author: GUIDRY, Justice.

text:
    Kevin and Corliss STENSON, et al. v. CITY OF OBERLIN and Meyer, Meyer, Lacroix & Hixson, Inc.
    No. 2010-C-0826.
    Supreme Court of Louisiana.
    March 15, 2011.

      Gold, Weems, Bruser, Sues & Rundell, Heather Michelle Mathews, Edward E. Rundell, Alexandria, LA, for Applicant.
    Deshotels, Mouser & Deshotels, Errol David Deshotels, Oberlin, LA, Garrrison, Yount, Forte & Mulcahy, LLC, Randall Craig Mulcahy, New Orleans, FL, Tollef-son Bradley Ball & Mitchell, LLP, John Charles Tollefson, Dallas, TX, Lundy, Lundy, Soileau & South, Rudie Ray Soi-leau, Jr., Lake Charles, LA, for Respondent.
   GUIDRY, Justice.

|,In this matter, the intervening plaintiffs, Silton and Robin Fuselier, seek to relate the date of the filing of their petition back to the date of the timely filing of the original petition against the defendant, Meyer, Meyer, LaCroix & Hixson, Inc. We granted the defendants writ application to resolve a split in the circuits as to whether La.Code Civ. Proc. art. 1153, the so-called relation back doctrine, controls the Fuseli-ers intervening action or whether La.Code Civ. Proc. art. 1067, providing the time limitation exception for incidental demands, governs. For the reasons set forth herein, we find the petition of the intervening plaintiffs was not timely filed under La.Code Civ. Proc. art. 1067, reverse the judgment of the court of appeal, and reinstate the ruling of the trial court sustaining the defendants exception of prescription.

FACTS and PROCEDURAL HISTORY

The relevant facts in this case are not in dispute. The case involves claims brought by a number of residents of the City of Oberlin for property damage and personal injury caused by sewerage overflow;. On October 20, 2003, Robin and Corliss Sten-son filed their original petition (hereinafter, “the Stenson petition”) for damages against the City of Oberlin. On June 1, 2004, several other plaintiffs also filed original petitions for damages. In their petitions, these plaintiffs made allegations of sewerage overflow similar to those contained in the Stenson petition. |2A11 of these petitions were consolidated on September 22, 2004.

On that same date, these consolidated plaintiffs (hereinafter, the Stenson plaintiffs) filed their First Supplemental and Amending Petition for Damages, in which they added Meyer, Meyer, LaCroix & Hix-son, Inc. (hereinafter, MMLH) as a defendant. On March 11, 2005, the Stenson plaintiffs filed their Second Supplemental Petition for recognition of class status. On March 17, 2005, the last defendant, MMLH, was served with the Second Supplemental Petition.

On July 20, 2006, Silton and Robin Fuse-lier, the plaintiffs herein, filed the instant Petition of Intervention. In the petition, the Fuseliers asserted allegations similar to those found in the consolidated petitions of the Stenson plaintiffs. Specifically, the Fuseliers claimed the problems with sewerage and water overflow commenced sometime in the summer and fall of 2003. They contended the City of Oberlin purposefully and knowingly misled and misinformed plaintiffs of the cause for the waste water and raw sewerage in their home.... Additionally, the Fuseliers claimed they continue to experience issues with the backup of waste water and raw sewerage into their home. Finally, they alleged the City of Oberlin contracted with MMLH to design a waste water sewerage treatment plant for the City of Oberlin.

MMLH filed a peremptory exception of prescription in response to the Fuseliers’ petition of intervention. In the exception, MMLH maintained the Fuseliers petition of intervention is an “incidental demand” under La.Code Civ. Proc. art. 1031 and that it was untimely filed pursuant to La. Code Civ. Proc. art. 1067. MMLH argued the Fuseliers’ July 20, 2006 petition was untimely because it Rwas barred by prescription when the main demand, or Second Supplemental Petition of the Sten-son plaintiffs, was filed on March 11, 2005, and, furthermore, was not filed within ninety days of service of the supplemental petition upon MMLH on March 17, 2005. The Fuseliers argued in opposition that the intervention could relate back to the original petition filed by the Stensons under La.Code Civ. Proc. art. 1153 and the factors set forth in Giroir v. South Louisiana Medical Center Div. of Hospitals, 475 So.2d 1040 (La.1985).

After conducting two hearings and inviting post-hearing memoranda, the trial court maintained the defendants exception of prescription and executed a final judgment dismissing with prejudice the Fuseli-ers claims against MMLH, but reserving their claims against any other defendant.

|4The court of appeal reversed the trial courts ruling maintaining the defendants exception of prescription. Stenson v. City of Oberlin, 09-1125 (La.App. 3 Cir. 3/10/10), 32 So.3d 1159. The appellate court looked to whether the Fuseliers claims related back to the original petition brought by the earlier plaintiffs, observing that La.Code Civ. Proc. art. 1153 governed the relation back of a related pleading to an original pleading. The court rejected the defendants reliance on La.Code Civ. Proc. art. 1067, reasoning that Article 1067 contemplates an action that ordinarily may have been subject to prescription and would not otherwise be subject to revival and concluding instead that La.Code Civ. Proc. art. 1153 governs in this case. Id., p. 4 n. 1, 32 So.3d at 1163 n. 1. The appellate court then applied the factors set forth in Giroir to find the Fuseliers petition of intervention asserting virtually identical tort claims against MMLH and the City of Oberlin related back to the date of the original filing by the Stenson plaintiffs. The court of appeal concluded the filing of the original petition by the Stenson plaintiffs had interrupted prescription for the benefit of the Fuseliers intervening suit. Id., p. 6, 32 So.3d at 1163.

DISCUSSION

As outlined below, there has been confusion in the jurisprudence in determining whether La.Code Civ. Proc. art. 1153 or La.Code Civ. Proc. art. 1067 applies to a petition filed by an intervening plaintiff; consequently, we granted the writ application to resolve the apparent split in the circuit courts. Stenson v. City of Oberlin, 10-0826 (La.6/25/10), 38 So.3d 359. After our review of the applicable code articles and jurisprudence, we find the court of appeal erred in applying LajCode- Civ. Proc. art. 1153 to the Fuseliers intervening petition rather than La.Code Civ. Proc. art. 1067.

The defendant asserts the court of appeal erred in finding the Fuseliers petition of intervention is not barred by prescription by application of La.Code Civ. Proc. art. 1153 and the factors set forth in Gir-oir. Instead, the defendant argues, this court should give effect to the clear language of La.Code Civ. Proc. arts. 1067 and 1153, and conclude the Fuseliers intervening petition is governed by La.Code Civ. Proc. art. 1067. Applying Article 1067, the defendant maintains, the Fuseliers intervening petition is untimely because it was filed on July 20, 2006, more than ninety days after service of process was made on MMLH on March 17, 2005.

The Fuseliers make no mention in their brief of Article 1067. Instead, they argue their claims have not prescribed under a theory of contra non valentem. Alternatively, they argue their petition satisfies all of the Giroir factors.

The Jurisprudence

We commence our analysis with a survey of the conflicting decisions applying these articles to intervening petitions. In deciding to apply Article 1153 and the doctrine of relation back, the Third Circuit below relied on Calbert v. Batiste, 09-514 (La.App. 3 Cir. 11/4/09), 23 So.3d 1031. In Calbert, the decedents son from a previous marriage sought to intervene in the wrongful death suit filed by the decedents widow and her son. The Calbert court applied Giroir to find the intervening petition related back to the date of the original filing by the widow. The court held that [the Giroir ] test was originally used to determine whether an amended petition adding or substituting a plaintiff should be allowed to prelate back to the date of the filing of the original petition, but multiple courts have used the same test in considering prescribed intervening suits. 23 So.3d at 1035 (citing Harvill v. Arnold, 34,409 (La.App. 2 Cir. 1/26/01), 777 So.2d 1271; Riddle v. Simmons, 626 So.2d 811 (La.App. 2d Cir.1993), unit denied, 93-2920 (La.4/29/94), 637 So.2d 459).

In Riddle, the Second Circuit found that the timely filing of the main demand interrupted prescription with respect to the challenged intervention. 626 So.2d at 814. The Riddle court noted prescriptive statutes are strictly construed in favor of maintaining rather than barring actions. Id. (citing Taylor v. Liberty Mutual Ins. Co., 579 So.2d 443 (La.1991); Montminy v. Jobe, 600 So.2d 121 (La.App. 2d Cir.1992), writ denied, 604 So.2d 1003 (La.1992)). The Riddle court further noted that consistent with that precept, recent decisions have tended to allow interventions, or claims by or against additional parties, to relate back to the filing of the original demand, so that, in effect, prescription is interrupted. Id. (citing Findley v. City of Baton Rouge, 570 So.2d 1168 (La.1990); Giroir v. South La. Med. Center, 475 So.2d 1040 (La.1985); Allstate Ins. Co. v. Theriot, 376 So.2d 950 (La.1979); Montminy, supra; Smith v. Williams, 535 So.2d 959 (La.App. 2d Cir.1988)). The Riddle court found no merit to having different tests for interventions or amendments and reasoned as follows:

In such cases, no essential protective purpose of the prescriptive statute is violated by permitting post-prescription amendments or interventions that are based on the same factual situations pleaded in the original petition. The prescriptive limitation does not bar these subsequent claims because the defendant, through earlier legal demand on behalf of indicated interests, has received adequate and timely notice that his liability arising out of the factual occurrence is sought to be enforced. The fundamental purpose of prescription is only to afford a defendant security of mind and affairs if no claim is made timely, and to protect against stale claims and the non-preservation of relevant proof. Giroir, supra; Allstate, supra. Notice to a defendant of legal proceedings on a claim interrupts prescription. Montiville v. City of Westwego, 592 So.2d 390 (La.1992); Allstate, supra.

|7626 So.2d at 814.

