author:
WEIMER, Justice.
     GUIDRY, Justice,

text:
    Marco DEMMA, III v. AUTOMOBILE CLUB INTER-INSURANCE EXCHANGE.
    No. 2008-C-2810.
    Supreme Court of Louisiana.
    June 26, 2009.

      Brian T. Carr & Associates, Brian Thomas Carr; The Brandner Law Firm, Michael Stephen Brandner, Jr., Metairie, for Applicant.
    Chopin, Wagar, Richard & Kutcher, LLP, Brad Michael LaComb, Richard Allan Chopin, Thomas M. Richard, Metairie, for Respondent.
   WEIMER, Justice.

liWe granted certiorari in this case to determine whether an uninsured/underin-surecl motorist carrier’s unconditional payment of monies to its insured for damages sustained in an automobile accident with an unclerinsured motorist pursuant to LSA-R.S. 22:658 and McDill v. Utica Mutual Insurance Company, 475 So.2d 1085 (La.1985), constitutes an acknowledgment sufficient to interrupt prescription. Answering that inquiry in the affirmative, we find that the lower courts erred in sustaining the uninsured/underinsured motorist carrier’s exception of prescription. Accordingly, we reverse the decisions of both lower courts and remand this matter to the district court for further proceedings consistent with this opinion.

J2FACTS AND PROCEDURAL HISTORY

On May 3, 2005, Marco Demma, III was operating a vehicle owned by his father, Marco Demma, Jr., when he was struck by a vehicle being operated by Shane Quick. At the time of the accident, Quick was insured under a policy of liability insurance issued by Liberty Mutual Insurance Company (Liberty Mutual). Demma was covered under a policy of uninsured/underin-sured motorist (“UM”) insurance issued to his father by Automobile Club Inter-Insurance Exchange (“Auto Club”).

Following the accident, Demma filed a claim with Auto Club asserting that Liberty Mutual had paid its limits under the liability policy issued to Quick, but that the payment was insufficient to compensate Demma for his injuries. By correspondence dated November 8, 2006, Auto Club made an unconditional tender of $23,000.00 to Demma.

Because subsequent attempts by Dem-ma to contact Auto Club about additional amounts Demma believed to be due proved to be unsuccessful, on May 14, 2007, Dem-ma filed suit against Auto Club, alleging that Auto Club had breached its contractual obligations and acted in bad faith in handling his claim. Auto Club answered the petition and asserted a peremptory exception of prescription.

Following a hearing, the district court sustained Auto Club’s exception of prescription. Demma appealed.

On October, 31, 2008, a majority of a panel of the Court of Appeal, First Circuit, affirmed the judgment of the district court. Demma v. Automobile Club Inter-Insurance Exchange, 08-0380 (La.App. 1 Cir. 10/31/08), 998 So.2d 191. The majority held that Demma’s petition was prescribed on its face; that Auto Club’s unconditional tender of the undisputed amount of damages to its insured pursuant to LSA-R.S. 22:658 and McDill, supra, was not an acknowledgment, or admission of | .liability, sufficient to interrupt prescription; and that the correspondence that accompanied that unconditional tender could not be construed as an acknowledgment because it was not “accompanied by or coupled with a clear declaration of intent to interrupt prescription.” Demma, 08-0380 at 6, 998 So.2d at 195.

One member of the appellate court panel dissented. Judge Guidry pointed out that unconditional payments, such as those tendered by Auto Club in this case, have consistently been recognized by the jurisprudence as constituting tacit acknowledgments sufficient to interrupt prescription, and that the intent requirement superimposed upon the unconditional tender by the majority opinion was previously repudiated by this court in Lima v. Schmidt, 595 So.2d 624, 631 (La.1992). Further, Judge Guidry rejected the majority’s reasoning that because Auto Club is required to make an unconditional tender pursuant to LSA-R.S. 22:658, or face the imposition of penalties and attorney’s fees, such a payment cannot be considered a tacit acknowledgment, pointing out that, under the statute, an insurer is only required to make an unconditional tender to its insured when the insured has demonstrated a right to recover under the insurance contract. Demma, 08-0380 at 2-3; 998 So.2d at 196-197 (Guidry, J. dissenting).

We granted certiorari to address Dem-ma’s contention that Judge Guidry’s analysis represents the correct one, and that the lower courts erred in concluding that Auto Club’s unconditional payment was not a tacit acknowledgment sufficient to interrupt prescription. Demma v. Automobile Club Inter-Insurance Exchange, 08-2810 (La.2/20/09), 1 So.3d 463.

|,LAW AND DISCUSSION

Pursuant to LSA-R.S. 9:5629, “[ajctions for the recovery of damages sustained in motor vehicle accidents brought pursuant to uninsured motorist provisions in motor vehicle insurance policies are prescribed by two years reckoning from the date of the accident in which the damage was sustained.” According to Demma’s petition, the accident that gave rise to the injuries sustained in this case occurred on May 3, 2005. Suit against Auto Club was instituted on May 14, 2007, more than two years later. As a result, the petition on its face reveals that prescription has run, and it is Demma’s burden to demonstrate why his claim has not prescribed. Denoux v. Vessel Management Services, Inc., 07-2143, p. 5 (La.5/21/08), 983 So.2d 84, 88; Lima, 595 So.2d at 628.

The jurisprudence recognizes three theories upon which a plaintiff may rely to establish that prescription has not run: suspension, interruption, and renunciation. Lima, 595 So.2d at 628. In this case, Demma relies upon the theory of interruption to argue that his claim is not prescribed.

Prescription that has commenced to accrue, but that has not yet run, may be interrupted “when one acknowledges the right of the person against whom he had commenced to prescribe.” LSA-C.G. art. 3464. If prescription is interrupted by acknowledgment, the time that has run is not counted, and prescription commences to run anew from the last day of interruption. LSA-C.C. art. 3466.

