author: PETERS, J.

text:
    Harold THIBODEAUX v. Melinda TRAHAN, et al.
    No. 11-0328.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.

      Rusty Galloway, Britney L. Hebert, Galloway Jefcoat, L.L.P., Lafayette, LA, for Plaintiff/Appellant, Harold Thibodeaux.
    L. Lane Roy, Elizabeth A. Hunt, Pries and Roy, Lafayette, LA, for Defendants/Appellees, Melinda Trahan and Lafayette Parish School Board.
    Antonio Ferachi, Attorney at Law, Baton Rouge, LA, for Defendants/Appellees, Secretary of the Department of Revenue, State of Louisiana.
    Cassie L. Willis, Attorney at Law, Lafayette, LA, for Defendants/Appellees, Lafayette Parish School Board, Sales and Use Tax Division.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   PETERS, J.

_L¡This personal injury litigation arises from an October 18, 2006 vehicle accident which occurred in Duson, Lafayette Parish, Louisiana. The plaintiff, Harold Thi-bodeaux, brought suit against Melinda Trahan and her employer, the Lafayette Parish School Board, to recover damages he sustained in the accident. Following a bench trial, the trial court found that Mr. Thibodeaux has sustained $70,500.00 in general damages and $73,218.41 in past and future medical expenses. The trial court also assigned sixty percent of the fault in causing the accident to Ms. Trahan and assigned the remaining forty percent to Mr. Thibodeaux. For the following reasons, we affirm the trial court’s finding of joint fault in causing the accident, but adjust the percentages of fault, and we amend the general damage award and affirm that award as amended.

DISCUSSION OF THE RECORD

The accident at issue in this litigation occurred in the parking lot of Thib’s Corner Grocery Store (Thib’s Corner) which is located on the northwest corner of Rich-field Road and Fourth Street in Duson, Louisiana. Richfield Road is a two-lane highway running north and south in the vicinity of the accident, and Fourth Street intersects Richfield Road from the west. However, it does not extend through Rich-field Road to the east because a ditch runs generally parallel to the highway on the east side. In fact, all of the connecting streets in the vicinity of the accident intersect Richfield Road from the west and do not extend east of the highway because of the ditch.

On October 18, 2006, Ms. Trahan was on her afternoon bus route transporting children home from school. As she traveled north on Richfield Road, a recreational vehicle (RV) driven by Mr. Thibodeaux and owned by Kayla Duhon | ¡.entered the highway in front of her from Third Street and proceeded north on Richfield Road. However, Mr. Thibodeaux did not continue north on the highway. Instead, after traversing a little over one-half of the block between Third and Fourth Streets, he turned left into the parking lot at Thib’s Grocery. Ms. Trahan, who was approaching the RV from the rear, turned her bus into the parking lot as well and the vehicles collided therein. Mr. Thibodeaux sustained an injury to his right knee in the accident.

With regard to how the accident occurred, the evidence presented to the trial court was externally conflicting and often internally inconsistent. After hearing all of the evidence, the trial court issued oral reasons for judgment recognizing the conflicting nature of the testimony, determining the amount of Mr. Thibodeaux’s damages, and finding both parties at fault in causing the accident. After the ruling was reduced to judgment, Mr. Thibodeaux appealed, asserting that the trial court erred in finding him partially at fault in causing the accident and erred in awarding him inadequate general damages.

OPINION

Mr. Thibodeaux’s suit is a general negligence action under La.Civ.Code art. 2315(A), which provides that “[ejvery act whatever of man that causes damage to another obligates him by whose fault it happened to repair it.” In a general negligence action, the plaintiff is required to prove five separate elements:

(1) the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) the defendant’s substandard conduct was a cause in fact of the plaintiffs injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) the actual damages (the damages element).

La Pac Mfg., Inc. v. TCM Mfg., Inc., 06-748, p. 6 (La.App. 3 Cir. 12/6/06), 944 So.2d 831, 835-36, writ denied, 07-42 (La.3/9/07), 949 So.2d 445 (citation | ^omitted).

Pursuant to the manifest error standard of review, a trial court’s findings of fact will not be set aside in the absence of manifest error or unless they are clearly wrong. Where there is conflict in the testimony, inferences of fact should not be disturbed upon review even though the reviewing court may feel its own evaluations and inferences are reasonable. Resell v. ESCO, 549 So.2d 840 (La.1989); Stobart v. Dep’t. through DOTD, 617 So.2d 880 (La.1993). In order for a reviewing court to reverse a factfinder’s factual determinations, the reviewing court must find that a reasonable factual basis does not exist in the record for the finding and that the record establishes that the finding is clearly wrong or manifestly erroneous. Stobart, 617 So.2d 880.

Apportionment of Fault Issue

Although a number of individuals testified to having seen all or part of the events leading up to the accident, the trial court was left with numerous conflicting versions of how the accident occurred. From the testimony and exhibits presented, the trial court made specific findings of fact upon which it based its determination of fault. In its oral reasons for judgment, the trial court found Mr. Thibodeaux at fault for having “pulled out in front of Ms. Trahan while driving an RV in the rain while she was driving a school bus.” With regards to Ms. Trahan, the trial court concluded that she was at fault because she “should have been a bit more careful when she saw the defendant pull out in front of her.” Specifically, the trial court concluded that she “slammed on her brakes ... and by doing so, [she] began to lose control of the bus.”

About the only thing not in conflict in the testimony presented was the physical layout of the area surrounding the accident scene. Richfield Road intersects three other streets from the west on the south side of its intersection with |4Fourth Street. These are appropriately named Third, Second, and First Streets, and the distance between each of these intersections is approximately 300 feet. Additionally, a railroad crossing traverses Richfield Road immediately to the south of the First Street intersection, although the distance between that crossing and the First Street intersection is not made clear in the record.

Mr. Thibodeaux testified that he came to a complete stop at the Third Street intersection. He admitted seeing the school bus approaching from the south on Rich-field Road, but testified that when he began pulling onto Richfield Road, the school bus was just crossing the railroad tracks, or almost three blocks away. He traveled 165 to 175 feet north on Richfield Road and turned into the Thib’s Corner parking lot. Before making his turn into the parking lot, he came to a complete stop to allow a southbound vehicle on Richfield Road to pass. He testified that before making his turn, he activated his left turn signal and looked behind for oncoming traffic. He testified that he did not see the school bus approaching from the rear and concluded that she had turned on one of the intersecting streets behind him. According to Mr. Thibodeaux, after he entered the parking lot the school bus struck the RV approximately two feet from the back of the camper and continued to move forward along the driver’s side.

At trial, Ms. Trahan testified that when she crossed the railroad tracks, she observed no traffic coming out of the side streets onto Richfield Road. In fact, she testified that she was approximately half way between First and Second Street when she first saw the RV. At that time, it was pulling onto Richfield Road from Third Street. She estimated her speed when she first saw the RV to be twenty to twenty-five miles per hour. According to Ms. Trahan, she engaged her brakes to slow the school bus and then released the brake to avoid losing control of the bus. She testified at trial that at no time did she slam on her brakes or lose control of the Isbus. However, she also acknowledged at trial that in her discovery deposition she stated that she had slammed on her brakes, lost control, and the bus began swerving. According to Ms. Trahan’s trial testimony, she only reapplied her brakes when she began to pass the RV near Thib’s Corner. She did so then because she observed a vehicle coming toward her from the north on Richfield Road. In fact, she testified that she applied her brakes for the purpose of turning into the Thib’s Corner parking lot because she had determined that she did not have adequate time to pass the RV. According to Ms. Trahan, both she and Mr. Thibodeaux pulled into the parking lot at the same time.

Not only did Ms. Trahan’s trial testimony conflict with various statements made in her discovery deposition, but it conflicted significantly with the statement she gave the investigative officers immediately after the accident. In fact, the trial court relied on this statement in its oral reasons for judgment as the best explanation as to “how the accident occurred.” In that initial statement, Ms. Trahan asserted the following:

I was driving my children home after school on S[outh] Richfield when a camper pulled out directly in the front of me. I never saw him stopped at the stop sign. I just saw him pull out and immediately come to a stop to turn into the store on the left. I swerved left to avoid hitting him from behind after seeing there was no on coming [sic] traffic. He turned into the parking lot at the same time and hit my bus with his rear-view mirror. We collided in a parking lot and no injuries were incurred.

Other lay witnesses on the issue of fault included Stephen M. Leger, the driver of a vehicle traveling north on Richfield Road behind the school bus; Michael Benoit, a Thib’s Corner customer; Marsha Hale, a passenger on Ms. Trahan’s bus; Perry Alleman, a pedestrian on Third Street; and Officer Gerald Credeur, the law enforcement officer who investigated the accident. The testimony of these witnesses did not resolve the factual conflicts.

|,;Mr. Leger testified that he turned onto Richfield Road from First Street after the school bus had traversed both the railroad track and the First Street intersection. As he traveled north behind the school bus, he observed that Mr. Thibodeaux had activated the RVs left turn signal. According to Mr. Leger, the RV turned into the parking lot first and was more than one-half into the lot when the school bus began its turn. He testified that he observed the school bus strike the back portion of the RV. Although he was directly behind Ms. Trahan’s school bus, he never saw her engage her brakes. However, despite the fact that it was a generally accepted fact that the accident occurred during a rain event, Mr. Leger did not recall that it was raining at the time.

Mr. Benoit observed the accident from inside Thib’s Corner. According to Mr. Benoit, the school bus and the RV entered the parking lot at almost the same time with the RV being slightly ahead. He saw the RV come to a complete stop, and only heard the impact thereafter. Additionally, he acknowledged that his vision of the entire scene was impaired by the internal structure of the store.