The Riddle line of reasoning was apparently based in part on the Second Circuit’s appreciation of this courts opinions in Giroir and Allstate v. Theriot. In Allstate v. Theriot, Allstate, a workers’ compensation carrier, timely sued Theriot in tort for additional expenses Allstate had paid to Moore, the actual injured employee. Allstate’s suit was ultimately found to have failed to state a cause of action against the tortfeasor, Theriot. Moore, however, had intervened in the suit after the prescriptive period had run, based on the same accident, the same negligence by the same party, and the same injury. This court found that Allstates timely suit against Theriot, even though it was later dismissed for failing to state a cause of action, had fully apprised Theriot that judicial claim was being made on him for his liability in causing Moore’s injuries and that Moore himself might intervene in the suit. 376 So.2d at 953-54. Therefore, the court concluded, Allstate’s timely suit had interrupted prescription against Theriot in favor of Moore and Moore, though a different person from the original plaintiff, was “closely connected in relationship and identity of interest with the original plaintiff.” 376 So.2d at 954. Although the Allstate v. Theriot court did not mention either Article 1067 or Article 1153, the court reasoned as follows:

The underlying reason why prescription does not bar the subsequent claim in these instances is that the defendant has adequate and -timely notice by legal demand on behalf of indicated interests that liability arising out of the factual occurrence pleaded is sought to be enforced against him. The fundamental purpose of prescription statutes is only to afford a defendant security of mind and affairs if no claim is made timely, and to protect him from stale claims and from the loss or non-preservation of relevant proof. [Nini v. Sanford Brothers, Inc., 276 So.2d 262 (La.1973) ]; James and Hazard, Civil Procedure, Section 5.7 (2d ed.1977); Comment, Developments in the Law: Statutes of Limitation, 63 Harv.L.Rev. 1177, 1185 (1950). None of these basic prescriptive values are offended when a subsequent claimant, closely connected in relationship and interest to the original plaintiff, enters the timely-filed suit to assert a claim based upon the same factual occurrence as that initially pleaded.

| «376 So.2d at 954.

In Giroir, this court applied Article 1153 and allowed an amending petition in a survival action to relate back to the date of a timely filed original petition, when the amending petition added major children as plaintiffs and changed the husbands capacity from administrator of the estate to an individual. As previously noted, the Gir-oir court specified four criteria that must be satisfied in order for an amending petition to relate back to the date of the filing of the original petition. See Note 3, supra.

The Second Circuit in Riddle also relied on several other cases to find the original demand had interrupted prescription for purposes of the subsequent petition of intervention. The court reasoned as follows:

[Njeither the Louisiana Supreme Court nor this court has directly addressed whether the indicated four-part test [of Giroir ] applies to interventions, such as before us. A memorandum decision, Taylor v. Charity Hospital of Louisiana in New Orleans, 476 So.2d 338 (La.1985), merely remanded a matter to the fourth circuit-for consideration of whether an intervention adding a plaintiff related back in light of Giroir, which had been rendered a month earlier. However, the recipient court subsequently never reached the issue, and, instead, dismissed the appeal as untimely. See Taylor v. Charity Hospital of Louisiana in New Orleans, 481 So.2d 1043 (La.App. 4th Cir.1985). The only case directly confronting the question, Duffie v. So. Pacific Transp. Co., 563 So.2d 933 (La.App. 1st Cir.1990), held first that the four-step Giroir inquiry did not apply to an intervention, and then distinguished Allstate on seemingly factual grounds.
At any rate, we fail to appreciate the advantages from continued viability of two different tests. Pursuant to LSA-C.C.P. Art. 1091, a third party may intervene to enforce a right related to, or connected with, the object of the pending action against one or more parties thereto, by joining with the plaintiff in demanding the same or similar relief against the defendant. As indicated by the Comments accompanying that article and the jurisprudence, and contrary to the federal rules, interventions should be liberally allowed. See Banks v. Rattler, 426 So.2d 362 (La.App. 2d Cir.1983); Amoco Prod. Co. v. Columbia Gas Trans. Corp., 455 So.2d 1260 (La.App. 4th Cir.1984), writ denied, 459 So.2d 542, 543 (La.1984). Further, an intervention by a plaintiff under the Louisiana Code of Civil Procedure is quite comparable to adding a party plaintiff by amended petition.
Accordingly, the persistent utilization of different tests in these |ntwo similar situations can well produce conflicting, and thus undesirable, results. Moreover, we may draw from the actions of the supreme court that in both instances the same general principles should govern. See Taylor v. Charity Hospital, supra (remanding an intervention petition for consideration in light of Giroir); Findley, supra (using the “closeness of relationship” and “identity of interests” language from Allstate to explain parts of the Giroir inquiry). Thus, although Giroir is based on LSA-C.C.P. Art. 1153 and concerns amended petitions, we apply its four-step test in determining whether Riddle’s original petition interrupted prescription to the benefit of the present intervention.

Riddle, 626 So.2d at 814-15 (footnotes omitted).

As the Riddle court acknowledged, other circuits have ruled that the prescriptive period for intervening actions is controlled by Article 1067. See Duffie v. So. Pacific Transp. Co., 563 So.2d 933, 935 (La.App. 1st Cir.1990); Moisant v. Dominick, 609 So.2d 261, 263 (La.App. 5th Cir.1992). In Duffie, the mother of the deceased minor child, killed in an automobile/train collision, timely filed her survival and wrongful death actions against the defendants. More than twenty-three months following the accident, the father of the deceased child filed a petition of intervention seeking to join his wrongful death claim and survival action with the mothers original petition. The First Circuit in Duffie declined to apply the Giroir factors to the fathers intervening petition, noting the mother did not ask to amend her claim to add her ex-husband and have it relate back to her timely filed petition. 563 So.2d at 935. Had she done so, the court observed, then Giroir might be applicable. The Duf-fie court did not believe the notice requirement in Giroir would have been satisfied, at any rate, reasoning that the defendant was not required to attempt to track down ex-spouses. The Duffie court distinguished Allstate v. Theriot on the basis that the defendant there had received actual notice of the possibility the injured employee might intervene in the workers compensation carriers suit against the defendant motorist. Id. at 936.

The Fifth Circuit in Moisant addressed whether Article 1067 governed an | mincidental demand asserted in a cross-claim. There, the original suit was filed by the plaintiff, a guest passenger in Mois-ant’s ear, against various defendants, including Moisant. Moisant filed a cross-claim within 90 days of the main claim against the other defendants, who excepted on prescription grounds arguing the prescription issue was governed by Giroir. The Fifth Circuit in Moisant declined to apply Giroir and two earlier decisions from that circuit because those cases had involved amended petitions. 609 So.2d at 263. The appellate court reasoned that Moisant’s cross-claim was a permitted incidental demand and was thus governed by Article 1067. Id. According to the appellate court, Article 1067 allows the filing of an incidental demand after the prescriptive period if that demand was not barred at the time the main demand was filed; whereas, article 1153 relates to the amendment of pleadings in the main demand. Id. The Fifth Circuit in Moisant ultimately found the incidental demand was timely filed.

The Fourth Circuit in Traylor v. Reliance Ins. Co., 98-1379 (La.App. 4 Cir. 7/1/98), 715 So.2d 1253, writ denied, 98-2048 (La.11/6/98), 728 So.2d 392, has also held that Article 1153 applies only to amending petitions. There, the mother of the injured plaintiffs illegitimate daughter sought to intervene in the tort suit filed two years earlier by the plaintiff, his wife, and their son. The appellate court found the petition of intervention was an incidental demand to the original suit and, furthermore, it was barred by prescription because it was not timely filed pursuant to Article 1067, which applies to incidental demands. The Traylor court further found the intervening suit could not be considered an amendment to the principal demand; therefore, it - declined to apply Article 1153 and Giroir. Though it discussed Giroir at length and observed the defendants could not reasonably foresee the possibility of an illegitimate child being added to' the original suit, the Traylor court found Giroir is “limited to ... an amended petition adding an additional party InPlaintiff after the expiration of the prescriptive period.... ” 715 So.2d at 1255. In finding the intervening petition in Tray-lor was not an amendment in substance to the principal demand, the appellate court reasoned: An amendment to a pleading cannot be made unilaterally without the participation of the party or parties to the pleading sought to be amended. The original plaintiffs did not participate in the intervention. Id. at 1256-57.

However, subsequent to its decision in Traylor, a different panel of the Fourth Circuit did apply the Giroir factors to a petition of intervention when it concluded the intervening petition related back to the filing of the original petition. In re: Matranga, 06-0604, 06-0605 (La.App. 4 Cir. 12/20/06), 948 So.2d 261. There, the mother of the deceased child sought to intervene as a co-plaintiff in the fathers medical malpractice action against the health care providers. The intervenor relied on this courts decisions in Allstate v. Theriot and Giroir. The appellate court found that all four of the Giroir factors were satisfied, and distinguished the earlier decision in Traylor as unique to its own set of facts in that the intervenor, who was an alleged illegitimate child, could not have reasonably been foreseen as a party plaintiff in the suit. 948 So.2d at 268. The court held as follows: [P]ost-prescription amendments and interventions in which a person seeks to join or substitute parties will relate back to the original petition, if: (1) the new person has an interest in the original claim pursuant to La. C.C.P. art. 1091; (2) the new person states a cause of action arising out of the same conduct, transaction, or occurrence complained of in the original claim; and (3) the four criteria set forth in Giroir have been satisfied. 948 So.2d at 269. The appellate court found the 1 ^intervening petition was not prescribed and reversed the trial courts ruling maintaining the defendants exception of prescription.

Since our decisions in Giroir and Allstate v. Theriot, more recent decisions also suggest Article 1067 controls intervening petitions, rather than the relation back doctrine of Article 1153 and Giroir. See Moore v. Gencorp, Inc., 633 So.2d 1268 (La.1994); Reggio v. E.T.I., 07-1433 (La.12/12/08), 15 So.3d 951. In Moore, this court considered whether an intervention, which was not barred by prescription at the time the principal action was filed, was timely if filed within ninety days of service of an amended principal demand. In Moore, the mother of decedents three illegitimate children timely filed wrongful death and survival actions in 1987 against the defendant manufacturer of the allegedly defective tire. 633 So.2d at 1269. Over two years later, the plaintiff amended her petition to add the manufacturers insurer. One day later, the decedents wife and other children filed a petition of intervention asserting wrongful death and survival actions. The trial court sustained the defendants exception of prescription. On appeal, the defendants argued Article 1067 was designed only to allow a litigant, who is brought into a lawsuit at the end or very near the end of the prescriptive period, an additional ninety days from service of the main demand to assert an incidental claim. 633 So.2d at 1270. The court of appeal held that Article 1067 did not apply to the intervening wife and affirmed the trial court. This court granted certiorari and reversed.

- This court in Moore first determined the plaintiffs amended principal demand related back to the date of the filing of her original petition pursuant to Article 1153. This court then examined the wife’s petition of intervention in the context of Article 1067, stating:

| isThe language and history of Article 1067 clearly express the legislative aim to include intervention within the meaning of incidental demand as used in that article.
First, always, is the question whether the legislature has directly spoken to the precise question at issue. If the intent of the legislature is clear, that is the end of the matter; for the courts must give effect to the unambiguously expressed intent of the legislature if its application does not lead to absurd consequences. We think intervention is clearly within the intended scope of Article 1067....
Second, the history of Article 1067 indicates the clear legislative intent to include intervention under its aegis as a class of prescribed demand to be granted limited protection from the bar of prescription.

