.

Because the basic underlying facts are not in dispute in this case, the district court was required to interpret and apply the statutory law to the facts. The question is whether the trust corpus is an available resource for purposes of qualifying for Medicaid benefits. This requires an interpretation of statutory law and, therefore, it is a question of law. Smith v. State Dept. of Health and Hospitals, 39,368 (La.App. 2 Cir. 3/2/05), 895 So.2d 735, 739, writ denied, 05-1103 (La.6/17/05), 904 So.2d 701. We addressed the standard of review of a legal determination by LDHH in Sanders v. Pilley, 96-0196 (La.App. 1 Cir. 11/8/96), 684 So.2d 460, 463, writ denied, 97-0352 (La.3/21/97), 691 So.2d 90, where we stated:

The question of whether or not the assets comprising the ... [tjrust can be considered as a resource for determining ... Medicaid eligibility clearly requires an interpretation of statutory law and an application of the law to the facts of this case. Thus, [LDHH] is incorrect in its assertion that its prior resolution of this question constitutes a finding of fact which must be afforded great deference upon review. Appellate review of question[s] of law is simply review of whether the lower court was legally correct or legally incorrect. If the district court was correct in its determination that [LDHH’s] decision to discontinue Medicaid benefits was contrary to law and public policy, its reversal of [LDHH’s] decision would be appropriate.
(Citations omitted.)

Accordingly, we must examine the pertinent statutory law and apply that law to the facts to determine if the district court’s reversal of LDHH’s ineligibility determination was legally correct in this case.

LAW AND ANALYSIS

The Medicaid Program authorizes federal financial participation in state medical assistance plans that provide funds to persons whose income |sand resources are insufficient to pay for the cost of necessary medical treatment, care, and services. 42 U.S.C. § 1396, et seq.; Sanders, 684 So.2d at 464; Ouzts v. Secretary, La. Dept. of Health and Hospitals, 38,634 (La.App. 2 Cir. 7/29/04), 880 So.2d 918, 920. States that participate in the program are required to institute reasonable standards for eligibility determination that are consistent with the objectives of the assistance program. 42 U.S.C. § 1396a(a)(17)(A). These standards must consider only resources and income available to the applicant and provide a reasonable method of evaluation. 42 U.S.C. § 1396a(a)(17)(B) & (C); Hargrove on Behalf of Hargrove v. State, La. Dept. of Health and Hospitals, 96-1072 (La.App. 1 Cir. 3/27/97), 692 So.2d 30, 31-32, writ denied, 97-1072 (La.6/13/97), 695 So.2d 983. An individual is entitled to Medicaid assistance if the criteria established by the state where the individual resides are fulfilled. Sanders, 684 So.2d at 464.

LDHH created the Louisiana Medicaid Eligibility Manual (MEM) to set forth standards for Medicaid eligibility determinations, including benefits for LTC nursing facilities in Louisiana. Smith, 895 So.2d at 740. Eligibility for LTC vendor payments is specifically based on need, calculated by evaluating income and resources available to the applicant. Estate of Messina v. State, La. Dept. of Health and Hospitals, 38,220 (La.App. 2 Cir. 3/3/04), 867 So.2d 879, 882. If resources are greater than the Supplemental Security Income resource limit, the applicant is ineligible for LTC Medicaid benefits. Id. Property held in trust may or may not be | ^considered a resource for purposes of Medicaid eligibility. Smith, 895 So.2d at 740.

Section I of the Louisiana Medicaid Eligibility Manual (MEM) sets forth the eligibility factors to be considered, and Section 1-1634 governs types of resources. Pursuant to MEM 1-1671, LDHH must consider all transfers that occurred anytime during or after the 36-month period before the Medicaid application was filed. Transfers of resources include the establishment of trusts, as well as the sale, purchase, trade, exchange, or giving away of property. MEM 1-1671. Transfers of resources for less than fair market value are presumed to be for the purpose of qualifying for Medicaid benefits. MEM I-1671 and MEM 1-1673. However, in all cases, applicants shall be offered the opportunity to rebut the presumption that a transfer was made to reduce resources in order to qualify for Medicaid by providing evidence that the transfer was solely for some other purpose. MEM 1-1673 and MEM 1-1674.