Immediately after the accident, Ms. Hale gave a written statement to Officer Credeur to the effect that she was attempting to assist a student secure his seat belt and saw nothing until “[Ms. Trahan] pulled to avoid the accident & the camper kept coming & collided with her.” At trial, she testified that she looked forward as the school bus traversed the railroad tracks and observed the RV at the Third Street intersection. However, she did not see it pull onto Richfield Road. Instead, she suggested that after the bus passed over the railroad track, she began working with the student’s seat belt and saw nothing until Ms. Trahan “evidently said something” to cause her to look up. When she looked up, she saw the RV pulling out in front of the school bus. However, in her discovery deposition she testified that she did not see the RV until Ms. Trahan swerved to enter the parking lot, and, 17at that point, the RV was immediately in front of the school bus. In her deposition and at trial, she testified that the school bus did not swerve before the turn into the parking lot and that Ms. Trahan never slammed on her brakes. At the same time, she testified at trial that she might not have noticed the school bus swerving earlier because she was so involved with the children on the bus. With regard to the sequence of arrival in the parking lot, Ms. Hale testified that both vehicles arrived at almost the same time with the school bus being slightly ahead. She testified that the RVs mirror hit the school bus.

Mr. Alleman testified that he was standing in front of his house on Third Street when he observed Mr. Thibodeaux’s RV approach the street’s intersection with Richfield Road. According to Mr. Allman, Mr. Thibodeaux did not come to a complete stop before entering onto Richfield Road. However, Mr. Alleman also had difficulty with the weather conditions on the day of the accident in that he had previously testified in his discovery deposition that the weather was dry at the time of the accident. Additionally, he acknowledged at trial that he had previously lived with Ms. Duhon, the owner of the RV.

Officer Credeur’s testimony was to the effect that had the road surface been dry and if Ms. Trahan was between First and Second Streets as she attested, there was no question in his mind but that she should have been able to stop before striking the RV after it turned onto Richfield Road. He had no opinion concerning the effect of the wet conditions he encountered on that day. He did testify, however, that Ms. Trahan did not tell him on the day of the accident that her vehicle had swerved before the collision, nor did she tell him that she had attempted a passing maneuver.

Each side in the litigation offered the testimony of an accident reconstruction expert. Vernon Tekell, Jr., the owner and principal engineer for Dean Tekell | ^Consulting, L.L.C. from Lafayette, Louisiana, testified for Mr. Thibodeaux. Based on the physical layout of the area surrounding the accident scene and assuming the appropriate reaction times and drag coefficient, Mr. Tekell concluded that either Ms. Trahan was traveling faster than twenty to twenty-five miles per hour or she was distracted by something. Otherwise, according to Mr. Tekell, she would have more than enough time to engage her brakes in a normal manner and stop the school bus before striking the RV.

The defendant’s expert, Mike Jones, Jr., the president of Stress Dynamics, Inc. and a retired professor emeritus in civil engineering from Texas A & M University, College Station, Texas, agreed with Mr. Tekell’s conclusion with regard to Ms. Tra-han’s ability to stop before striking Mr. Thibodeaux’s RV from the rear. In fact, Mr. Jones acknowledged that had the highway been frozen rather than simply wet, Ms. Trahan would still have had adequate time to stop. Despite his agreement with Mr. Tekell’s opinion concerning Ms. Trahan’s ability to stop behind the RV, Mr. Jones still opined that the accident was caused totally by Mr. Thibodeaux’s fault. He reached this conclusion by assuming that Ms. Trahan had entered the parking lot before the oncoming southbound vehicle passed Thib’s Corner, and that Mr. Thibodeaux entered after the southbound vehicle had passed.

With regard to the statutory duty imposed on Ms. Trahan in approaching a vehicle from the rear, La.R.S. 32:81(A) provides that “[t]he driver of a motor vehicle shall not follow another vehi-de 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.” If a following motorists strikes the forward vehicle from the rear, he or she is presumed to have breached the duty imposed by La.R.S. 32:81(A). Mart v. Hill, 505 So.2d 1120 (La.1987).

[¡A following motorist may, however, rebut the presumption by demonstrating that he or she had his car under control, closely observed the preceding vehicle, and followed at a safe distance under the circumstances, or by proving that the driver of the lead car negligently created a hazard which the following motorist could not reasonably avoid. The following motorist bears the burden of showing he was not negligent.

Menard v. Federated Mut. Ins. Co., 05-85, pp. 3-4 (La.App. 3 Cir. 6/22/05), 906 So.2d 746, 750, writ denied, 05-1925 (La.3/10/06), 925 So.2d 506 (citations omitted).

As previously stated, in its oral reasons for judgment, the trial court concluded that Ms. Trahan “slammed on her brakes ... and by doing so, [she] began to lose control of the bus” as she approached the RV from the rear. Given the eviden-tiary record before us, we find no manifest error in that factual finding. Rosell, 549 So.2d 840; Stobart, 617 So.2d 880. Additionally, the fact witnesses and experts who testified established by a preponderance of the evidence that her action in forcefully applying the brakes was completely unnecessary as she had adequate time to come to a complete stop behind the RV if necessary. That is to say, Ms. Tra-han failed to keep her school bus under control, failed to closely observe the RV in front of her, and failed to maintain a safe distance between her school bus and the RV. Furthermore, nothing in the record supports her argument that Mr. Thibo-deaux negligently created a hazard by pulling out in front of her onto Richfield Road. Thus, Ms. Trahan breached the duty imposed upon her by La.R.S. 32:81(A).

The manner in which the trial court addressed the fault issues precluded it from addressing any negligence that might be imposed on the parties due to their individual actions immediately before and including the actual impact of the two vehicles. Ms. Trahan suggested that she was required to abort her attempt to pass Mr. Thibodeaux and to turn into the parking lot because of an oncoming vehicle in the opposite lane. Assuming this to be true, Ms. Trahan violated the duty imposed | mon her by La.R.S. 32:75 in that she began passing Mr. Thibodeaux at a point where the opposite lane was not “free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of any vehicle approaching from the opposite direction or any vehicle overtaken.” However, this factual scenario is not supported by the bulk of the evidence as almost all of the other witnesses were consistent in stating that both the RV and the school bus entered the parking lot at basically the same time. Mr. Thibodeaux established that more probably than not, he waited for the southbound vehicle to pass and then turned into the parking lot. This is consistent with Ms. Trahan following too close and having to take a last-second evasive maneuver by turning into the parking lot at the same time as Mr. Thibodeaux after the southbound vehicle passed by them. This version of the facts also supports Mr. Thibo-deaux’s assertion that he failed to see Ms. Trahan’s vehicle before he turned into the parking lot. Simply stated, she had entered his “blind spot” on the side of his vehicle.

Given the record before us, we find that Ms. Trahan breached the duties imposed on her as described herein; that those duties were owed to the general public, including Mr. Thibodeaux; and that the breach of these duties was both a cause-in-fact and legal cause of Mr. Thibodeaux’s harm. Thus, we find no error in the trial court’s assessment of fault against Ms. Trahan in causing the accident.

Turning to Mr. Thibodeaux, the trial court’s reasons for judgment establish that the trial court found him at fault because he pulled out in front of an oncoming school bus in the rain. We do not find that this statement alone imposes fault on Mr. Thibodeaux.

Louisiana Revised Statutes 32:123(B) provides in pertinent part that “the driver shall yield the right of way to all vehicles ... which are approaching so | n closely on said highway as to constitute an immediate hazard.” (Emphasis added). In this case, Ms. Trahan was approximately 450 feet from the Third Street intersection when Mr. Thibodeaux entered Richfield Road, and both experts who testified (even her own expert) were of the opinion that 450 feet was more than enough stopping distance under the conditions that existed — even without taking into consideration the uncontested fact that Mr. Thibodeaux had traveled an additional 160 to 170 feet down the highway before impact. Therefore, Mr. Thibodeaux’s action in pulling onto Richfield Road did not constitute an immediate hazard and the trial court erred in assigning him a portion of fault for that reason alone.

However, when we turn to the particulars of the impact in the parking lot, we do find that Mr. Thibodeaux was partially at fault in causing the accident. Louisiana Revised Statutes 32:104(A) provides in pertinent part that “[n]o person shall ... turn a vehicle to enter a private road or driveway ... unless and until such movement can be made with reasonable safety.” In this case, Mr. Thibodeaux testified that he signaled his turn and looked behind for oncoming traffic. However, while he may have looked in his rear view or side mirror before making the left turn, it is clear that he failed to observe what he should have seen — that Ms. Trahan had already begun a passing maneuver before he turned. Thus, he failed to ascertain that the left turn could be made with reasonable safety. Given the record before us, we find that Mr. Thibodeaux breached the duty imposed on him when making a left turn into a private drive; that this duty was owed to the general public, including Ms. Trahan; and that the breach of this duty was both a cause-in-fact and legal cause of the accident. Thus, for different reasons than those asserted by the trial court, we find that Mr. Thibo-deaux should be assessed with some of the fault in causing the accident.

i?In determining fault allocation, the supreme court laid out five factors which might influence the percentage of fault assigned between parties:

(1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties.

Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La.1986).

Considering the findings stated above, we find that the majority of the fault in this instance should be allocated to Ms. Trahan. Although both parties’ fault arose from inadvertence on their part, we find that the majority of the fault should rest with Ms. Trahan as she was in a better position, as the following vehicle, to prevent the accident from happening. This accident would not have occurred had she stopped the bus within the adequate stopping distance existing between her and the RV and had she noticed the oncoming southbound vehicle before attempting to pass the RV. Accordingly, we allocate twenty percent of the fault to Mr. Thibo-deaux and the remaining eighty percent to Ms. Trahan.