Moore, 633 So.2d at 1270-71 (citations omitted). This court reversed, finding Article 1067 does apply to the wife’s petition of intervention. Because this court found that Article 1067 permitted the filing of the wife’s intervening petition, it expressly declined to address whether the intervening petition could relate back to the filing of the principal demand under Article 1153 and Giroir. 633 So.2d at 1271.

The Code of Civil Procedure Articles

With this jurisprudential backdrop, we turn to the language of the civil procedure articles themselves. “When a law is clear and unambiguous, and its application does not lead to absurd consequences, it shall be applied as written, with no further interpretation made in search of the legislative intent. The starting point for interpretation of any statute is the language of the statute itself.” Cat’s Meow v. City of New Orleans, 98-0601, p. 15 (La.10/20/98), 720 So.2d 1186, 1198 (citations omitted). Given the plain language of the articles, we find the cases deciding to apply Article 1067, rather than Article 1153 and/or the Giroir factors, to incidental demands such as a petition to intervene in the main demand have adopted the correct approach.

Article 1067, entitled When prescribed incidental or third party demand is not barred, provides:

|MAn incidental demand is not barred by prescription or peremption if it was not barred at the time the main demand was filed and is filed within ninety days of date of service of main demand or in the case of a third-party defendant within ninety days from service of process of the third-party demand.

Article 1031, Incidental demands allowed, reads:

A. A demand incidental to the principal demand may be instituted against an adverse party, a co-party, or against a third person.
B. Incidental demands are reconvention, cross-claims, intervention, and the demand against third parties.

Article 1153, Amendment relates back, states:

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.

Article 1067 clearly provides an exception to prescription or preemption for incidental demands. An intervention is an incidental demand, see La.Code Civ. Proc. art. 1031, and thus Article 1067 is the applicable statute governing the exception to prescription or preemption for an intervention. See Moore v. Gencorp, Inc., 633 So.2d at 1269, 1270. Article 1153, by contrast, provides a means for determining when an amendment adding a plaintiff, claim, or defendant relates back to the date of an earlier filed pleading for prescriptive purposes. See Id. at 1270. As the Dujfie and Traylor courts reasoned, Article 1153 allows a plaintiff to amend his petition to add a plaintiff, claim, or defendant, but no code article allows a party or potential party to amend another party’s pleading to do so. In sum, we find that applying Article 1153 and the factors enunciated in Giroir to petitions seeking to intervene in the main demand would expand Article 1153 beyond the scope intended by the legislature. Accordingly, we find the court of appeal below erred in applying Article 1153 and the Giroir factors to the instant petition of the Fuseliers seeking to intervene in the Stenson plaintiffs petition, rather than Article 1067 governing incidental demands such as interventions.

| ir,Applying Article 1067, we find the Fuseliers petition of intervention has prescribed. Even if we assume their petition was not barred by prescription at the time the Stensons filed the original petition, the intervening petition was not filed within 90 days of service on the last defendant, MMLH. Accordingly, the trial court did not err in sustaining the defendants exception of prescription.

CONCLUSION

For the reasons set forth above, we find the court of appeal erred in not applying La.Code Civ. Proc. art. 1067 to determine whether the plaintiffs’ petition of intervention was barred by prescription. Applying that article to the facts of this case, we find the action of the intervening plaintiffs was not timely filed within 90 days of the date of service on the last added defendant. Accordingly, we reverse the judgment of the court of appeal and reinstate the ruling of the trial court sustaining the defendants peremptory exception of prescription. Furthermore, we remand the case to the trial court, which is directed to allow the plaintiffs the opportunity to amend their petition to remove the grounds of the defendant’s peremptory exception of prescription. See La.Code Civ. Proc. art. 934.

REVERSED; DISTRICT COURT JUDGMENT REINSTATED; REMANDED.

      . La.Code Civ. Proc. art. 1031, Incidental demands allowed, provides:
      A. A demand incidental to the principal demand may be instituted against an adverse party, a co-party, or against a third person.
      B. Incidental demands are reconvention, cross-claims, intervention, and the demand against third parties.
      La.Code Civ. Proc. art. 1067, entitled When prescribed incidental or third party demand is not barred, provides:
      An incidental demand is not barred by prescription or peremption if it was not barred at the time the main demand was filed and is filed within ninety days of date of service of main demand or in the case of a third-party defendant within ninety days from service of process of the third-party demand.

      . La.Code Civ. Proc. art. 1153 states:
      When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.

      .In Giroir, this court set forth the factors to consider in applying La.Code Civ. Proc. art. 1153 to the addition or substitution of a plaintiff or claim:
      [A]n amendment adding or substituting a plaintiff should be allowed to relate back if (1) the amended claim arises out of the same conduct, transaction, or occurrence set forth in the original pleading; (2) the defendant either knew or should have known of the existence and involvement of the new plaintiff; (3) the new and the old plaintiffs are sufficiently related so that the added or substituted party is not wholly new or unrelated; (4) the defendant will not be prejudiced in preparing and conducting his defense.

        Giroir, 475 So.2d at 1044 (citations omitted).

      . At the second hearing, the Fuseliers counsel attempted to present the testimony of Robin Fuselier regarding the date the Fuseliers allegedly first became aware of the water and sewerage problem in their home. MMLHs counsel objected and argued the ruling on MMLHs exception of prescription should be made from the face of the pleadings. The Fuseliers counsel apparently agreed. Counsel failed to proffer Mrs. Fuseliers testimony at the hearing. The Fuseliers on appeal assigned as error the trial courts ruling. Because counsel had relied on the face of the pleadings, the appellate court reasoned, the trial court did not abuse its discretion in failing to permit the testimony of Robin Fuse-lier at the hearing. We make no comment on the merits of the trial courts ruling or the court of appeals reasoning.

      . The defendant further argues the Fuseliers intervening petition does not satisfy the Giroir criteria for relation back to the petition of the original Stenson plaintiffs. Particularly, the defendant asserts the Stenson plaintiffs petition did not provide reasonable notice to the defendant of the Fuseliers existence, involvement and potential claims, and the Fuseliers lack the familial or legal relationship with the original plaintiffs as contemplated by Giroir.

      . La. Code Civ. Proc. art 1091, entitled Third Person May Intervene, provides that [a] third person having an interest therein may intervene in a pending action to enforce a right reláted to or connected with the object of the pending action against one or more of the parties thereto by (1) [¡Joining with plaintiff in demanding the same or similar relief against the defendant.

      . In Reggio, this court examined the timeliness of a third-party demand. The court discussed the issue of whether the third party demand was prescribed in the context of Moore and Article 1067 without mention of either Giroir or Article 1153. 15 So.3d at 955-56.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Roland TOUPS, Individually and on Behalf of Thrifty Liquor-15 v. CITY OF SHREVEPORT.
    No. 2010-C-1559.
    Supreme Court of Louisiana.
    March 15, 2011.

      The Malone Law Firm, LLC, Mary Ellen Winchell, Dannye Wayne Malone, Shreveport, for Applicant.
    Ronald J. Miciotto, Lunn, Irion, Salley, Carlisle & Gardner, William Orie Hunter, III, James Alex Mijalis, Shreveport, for Respondent.
   PER CURIAM.

|!At issue in this ease is whether the court of appeal erred in finding the Shreveport City Council acted arbitrarily and capriciously in denying a special exception use for a proposed liquor store. For the reasons that follow, we conclude the Council’s decision was not arbitrary and capricious, and therefore reverse the judgment of the court of appeal.

UNDERLYING FACTS AND PROCEDURAL HISTORY

Roland Toups, individually and on behalf of Thrifty Liquor Store, filed an application with the Shreveport Metropolitan Planning Commission (“MPC”) seeking to change the zoning on a parcel of property on Bert Kouns Industrial Loop from R-A (residence/agriculture districts) to B-3 (community business districts), so he could build a liquor store at the site. The proposed store would sell packaged liquor of both low and high alcoholic content, including beer, wine, bourbon, scotch, whiskey, and vodka. The facility would also have a drive-thru window. Following a public hearing, the MPC voted to recommend approval of the zoning change.

^Additionally, Mr. Toups filed an application with the Zoning Board of Appeals (“ZBA”) to allow a special exception use for the sale of high alcoholic content beverages. The application specifically requested a special exception use for packaged liquor, wine, and beer. The ZBA unanimously approved the application.

Thereafter, the pastor of Calvary Baptist Church, which is located approximately 1500 feet from the proposed liquor store site, appealed the MPC and ZBA decisions to the Shreveport City Council (“Council”). Following a lengthy and well-attended public meeting, the Council voted to overturn both decisions.

Mr. Toups filed a petition in the district court for review of the Council’s action reversing the MPC and ZBA decisions. The City of Shreveport (“City”) answered, asserting the Council’s decisions to reverse the MPC and ZBA rulings were based on due consideration of the public health, safety, and general welfare of the municipality.

After a trial and de novo review, the district court affirmed the Council’s decision denying the special exception use. The district court found the Council’s decision was not arbitrary, capricious, or unreasonable. Although the district court recognized several other businesses in the area had special exception uses to sell beer and wine, it found Mr. Toups’ proposed liquor store would sell such high alcohol content liquor as bourbon, vodka, and rum. Furthermore, the court found Mr. Toups’ store would have a “drive-thru” service, whereby a customer could buy a mixed drink with adhesive tape on the top, and then re-enter traffic near a church and a school. Like the Council, the court also made note of the “vehement” public citizen comments. Accordingly, the district court found the Council’s decision to overturn |sthe ZBA ruling was “articulably consistent with promoting health, safety, morals and for the general welfare of the community,” pursuant to La. R.S. 33:4721 and its jurisprudence.

Mr. Toups appealed the district court’s judgment affirming the Council’s decision to overturn the ZBA decision and deny the special exception use permit. On original hearing, the court of appeal affirmed the district court’s judgment. Subsequently, the court of appeal, in a divided opinion, granted rehearing and held the “Shreveport City Council acted arbitrarily and capriciously in denying the special exception use, and the trial court’s subsequent determination affirming that decision was in error.” Toups v. City of Shreveport, 44,933 (La.App. 2 Cir. 2/10/10), 37 So.3d 406 (on rehearing).