Home property is not considered if the applicant is living away from home and the spouse lives in the home. MEM 1-1673. Accordingly, Mrs. Wild argues, and we agree, that the home property was excluded since she was living in a nursing home while Mr. Wild lived in the community home. Likewise, when Mrs. Wild transferred her interest in the home to her spouse as his separate property, Mrs. Wild maintains that this was an exception to the transfer of assets penalty provisions according to MEM 1-1673, MEM 1-1674, and MEM 1-1720. Furthermore, MEM I-1720 provides that the date of transfer for a trust is considered to be the date the trust was established. |inHowever, LDHH used the date the trust was recorded in the public records, approximately eight months after the trust was established, as the date of transfer. LDHH’s position is that when Mr. Wild transferred the home into a trust instrument that became irrevocable at his death, and the beneficiaries under the trust were the couple’s children rather than Mrs. Wild, the home became a “transferred resource” that LDHH considered to be made by Mrs. Wild, citing MEM 1-1666 and MEM 1-1720.

After a thorough review of the record and relevant MEM sections, we find no error in the district court’s reversal of the ALJ’s finding that LDHH properly rejected Mrs. Wild’s application for LTC Medicaid benefits. Mrs. Wild successfully rebutted the presumption by showing that Mr. Wild’s living trust was established for estate planning purposes to prevent the necessity of interdicting Mrs. Wild, rather than the purpose of qualifying for Medicaid. The record contains evidence supporting these facts, but contains no evidence of any other intent. Mr. Wild was the sole beneficiary of the living trust and he had the ability to revoke the trust at any time prior to his death. Mr. and Mrs. Wild’s daughter, Mrs. Meadors, testified before the ALJ that Mrs. Wild transferred all of her resources to Mr. Wild because of her rapid decline resulting from Alzheimer’s disease. She also testified that Mrs. Wild fully expected Mr. Wild to continue to care for her as he had always done. According to their daughter, Mr. and Mrs. Wild were trying to avoid having Mrs. Wild declared incompetent through an interdiction process, which they perceived to be extremely embarrassing. Therefore, according to the Wilds’ daughter, the transfers and trusts were simply estate Inplanning tools which benefitted Mr. Wild by making it easier for Mr. Wild to access the assets necessary to care for Mrs. Wild.

The record supports the fact that Mr. Wild was in good health at the time the trust was established in September 2003; therefore, Mr. and Mrs. Wild had no reason to anticipate that Mr. Wild would die or that Mrs. Wild would ever be in necessitous circumstances. Almost eight months after Mr. Wild die d, Mrs. Wild applied for LTC Medicaid benefits and the trust instrument was recorded. Contrary to the mandate of MEM 1-1720, which requires that the date of transfer for a trust is considered to be the date the trust was established, LDHH incorrectly focused on the date of recordation of the trust as the date of transfer when making the eligibility determination. In effect, LDHH and the ALJ ignored the clear requirement of MEM 1-1720 in determining the date of transfer.

Because the revocable trust was established at a time when Mr. Wild was not sick and did not anticipate his death, there is no evidence of any intent to permanently alienate the property for Medicaid eligibility purposes. Mr. Wild could have revoked the trust at any time prior to his death; thus, the home was an available resource for meeting the needs of Mr. and Mrs. Wild. Remarkably, the LDHH representative acknowledged in her testimony before the ALJ that the transfer of the house to Mr. Wild was allowed as long as he kept the house in his possession for his care or the care of Mrs. Wild. Looking at the transfer as of the date the trust was established as required by MEM 1-1720, it is clear that the transfer did not make Mrs. Wild ineligible for LTC Medicaid benefits because there is no evidence that liathe transfer was made with the intent to qualify for LTC Medicaid benefits. We therefore find that the record supports the district court’s conclusion that Mrs. Wild rebutted the presumption. Accordingly, we conclude the district court did not err in reversing the ALJ’s decision to uphold LDHH’s ineligibility determination.

CONCLUSION

For all of the above-outlined reasons, we affirm the April 21, 2008, district court judgment which reversed the administrative decision. Costs in the amount of $2,861.32 are assessed against the Louisiana Department of Health and Hospitals.

AFFIRMED.

DOWNING, J. concurs and assigns reasons.