Quantum Issue

In his appeal, Mr. Thibodeaux also asserts that the trial court erred in awarding him an inadequate amount for general damages

“General damages are those which may not be fixed with pecuniary exactitude; instead, they ‘involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or life-style which cannot be definitely measured in monetary terms.’ ” Duncan v. Kansas City S. Ry. Co., 00-66, p. 13 (La.10/30/00), 773 So.2d 670, 682, cert. dismissed, 532 U.S. 992, 121 S.Ct. 1651, 149 L.Ed.2d 508 (2001) (quoting Keeth v. Dept. of Pub. Safety & Transp., 618 So.2d 1154, 1160 (La.App. 2 Cir.1993)). In considering whether the award of general damages is excessive, we are guided by the decision in Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994), wherein the supreme court noted that “the discretion vested in the trier of fact is ‘great,’ and even vast, so that an appellate court should rarely disturb an award of general damages.” Under Youn, “[t]he initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the ‘much discretion’ of the trier of fact.” Id. at 1260. Only after the initial inquiry is answered in the affirmative should the appellate court increase or reduce the award. Id.

Jones v. Centerpoint Energy Entex, 11-2, 11-3, pp. 16-17 (La.App. 3 Cir. 5/25/11), 66 So.3d 539, 552.

According to Mr. Thibodeaux, he was still applying the brakes to the RV when the collision occurred in the parking lot. The impact caused his right knee to twist into the steering column of the RV. He did not seek medical treatment immediately after the accident, but by that same evening, the knee had begun to cause him serious pain. He sought medical treatment the day after the accident at a Crowley, Louisiana hospital. According to Mr. Thibodeaux, his knee was swollen and throbbing from pain. The medical team at the hospital took x-rays of the knee, placed it in a brace, and released him to return home.

Mr. Thibodeaux next sought medical treatment from Dr. Thomas J. Montgomery, a Lafayette, Louisiana orthopedic surgeon. Based on the findings from a December 6, 2006 MRI, Dr. Montgomery concluded that Mr. Thibodeaux had sustained a torn anterior cruciate ligament (ACL) and medial meniscus. When physical therapy did not resolve the pain, Dr. Montgomery surgically repaired the torn ACL and meniscus on February 15, 2007. However, Mr. Thibodeaux continued to suffer problems with the knee despite undergoing additional extensive physical therapy. An April 9, 2008 MRI revealed a possible ACL tear, a medial meniscal tear, and moderate chondromalacia. Dr. Montgomery recommended a second surgery, but at trial Mr. Thibodeaux had yet to submit himself to the doctor 114for the surgery. According to Mr. Thibodeaux, he wanted to undergo the surgery, but he had no health insurance and could not afford to pay for the surgery.

Mr. Thibodeaux testified that after the surgery his knee continued to give him significant pain, which he rated as eight on a scale of one to ten. The post-surgery physical therapy gave him some temporary relief, but he continued to experience pain and a popping sensation in the knee. He testified that he has undergone cortisone shots in his knee for relief and that he takes anti-inflammatory medication, uses a rubbing cream, and wears a knee brace.

According to Mr. Thibodeaux, his working ability has been affected by his injury because he is unable to lift as much as previously and he can no longer stoop down while working. His favorite pastime before the accident was riding his motorcycle. He rode almost every weekend and liked attending motorcycle rallies. However, his knee injury has drastically limited that activity and he now finds that he is able to ride his motorcycle no more than once a month.

In its oral reasons, the trial court stated that it was awarding Mr. Thibodeaux $1,500.00 per month for the forty-seven months between the accident and the day of trial, for a total award of $70,500.00 for his pain and suffering. However, this amount only represents an award for Mr. Thibodeaux’s past pain and suffering. Because the trial court accepted as fact that Mr. Thibodeaux will require future surgery by awarding future medical expenses for that surgery, we find that it was error for the trial court not to award him damages for his future pain and suffering.

Based on the supreme court’s holding in Ryan v. Zurich American Insurance Co., 07-2312 (La.7/1/08), 988 So.2d 214, we are only allowed to increase the award to the lowest amount reasonably within the trier of fact’s discretion. “In adjusting the award, we refer to prior awards in similar cases to determine the lowest point of an award within that discretion. Coco v. Winston Indus., Inc., 341 So.2d 332 (La.1976).” Baltazar v. Wolinski, 10-757, p. 14 (La.App. 3 Cir. 12/8/10), 53 So.3d, 591, 600.

In Dawson v. City of Bogalusa, 95-824 (La.App. 1 Cir. 12/15/95), 669 So.2d 451, the first circuit . awarded a plaintiff $110,000.00 in general damages for injuries she sustained after stepping in a pothole. The accident aggravated her degenerative arthritis in her knee, resulted in arthroscopic surgery on that knee to repair a tear in the posterior horn of the knee cartilage, and will require future knee replacement surgery. Plaintiff also suffered a severe ankle sprain, a nerve injury between her toes, permanent partial disability, and depression.

In Stockstill v. C.F Industries, Inc., 94-2072 (La.App. 1 Cir. 12/15/95), 665 So.2d 802, the first circuit affirmed an award of $150,000.00 in pain and suffering to a plaintiff who suffered a torn ACL and a sprained medial collateral ligament, underwent surgical repair of the tear, suffered a thirty-five percent permanent impairment, and will likely require a total knee replacement.

In Trueman v. City of Alexandria, 01-1130 (La.App. 3 Cir. 5/15/02), 818 So.2d 1021, this court increased a general damage award from $50,000.00 to $125,000.00, for a plaintiff who fell after stepping in a water meter box. The plaintiff suffered a medial meniscus tear and an aggravation of his degenerative arthritis. In addition to surgery to repair the meniscus tear, the plaintiff would also require a total knee replacement.

In Jackson v. Cockerham, 05-320 (La.App. 4 Cir. 5/10/06), 931 So.2d 1138, the fourth circuit affirmed a general damage award of $300,000.00 to a plaintiff who suffered a torn meniscus and ACL, underwent arthroscopic surgery, and then a total knee replacement as a result of a bus accident.

After reviewing these awards and the evidence presented at trial, we conclude that the lowest amount that the trial court could have awarded Mr. | ^Thibodeaux for his past, present, and future pain and suffering is $110,000.00. Accordingly, we amend the trial court’s judgment to reflect an award of $110,000.00 in general damages.

DISPOSITION

For the foregoing reasons, we amend the judgment of the trial court to allocate twenty percent fault to Mr. Thibodeaux and eighty percent fault to Ms. Trahan. We further amend the trial court judgment to increase Mr. Thibodeaux’s general damage award for pain and suffering from $70,500.00 to $110,000.00. We assess costs of this appeal to Melinda Trahan and the Lafayette Parish School Board.

AFFIRMED AS AMENDED.

      . It is not disputed that Ms. Trahan was operating within the course and scope of her employment with the Lafayette Parish School Board as a special education bus driver at the time of the accident.


source: Caselaw Access Project

author: COOKS, Judge.

license: Public Domain

text:
    Stanley G. VICKERY v. VENTURE LOGISTICS.
    No. 11-329.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.
    B. Gerald Weeks, Weeks Law Firm, Pineville, LA, for Claimant/Appellant, Stanley G. Vickery.

      Frederic C. Fondren, Law Offices of Frederic C. Fondren, Houma, LA, for Defendant/Appellee, Venture Logistics.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   COOKS, Judge.

| ,In this workers’ compensation case, the sole issue before us is whether the injured workers’ average weekly wage was calculated appropriately under the law. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

In 2008, Stanley Vickery contracted with Venture Logistics to lease his truck and provide trucking services as a hot shot driver. On December 17, 2009, Vickery alleged he stumbled and fell over the entrance at a truck stop where he had stopped to purchase fuel. Vickery contended he suffered injury as a result of the fall and sought medical treatment.

He was subsequently taken off duty on December 18, 2009 through the present date. Venture began paying Vickery temporary total disability (TTD) benefits from December 18, 2009 through the present date based on an average weekly wage (AWW) of $271.66, resulting in weekly benefits in the amount of $180.93. A dispute arose concerning whether Venture’s calculation of $271.66 as Vickery’s AWW was proper under the law.

Vickery filed his claim in the Office of Workers’ Compensation (OWC) on February 17, 2010. Discovery proceeded and a motion for summary judgment on the issue of the determination of Vickery’s AWW was filed by Venture on September 1, 2010. Venture argued that when the truck lease is silent the “industry standard” for the prevailing rate of a driver’s wage will be applied to the total gross receipts to determine the “gross earnings” value to be plugged into the AWW formula. Venture used an “industry standard” of 30% to calculate Vickery’s AWW.

Vickery opposed Venture’s motion contending the AWW can be computed by deducting from the total line haul pay the actual expenditures for capital outlay, | ^maintenance, operational costs, etc. This, Vickery argued, arrives at a true figure without reliance on an arbitrary lower amount, like the “industry standard” relied upon by Venture. Vickery attached to his opposition an affidavit of a similarly situated hot shot truck driver in the area to attest to the fact that Vickery’s figures were consistent for actual expenditures in the industry.

A hearing was held on the motion, and after taking the matter under advisement, the workers’ compensation judge (WCJ) granted summary judgment in favor of Venture, setting Vickery’s AWW at $271.66. The WCJ found there were no genuine issues of material fact as to the formula to be applied or to the figures needed to calculate the formula. The WCJ also found based on the submissions by Venture, the industry standard was the appropriate basis for the calculation of Vickery’s AWW.

Vickery appealed the granting of summary judgment, contending the WCJ improperly calculated the AWW pursuant to La.R.S. 23:1021(12)(d). Specifically, Vick-ery asserts the WCJ erred in finding that his wages were 30% of his gross earnings or line haul pay as determined by the “industry standard” used by Venture.