Upon the City’s application, we granted certiorari to determine the correctness of the court of appeal’s judgment. Toups v. City of Shreveport, 10-1559 (La.11/5/10), 50 So.3d 822. The sole issue presented for our consideration is whether the court of appeal erred in finding the Council acted arbitrarily and capriciously in denying plaintiffs special exception use.

DISCUSSION

Because zoning falls under ■ the jurisdiction of the legislature, courts will not interfere with their prerogative unless the action is palpably erroneous and without any substantial relation to the public health, safety, or general welfare. King v. Caddo Parish Commission, 97-1873 (La.10/20/98), 719 So.2d 410. The terms “arbitrary and capricious” mean willful and unreasoning action, absent consideration and in disregard of the facts and circumstances of the case. However, when there is room for two opinions, an action is not arbitrary . or capricious when exercised honestly and |4upon due consideration, even though it may be believed an erroneous conclusion has been reached. Four States Realty Co., Inc. v. City of Baton Rouge, 309 So.2d 659, 664 (La.1974).

Generally, the action of a governmental body is arbitrary and capricious and unreasonable if it bears no relation to the health, safety, or general welfare of the public. King, 97-1873 at pp. 14-15, 719 So.2d at 418; Papa v. City of Shreveport, 27,045 at p. 6 (La.App. 2 Cir. 9/29/95), 661 So.2d 1100, 1103.

A challenge to a zoning decision in Louisiana is a de novo proceeding on the issue of whether the result of the legislation is arbitrary and capricious, and therefore a taking of property without due process of law. Palermo Land Co., Inc. v. Planning Com’n of Calcasieu Parish, 561 So.2d 482, 492 (La.1990). Whether an ordinance bears the requisite relationship to the health, safety, and welfare of the public is a factual question which must be determined from the evidence in-the record. The property owner has the burden to establish by a preponderance of the evidence that the decision by the governmental body to deny the variance has no substantial relationship to public health, safety, morals, or general welfare of the municipality. Id. at 493.

In the instant case, the court of appeal found the Council acted arbitrarily and capriciously in denying the special exception use, because its decision was not supported by objective facts. Specifically, the court found Mr. Toups supported his position with “rational and objective facts,” while the opponents merely submitted unsubstantiated opinions regarding increases of traffic and crime which might occur if the special exception use was granted.

We find the court of appeal’s reasoning would impose a requirement on governmental bodies which departs from our established jurisprudence. In contrast |sto the court of appeal’s conclusion, our jurisprudence has long recognized “expressions of opinion made by citizens to a legislative body serve as a manner by which the legislative body learns the will of the people and determines what benefits the public good.” King, 97-1873 at pp. 16, 719 So.2d at 419 (quoting Four States Realty Co., 309 So.2d at 666).

The approach taken by the court of appeal would necessarily require courts to inquire into the motivations and -wisdom of legislative determinations by concluding only those opinions supported by “rational and objective facts” are worthy of acceptance by the legislator. Such a conclusion has been soundly rejected by our decisions. More than eighty years ago, in State v. Hill, 168 La. 761, 765, 123 So. 317, 318 (1929), we stated:

We are not presently concerned with the motives which prompted the lawmakers to pass the act, nor with the question as to whether the law is a good or bad law, a wise or an unwise law. The principle is so well settled that the Legislature is the sole judge of the wisdom and expediency of a statute, as well as the necessity for its passage, that it scarcely calls for citation of authority.

This fundamental principle has been espoused repeatedly during the review of zoning decisions. “The courts may not assume powers and functions which the law has lodged in other agencies of government relative to the adoption and administration of the zoning laws; in other words, a court may not constitute itself as a zoning commission, or ‘super-zoning* commission, or zoning board.” Meyers v. City of Baton Rouge, 185 So.2d 278, 282 (La.App. 1 Cir.1966) (quoting McQuillin, Law of Municipal Corporations, § 25.278). Courts have recognized it “is not within the province of the appellate court to second guess a zoning decision that appears to have been based on appropriate and well-founded concerns for the public.” 6TSC, Inc. v. Bossier Parish Police Jury, 38,717 (La.App. 2 Cir. 7/14/04), 878 So.2d 880.

Applying these precepts to the case at bar, we find the decision of the Council was reasonably related to promoting the public’s health, safety, and/or general welfare. The opponents to the special exception use raised concerns about the proximity of the store to Calvary Baptist Church and its school, and the ensuing traffic ramifications. The presence of the school in the area suggests it is traveled by many new and inexperienced teenage drivers, who could be placed at increased risk by intoxicated drivers.

We recognize the evidence in the record establishes that three other stores in this same area have special exception uses to sell alcohol. However, these businesses currently have the ability to sell only beer and wine, whereas Mr. Toups’ store would also sell liquors such as bourbon, vodka, and rum. Furthermore, unlike the other stores, the main commodity sold at Mr. Toups’ proposed store is alcohol. Additionally, Mr. Toups’ proposed store would have a “drive-thru” window, where drinks such as frozen daiquiris sealed only by tape could be purchased by a driver who then reenters traffic. The Council could logically assume that these factors, combined with the presence of novice drivers from Calvary Baptist Academy, could increase the likelihood of traffic accidents in the immediate area. Under these circumstances, we cannot say the Council’s decision to deny the special exception use was an arbitrary and capricious decision.

|7The court of appeal also determined the Council violated La. R.S. 26:493, which provides:

Except as limited by the provisions of this Chapter the various subdivisions of the state may regulate but not prohibit, except by referendum vote as provided by Chapter 3 of this Title or by legally authorized zoning laws of municipalities, the business of wholesaling, retailing, and dealing in 'alcoholic beverages. No parish or municipality shall, in the exercise of its police power, regulate the business of selling such beverages more than is necessary for the protection of the public health, morals, safety, and peace, [emphasis added]

In City of De Ridder v. Mangano, 186 La. 129, 134, 171 So. 826, 827 (1936), we reviewed the legislative history of La. R.S. 26:493, and concluded the intent of the legislature was to prevent municipalities from enacting such stringent regulations as to amount to a local prohibition:

The municipal council of De Ridder, therefore, has express authority from the Legislature to adopt ordinances regulating barrooms, provided the regulations are consistent with the Constitution and laws of the state, and do not go further than is necessary to protect the public welfare. Obviously, the purpose of this proviso in the statute is to forbid the governing authorities of a parish or municipality to adopt such a stringent regulation of the retail liquor business as would amount to local prohibition, without a vote of the electors of the parish or municipality. The only question here is whether either of the ordinances in contest goes further in the way of regulating barrooms than is necessary for the welfare of the community — specifically, for the safety, peace or morals of the community.

In the instant case, it is clear the decision of the Council to deny Mr. Toups’ special exception use was not so stringent a regulation as to amount to a local prohibition without a vote of the municipal electors. To the contrary, the Council’s decision was a response to specific concerns raised by citizens concerning potential | ^increases of traffic and crime in the event the special exception use was granted. Such a decision represents a narrowly tailored exercise of the Council’s police powers for the purpose of protecting the public health, morals, safety, and peace.

In summary, we find the Council’s decision to deny Mr. Toups’ request for a special exception use was based on appropriate and well-founded concerns for the public safety, and is not arbitrary or capricious. The court of appeal erred in holding otherwise. Accordingly, the judgment of the court of appeal must be reversed, and the judgment of the district court reinstated.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed. The judgment of the district court is reinstated.

      . The parcel of land is owned by Alex Mijalis, Mary C. Mijalis, and Christopher Demopulos as trustee of Christopher Trust and SSD Trust.

      . The property owners filed a petition of intervention, joining with Mr. Toups in seeking reversal of the City Council's actions. Several churches in the area also sought to intervene, but their interventions were later dismissed.

      . The district court also reversed the Council’s decision denying the rezoning of the property from R-A to B-3. That portion of the district court's ruling has not been appealed, and is not at issue for purposes of this opinion.

      . In addition to the opinions advanced by numerous citizens regarding the increase in crime and traffic, the Council also considered FBI statistics showing approximately 40% of all crimes are committed under the influence of alcohol, and a 2005 National Highway Transportation Safety Administration report showing 39% of traffic fatalities involve alcohol, and 21% of children age 14 and younger, killed in motor vehicle accidents, were involved in alcohol-related crashes.


author: JOHNSON, Justice. VICTORY, J.,

text:
    Robin L. WEGENER, Wife of and Hildrith Wegener, III v. LAFAYETTE INSURANCE COMPANY.
    Nos. 2010-C-0810, 2010-C-0811.
    Supreme Court of Louisiana.
    March 15, 2011.
    Rehearing Denied May 6, 2011.

      Jack Edward Morris, Metairie, Richard Charles Trahant, Shearman-Denenea, John Henry Denenea, Jr., New Orleans, for Applicant (No. 2010-C-0810), Respondent (No. 2010-C-0811).
    Barry & Piccione, Stephen Robert Barry, New Orleans, Kathleen Crowe Marks-bury, for Respondent (No. 2010-C-0810), Applicant (No. 2010-C-0811).
   JOHNSON, Justice.

11 These consolidated writ applications involve Plaintiffs’ claims for property damage to their home following Hurricane Katrina and damages and penalties against their homeowner’s insurer pursuant to La. R.S. 22:658 and La. R.S. 22:122o. We granted the writ applications to review the correctness of the rulings of the lower courts and the correctness of the jury’s verdict. After review of the record and applicable law, we find the trial court’s Jury Instructions and Jury Interrogatories contained legal errors, resulting in the inability of the jury to reach a proper verdict. For the reasons that follow, we vacate the jury’s verdict and the decisions of the lower courts and remand this matter to the trial court for a new trial.

FACTS AND PROCEDURAL HISTORY

Plaintiffs, Hildrith and Robin Wegener, owned and lived with their two young 12daughters in a two-story property located at 20601-03 Old Spanish Trail in the Venetian Isles subdivision in New Orleans, Louisiana. Plaintiffs obtained a homeowner’s insurance policy on the property which was issued by defendant, Lafayette Insurance Company (“Lafayette”). The Lafayette policy provided coverage limits of $229,000 on the dwelling, $22,900 on other structures, $114,500 on personal property (contents), and $45,800 for loss of use (additional living expenses).