DOWNING, J,

concurs and assigns reasons.

hi agree with the result and generally agree with the analysis. I write to address a misstatement regarding the applicable standard of review. In St. Martinville, L.L.C. v. Louisiana Tax Com’n, 05-0457, p. 4 (La.App. 1 Cir. 6/10/05), 917 So.2d 38, 41-42, and its predecessors, this court explained why an appellate court must give deference to a trial court’s factual findings in an administrative review pursuant to the Louisiana Administrative Procedure Act, La. R.S. 49:964, as follows:

The Louisiana legislature enacted Acts 1997, No. 128, § 1, effective June 12, 1997, to amend paragraph G(6) to make the trial court a fact finder who weighs the evidence and makes its own conclusions of fact by preponderance of the evidence. Accordingly, we “defer to the trial court’s factual determinations and use a manifest error standard of review where the legislature has empowered it with the function of fact finding,” while giving due deference to the agency’s credibility determinations. La. R.S. 49:964 G(6). (Citations omitted.)

See also Lirette v. City of Baton Rouge, 05-1929, p. 5 (La.App. 1 Cir. 10/6/06), 945 So.2d 40, 44, writ denied, 06-2659 (La.1/8/07), 948 So.2d 129.

Even so, the majority concurs with the trial court’s factual determinations. Specifically, it concluded that the district court did not err in reversing the ALJ’s decision to uphold LDHH’s ineligibility determination. I fully agree, therefore, with the result reached by the majority and with the analysis except insofar as stated here.

      . The schedule of assets incorporated in the Willie E. Wild, Jr. living trust document included other assets that are not relevant to this appeal since LDHH only considered the community home in its ineligibility determination.

      . The procedural background for the appeal process was complicated in this case. There were actually two hearings held before the AU. After the first hearing, the ALJ ordered LDHH to reconsider Mrs. Wild’s rebuttal claim, because LDHH had prematurely notified the Bureau of Appeals of Mrs. Wild’s appeal. The subsequent ALJ decision on the merit s, denying Mrs. Wild’s request for Medicaid eligibility, was made on April 11, 2005.

      . The confusing procedural path requiring two hearings before the ALJ resulted in the filing of two separate petitions for judicial review in the Nineteenth Judicial District Court: In Re: Kathryn Wild, Docket No. 528,215, Division “D” and In Re: Kathryn Wild, Docket No. 532,087, Section "8”. The suits were consolidated under suit number 528,215 and re-allotted to Division “D” on July 18, 2006.

      . While we recognize this court's holding in Multi-Care, Inc. v. State of Louisiana, Dept. of Health and Hospitals, 00-2001 (La.App. 1 Cir. 11/9/01), 804 So.2d 673, 675, that the 1997 amendment to LSA-R.S. 49:964 G(6) empowered district courts with the function of fact finding in the administrative context, this does not affect the appellate court’s standard of review over district court decisions in the administrative context. See Carpenter, 944 So.2d at 608, n. 2.

      . The Medicaid Program is part of the federal Social Security Act. 42 U.S.C. § 1396, et seq. The applicable portion of Title 42 of the United States Code dealing with certain transfers of assets is found in Section 1396p.

        . Effective February 8, 2006, the look-back period for all cases involving revocable trusts was extended to 60 months. 42 USC 1396p(c)(l)(B)(i); MEM 1-1720.

      . Compare a similar situation involving a transfer of ownership of an annuity between spouses that was found to not affect the donor spouse’s eligibility for LTC Medicaid benefits. Pacente v. Jindal, 99-0601 (La.App. 4 Cir. 12/29/99), 751 So.2d 343, 347.


author: CHARLES R. JONES, Judge.

text:
    James CHAUFF, III v. NATIONWIDE AGRIBUSINESS INSURANCE COMPANY, Crescent Crown Distributing, L.L.C., Kevin L. Fuller and Lawrence Schmidt.
    No. 2008-CA-0492.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 4, 2009.

      Gerald J. Calogero, Calogero Law Firm, P.L.L.C., Jacque R. Touzet, New Orleans, LA, for Plaintiff/Appellant.
    Greta L. Wilson, Law Offices of Greta L. Wilson, L.L.C., New Orleans, LA, for Lawrence Schmidt.
    (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, and Judge JAMES F. McKAY, III).
   CHARLES R. JONES, Judge.

|/The Appellant, James Chauff, III, appeals the district court’s grant of a motion for summary judgment in favor of the Appellee, Lawrence Schmidt. We reverse and remand.