ANALYSIS

A party is entitled to summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B). The mover bears the initial burden of proof to show that no genuine issue of material fact exists. La. Code Civ.P. art. 966(C)(2). However, if the mover will not bear the burden of proof at trial, it need not negate all essential elements of its opponent’s claim, but it must point out “that there is an absence of factual support for one or more elements essential to the adverse party’s claim.” La.Code Civ.P. art. |S966(C)(2). If the mover meets its initial burden of proof, the burden shifts to the nonmoving party “to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial.” Id.

Appellate courts review motions for summary judgments de novo, asking the same questions the trial court asks to determine whether summary judgment is appropriate. Champagne v. Ward, 03-3211 (La.1/19/05), 893 So.2d 773. This inquiry seeks to determine whether any genuine issue of material fact exists and whether the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). “A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of a legal dispute.” Hines v. Garrett, 04-806, p. 1 (La.6/25/04), 876 So.2d 764, 765.

The facts concerning Vickery’s employment with Venture are not in dispute. The date of the work-related accident was December 17, 2009. The number of days worked in the immediate twenty-six week period was eighty. The amount earned in that twenty-six week period was $23,543.19.

Vickery is a hot shot driver and does not receive hourly, monthly or annual wages. Thus, his wages are classified as “other wages” under La.R.S. 23:1021(12)(d), which provides the formula for the calculation of Vickery’s AWW. It provides:

(12) “Wages” means average weekly wage at the time of the accident. The average weekly wage shall be determined as follows:
(d) Other wages. If the employee is employed on a unit, piecework, commission, or other basis, his gross earnings from the employer for the twenty-six week period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said twenty-six week period and multiplied by the average number of days worked per week; however, if such an employee has worked for the employer for less than a twenty-six week period immediately preceding the accident, his gross earnings from the employer for the period immediately preceding the accident divided by the number of days the employee actually worked for the |4employer during said period and multiplied by the average number of days worked per week.

In situations where the truck lease contract stipulates the specific percentage of gross receipts or pay that will be designated as wages, this percentage is plugged into the formula provided in La.R.S. 23:1021(12)(d) to determine the AWW. However, where the truck lease is silent as to the specific percentage of gross receipts or pay that will be designated as wages, as in this case, Venture argues the industry standard for the prevailing rate of driver wage should be applied to the total gross receipts to determine the “gross earnings” value to be plugged into the AWW formula. Initially, we note the statute provides nothing about applying an industry standard in such situations.

We also find there are genuine issues of material fact which preclude summary adjudication. Specifically, the calculations and assumptions made about Vickery’s earnings and allocations to wages and capital outlay were not established by the submissions of Venture.

The thirty percent “industry standard for wages” is an arbitrary figure, something that Venture itself admitted when it commented on its belief that this figure was “very generous.” Further, by establishing this thirty percent figure as wages, Venture is thus categorizing seventy percent of Vickery’s line haul pay as expenditures or capital outlay. Counsel for Vick-ery points out that Venture is in the trucking business and “can have readily available the true amounts and exact charges which its hot shot drivers will necessarily spend for capital outlay charges, including fuel, maintenance, insurance, procurement and other charges.” Whether, as Vickery argues, Venture chose not to avail itself of this information because it would demonstrate that its arbitrary figure for wages as balanced against expenditures produced a significantly lower AWW than appropriate, we cannot say. That is a matter that must be resolved at trial. It is certainly not appropriate at lñthe summary judgment stage, to use arbitrary figures to establish the AWW, when actual amounts are available. The WCJ erred in finding there were no genuine issues of material fact as to the formula to be applied or to the figures needed to calculate the formula.

DECREE

For the foregoing reasons, the judgment of the trial court granting summary judgment in favor of Venture Logistics is reversed and this matter is remanded to the trial court for further proceedings. All costs of this appeal are assessed against appellee, Venture Logistics.

REVERSED AND REMANDED.


author: DECUIR, Judge.

text:
    ARC INDUSTRIES, L.L.C. v. William H. NUNGESSER. William Nungesser v. Michael B. Moreno, et al.
    Nos. 11-331, 11-332.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.

      George Pivach II, Pivach, Pivach, Hufft, Thriffiley & Nolan, L.L.C., Chasse, LA, for Defendant/Appellant, William H. Nun-gesser.
    Gary Jude Russo, Cade Aaron Evans, Rachel Chance, Jones, Walker, Waechter, Poitevent, Carrére, and Denegre, LLP, Lafayette, LA, for Defendants/Appellees, Dynamic Industries, Inc., Emile Dumesnil, ARC Industries, L.L.C., Michael B. Moreno.
    Timothy Thriffiley, Pivach, Pivach, Hufft, Thriffiley & Nolan, L.L.C., Belle Chasse, LA, for DefendanVAppellant, William H. Nungesser.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   DECUIR, Judge.

|TIn these consolidated cases, William H. Nungesser (Nungesser), appeals a judgment of the trial court granting the peremptory exception of no cause of action filed by defendant, Emile Dumesnil (Du-mesnil).

FACTS

This matter arises out of a disputed consulting agreement between Nungesser and a new company, later designated as Arc Industries, LLC (Arc), whereby Nun-gesser was to provide consulting services to assist with Arc’s fledgling offshore living quarters business. Nungesser alleges that the contract was negotiated by Du-mesnil. However, the letter of intent is signed by Mike Moreno (Moreno) as representative of the new company. Though an actual draft consulting agreement exists, it is not signed by the parties.

On November 11, 2005, in response to a request for payment from Nungesser, a bookkeeping employee of Arc mistakenly issued a payment to Nungesser. Nunges-ser was notified and refused to return the payment insisting that he was owed additional compensation under the consulting agreement. Consequently, on June 16, 2006, Arc filed suit in the Fifteenth Judicial District Court seeking declaratory judgment stating that no contract existed between the parties and demanding a return of the payment. Nungesser answered and filed a reconventional demand against Arc.

On December 18, 2006, Nungesser filed suit in the Twenty-Fifth Judicial District Court, naming Moreno, Dynamic Industries, Inc. (Dynamic), and Dumesnil as defendants. Moreno, Dynamic, and Du-mesnil intervened. Nungesser’s suit was ultimately transferred to the Fifteenth Judicial District Court and consolidated with Arc’s suit. During the process, Nungesser filed supplemental reconven-tional demands against the defendants, including Dumesnil.

|2On December 22, 2009, Arc filed a motion for summary judgment on the claims asserted by Nungesser. The trial court denied the motion.

On October 25, 2010, Dumesnil filed a peremptory exception of no cause of action with respect to the consolidated suits. The trial court granted Dumesnil’s exception dismissing Nungesser’s claims against Dumesnil with prejudice. Nungesser lodged this appeal alleging the trial court erred in granting the exception and in refusing to allow Nungesser to amend his pleadings to state a cause of action.

DISCUSSION

The issue on appeal is whether Nunges-ser’s petition and reconventional demands state a cause of action against Dumesnil, in his individual capacity.

In Ramey v. DeCaire, 03-1299, pp. 7-8 (La.3/19/04), 869 So.2d 114, 118-19, the court discussed the peremptory exception of no cause of action:

A cause of action, when used in the context of the peremptory exception, is defined as the operative facts that give rise to the plaintiffs right to judicially assert the action against the defendant. Everything on Wheels Subaru, Inc. v. Suban South, Inc., 616 So.2d 1234, 1238 (La.1993). The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition, which is done by determining whether the law affords a remedy on the facts alleged in the pleading. Id. at 1235. No evidence may be introduced to support or controvert an exception of no cause of action. La. C.C.P. art. 931. Consequently, the court reviews the petition and accepts well-pleaded allegations of fact as true. Jackson v. State ex rel. Dept. of Corrections, 00-2882, p. 3 (La.5/15/01), 785 So.2d 803, 806; Everything on Wheels Subaru, 616 So.2d at 1235. The issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Montalvo v. Sondes, 93-2813, p. 6 (La.5/23/94), 637 So.2d 127, 131.
Louisiana has chosen a system of fact pleading. La. C.C.P. art. 854 cmt. (a); Montalvo at p. 6, 637 So.2d at 131. Therefore, it is not necessary for a plaintiff to plead the theory of his case in the petition. Kizer v. Lilly, 471 So.2d 716, 719 (La.1985). However, the mere conclusions of the plaintiff unsupported by facts does not set forth a cause of action. Montalvo at p. 6, 637 So.2d at 131.
The burden of demonstrating that the petition states no cause of action is upon the mover. City of New Orleans v. Board of Com’rs of Orleans Levee Dist., 93-0690, p. 28 (La.7/5/94), 640 So.2d 237, 253. In reviewing the judgment of the district court relating to an exception of no cause of action, appellate courts should conduct a de novo review because the exception raises a question of law and the lower court’s |sdecision is based solely on the sufficiency of the petition. Fink v. Bryant, 01-0987, p. 4 (La.11/28/01), 801 So.2d 346, 349; City of New Orleans at p. 28, 640 So.2d at 253. The pertinent question is whether, in the light most favorable to plaintiff and with every doubt resolved in plaintiffs behalf, the petition states any valid cause of action for relief. City of New Orleans at p. 29, 640 So.2d at 253.

We have reviewed Nungesser’s pleadings, and, accepting all of the allegations as true, we find that Nungesser has failed to allege facts sufficient to state a cause of action against Dumesnil in his individual capacity.

Nungesser argues that his petition states a cause of action for conspiracy based on his allegations that Moreno, Du-mesnil, and Dynamic conspired to divert business away from Arc and to Dynamic to avoid paying Nungesser’s commission.