On August 29, 2005, plaintiffs’ home was one of thousands that sustained severe damage caused by wind and flooding as a result of Hurricane Katrina. The home was raised approximately four feet on a piers and beam foundation, and it is undisputed that the inside of the house incurred approximately 5½ feet of flood waters. The Wegeners provided Lafayette with a notice of the loss on September 3, 2005. In response, Lafayette assigned the claim to an independent adjustment company, Cunningham-Lindsey US, Inc. Theresa Nelson, an adjuster with Cunningham-Lindsey, inspected the Wegener property on October 19, 2005. On November 14, 2005, Ms. Nelson issued a report and estimate of damage caused by wind, reflecting a total of $24,979.90 for the dwelling and contents. No amount was provided for additional living expenses because Ms. Nelson opined these expenses were incurred due to the civil authority mandated evacuation from the threat of flood, and due to flood penetration throughout the home, neither of which were covered by the Lafayette policy. On November 23, 2005, in accordance with Ms. Nelson’s report, Lafayette issued payments to the Wegeners of $23,888.48 for the dwelling and $1,091.42 for contents. The Wegeners disputed these payments, contending they were inadequate and did not provide for damages to certain other items. Ms. Nelson reinspected the property, resulting in the addition of items to the list of damaged property, including a mattress set in the master bedroom and a canvas awning on the | <¡dock. On January 30, 2006, Lafayette issued supplemental payments to the Wegeners of $658.66 for the dwelling (awning) and $1,039.20 for contents (mattress set).

The Wegeners subsequently hired a structural engineer, Roy M. Carruba, to conduct an inspection of their house. Mr. Carruba issued a report on March 15, 2006, in which he opined that in addition to damage caused by wind driven water infiltration, excessive wind pressures had caused the house to move laterally on its foundation, loosened the primary framing member connections, and damaged the wooden structures. Thus, Mr. Carruba recommended the structure be demolished. The Wegeners forwarded Mr. Carruba’s report to Lafayette on March 22, 2006. In response, Lafayette hired HAAG Engineering Co. to inspect the property to evaluate the damage caused by flooding versus the damage caused by wind. HAAG Engineering inspected the property on April 19, 2006. The HAAG engineers determined that flooding caused nearly all of the first story damage, and further found no structural damage to the house. Based on this report, no further adjustments or payments were made to the Weg-eners by Lafayette.

On September 2, 2005, the Wegeners filed a claim with their flood insurer, State Farm Insurance Company. The State Farm flood policy provided coverage limits of $198,900 for the dwelling and $27,000 for contents. The Statement of Loss prepared by State Farm for the Wegeners’ home shows total damage to the dwelling of $198,900, and damage to contents exceeding the policy limits of $27,000. On November 30, 2005, State Farm paid the Wegeners policy limits for both the dwelling and contents. On October 2, 2007, State Farm also paid the Wegeners an additional $8,330 for Increased Cost of Compliance (ICC) to demolish the structure, for total 1 ¿payments of $234,230.

On June 1, 2007, the Wegeners filed suit against Lafayette, asserting the structure was a total loss and they were entitled to the full amount of their policy limits. The Wegeners also sought payment for additional living expensesfloss of use, mental anguish damages, and statutory penalties and attorney’s fees pursuant to La. R.S. 22:658 and La. R.S. 22:1220.

The Wegeners’ suit against Lafayette was tried by a jury from June 30, 2008, to July 3, 2008. The jury returned a verdict in favor of the Wegeners and awarded an additional $20,000 for damage to the dwelling; an additional $4,000 for damage to contents; and additional living expenses (loss of use) in the amount of $45,800. The jury found that Lafayette violated La. R.S. 22:1220(B)(1) and/or (5), but not La. R.S. 22:658. No award was made for mental anguish/emotional distress damages or |fipenalties under La. R.S. 22:1220(C). Judgment was rendered on the jury verdict on July 22, 2008, awarding the Wegen-ers a total sum of $69,800 plus interest and court costs.

On August 5, 2008, the Wegeners filed a Motion for Judgment Notwithstanding the Verdict or New Trial, arguing the evidence supported an award for emotional distress damages and penalties, and additional wind damage to their dwelling and personal property. Alternatively, the Wegeners sought a new trial on the basis that the jury’s verdict was contrary to the law and evidence.

On October 24, 2008, the trial court granted the motion for JNOV, in part, as to the issue of penalties. The trial court found, pursuant to La. R.S. 22:1220, “the facts and inferences point so strongly and overwhelmingly in favor of plaintiffs that reasonable jurors could not arrive at a contrary verdict, that the defendant’s actions in failing to pay plaintiffs for their additional living expenses within sixty (60) days after receipt of satisfactory proof of loss were arbitrary, capricious and without probable cause.” The court awarded $91,600 in penalties, twice the amount awarded by the jury for additional living expenses.

Lafayette suspensively appealed the trial court’s judgment, seeking review of the jury’s finding that Lafayette violated La. R.S. 22:1220 and the award of $45,8001 Bfor additional living expenses. Lafayette also sought review of the trial court’s exclusion of evidence of the plaintiffs’ flood insurance claim and proceeds and the trial court’s granting of the JNOV and award of $91,600 in penalties. The Wegeners answered the appeal seeking increases in the amounts of damages and penalties, or alternatively a new trial.

The court of appeal affirmed the trial court’s judgment. On the issue of additional living expenses, the court noted evidence was adduced at trial indicating a great deal of the damage to the Wegeners’ property was caused by wind. Thus, the court concluded there was an evidentiary basis for the jury to determine the Wegen-ers were entitled to their additional living expenses. The court also affirmed the jury’s finding that Lafayette violated La. R.S. 22:1220, noting there was evidence demonstrating a misrepresentation of pertinent facts or insurance policy provisions relative- to. coverage under La. R.S. 22:1220(B)(1) and also evidence demonstrating Lafayette was arbitrary and capricious in failing to pay the amount of the claim due to the Wegeners -within sixty days pursuant to La. R.S. 22:1220(B)(5).

The court of appeal found no error in the trial court’s granting of the JNOV, reasoning that penalties should have been awarded because the jury found Lafayette to be in violation of La. R.S. 22:1220. The court also affirmed the penalty of two times the damages sustained, citing Neal Auction Co., Inc. v. Lafayette Insurance Co., 2008-0574 (La.App. 4 Cir. 4/29/09), 13 So.3d 1135 (in which the court awarded penalties of two times the damages sustained).

Additionally, the court of appeal found no error in the trial court’s exclusion of testimony or evidence of the plaintiffs’ flood insurance proceeds. The court relied on Urrate v. Argonaut Great Central Ins. Co., 2004-0256 (La.App. 5 Cir. 8/31/04), 7881 So.2d 787, for the proposition that wind insurance policies and flood insurance policies are complimentary and do not cover the same losses. Therefore, the court concluded that the plaintiffs’ receipt of payments under their flood insurance policy was irrelevant. The court also noted that any probative value of the evidence would be greatly outweighed by unfair prejudice and confusion of the issues.

On the Wegeners’ appeal, the court found no abuse of the trial court’s discretion in refusing to grant the Wegeners a new trial. The court noted that the trial court carefully weighed the evidence before it and applied the law accordingly.

Both Lafayette and the Wegeners filed writ applications in this Court, which we granted.

DISCUSSION

Lafayette raises five assignments of error: the trial court erred in granting the JNOV; the trial court erred in calculating the award of penalties pursuant to La. R.S. 22:1220; the trial court erred in excluding evidence of plaintiffs’ flood insurance claim and payments; the jury erred in awarding damages for additional living expenses; and the jury’s finding that Lafayette violated the provision of La. R.S. 22:1220 was erroneous.

The Wegeners argue they are entitled to a new trial because the jury failed to 1 saward mental anguish and emotional distress damages even though it found Lafayette violated La. R.S. 22:1220. The Wegeners assert the jury was necessarily influenced by an erroneous jury instruction which provided there must be an “intent to aggrieve” the plaintiffs in order to recover damages for emotional distress/mental anguish. The Wegeners argue that the evidence of mental distress was unrefuted, and the jury’s failure to award any damages was erroneous. The Wegeners note the jury’s confusion is further demonstrated by its inconsistent verdict of finding Lafayette violated La. R.S. 22:1220, but not La. R.S. 22:658. The Wegeners claim the jury was confused over the jury instructions which provided that the Wegeners could only be awarded penalties under either statute, but not both. Finally, the Wegeners assert that they are entitled to a new trial on discretionary grounds based on numerous instances of unprofessional conduct by Lafayette.

The Code of Civil Procedure provides for a new trial “when the verdict or judgment appears clearly contrary to the law and the evidence.” La. C.C.P. art. 1972(1). After reviewing the record, we find the Wegeners should have been granted a new trial. We conclude that the Jury Instructions and Jury Interrogatories contained legal errors sufficient to affect the jury’s verdict on the issue of damages and penalties pursuant to La. R.S. 22:1220, and resulted in a verdict that was contrary to the law.

We agree with the Plaintiffs that the Jury Instruction given by the trial court regarding emotional distress/mental anguish damages was erroneous. The following jury instruction was given: “In order to recover for mental anguish there must be evidence of a breach by the insurer and the intent to aggrieve the plaintiffs. Proof of intent may be inferred from the facts regarding the insurer’s actions or other circumstances.” (Emphasis added). This special instruction was proposed by |c|Lafayette, and essentially applies the provisions of La. C.C. art. 1998 to limit the availability of general damages under La. R.S. 22:1220.

The Wegeners contemporaneously objected to this instruction and have raised this issue on appeal. The Wegeners argue their claims for mental anguish and emotional distress damages are not based on La. C.C. art. 1998, but solely on La. R.S. 22:1220. The jury instruction, requiring an “intent to aggrieve the plaintiff’ pursuant to La. C.C. art. 1998, is therefore erroneous and contributed to the erroneous verdict.

Based on its reading of this Court’s decision in Sher v. Lafayette Insurance Co., 2007-2441 (La.4/8/08), 988 So.2d 186, and Veade v. Louisiana Citizens Property Corp., 2008-0251 (La.App. 4 Cir. 6/4/08), 985 So.2d 1275, Lafayette asserts the jury was properly instructed. Lafayette argues that La. C.C. art. 1998 governs the recovery of mental anguish damages in actions arising out of contractual relations, and therefore limits recovery of mental anguish damages for breach of an insurance contract to situations where there is evidence that the insurer intended to aggrieve the plaintiff.