On March 16, 2006, Mr. Chauff was driving south on Clio Street in a 1992 Toyota pick-up truck in Orleans Parish. As Mr. Chauff approached a stop sign at the intersection of Clio and Baronne Streets, he encountered a sports utility vehicle (SUV) — owned by the Appellee, Mr. Schmidt. Mr. Chauff alleges that Mr. Schmidt’s SUV was parked on Baronne Street, but the front of the SUV was protruding into the intersection of Clio and Baronne Streets. There is no evidence as to where Mr. Schmidt’s vehicle was parked exactly. Mr. Chauff eventually attempted to cross Baronne Street, and was struck by a large beer truck that was operated by defendant Kevin Fuller, who was in the course and scope of his employment with defendant Crescent Crown Distributing, L.L.C. (hereinafter “Crescent”).

The New Orleans Police Department (hereinafter “NOPD”) was called to the scene. According to the NOPD report, the only driver to receive a citation was Mr. |2Chauff for failure to yield. Mr. Schmidt’s vehicle, however, is not listed in the report. There is a note in the police report that Mr. Chauff claimed that his view was obstructed by another vehicle at the intersection of Clio and Baronne Streets.

Mr. Chauff filed suit against Mr. Schmidt, Kevin Fuller, Crescent, and its insurer, Nationwide Agribusiness Insurance Company, on March 15, 2007. Thereafter, Mr. Schmidt filed a motion for summary judgment, which the district court granted. Mr. Chauff timely filed his motion for a devolutive appeal.

Mr. Chauff raises one assignment of error on appeal: the district court erred in granting a motion for summary judgment in favor of Mr. Schmidt where the undisputed material facts show that Mr. Schmidt illegally parked his vehicle in an intersection, and where said vehicle allegedly blocked Mr. Chauffs view of oncoming traffic.

An appellate courts review of a summary judgment is de novo. Dominio v. Folger Coffee Co., 05-0357 (La.App. 4 Cir. 2/15/06), 926 So.2d 16. Furthermore, a motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). However, if the mov-ant will not bear the burden of proof at trial, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, faction, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. La. C.C.P. art. 966(C)(2). Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Id.

The issue before this court is whether the district court erred in determining that a genuine issue of material fact did not exist as to whether Mr. Schmidt’s parking of his vehicle may have been a proximate cause of the intersectional collision between Mr. Chauff and Crescent.

In support of his appeal, Mr. Chauff cites McFatter v. Sizemore, 361 So.2d 457 (La.App. 4 Cir., 1978). He contends that in McFatter our Court recognized that an illegally parked car can be held liable for obstructing a drivers view.

In McFatter, which was decided before our state adopted the comparative fault doctrine, the plaintiff cautiously proceeded through an intersection while attempting to see around the defendants illegally parked moving van. We upheld the district courts determination that the owner of an illegally parked moving van was liable to the plaintiff for injuries and damages the plaintiff incurred as a result of the intersectional collision. In McFatter, 361 So.2d at 457-458, we explained:

A city ordinance prohibited parking within 40 feet of an intersection, and the van driver’s violation of the ordinance and of rules of reasonable driving caused the view of each motorist to be obstructed. This thoughtless and selfish parking was clearly a legal cause of the accident.
... It would be completely illogical to hold that the van operator had a duty imposed by statute and reason to refrain from parking in a position that creates a risk of danger to motorists entering the intersection and then to hold that the van operator is not liable for an accident resulting from that exact risk when a motorist, proceeding cautiously into the intersection, is injured because of the obstruction of lookout created by the van operator’s breach of duty.

14Additionally, fault in a vehicular collision case is determined by judging the conduct of each motorist under the facts and circumstances of each particular case. See CJS Motor Vehicles § 673, Generally 2008, “Liability of Person in Charge of Standing Vehicle; 8 Am.Jur.2d Automobiles § 894. The owner of the stopped or parked car may be held responsible for a collision occurring between other vehicles upon the highway. Id.