Our colleagues in the fourth circuit recently discussed the cause of action for conspiracy in Crutcher-Tufts Resources, Inc. v. Tufts, 2009-1572, p. 7 (La.App. 4 Cir. 4/28/10), 38 So.3d 987, 991:

Conspiracy by itself is not an actionable claim under Louisiana law. Ross v. Conoco, Inc., 2002-0299 (La.10/15/02), 828 So.2d 546. Instead, it is the “tort which the conspirators agreed to perpetrate and which they actually commit in whole or in part” that constitutes the actionable elements of a claim. Ross, 02-2009 at pp. 7-8, 828 So.2d at 552.
La. C.C. art. 2324 provides: “He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.” In order to recover under a conspiracy theory of liability, a plaintiff must prove that an agreement existed to commit an illegal or tortious act; the act was actually committed and resulted in plaintiffs injury; and there was an agreement as to the intended outcome or result. Butz v. Lynch, 97-2166 (La.App. 1 Cir. 4/8/98), 710 So.2d 1171. Similarly, Thomas v. North 40 Land Development, Inc., 04-0610 (La.App. 4 Cir. 1/26/05), 894 So.2d 1160, held: “To establish a conspiracy, a plaintiff is required to provide evidence of the requisite agreement between the parties ... stated otherwise, the plaintiff is required to establish a meeting of the minds or collusion between the parties for the purpose of committing wrongdoing.”

Nungesser’s pleadings do not contain even the threshold allegation that Dumes-nil entered into any agreement to commit an intentional tort. There were no allegations that an illegal or tortious act was committed that then resulted in the plaintiffs’ alleged injury, or that there was any agreement as to the intended outcome |4or result. As such, we find that Nungesser failed to state a cause of action for conspiracy and we hold that the trial court did not err in granting the exception of no cause of action.

Nungesser also argues that his pleadings state a cause of action for breach of contract against Dumesnil. We disagree. Other than the allegation that Du-mesnil negotiated the alleged consulting agreement on behalf of Arc, there is no allegation that Dumesnil was involved with the contract at all. We find no allegations that would support a cause of action for breach of contract against Dumesnil in his individual capacity.

Nungesser next asserts that his pleadings state a cause of action against Dumesnil for unjust enrichment. Nunges-ser’s pleadings merely allege in a concluso-ry fashion that the defendants collectively were unjustly enriched. This is insufficient to support a cause of action against Dumesnil in his individual capacity.

Finally, Nungesser argues the trial court erred in refusing to allow him to amend his pleadings to state a cause of action. Absent a showing that the trial court committed manifest error or abused its discretion, in refusing to allow an amendment, its decision will not be disturbed on appeal. Eagle Pipe and Supply, Inc. v. Amerada Hess Corp., 09-0298 (La.App. 4 Cir. 2/10/10), 47 So.3d 428, writs granted, 10-2267, 10-2272, 10-2275, 10-2279, 10-2289 (La.2/4/11), 56 So.3d 979, 981, 982. We find no such error in this case.

DECREE

For the foregoing reasons, the judgment of the trial court in these consolidated cases is affirmed. All costs of these proceedings are taxed to appellant, William H. Nungesser.

AFFIRMED.


author: PAINTER, Judge.

text:
    Dwayne OLIVIER v. CITY OF EUNICE.
    No. 11-401.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.

      Kevin L. Camel, Lake Charles, LA, for Plaintiff/Appellant, Dwayne Olivier.
    Jacque B. Pucheu, Jr., Eunice, LA, for Defendant/Appellee, City of Eunice.
    Court composed of JOHN D. SAUNDERS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, Judge.

|! Plaintiff, Dwayne Olivier, appeals the trial court’s judgment rejecting his claim for back due wages, statutory penalties, and attorney’s fees. For the following reasons, we reverse and render in part and affirm in part.

FACTS AND PROCEDURAL HISTORY

The trial court correctly outlined the underlying facts of this case in its written reasons for judgment as follows:

The record reflects that the plaintiff, Dwayne Olivier, began work as a fireman for the City of Eunice on November 18, 1985[,] and continued in that position until he was injured. At the time of injury, plaintiff had achieved the position of fire captain. Subsequently, on October 31, 2005, the City of Eunice established a position of fire inspector and on November 1, 2005, Mr. Olivier began working as the fire inspector at an hourly rate of $13.36 per hour. He continued in the employ of the City in that position until October 16, 2006 when he was again injured and at that time began receiving sick leave pay at the rate of $13.36 per hour. (The hourly rate paid to the inspector.)
On January 2, 2007, the administration of the City of Eunice abolished the position of fire inspector-along with several other positions and the Mayor indicated that he refused to appropriate the funds necessary for said position. As of that date, the plaintiff was reinstated to his former position as a fire captain and continued to receive sick pay but at the lower the rate of $9.78 per hour. (A fire captain’s rate of pay.)
On February 1, 2007, the Municipal Fire and Civil Service Board for the City of Eunice agreed with the Mayor and the City administration and refused to make the fire inspector position a permanent position thereby abolishing the position of fire inspector. The plaintiffs sick leave terminated on October 16, 2007 or fifty-two weeks after he began receiving sick pay in accordance with applicable statute.
On May 16, 2008, Petitioner made a demand for “full pay.” Petitioner contends “full pay” was at the rate of $13.36 per hour. Plaintiffs claims were eventually denied, resulting in the present lawsuit.

The trial court found that full pay as set out in La.R.S. 33:1995, which provides for sick pay for firefighters, “means the pay to which an individual is entitled to receive based upon the position which they occupy.” Further finding |2that the City of Eunice was entitled to abolish the position of fire inspector and return Plaintiff to his former position of fire captain, the court found that Plaintiff received the pay to which he was entitled and was not entitled to additional funds, penalties, or attorney’s fees. Plaintiff appeals.

DISCUSSION

Rate of Sick Pay

Plaintiff asserts that the trial court erred in failing to award him the difference between the sick pay to which he was entitled as a fire captain and that which he was receiving as fire inspector at the time he went on sick leave.

Louisiana Revised Statutes 33:1995 provides that “[e]very fireman in the employ of a municipality, parish or fire protection district to which this Sub-part applies, shall be entitled to full pay during sickness or incapacity not brought about by his own negligence or culpable indiscretion for a period of not less than fifty-two weeks.” We have found no authority which interprets the meaning of “full pay.” Plaintiff argues that this means the full pay to which he was entitled in the position he was holding at the time he became disabled. Defendant notes that the fire inspector position was a temporary one and that Plaintiff was provisionally appointed to that position while it was determined whether the position would become permanent. Defendant cites La.R.S. 33:2556 which states that: “Temporary appointments may be made to positions in the classified service without the appointees acquiring any permanent status therein.” They concede that had Plaintiff been a permanent employee in a classified position, additional protections would have been available to him. However, Defendants argue |sthat Plaintiff had no right or expectation to permanent employment in the fire inspector position since it was a provisional position.

After reviewing the statute, we conclude that the rate at which Plaintiff was entitled to receive sick pay was vested when sick pay became due at the rate of pay then being received by Plaintiff. Defendant argues that this conclusion conflicts with the civil service laws. We have reviewed the statutes cited by Defendants and find nothing in them that would prevent an employee in a temporary position from being entitled to sick pay at the rate of pay he was receiving at the time of injury or when he became ill.

Therefore, we find that the trial court erred in finding that Plaintiffs pay could be cut when the position he had been employed in at the time of his illness was terminated. Accordingly, we reverse the judgment of the trial court in this regard and order payment of the difference between the payment he received after January 2, 2007, and the amount due to him as fire inspector.

Penalties and Attorney’s Fees

Plaintiff asserts that he is entitled to penalties and attorney’s fees under the provisions of La.R.S. 23:632. This court has stated with regard to the penalty provision of La.R.S. 23:632, that:

Our supreme court in Wyatt v. Avoyelles Parish School Board, 01-3180, p. 15 (La.12/4/02), 831 So.2d 906, 916-17, declared:
La. R.S. 23:632 is a penal statute that must be strictly construed and may yield to equitable results. Beard [v. Summit Inst. of Pulmonary Med. & Rehab., Inc.], 97-1784 at p. 7 [(La.3/4/98)], 707 So.2d [1233] at 1236 (citing Bannon v. Techeland Oil Corp., 205 La. 689, 693, 17 So.2d 921 (1944)). This court has previously stated that “a good-faith non-arbitrary defense to liability for unpaid wages, i.e., a reasonable basis for resisting liability” permits a court to decline to impose penalty wages on an employer. Beard, 97-1784, p. 7, 707 So.2d at 1236 (citing Carriere v. Pee Wee’s Equipment Co., 364 So.2d 555, 557 (La.1978)).

Burns v. National Communications, Inc., 08-453, p. 6 (La.App. 3 Cir. 11/26/08), 998 So.2d 330, 334.

After reviewing the record, we find that the City posed a good-faith non-arbitrary defense to liability for the unpaid wages. Therefore, we decline to impose penalty wages.

However, La.R.S. 23:632 states in pertinent part that:

Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.

As the court stated in Jeansonne v. Schmolke, 09-1467, p. 20 (La.App. 4 Cir. 5/19/10), 40 So.3d 347, 363:

Unlike penalty wages, the jurisprudence has not recognized equitable defenses to the award of attorney’s fees in the event that a “well-founded suit” for wages is filed. Beard, supra. A “well-founded suit” is defined as one in which the employee is successful in recovering unpaid wages. Cleary v. LEC Unwired, L.L.C., 00-2532 (La.App. 1 Cir. 12/28/01), 804 So.2d 916. When an employee brings a “well-founded suit,” an award of attorney’s fees is mandatory. Id. Stated otherwise, “[w]hen an employee is forced to file suit to recover his unpaid wages, the award of reasonable attorney’s fees is mandatory pursuant to La. R.S. 23:632.” Buras v. Schultz, 02-0628, p. 3 (La.App. 4 Cir. 9/18/02), 828 So.2d 649, 651.

Therefore, we find that Plaintiff is entitled to an award of attorney’s fees in the amount of $2,500.00.