This Court has not directly addressed the interaction of La. C.C. 1998 and La. R.S. 22:1220. In Sher v. Lafayette Insurance Company, supra, this Court discussed mental anguish damages in the context of a suit against an insurer following Hurricane Katrina. In Sher, the plaintiff claimed mental anguish damages pursuant to La. C.C. art. 1998. The trial court refused to give a jury instruction on mental 110anguish damages under La. C.C. art. 1998, but allowed the plaintiff to proffer evidence of mental distress damages. The court of appeal concluded that while the plaintiff had produced evidence of mental anguish, there was no evidence as to the insurer’s actions which demonstrated that it intended to aggrieve the plaintiff. Thus, the court found the plaintiff was not materially or prejudicially affected or deprived of a substantial right. This Court affirmed, stating:

Because plaintiff failed to produce adequate evidence on which the jury could have based an award of mental anguish damages, the court of appeal correctly found that the trial court’s decision to disallow a jury instruction regarding mental anguish damages pursuant to Article 1998 did not effect the outcome of the trial, and therefore, was not error. By means of the same analysis, we conclude that the trial court’s error, if any, in disallowing the proffered evidence to be presented to the jury, and in failing to include a line item for mental anguish on the jury verdict form were harmless, in that there was no legal basis for the jury to have found damages for mental anguish. Under the particular circumstances of this case, we cannot conclude that either the trial court or the court of appeal abused its discretion.

Sher, 988 So.2d at 203. The majority opinion did not discuss the interplay between La. C.C. art. 1998 and La. R.S. 22:1220. However, in dissenting from the majority opinion on this issue, Justice Knoll referred to Orellana v. Louisiana Citizens Property Ins. Corp., 2007-1095 (La.App. 4 Cir. 12/5/07), 972 So.2d 1252, and applied La. C.C. art. 1998 together with La. R.S. 22:1220 to find that bad faith on the part of Lafayette represented a basis for the trial court to instruct the jury on damages for nonpecuniary loss.

In Orellana v. Louisiana Citizens Property Ins. Corp., supra, the trial court awarded plaintiffs damages for mental anguish as a result of the insurer’s bad faith adjustment of their claim. The insurer appealed, arguing the trial court erred in awarding mental anguish damages in contravention of La. C.C. art. 1998. The court of appeal affirmed, noting that La. R.S. 22:1220 clearly allows for the assessment of general and special damages for the insurer’s breach of its duty. Orellana, 972 Soj2d11 at 1256. In her dissent, Judge Love opined that La. C.C. art. 1998 must be read in conjunction with La. R.S. 22:1220, and while La. R.S. 22:1220 permits the award of damages, La. C.C. art. 1998 specifically limits the damages for nonpecuniary losses resulting from contracts for nonpecuniary interests (such as insurance contract). Judge Love noted there was no evidence of the insurer’s intent to aggrieve the plaintiffs as required by Article 1998. Id. at 1257. Judge Can-nizzaro also dissented, finding that Article 1998 dictates the limited circumstances nonpecuniary damages are awarded for breach of contracts. Judge Cannizzaro found that Article 1998 barred plaintiffs’ recovery of mental anguish damages because the record contained no evidence that the insurer intended to aggrieve or cause distress of any nature to the plaintiffs. Id. at 1259.

Other circuit courts have also awarded mental anguish damages when an insurer breaches its duty under La. R.S. 22:1220, with no reference to La. C.C. art. 1998. See Clark v. McNabb, 2004-0005 (La.App. 3 Cir. 5/19/04), 878 So.2d 677, 686; Farber v. American National Property & Casualty Co., 2008-821 (La.App. 3 Cir. 12/10/08), 999 So.2d 328, 337; Lewis v. State Farm, Ins. Co., 41,527 (La.App. 2 Cir. 12/27/06), 946 So.2d 708, 728.

Following Orellana, the Fourth Circuit again addressed this issue in Veade v. Louisiana Citizens Property Corp., supra, in an opinion authored by Judge' Love. Tracking the dissent in Orellana, the court held that although damages for mental anguish are recoverable under La. R.S. 22:1220, La. C.C. art. 1998 limits the award of such damages. Thus, in order to recover for mental anguish, there must be evidence of a breach by the insurer and the intent to aggrieve the plaintiff. Veade, 985 So.2d 12at 1280.

We disagree with the holding in Veade, and find the court’s reliance on La. C.C. art. 1998 to be misplaced. The Wegeners’ claim for mental distress does not arise from a breach of their insurance contract with Lafayette. Rather, their claim is based on Lafayette’s alleged violation of its statutory duty under La. R.S. 22:1220. La. R.S. 22:1220 instructs that an insurer owes a duty of good faith and fair dealing to its insured. This statute sets forth certain prohibited acts, which when knowingly-committed by an insurer, constitutes a breach of this duty. The general and special damages award authorized by the statute is directed at misconduct outside of the scope of an ordinary breach of contract.

This Court has previously recognized that the duties of an insurer under La. R.S. 22:1220 are separate and distinct from its duties under the insurance contract. In Manuel v. Louisiana Sheriff’s Risk Management, 95-0406 (La.11/27/95), 664 So.2d 81, we considered whether La. R.S. 22:1220 could be applied relative to a settlement under an insurance policy where the policy was issued before the statute was enacted, but the conduct which gave rise to the suit occurred after the statute’s effective date. In finding that the statute did not impair the insurance contract, this Court stated:

First, the statute does not speak on a matter that is a subject of the contract, or is specifically addressed in the contract. The statute speaks of an insurer’s obligation to act in good faith toward insured and non-insured claimants and establishes penalties for the commission of certain acts, none of which are covered in the contract. Thus, the subject matter of the statute is unrelated to that of the contract. Additionally, R.S. 22:1220 does not alter or change specific terms of the contract. In relation to this case, the statute speaks to undue delays in the payment of settlements reduced to writing. The duties that it does impose upon insurers are separate and distinct from the duties mentioned in the contract of insurance. These duties apply to the insurer’s obligation not simply to pay, but to promptly pay valid claims under the settlement, with, in this case, the non-insured claimant. Simply put, there is no contractual impairment present. (Emphasis added)

| ^Manuel, 664 So.2d at 84.

The federal Fifth Circuit has considered the application of La. C.C. art. 1998 to claims for mental anguish damages under La. R.S. 22:1220. In Dickerson v. Lexington Ins. Co., 556 F.3d 290 (5th Cir.2009), the plaintiffs filed suit against their insurer for damages to their home following Hurricane Katrina, including a claim for penalties under La. R.S. 22:1220. The insurer argued that La. C.C. art. 1998 barred recovery of mental anguish damages for breach of contract. Noting that Article 1998 provides that such damages are recoverable for breach of contract only if the primary object of the contract is non-peeuniary, or the defendant’s conduct was intended to aggrieve the plaintiff, and neither situation existed in the case, the insurer asserted that the plaintiffs could not recover for mental anguish.

The Fifth Circuit first observed that neither it, nor this Court, had addressed the interaction of La. C.C. art. 1998 and La. R.S. 22:1220. The court noted Louisiana appellate courts, both before and after Sher, have issued mixed opinions regarding the recovery of mental anguish damages under La. R.S. 22:1220, mostly without addressing the applicability of La. C.C. art. 1998. Dickerson, 556 F.3d at 302-303. The court also noted federal district courts in Louisiana had determined La. C.C. art. 1998 does not bar La. R.S. 22:1220 damages for mental anguish under insurance contacts, reasoning that the statute addresses a harm distinct from breach of contract. Id. at 303.

The Fifth Circuit held, as a matter of law, that La. C.C. art. 1998 was inapplicable and does not bar the award of mental anguish damages under .La. R.S. 22:1220 for breaches of the duty of good faith. The court reasoned:

The statute specifically refers to a breach of the duty of good faith; it does not refer to breach of contract. Furthermore, § 22:1220 is broadly worded, explicitly permitting liability for “any damages sustained,” 114including, without limitation, “any general or special 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. By authorizing “any damages,” including “any general or special damages,” the legislature pointedly permitted the award of mental anguish damages. (Internal citations removed)

Dickerson, 556 F.3d at 303-304.

Following our reasoning in Manuel, and the court’s reasoning in Dickerson, we hold that La. C.C. art. 1998 has.no applicability in a claim for emotional distress/mental anguish damages under La. R.S. 22:1220. This result is supported by the plain language of La. R.S. 22:1220. The statute specifically refers to a breach of the duty of good faith and fair dealing, not a breach of the insurance contract. The Wegeners sought mental anguish damages specifically for Lafayette’s actions in failing to timely and fairly adjust their claim. Further, the statute is worded to permit “any general or' special damages” with no limitation or additional requirement other than the breach of duty by the insurer. Thus, we find the trial court’s Jury Instruction relative to mental anguish damages, requiring proof of an intent to aggrieve the plaintiffs before damages could be awarded, contained legal error.,

We also find legal error in the Jury Interrogatories as they relate to penalties under La. R.S. 22:1220. One of Lafayette’s arguments is that the trial court erred in granting a JNOV and awarding the Wegeners penalties under La. R.S. 22:1220. Citing this Court’s decision in Calogero v. Safeway Ins. Co. of Louisiana, 99-1625 (La.1/19/00), 753 So.2d 170, 173, Lafayette argues that penalties under this statute |1Bare clearly discretionary, and thus the award of such penalties is entirely up to the discretion of the fact finder. Lafayette points out that the jury did not award penalties in response to Interrogatory 11, which asked the jury what amount it awarded the Wegeners for Lafayette’s violation of La. R.S. 22:1220. Lafayette states: “Given the facts as presented at trial, the jury did not abuse its discretion in its decision not to award penalties .... The jury’s unanimous decision not to award penalties should be reinstated and the JNOV granted by the trial court reversed.” (Emphasis added).

While we agree with Lafayette that penalties under La. R.S. 22:1220 are discretionary, after review of the Jury Interrogatories we find they were structured in a way which precluded the jury from reaching the issue of whether penalties should be awarded to the Wegeners.