There is no evidence as to whether Mr. Schmidt was illegally parked. Mr. Schmidt has not been deposed and does not aver that he was not illegally parked. Furthermore, Mr. Schmidt contends that McFatter is distinguishable from the instant case because it was uncontested in McFatter that the defendant/driver in the case was illegally parked within two to five feet of the intersection whereas there is no evidence that Mr. Schmidts SUV was illegally parked.

The record shows that the parties have engaged in discovery; however, the only person who has been deposed is Mr. Chauff. When deposed, Mr. Chauff testified that Mr. Schmidt’s vehicle extended into the intersection of Clio and Baronne Streets such that he was unable to see oncoming vehicles. He further testified that there were vehicles parked behind Mr. Schmidt’s vehicle. Attached lsto the deposition is a drawing reflecting Mr. Chauffs recollection of the intersection at the time of the accident. Mr. Chauff testified that he stopped at the stop sign at the intersection and proceeded to stop two additional times while attempting to cross the intersection of Clio and Baronne Streets. He testified that he was taken to a hospital by ambulance from the scene of the accident. Lastly, he further testified that while at the hospital he spoke with the investigating NOPD officer for the first time, and received his citation for failure to yield. There are no pictures of the actual accident in the record.

A reading of the transcript of the February 15, 2008 summary judgment hearing shows that the district court reasoned that there were alternative actions Mr. Chauff could have taken to avoid this incident (i.e. backing his car up to get a clear view). The district court further discussed that Mr. Chauff had a heightened duty to proceed through the intersection because his view was obstructed. When Mr. Chauffs counsel pointed out that there was no way for Mr. Chauff to see what was coming, the district court opined that “[h]e should have backed up.”

We note that the district court’s appreciation that there were alternative ways for Mr. Chauff to handle the obstruction of his view, does not address the possibility that there was an obstruction in the first place. Comparative fault is utilized to address situations such as this where an injured party could/should have exercised more care. Mr. Chauffs testimony indicates that he did proceed through the intersection with caution. Nevertheless, his possible failure to proceed with caution is distinct from an analysis of whether the position of Mr. Schmidt’s vehicle was a cause of this accident.

| r,Moreover, if Mr. Chauffs version of events is accurate, then the investigating NOPD officer had already left the scene of the accident prior to learning Mr. Chauffs account of the incident. Thus, there is an issue as to whether the parking position of Mr. Schmidt’s SUV went undetected because Mr. Chauff was unable to convey his account of events at the actual scene of the accident. It is premature at this point to grant summary judgment in favor of Mr. Schmidt when he may have placed Mr. Chauff in a position where he had to employ a heightened level of caution in the first place.

The district court erred as a matter of law in holding that a parked car cannot be the cause of an intersectional collision. We find that there is a genuine issue of material fact as to whether the manner in which Mr. Schmidt parked his SUV was a cause of this accident. Thus, we reverse the district court judgment granting a motion for partial summary judgment and remand this matter to the district court.

DECREE

For the foregoing reasons, the judgment of the district court is reversed and this matter is remanded to the district court.

REVERSED AND REMANDED.

      . Crescent filed a reconventional demand against Mr. Chauff. The record indicates that Crescent may have also filed a cross claim against Mr. Schmidt. The record does not show that a petition for a cross claim was filed, but there is an answer filed by Mr. Schmidt to Crescent's reconventional demand. Crescent settled its claim with Mr. Chauff, and reserved it right to proceed against Mr. Schmidt.

      . 8 Am.Jur.2d Automobiles § 894, "Proximate Cause” states:
      A parking driver will be held liable for negligence in the parking of a vehicle in the traveled portion of a roadway, in contravention of statute, where the parked vehicle is the cause in fact of the injuries sustained.
      Notwithstanding negligence in parking or standing a motor vehicle on the paved or traveled portion of a highway, the owner or operator of the vehicle is not liable for damages resulting from a collision with another vehicle, if such negligence was not a proximate cause of the accident, and recovery of the other motorist may be barred or diminished if he or she has also been guilty of negligence proximately contributing to the accident. Proximate cause will not be inferred as a matter of law from the violation of a statute prohibiting the stopping or parking of a motor vehicle on the main-traveled portion of the highway. On the other hand, one who violates such a statute is not relieved from liability for injuries proximately caused thereby even though the negligence of a third person — that is, a person other than the plaintiff — may have concurred in proximately causing the injury for which the suit is brought.