CONCLUSION

For these reasons, the judgment finding that Plaintiff is not due sick pay at the rate payable to a fire inspector is reversed. We order payment in the amount due to a fire inspector under the provisions of La. R.S. 33:1995. We affirm the trial court’s determination that no penalties are due, but award ^attorney’s fees in the amount of $2,500.00. Costs of this appeal are assessed to Defendant, the City of Eunice.

AFFIRMED IN PART; REVERSED AND RENDERED IN PART.


author: PICKETT, Judge.

text:
    Paul LATIOLAIS v. BELLSOUTH TELECOMMUNICATIONS, INC., et al.
    No. 11-383.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.

      Aaron Wayne Guidry, Porter & Guidry, Lafayette, LA, for Plaintiff/Appellee, Paul Latiolais.
    Eric J. Waltner, Lana G. Duhon, D. Paul Gardner, Jr., Allen & Gooch, Lafayette, LA, for Intervenors/Appellants, The Gray Insurance Company Newpark Drilling Fluids, LLC.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   PICKETT, Judge.

li Employer and its workers’ compensation carrier appeal judgment on their intervention in employee’s third-party suit for damages. For the following reasons, the judgment is reversed in part, affirmed in part, amended, and affirmed as amended; the employee’s request for damages for frivolous appeal is denied.

FACTS

On March 27, 2006, Paul Latiolais was injured in the course and scope of his employment with Newpark Drilling Fluids, LLC when the vehicle he was driving was struck by a vehicle owned by BellSouth Telecommunications, Inc. d/b/a AT & T Louisiana (BellSouth). His injuries rendered him unable to perform his work duties, and Newpark and its workers’ compensation carrier, The Gray Insurance Company, Inc. (Intervenors), paid Mr. La-tiolais indemnity benefits and his medical expenses. Mr. Latiolais filed suit against BellSouth to recover damages he sustained as a result of his injuries. On May 18, 2009, Intervenors filed a Petition for Intervention, seeking to recover the benefits they paid to or on Mr. Latiolais’s behalf.

Mr. Latiolais’s claims were tried before a jury beginning May 12, 2010. On the second day of trial, Mr. Latiolais and In-tervenors introduced into evidence a written stipulation which provided that Inter-venors had paid indemnity benefits to Mr. Latiolais in the amount of $147,456.76 and medical expenses to or on his behalf which totaled $87,168.00. The stipulation further provided that Intervenors were legally subrogated to Mr. Latiolais’s rights to the extent of the amounts they had paid and any additional amounts they would pay in the future.

The jury rendered a verdict in Mr. La-tiolais’s favor. It assessed 80% fault to Bellsouth’s employee and 20% fault to a third party not sued by Mr. Latiolais and awarded Mr. Latiolais damages totaling $802,000.00. A judgment in |2Mr. Latio-lais’s favor which reduced his damage award by 20% was signed June 2, 2010. The judgment also awarded judgment in favor of Intervenors, reimbursing them $187,699.81 paid in workers’ compensation benefits with legal interest from May 18, 2009, less attorney fees owed by Interve-nors to Mr. Latiolais and his attorney fees pursuant to La.R.S. 23:1102-1103.

Thereafter, Intervenors filed a motion to have the amount Mr. Latiolais had to reimburse them fixed at $193,314.80, plus any additional workers’ compensation benefits paid before and after trial with legal interest on the total sum from the date of judicial demand by Mr. Latiolais, less Mr. Latiolais’s attorney fees. The motion also sought a “dollar for dollar credit” against any and all future and post-judgment workers’ compensation benefit obligations in the full amount of the judgment, as provided in La.R.S. 23:1102(B).

After a hearing, the trial court awarded judgment in favor of Mr. Latiolais in the amount of $641,600.00, together with legal interest from March 12, 2007, until paid, and in favor of Intervenors, providing for “reimbursement of $187,699.81 paid in workers’ compensation benefits ... together with legal interest from May 18, 2009, until paid, less attorney’s fees and costs owed” to Mr. Latiolais and his attorneys. The judgment also reduced Interve-nors’ recovery by 32%, representing Mr. Latiolais’s attorney fees, or Moody fees, on the amount recovered for Intervenors, as provided in La.R.S. 23:1102.

Intervenors then filed a Motion for Reconsideration and New Trial in which they reiterated the assertions made in their first motion and further asserted that the trial court’s judgment on the Motion to Fix was contrary to the law and evidence. The trial court denied that Motion. With regard to Intervenors’ request for a new trial on their first motion, the trial court denied their requests: 1) to increase the amount of their reimbursement/recovery claim; 2) for legal interest from the date |sof Mr. Latiolais’s judicial demand, March 12, 2007; and 3) for a dollar for dollar credit against any and all future and post-judgment workers’ compensation medical benefits owed to Mr. Latiolais. Interve-nors’ requests to reduce Mr. Latiolais’s Moody fees and for a dollar for dollar credit against any and all future and post-judgment workers’ compensation indemnity benefit obligations up to $51,000 were also denied.

Intervenors filed a Motion to Appeal the trial court’s judgment and a Notice of Intention to Apply for Writs. The writ application was granted for the limited purpose of consolidating it with this appeal. See Paul Latiolais v. Bellsouth Telecomm., Inc., an unpublished writ bearing docket number CW10-978 (La.App. 3 Cir. 10/4/10). Mr. Latiolais answered the appeal, seeking damages on the basis that the appeal is frivolous with regard to In-tervenors’ claim for judicial interest from the date Mr. Latiolais filed suit, rather than from the date they filed their intervention.

ASSIGNMENTS OF ERROR

Intervenors assign five errors with the trial courts’ judgment:

1. The trial court erred in refusing to include in the lien recovery the monies paid after the effective date of the payment printout attached to the joint stipulation.
2. The trial court erred in holding that the credit only applied against future indemnity benefits and not against future medical expenses, and in limiting the credit to the award of damages classified as loss of earnings by the court.
8. The trial court erred in holding that legal interest on the Intervenors’ recovery runs only from the date that the intervention was filed rather than the date that plaintiffs suit was filed.
4. The trial court erred in holding that Intervenors’ recovery and credit were subject to “Moody fees” of 32% given the actions performed by In-tervenors to assist Plaintiff with his claim.
|45. The trial court erred in denying In-tervenors’ Motion for Reconsideration and New Trial.

DISCUSSION

To the extent that they are obligated to pay Mr. Latiolais workers’ compensation benefits, Intervenors became subro-gated to Mr. Latiolais’s rights against BellSouth. La.R.S. 23:1101-1103. The issues presented for our review by Interve-nors’ appeal concern the trial court’s application of these, and other related laws, to them subrogation rights herein. Appellate courts review a trial court’s conclusion regarding a question of law to determine whether the conclusion is legally correct. Forum for Equality PAC v. McKeithen, 04-2477, 04-2523 (La.1/19/05), 893 So.2d 715. If the conclusions are found to be incorrect, the flawed legal conclusions must be reviewed de novo. Id.

Should Total Lien Amounts be Included in Judgment?

After the hearing on the Motion for Reconsideration and/or New Trial, the trial court denied the Intervenors’ request to increase the amount of their reimbursement from the $187,699.81 stated in their Petition for Intervention to include amounts they paid from the date of the Stipulation until the Judgment was signed. Intervenors contend that their lien for recovery included amounts paid after trial but before judgment was signed and that the judgment should have ordered that they be reimbursed those amounts.

Pursuant to La.R.S. 23:1103(A)(1), “the claim of the employer for the compensation actually paid shall take precedence over that of the injured employee.” Furthermore, in addition to providing the specific amounts paid by Intervenors as of the date of the Stipulation, the Stipulation provided:

By virtue of the unreimbursed payments previously made, to be made between now and the time of trial, and all further payments to be made in the future, [Intervenors] are subrogated legally to the |srights of Paul Latiolais to the extent of the amounts Intervenors have paid to or on behalf of Paul Latio-lais as aforesaid, plus any other amounts of workers’ compensation benefits, including indemnity, vocational rehabilitation, and/or medical expenses (excluding all nurse case management expenses), Intervenors may become obligated to pay to or on behalf of Paul Latiolais in the future.

The trial court’s June 2, 2010 judgment provided for Intervenors to be reimbursed $187,699.81 for workers’ compensation benefits they had paid to Mr. Latiolais. This amount represents the $234,624.76 provided in the Stipulation less 20% for the fault of the unnamed co-tortfeasor. The August 23, 1010 judgment also awarded Intervenors “a dollar for dollar credit against any and all future and post judgment workers’ compensation indemnity benefit obligations.”

Mr. Latiolais contends Intervenors have no right to increase the amount of their reimbursement stated in the June 2, 2010 judgment because they did not introduce evidence of those amounts when the Stipulation was introduced into evidence. Refusing to increase the amount stated in the Stipulation to reflect the actual amounts paid by Intervenors ignores the plain language of the Stipulation and, more importantly, La.R.S. 23:1103(A)(1) that the employer’s claim for the compensation actually paid takes precedence over the injured employee’s claim for damages for damages.

Review of how courts have previously addressed the reimbursement issue exposes the error of Mr. Latiolais’s arguments. In Billeaud v. U.S. Fidelity & Guaranty Co., 349 So.2d 1379 (La.App. 3 Cir.1977), the trial court’s judgment provided as the judgment here provides — for reimbursement of benefits paid through the date of trial. On appeal, this court held, as argued by Intervenors, that an employer/compensation carrier is entitled to reimbursement for all amounts it actually paid to an injured employee as of the date the judgment awarding the employee damages becomes final or is satisfied. To achieve this result, the court | ^revised an earlier judgment to award judgment in favor of the employer/workers’ compensation carrier “in the full sum of the amount [the compensation carrier] has actually paid, or will actually pay prior to the date of the satisfaction of this judgment, to or on behalf of [the employee] as weekly workmen’s compensation benefits and medical expenses (which sum, as of April 22,1976, was $5,981.12).” Id. at 1385. See also Hall v. Hartford Acc. & Indem. Co., 278 So.2d 795 (La.App. 4 Cir.), writ denied, 281 So.2d 753 (La.1973).