The relevant Interrogatories and responses are set forth in Section III of the Jury Interrogatories, entitled “Claims Handling — Section 22:1220,” as follows:

8. Do you find by a preponderance of the evidence that Lafayette Insurance Company misrepresented pertinent facts of insurance policy provisions relating to any coverages at issue and/or arbitrarily, capriciously, or without probable cause failed to pay the amount due on Mr. and Mrs. Wegener’s homeowner’s claim within sixty days after it received satisfactory proofs of loss?
ANSWER: YES/NO_
If you answered “YES” to question 8, please proceed to question 9. If you answered “NO” to question 8, then skip the remaining questions, date and sign this form, and return to the courtroom.
9. Do you find by a preponderance of the evidence that Mr. and Mrs. Weg-ener suffered mental anguish and emotional distress damages as a result of Lafayette Insurance Company’s misrepresentation of pertinent facts or insurance policy provisions relating to any coverages at issue and/or failure to pay the amount due on Mr. and Mrs. Wegener’s homeowner’s claim within sixty days after it received satisfactory proof of loss?
ANSWER: YES_NO/
lifilf you answered “YES” to question 9, please proceed to question 10.If you answered “NO” to question 9, then skip the remaining questions, date and sign this form, and return to the courtroom
10. What amount of mental anguish and emotional distress damages do you find Mr. and Mrs. Wegener suffered as a result of Lafayette Insurance Company’s misrepresentation of pertinent facts or insurance policy provisions relating to any coverages at issue and/or failure to pay the amount due on Mr. and Mrs. Wegener’s homeowner’s claim within sixty days after it received satisfactory proof of loss?
Hildreth Wegener, III $_
Robin Wegener $_
Total (add Mr. and Mrs. $_
Wegener’s damages)
Please proceed to question 11.
11. What is the amount of penalty, if any, you award to Mr. and Mrs. Weg-ener for Lafayette Insurance Company’s misrepresentation of pertinent facts or insurance policy provisions relating to any coverages at issue and/or failure to pay the amount due on Mr. and Mrs. Wegener’s homeowner’s claim within sixty days after it received satisfactory proof of loss? (This amount may be up to two times the amount of damages determined in question 10, or $5,000, whichever is greater.)
Penalty: $_
Please sign and date the verdict form and return to the courtroom.

Lafayette relies on the responses to support its argument that the jury chose not to award penalties to the Wegeners. However, because of errors in the structure of the Jury Interrogatories, the jury was never given the opportunity to consider an award for penalties.

Interrogatory 9 asks whether the jury finds that the Wegeners suffered mental anguish and emotional distress damages. If the jury answers “YES,” the jury is then instructed to proceed to Interrogatory 10 relative to the amount of such damages, and then instructed to proceed to Interrogatory 11, relative to penalties. However, if the Injury answers “NO,” as it did in this case, the jury is instructed to skip Interrogatories 10 and 11, date and sign the form, and return to the courtroom. Thus, by finding that the Wegeners did not suffer mental anguish and emotional distress damages, the jury was not allowed to consider whether the Wegeners were nonetheless entitled to penalties due to Lafayette’s violation of La. R.S. 22:1220.

In Sultana Coloration v. Jewelers Mutual Ins. Co., 2003-0360 (La.12/3/03), 860 So.2d 1112, this Court considered whether actual damages must be proven before penalties may be assessed under La. R.S. 22:1220. We found there was no such requirement, noting La. R.S. 22:1220(C) recognized that the trial court may award penalties in addition to any general or special damages. We quoted with approval the reasoning set forth in Midland Risk Ins. Co. v. State Farm Mut. Auto. Ins. Co., 93-1611 (La.App. 3 Cir. 9/21/94), 643 So.2d 242, 244:

Penalties are imposed to discourage certain types of conduct by an insurer. The language in Section 1220(C) does not expressly require that a claimant suffer damages before recovering penalties. Moreover, if this requirement was so, the statute’s purpose more often would be thwarted. Claimants may decide not to file claims against insurers if the disputed amount or the damages are not substantial. As an end result, the misconduct which the legislature obviously intended to curb or deter would thrive. Thus, we find if an insurer commits any one of the acts enumerated in Section 1220(B), penalties may be imposed without a showing of damages.

Sultana, 860 So.2d at 1118. We found this interpretation of the statute comported with the “principle that an insurer’s duty of fair dealing emanates from the contractual and fiduciary relationship between the insured and insurer.” Id.

Thus, because penalties are permissive pursuant to La. R.S. 22:1220 even if no damages have been awarded as a result of the breach, the structure of the Jury Interrogatories in this case resulted in legal error.

|18We must now determine whether these legal errors are sufficient to vacate the jury’s verdict. This Court has recognized that an appellate court must exercise great restraint before it reverses a jury verdict because of erroneous jury instructions. Adams v. Rhodia, Inc. 2007-2110 (La.5/21/08), 983 So.2d 798, 804; Nicholas v. Allstate Insurance Company, 1999-2522 (La.8/31/00), 765 So.2d 1017, 1023. However, we have also recognized when a jury is erroneously instructed and the error probably contributed to the verdict, an appellate court must set aside the verdict. Adams, 983 So.2d at 804; Nicholas, 765 So.2d at 1023. This Court has further explained:

In the assessment of an alleged erroneous jury instruction, it is the duty of the reviewing court to assess such impropriety in light of the entire jury charge to determine if they adequately provide the correct principles of law as applied to the issued framed in the pleadings and evidence and whether they adequately guided the jury in its deliberation. Ultimately, the determinative question is whether the jury instructions misled the jury to the extent that it was prevented from dispensing justice. (Internal citations removed).

Id.

In this case, the jury was unable to properly consider and determine whether the Wegeners suffered mental anguish damages because the Jury Instruction required the jury to find a fact beyond what the law requires before awarding such damages. Moreover, the erroneous law given in the Jury Instruction was reiterated to the jury in the closing argument given by Lafayette’s attorney. He stated to the jury: “The judge will instruct you to—in order to recover for mental anguish there must be an intent to aggrieve the plaintiffs. In order to recover for mental anguish, there must be evidence of the breach by the insurer and the intent to aggrieve the plaintiffs.” The jury was also unable to properly consider and determine whether the Wegeners were | ^entitled to penalties under La. R.S. 22:1220 because the structure of the Jury Interrogatories forced the jury to skip this issue in its deliberations. Thus, we find the error contained in the Jury Instruction regarding mental anguish damages, and the erroneous structure of the Jury Interrogatories necessarily misled the jury to the extent that it was prevented from dispensing justice. For this reason, the jury’s verdict cannot stand.

Typically where such legal errors have interdicted the fact finding process, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record. Landry v. Bellanger, 2002-1443 (La.5/20/03), 851 So.2d 943, 954; Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742, 745; Ragas v. Argonaut Southwest Insurance Co., 388 So.2d 707, 708 (La.1980). However, we have also recognized that de novo review is not the best course of action in every case. Ragas, 388 So.2d at 708. This Court explained in Ragas:

This is not to say, and Gonzales should not be read to require, that the appellate court must find its own facts in every such case. There are cases where the weight of the evidence is so nearly equal that a first-hand view of witnesses is essential to a fair resolution of the issues. The appellate court must itself decide whether the record is such that the court can fairly find a preponderance of the evidence from the cold record. Where a view of the witnesses is essential to a fair resolution of conflicting evidence, the case should be remanded for a new trial.

Ragas, 388 So.2d at 708.

The authority for an appellate court to remand a case to the trial court for | gnproper consideration, where it is necessary to reach a just decision and to prevent a miscarriage of justice, is conferred by La. C.C.P. art. 2164. Whether a particular case should be remanded is a matter which is vested largely within the court’s discretion and depends upon the circumstances of the case. See Alex v. Rayne Concrete Service, 2005-1457 (La.1/26/07), 951 So.2d 138, 155.

After considering this standard, we conclude that under the specific facts and circumstances of this case, and the particular legal errors involved, a remand of the case for a new trial is dictated. The issues affected by the legal errors are damages and penalties under La. R.S. 22:1220, primary components of the Weg-eners’ case. Whether the Wegeners suffered mental distress as a result of Lafayette’s adjustment of their insurance claim, and whether the Wegeners are entitled to penalties due to Lafayette’s breach of its duties under this statute are both issues which are affected greatly by the credibility of the plaintiffs and the claims personnel from Lafayette. We find these issues necessarily require the fact finder to examine first-hand the witnesses’ demeanor and testimony. We cannot, by examination of the cold record alone, properly determine the issues involved. Thus, we are convinced that the interest of justice would be best served by remanding this case for a new trial.

Because we are remanding this matter for a new trial, we also address Lafayette’s argument that the trial court improperly excluded evidence of the Wegeners’ flood insurance claim and receipt of flood insurance policy limits. Prior to trial, Lafayette filed a Motion for Partial Summary Judgment Regarding Offset of Plaintiffs’ Flood Policy Recovery. Lafayette sought a ruling limiting plaintiffs’ | ¡^recovery under the Lafayette policy to any uncompensated losses covered by their homeowner’s policy which, when combined with their flood insurance proceeds, did not exceed the value of their property. The trial court denied Lafayette’s motion without written reasons. When the trial began, the parties sought clarification from the trial court regarding whether evidence of the Wegen-ers’ flood claim and evidence of payments by State Farm under the Wegeners’ flood policy could be introduced at trial, separate from the issue of whether Lafayette was entitled to a credit or offset of the amount of Plaintiffs’ recovery under their flood policy. The trial court stated that such evidence would not be allowed. The court of appeal found no error in the trial court’s ruling. As stated earlier in this opinion, the court relied on Urrate, supra, to hold that the Wegeners’ receipt of payments under their flood insurance policy was not relevant.

Lafayette argues that the trial court’s ruling prevented it from presenting highly probative evidence bearing directly on the issues of causation, apportionment of damages, and the application of the anti-concurrent causation provision in the homeowner’s policy exclusion. Lafayette also argues that the exclusion of the evidence prejudiced its ability to fully defend the bad faith claim, which was premised on the allegation that Lafayette had no valid basis to contend that flood was responsible for the damages and the Wegeners’ additional living expenses claims.

The Wegeners argue that the trial court properly excluded evidence of their receipt of flood insurance proceeds. Citing to Ur-rate, supra, the Wegeners assert that because flood and wind policies are complimentary and do not cover the same types of losses, a double coverage situation does not exist. The only possible relevance of this evidence is whether they were fully compensated for their damages by their flood insurer, and thus lost their right to assert a claim against Lafayette. Here, the Wegeners’ actual loss is the cost to rebuild their home, which their contractor | ^estimated at $434,800. Thus, even subtracting the $198,900 the Wegeners received from their flood insurer for the dwelling from the $434,800, they still have uncompensated losses of $235,900-$6,900 more than the $229,000 Lafayette policy limits. Moreover, the Wegeners argue that Lafayette cannot show that it was prejudiced by the court’s ruling.

We note that a trial court’s determinations regarding what evidence is admissible for the trier of fact to consider will not be overturned absent clear error. Folse v. Folse, 1998-1976 (La.6/29/99), 738 So.2d 1040, 1046. However, we agree with Lafayette that the evidence of the Wegen-ers flood insurance claim and payments was improperly excluded. Thus, the jury was deprived of relevant evidence by which it could fairly assess the credibility of the plaintiffs’ claims and make determinations regarding the extent to which plaintiffs had already been compensated for their losses.