In the hearing on Intervenors’ motion to fix the amount of the reimbursement, counsel for Mr. Latiolais stated that Bell-south had paid Mr. Latiolais the damages it owed under the judgment. Accordingly, we amend the judgment to award Interve-nors the full sum of the amounts they have actually paid or will actually pay prior to Mr. Latiolais’s satisfaction of his obligation to reimburse them. If Mr. Latiolais and Intervenors cannot agree on the amount Mr. Latiolais is to reimburse Intervenors, they are instructed to file a motion to have the amount determined by the trial court.

Does the Credit in Favor of Intervenors Apply to Medical Expenses and Indemnity Benefits?

Intervenors’ next assignment of error addresses the extent of its credit for benefits it paid after Bellsouth’s satisfaction of Mr. Latiolais’s judgment. They argue that the trial court erred in holding the credit provided in La.R.S. 23:1103(B) applied only to future indemnity benefits, not to future medical expenses and in limiting the credit to loss of earnings damages. The supreme court recently addressed these arguments in City of DeQuincy v. Henry, 10-70 (La.3/15/11), 62 So.3d 43, where it pointed out that amendments to La.R.S. 23:1102 and La. R.S. 23:1103 specify that the employer’s credit extends to all damages awarded regardless of classification. The court explained:

17According to [the amendment to La. R.S. 23:1102(B) ], an employer is now liable only 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.” The “Chapter” referred to in the amended language is Chapter 10, Workers’ Compensation. The phrase “any benefits under this Chapter,” then, necessarily includes future medical benefits, which are included in “this Chapter,” Chapter 10, Workers’ Compensation. Further, the statute specifically mandates that employers receive a “dollar for dollar credit against the full amount paid in compromise.” La.Rev.Stat. § 23:1102 (emphasis added). Again, the “full amount” paid in compromise would necessarily include any future medical benefits paid in compromise. Likewise, the amendment to Section 23:1103 added a new Paragraph B, which reads:
The claim of the employer shall be satisfied in the manner described above from the first dollar of the judgment without regard to how the damages have been itemized or classified by the judge or jury. Such first dollar satisfaction shall be paid from the entire judgment, regardless of whether the judgment includes compensation for losses other than medical expenses and lost wages.

Id. at 51. The supreme court determined that the changes to Sections 1102(B) and 1103(B) “clearly evidence the intent of the legislature 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 itemized or classified.” Id. Accordingly, the trial court erred in refusing to extend Intervenors’ credit to future medical expenses and the credit provided in La.R.S. 23:1103(B), and this holding is reversed.

When Did Interest Begin to Accrue on Intervenors’ Demands?

The trial court awarded Interve-nors interest on their judgment from the date their Petition for Intervention was filed, but Intervenors contend they are entitled to interest from the date Mr. La-tiolais filed his suit against BellSouth.

| ^Litigants are entitled to interest on their judgment “as prayed for or as provided by law.” La.Code Civ.P. art. 1921. In suits seeking “ex delicto” damages, such as Mr. Latiolais’s suit, legal interest begins to accrue from the date of judicial demand. La.R.S. 13:4203.

Intervenors urge that as subrogees, they “step into [Mr. Latiolais’s] shoes” with regard to his rights against BellSouth; therefore, legal interest began to accrue on their claims from the date he filed suit. Louisiana Civil Code Article 1825 defines subrogation as “the substitution of one person to the rights of another.” The supreme court explained a subrogees’ rights in Barreca v. Cobb, 95-1651, p. 3 (La.2/28/96), 668 So.2d 1129, 1131, stating “the insurer stands in the shoes of the insured and acquires the right to assert the actions and rights of the plaintiff.” See also Copeland Enters., Inc. v. Slidell Mem’l Hosp., 94-2011 (La.6/30/95), 657 So.2d 1292. Intervenors acquired the right to assert Mr. Latiolais’s claims against BellSouth; therefore, they were not entitled to legal interest until they asserted the claims. Accordingly, the trial court did not err in denying Intervenors’ interest on their reimbursements from the date Mr. Latiolais filed suit.

Is the Trial Court’s Calculation of Moody Fees Correct?

Pursuant to La.R.S. 23:1103(0(1), Intervenors are responsible for a share of reasonable legal fees and costs incurred by Mr. Latiolais and his attorney which is “based on the proportionate services of the attorneys which benefitted or augmented the recovery from the third party.” These fees are commonly known as “Moody” Fees. See Moody v. Arabie, 498 So.2d 1081 (La.1986), where the supreme court held that as co-owners of a property right, a cause of action against a |9third-party tortfeasor, the employer and worker are each obligated to contribute proportionately to the maintenance and conservation of the right and set forth the calculation for determining each party’s contribution based on various factors including each party’s proportionate participation in obtaining the recovery.

At the hearing held to determine Inter-venors’ share of attorney fees and costs, counsel for Intervenors noted that they had drafted the Stipulation and asserted that the Stipulation assisted Mr. Latiolais in obtaining an award of $148,000.00 in past medical expenses, as well as some of his general damages. The trial court concluded that, contrary to their arguments, the Intervenors’ involvement in the preparation and presentation of Mr. Latiolais’s claims was limited and warranted Mr. La-tiolais’s counsel being awarded 32% of the amount recovered by Intervenors as a result of the suit. The trial court noted that the itemized information contained in the Stipulation’s outline of indemnity benefits and medical expenses were insufficient to prove Mr. Latiolais’s claims and explained that Mr. Latiolais had to use expert testimony to establish causation and necessity to prove his claims for lost wages, medical expenses, and damages to carry his burden of proof. We have reviewed the record in this light and find no error with the trial court’s conclusion.

Did the Tidal Court err in Denying In-tervenors’ Motion for Reconsideration and for New Trial?

As previously discussed, the trial court erred in some respects when it denied Intervenors’ Motion for Reconsideration and for New Trial, and the issues presented therein have been addressed.

11ft/s Intervenors’ Appeal Frivolous?

Mr. Latiolais answered Interve-nors’ appeal, claiming them appeal is frivolous to the extent that they argued the trial court erred in denying them interest on their judgment from the date Mr. La-tiolais filed suit.

Pursuant to La.Code Civ.P. art. 2164, an appellate court can award damages for frivolous appeal. This provision is penal in nature; therefore, damages will not be awarded unless it appears the appeal was taken merely to delay the proceeding, no serious legal issue was raised, or counsel did not seriously believe in the position taken on appeal. Cooks v. Rodenbeck, 97-1389 (La.App. 3 Cir. 4/29/98), 711 So.2d 444. While we determined Interve-nors’ claim for interest was without merit, we do not find the criteria for frivolous appeal exist, as no case or statute directly on point was cited by either party and no such case or statute was found by this court. Accordingly, Mr. Latiolais’s request is denied.

Disposition

For the reasons set forth above, the judgment on Intervenors’ Motion for Reconsideration and New Trial and Motion to Fix Recovery and Credit is amended to provide:

Intervenors are awarded the full sum of all amounts they have paid or actually pay to Mr. Latiolais prior to his reimbursement to them. If Mr. Latiolais and Intervenors cannot agree on the amount Mr. Latiolais is to reimburse Intervenors, Intervenors are instructed to file a motion to have the amount determined by the trial court.

Additionally, the judgment is reversed to the extent that it limits Intervenors’ recovery for indemnity benefits to $51,000.00 and denies their request for a dollar for dollar credit for any and all future and post-judgment medical expenses. These credits are limited only by the amount of the recovery and Interve-nors’ Moody fees as determined by the trial court.

|nThe trial court’s denial of interest on Intervenors’ recovery from the date Mr. Latiolais filed suit and its calculation of Intervernors’ Moody fees is affirmed. The judgment of the trial court is affirmed in all other respects. Mr. Latiolais’s request for damages for frivolous appeal is denied. Costs of this appeal are divided equally between the parties.

REVERSED IN PART; AFFIRMED IN PART; AMENDED AND AFFIRMED AS AMENDED.


text:
    Paul LATIOLAIS v. BELLSOUTH TELECOMMUNICATIONS, INC., et al.
    No. CW10-978.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.
    Aaron Wayne Guidry, Porter & Guidry, Lafayette, LA, for Plaintiff/Respondent, Paul Latiolais.
    Eric J. Waltner, Lana G. Duhon, D. Paul Gardner, Jr., Allen & Gooch, Lafayette, LA, for Intervenors/Applicants, The Gray Insurance Company, Newpark Drilling Fluids, LLC.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   PICKETT, Judge.

| ¡¡For the reasons discussed in the companion appeal in this consolidated matter, Paul Latiolais v. Bellsouth Telecommunications, Inc., et al., 11-383 (La.App. 3 Cir. 10/5/11), 74 So.3d. 872, the judgment on Intervenors’ Motion for Reconsideration and New Trial and Motion to Fix Recovery and Credit is amended to provide:

Intervenors are awarded the full sum of all amounts they have paid or actually pay to Mr. Latiolais prior to his reimbursement to them. If Mr. Latiolais and Intervenors cannot agree on the amount Mr. Latiolais is to reimburse Intervenors, Intervenors are instructed to file a motion to have the amount determined by the trial court.

Additionally, the judgment is reversed to the extent that it limits Intervenors’ recovery for indemnity benefits to $51,000.00 and denies their request for a dollar for dollar credit for any and all future and post-judgment medical expenses. These credits are limited only by the amount of the recovery and Interve-nors’ Moody fees as determined by the trial court.