It is clear that the Wegeners are entitled to collect under their homeowner’s policy for wind damage and to collect under their flood policy for flood damage. “[W]hile an insured may not recover in excess of his actual loss, an insured may recover under each policy providing coverage until the total loss sustained in indemnified.” Cole v. Celotex, 599 So.2d 1058, 1080 (La.1992). It is equally clear that the Wegeners are not entitled to double recovery for the same elements of damages. See Albert v. Farm Bureau Ins. Co., 2005-2496 (La.10/17/06), 940 So.2d 620, 622 (citing Gagnard v. Baldridge, 612 So.2d 732, 736 (La.1993)). Evidence of flood insurance payments is relevant to the issue of what uncompensated losses remained. Without the benefit of evidence relative to the Wegeners’ flood insurance claim, the jury is essentially required to award damages to the Wegeners in a vacuum, without having the ability to determine whether such an award is double recovery.

At trial, the Wegeners argued that their house was a total loss as a result of Hurricane Katrina, and specifically argued that their house was rendered structurally | ^.unsound and had to be demolished due to wind damage. The Wegeners submitted evidence that the cost to rebuild the home is $434,800. Based on this amount, the Wegeners argue that even if the jury awarded the full amount of Lafayette’s policy limits, they would still have uncompensated losses. However, Lafayette introduced evidence at trial showing a rebuilding cost in the range of $282,000— $304,000. Assuming the jury finds the house a total loss at the new trial, the jury may well decide the cost to rebuild is the lower cost range submitted by Lafayette. Under this scenario, plaintiffs would not be entitled to policy limits under both insurance policies, and the jury should be entitled to know what amounts were already paid under the flood insurance policy.

We also note that the Wegeners submitted a list of damaged contents claiming damages totaling $141,818.91. However, Mrs. Wegener testified she did not attempt to separate what was damaged by wind and what was damaged by flooding. Mrs. Wegener also admitted that most of the items submitted on the list were located downstairs in the home, where the flooding occurred. The proffered evidence shows that State Farm estimated damages to contents exceeded the policy limits of $27,000. Because the Wegeners cannot be compensated for contents losses that were already paid by State Farm, the jury should be allowed to consider that the Wegeners were paid $27,000 for contents due to flood damage.

Thus, because plaintiffs are not entitled to recover more than the value of the property, we find evidence of payments to Plaintiffs for flood loss to be relevant and admissible.

CONCLUSION

While we are reluctant at any time to set aside a jury’s verdict, given the errors in this case we see no other appropriate remedy. The errors in the Jury Instructions and Jury Interrogatories precluded the jury from reaching a verdict based on the law 124and facts. Considering these errors, as well as the erroneous exclusion of evidence, we vacate the jury’s verdict and judgments of the lower courts, and remand the matter to the trial court for a new trial.

DECREE

VACATED AND REMANDED FOR NEW TRIAL.

VICTORY, J., dissenting in part and concurring in part.

GUIDRY, J., concurs.

VICTORY, J.,

dissenting in part and concurring in part.

| jWhile I agree with the Court’s remand for a new trial and most of the majority’s opinion, I dissent from the portion of the opinion holding that La. C.C. art. 1998 does not apply in a claim for emotional distress/mental anguish damages under La. R.S. 22:1220. In Sher v. Lafayette Insurance Co., 07-2441 (La.4/8/08), 988 So.2d 186, 202, we held that the plaintiff was not entitled to a jury instruction regarding general damages for mental anguish and emotional distress because plaintiff did not provide any evidence that would meet the requirements of La. C.C. art. 1998, i.e., that Lafayette knew or should have known that failure to perform would cause mental anguish damages, or that Lafayette intended to aggrieve the feelings of the plaintiff. Pursuant to Sher, the trial court’s jury instruction relative to mental anguish damages, requiring proof of an intent to aggrieve the plaintiffs before such damages could be awarded, was proper and does not provide grounds for a new trial.

For the foregoing reasons, I dissent in part and concur in part.

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

      . State Farm was not a party to this lawsuit. The trial court excluded evidence of the Weg-eners' flood insurance claim and payments. Lafayette proffered the evidence, thus it is included in the record.

      . La. R.S. 22:1220 provided, in pertinent part:
      An insurer, including but not limited to a foreign line and surplus line insurer, owes to his insured a duty of good faith and fair dealing. The insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant, or both. Any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach.
      B. Any one of the following acts, if knowingly committed or performed by an insurer, constitutes a breach of the insurer's duties imposed in Subsection A:
      (1) Misrepresenting pertinent facts or insurance policy provisions relating to any coverages at issue.

      (5) Failing to pay the amount of any claim due any person insured by the contract within sixty days after receipt of satisfactory proof of loss from the claimant when such failure is arbitrary, capricious, or without probable cause.

      C. In addition to any general or special damages to which a claimant is entitled for breach of the imposed duty, the claimant may be awarded penalties assessed against the insurer in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater. Such penalties, if awarded, shall not be used by the insurer in computing either past or prospective loss experience for the purpose of setting rates or making rate filings.

      .La. R.S. 22:658 provided, in pertinent part:
      (A)(1) All insurers issuing any type of contract, other than those specified in La. R.S. 22:656, R.S. 22:657, and Chapter 10 of Title 23 of the Louisiana Revised Statutes of 1950, shall pay the amount of any claim due any insured within thirty days after receipt of satisfactory proofs of loss from the insured or any party in interest.

      (B)(1) Failure to make such payment within thirty days after receipt of such satisfactory proofs and demand therefor or failure to make a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim, as provided in Paragraphs (A)(1) and (4) respectively, or failure to make such payment within thirty days after written agreement or settlement as provided in Paragraph (A)(2), when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of twenty-five percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, or to any of said employees, or in the event a partial payment or tender has been made, twenty-five percent of the difference between the amount paid or tendered and the amount found to be due.

      . Wegener v. Lafayette Ins. Co., 2009-0072 (La.App. 4 Cir. 3/10/10), 34 So.3d 932.

      . Wegener v. Lafayette Ins. Co., 2010-0810 (La.6/25/10), 38 So.3d 358; Wegener v. Lafayette Ins. Co., 2010-0811 (La.6/25/10), 38 So.3d 359.

      . La. C.C.P. art. 1811 provides for the JNOV procedure. As outlined by this Court in Joseph v. Broussard Rice Mill, Inc., 00-0628, (La. 10/30/00), 772 So.2d 94, 99: "JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. The motion should be denied if there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions. In making this determination, the trial court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. This rigorous standard is based upon the principle that when there is a jury, the jury is the trier of fact."

      . La. C.C. art. 1998 provides:
      Damages for nonpecuniary loss may be recovered when the contract, because of its nature, is intended to gratify a nonpecuni-ary interest and, because of the circumstances surrounding the formation or the nonperformance of the contract, the obligor knew, or should have known, that his failure to perform would cause that kind of loss.
      Regardless of the nature of the contract, these damages may be recovered also when the obligor intended, through his failure, to aggrieve the feelings of the obligee.

      . The concurrence in Lewis references Article 1998, noting the jury was not charged under Article 1998 to determine whether the insurer intended to aggrieve the insured, and the record did not support such a claim.

      . We realize that the Plaintiffs apparently did not object to the Jury Interrogatories, nor was this issue raised on. appeal. However, this Court has previously noted that where the jury, instructions or interrogatories contain a "plain and fundamental” error, the contemporaneous objection requirement is relaxed and appellate review is not prohibited. Berg v. Zummo, 2000-1699 (La.4/25/01), 786 So.2d 708, 716 n. 5 (citing Trans-Globdl Alloy Limited v. First National Bank of Jefferson Parish, 583 So.2d 443, 448 (La.1991)). We find the Interrogatories essentially misstated the law and thus contained a "plain and fundamental” error which has led us to relax the contemporaneous objection requirement and review the issue on appeal.

      . An appellate court has the right to consider an issue even though there was no assignment of error in that regard. See La. C.C.P. art. 2164, comment (a) ("an appellate court [has] complete freedom to do justice on the record irrespective of whether a particular legal point or theory was made, argued, or passed on by the court below.”); Georgia Gulf Corp. v. Board of Ethics, 96-1907 (La.5/9/97), 694 So.2d 173, 176; Safeway Insurance Co. of Louisiana v. State Farm Mut. Auto. Ins. Co., 86,853 (La.App. 2 Cir. 3/5/03), 839 So.2d 1022, 1027; Wheeler v. Kelley, 28,379 (La.App. 2 Cir. 11/7/95), 663 So.2d 559, 561, writ denied, 95-2721, 664 So.2d 404 (La.1995).

      . Gonzales v. Xerox Corp., 254 La. 182, 320 So.2d 163 (1975).

      . See also, Watson v. Bulloch, 2002-2144 (La.App. 4 Cir. 2/18/04), 868.So.2d 825, 829 (based on the unique circumstances of the case, the court found "fairness dictates that the parties should have the opportunity to retry this case....”); Hickman v. Albertson's, Inc., 598 So.2d 1128 (La.App. 2 Cir.1992) ("When the record presents substantial conflicts in testimony and numerous credibility calls, the interest of justice may best be served by remanding the case for a new trial.”); McCauley v. LaFleur, 205 So.2d 458 (La.App. 3 Cir.1967)("Since the trial judge has not had an opportunity to consider the credibility of the witnesses ... we think the ends of justice require that the case be remanded to the trial judge....”)

      . La. C.C.P. art. 2164 provides; The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages for frivolous appeal; and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.

      . Because we remand for a new trial, we pretermit consideration of all other issues raised by the parties.


text:
    STATE of Louisiana v. Conell GALLE.
    No. 2011-KK-0441.
    Supreme Court of Louisiana.
    March 11, 2011.
   In re Galle, Conell; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 489-028; to the Court of Appeal, Fourth Circuit, No. 2011-K-0265.

Denied.


text:
    STATE ex rel. Edward R. WYNN v. STATE of Louisiana.
    No. 2011-KH-0478.
    Supreme Court of Louisiana.
    March 14, 2011.
   In re Wynn, Edward R.; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 272-987; to the Court of Appeal, Fourth Circuit, No.

The application is transferred to the district court with instructions to the district judge to act on relator’s post-conviction relief application filed via certified mail receipt on December 18, 2009. The district court is ordered to provide this Court with a copy of its judgment.


text:
    STATE of Louisiana v. Michael BATTENBERG, et al.
    No. 2011-KK-0507.
    Supreme Court of Louisiana.
    March 15, 2011.
   In re Battenberg, Michael; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 499-573; to the Court of Appeal, Fourth Circuit, No. 2011-K-0146.

Stay denied; writ denied.