The trial court’s denial of interest on Intervenors’ recovery from the date Mr. Latiolais filed suit and its calculation of Intervenors’ Moody fees is affirmed. The judgment of the trial court is affirmed in all other respects. Mr. Latiolais’s request for damages for frivolous appeal is denied. Costs of this appeal are divided equally between the parties.


text:
    Alfred DUPREE, et al. v. LOUISIANA MEDICAL MUTUAL INS. CO., et al.
    No. 11-366.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.
    Marc W. Judice, Michelle R. Judice, Ju-dice & Adley, Lafayette, LA, for Defendant/Appellee, Louisiana Medical Mutual Insurance Company.
    Nelson William Wagar III, Justin M. Chopin, Chopin, Wagar, Richard & Kutcher, LLP, Metairie, LA, for Plaintiffs/Appellants, Alfred Dupree, Sondria Dupree, Brandon Harris.
    Daryl K. Washington, Attorney at Law, Dallas, TX, for Plaintiffs/Appellants, Alfred Dupree, Sondria Dupree, Brandon Harris.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   DECUIR, Judge.

It Sondria and Alfred Dupree and Brandon Harris filed suit against Dr. José Dor-ta and Louisiana Medical Mutual Insurance Company (“LAMMICO”) alleging medical malpractice in the prenatal care and treatment of the Duprees’ daughter, Katie Lynn Dupree, and her unborn child, Kaydon Harris, both now deceased. The petition was dismissed via summary judgment when the trial court ruled that Plaintiffs failed to present evidence sufficient to establish a genuine issue of material fact. A motion for new trial filed by Plaintiffs was denied. Plaintiffs appeal both the summary judgment and the denial of their motion for new trial, and for the following reasons, we reverse.

Twenty-seven-year old Katie Lynn Du-pree became a patient of Dr. Dorta when she was pregnant with her child Kaydon, whose father is Brandon Harris. On January 9, 2009, Dupree went to the Emergency Room of Opelousas General Hospital with complaints of facial edema, vomiting, and headaches. She was found to have elevated blood pressure and was told to stop working and decrease her activities. On January 26, at thirty-six weeks gestation, Dupree again presented with elevated blood pressure and other symptoms suggestive of gestational hypertension or preeclampsia. Dr. Dorta did not intervene medically nor did he propose an early delivery of the baby. Dupree was again sent home with no medical intervention in place other than bed rest. Two days later, Dupree was found face down and unresponsive by her father. Her baby was stillborn the following day. Dupree was then taken off life support and died after donating her organs.

Plaintiffs filed a request for review by a Medical Review Panel on June 25, 2009. Eleven months later, on May 12, 2010, the panel rendered its opinion finding no malpractice on the part of Dr. Dorta. Plaintiffs then filed suit on May |¾28, 2010 against Dr. Dorta and his insurer, LAM-MICO. Defendants filed numerous exceptions. Dr. Dorta, who has other malpractice claims pending against him and no longer practices medicine, was soon dismissed from the case due to his discharge in bankruptcy. Plaintiffs sought to compel LAMMICO to comply with discovery requests and moved for sanctions and a protective order. Plaintiffs then requested a status conference to schedule deadlines and a trial date. Immediately after the scheduling order was issued, on November 9, 2010, LAMMICO moved for summary judgment. A hearing on the motion was held on December 10, 2010; the court ruled from the bench in favor of LAMMI-CO based on the plaintiffs’ failure to submit an affidavit from an expert showing a genuine issue of material fact sufficient to defeat summary judgment.

At the hearing, plaintiffs’ counsel argued that he declined to submit an expert’s affidavit because he was relying on the scheduling order which provided for expert reports to be exchanged several months in the future. Although counsel acknowledged that he had consulted an expert, he denied having retained one for trial purposes. The trial court found this argument disingenuous and considered counsel’s argument to be a risky strategy that had failed. Plaintiffs’ counsel then requested a ten-day extension of time in order to submit expert evidence. The trial court held: “[T]he plaintiffs need to provide the testimony, either by reports or affidavits or depositions of an expert, that raises the material issue that they will be able to carry their burden of proof. That’s not done in this matter.”

Two weeks later, on December 28, 2010, plaintiffs filed a motion for new trial and attached as an exhibit an affidavit from Dr. James Tappan, a board certified physician specializing in obstetrics and gynecology whose credentials as an expert are undisputed. LAMMICO opposed the motion for new trial and moved |sto strike the affidavit. A hearing was held, and the trial court denied the plaintiffs’ motion and found LAMMICO’s motion to strike moot. This appeal followed.

Article 967(B) of the Louisiana Code of Civil Procedure provides that when a motion for summary judgment is made and supported by competent evidence, “an adverse party may not rest on the mere allegations or denials of his pleading,” but his response must set forth specific facts showing that there is a genuine issue for trial. The provision further states, “If he does not so respond, summary judgment, if appropriate, shall be rendered against him.” Id.

The plaintiffs burden of proof in a medical malpractice action is three-fold. He must present evidence establishing the applicable standard of care, a breach of the standard of care, and a causal connection between the breach and the injury. La. R.S. 9:2794; Pfiffner v. Correa, 94-0924, 94-0963, 94-0992 (La.10/17/94), 643 So.2d 1228; Weeks v. Brown, 01-00495 (La.App. 3 Cir. 10/3/01), 796 So.2d 839. Ordinarily, for a plaintiff to meet his burden of proof, the “ ‘opinions of expert witnesses who are members of the medical profession and who are qualified to testify on the subject are necessary to determine whether or not physicians possessed the requisite degree of knowledge or skill, or failed to exercise reasonable care and diligence.’ ” Venable v. Dr. X, 95-1634, p. 4 (La.App. 3 Cir. 4/3/96), 671 So.2d 1249, 1252 (quoting Richoux v. Tulane Med. Ctr., 617 So.2d 13, 16 (La.App. 4 Cir.1993)).

Article 1973 of the Louisiana Code of Civil Procedure provides that a “new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law.” After reviewing the record before us, we find good and valid reasons for a new trial, and we believe the trial court abused its discretion in denying the motion for new trial in this case.

|4First, the time line in the case shows a very fast-moving litigation; not at all slowed or delayed by any action of the plaintiffs or their counsel. Suit was filed immediately after the Review Panel’s decision. A scheduling order was requested early so that all parties would be working quickly towards a final resolution. Plaintiffs did not request continuances or extensions of time. Plaintiffs moved ahead with discovery and urged the defendants’ prompt participation. In fact, if the record shows any delay, it was due to the filings of LAMMICO in countless pretrial pleadings.

Second, we address the trial court’s finding that plaintiffs’ reliance on the scheduling order was simply a misplaced strategic move by their counsel. It is clear from the transcript of the summary judgment hearing that plaintiffs’ counsel sincerely believed the scheduling order was pre-emp-tive of the summary judgment evidentiary burden. This belief was buttressed by LAMMICO’s apparent reticence in producing an expert for discovery. Counsel initially pointed out that LAMMICO likewise failed to produce an expert in its reliance solely on the Review Panel’s decision and its discovery response that its expert would be a member of the panel. LAMMICO would not give plaintiffs the name of one expert they could depose; rather, plaintiffs were put in the position of having to depose all three members of the panel in order to provide an expert with their findings. It is clear to this court that neither side in this contentious litigation was ready and willing to disclose preliminary information on potential experts at the time of the summary judgment hearing.

Third, in support of them motion for new trial, plaintiffs submitted an affidavit of an expert wherein three specific acts of medical negligence are described: failure to diagnose, failure to warn, and failure to timely deliver the baby. In fact, the expert’s opinion that “Dr. Dorta failed to warn Ms. Dupree | ¿and/or her family of her condition and what to look for with respect to further symptoms” is diametrically opposed to the Medical Review Panel’s finding that “we are sure a lengthy discussion ensued.” The juxtaposition of these two statements presents without question a genuine issue of material fact. The trial court, however, ruled on the motion for new trial without reference to the affidavit, choosing to rely instead on the fact that plaintiffs failed to take advantage of their one opportunity to present evidence.

A trial court is imbued with great discretion in both pre-trial and post-trial matters. A trial court’s discretion regarding motions for new trial is embodied in both the title and text of La.Code Civ.P. art. 1973. Similarly, a trial court’s discretion to give additional time for the filing of affidavits in opposition to a motion for summary judgment is referenced as “good cause” in La.Code Civ.P. art. 966(B). While Louisiana jurisprudence generally upholds a trial court’s decision to exclude late-filed affidavits, the case law is rife with language describing the discretionary nature of the trial court’s ruling. In Higginbotham v. Rapides Foundation, 07-538, p. 7 (La.App. 3 Cir. 10/31/07), 968 So.2d 1226, 1231, this court held: “Given the facts, the law, and Plaintiffs’ lack of due diligence, we find no abuse of discretion by the trial court in excluding Plaintiffs’ opposition.”

Conversely, in the instant case, the facts, the law, and plaintiffs’ prudence and initiative in prosecuting this case, compel a finding of an abuse of discretion by the trial court. The trial court first erred in failing to grant plaintiffs’ request for a ten-day extension of time in which to file an expert affidavit in opposition to the motion for summary judgment. Additionally, the trial court should have relied on La.Code Civ.P. art. 1973 to grant the motion for new trial and accept into evidence the affidavit of Dr. Tappan. Due consideration of the affidavit requires reversal of summary judgment, as we find genuine issues of material fact which must be | f,decided after trial on the merits. Our findings are based on the specific facts of this case. We by no means intend to condone or legitimize the actions of plaintiffs’ counsel in failing to timely file an expert affidavit. We reach our decision herein after careful consideration of the facts, the law, and the procedural record before us. Rare is the case where we find an abuse of the trial court’s great discretion. This instance is indeed one of rarity.

For the above and foregoing reasons, the judgments of the trial court are reversed, and this case is remanded to the trial court for further proceedings. Costs of this appeal are assessed to LAMMICO.

REVERSED AND REMANDED.