Substantively, an acknowledgment is a simple admission of liability resulting in the interruption of prescription that has commenced to run, but not accrued. Lima, 595 So.2d at 634. The form the acknowledgment may assume has been extensively discussed in doctrinal writings as well as in numerous decisions of this court.

5In Flowers v. United States Fidelity & Guaranty Company, 381 So.2d 378 (La. 1979)(on reh’g), this court drew upon the commentary of Baudry-Lacantinerie & Tissier, in addition to Aubry and Rau, to conclude that prescription of a right to damages for personal injuries or medical expenses arising from an offense or quasi-offense may be interrupted by either an express or tacit acknowledgment, and that the acknowledgment need not assume any particular form. In reaching this conclusion, the court quoted Baudry-Lacantiner-ie and Tissier’s observations:

Acknowledgment interruptive of prescription results from any act or fact which contains or implies the admission of the existence of the right. It can be express or tacit. When express, it is not subject to any particular form. It can be verbal or in writing.

5 Civil Law Tkanslations, Baudry-Laoan-TINERIE & TlSSIER, PRESCRIPTION, § 529, p. 261 (1972). In addition, the court cited the commentary of Aubry and Rau:

The acknowledgment with the inter-ruptive effect may be express or tacit. No specific form is prescribed for the express acknowledgment; it may be by regular mail or even orally. Tacit acknowledgment results from any action which amounts to an admission of the creditor’s or owner’s right, for instance the payment of a bill as debtor; payment of a portion of the debt, interests or arrears by the debtor or his agent; a request for a postponement of a payment; and, a fortiori, the payment of the amount due by the agent of the debtor. The same would be tru,e of an offer to pay the damages caused by a tort, made by the defendant in the course of trial or of an actual act of reparation or indemnity.

2 Civil Law Translations, Aubry & Rau, Property, § 215, No. 304, p. 344 (1966). Ultimately, the court recognized that acknowledgment sufficient to interrupt prescription may be made verbally, in writing, by partial payment, by payment of interest or by pledge, or in other ways; and that it may be implicit or it may be inferred from the facts and circumstances. Floivers, 381 So.2d at 382.

In Lima, supra, this court again considered the question of what constitutes an acknowledgment sufficient to interrupt prescription. Drawing once more from the commentary of doctrinal writers, the court observed:

|fiAubry and Rau also comment that acknowledgment may result from “real, or even verbal offers of payment which were not accepted, provided that in either case the offer was unconditional and not an offer to settle the claimed debt.” Similarly, Carbonnier comments that “acknowledgment may be merely tacit. It can result from any attitude of the debtor which implies an unequivocal admission of the creditor’s right.” 5 Civil Law Translations, J. Carbonnier, Notes on Liberative Prescription, pp. 465-66. See also 2 M. Planiol, Treatise on the Civil Law, §§ 665 et seq. (La.St. L.Inst.Trans.1959).

Lima, 595 So.2d at 633. Based upon the doctrinal writings, the court concluded that the following generalizations can be drawn with respect to the tacit acknowledgment:

A tacit acknowledgment occurs when a debtor performs acts of reparation or indemnity, makes an unconditional offer or payment, or lulls the creditor into believing he will not contest liability. Conversely, mere settlement offei’s or conditional payments, humanitarian or charitable gestures, and recognition of disputed claims will not constitute acknowledgments. [Emphasis added.]

Lima, 595 So.2d at 634.

Most recently, in Mallett v. McNeal, OS-2289, 05-2322 (La.10/17/06), 939 So.2d 1254, this court drew upon the foregoing jurisprudence to squarely hold that one form of acknowledgment that will interrupt the running of prescription is the tacit acknowledgment resulting when the debt- or makes an unconditional payment of a portion of the debt. Mallett, 05-2289, OS-2322 at 8, 939 So.2d at 1259 (“[A]n unconditional payment constitutes an acknowledgment sufficient to interrupt prescription.”)

In opposing Auto Club’s exception of prescription in this case, Demma argued that Auto Club made just such an unconditional payment, tacitly acknowledging the existence of the obligation and interrupting prescription, when it forwarded him a check in the amount of $23,000.00. In conjunction with this argument, Demma introduced a copy of a November 8, 2006, letter that accompanied Auto Club’s tender of the $23,000.00. The letter states, in pertinent part:

17Enclosed is our check for the Unconditional Tender of $23,000.00 in settlement of your Underinsured Motorist claim.
Please call me to discuss the final settlement of your claim.

In affirming the district court’s ruling sustaining Auto Club’s exception of prescription, the court of appeal, as well as the district court, examined the letter and concluded that it, in fact, evidences an unconditional tender by Auto Club of the undisputed amount of damages owed to Demma. Demma, 08-380 at 4; 998 So.2d at 194. Auto Club does not dispute this factual conclusion, insisting instead that the payment was issued pursuant to LSA-R.S. 22:658 and McDill, supra, and that because LSA-R.S. 22:658 requires the insurer to make the unconditional tender or face the imposition of penalties and attorney fees, such a payment cannot constitute an admission of liability sufficient to interrupt prescription.

8Citing Stagni v. State Farm Mutual Automobile Insurance Company, 96-493 (La.App. 5 Cir. 11/26/96), 685 So.2d 338. writ denied, 96-3073 (La.3/7/97), 690 So.2d 17, the majority of the appellate court panel sided with Auto Club, holding that Auto Club’s unconditional payment was not an admission of liability sufficient to interrupt prescription. For the letter to constitute an acknowledgment, it should have been accompanied by or coupled with a clear declaration of intent to interrupt prescription. Additionally, to hold that an unconditional payment pursuant to LSA-R.S. 22:658(A)(1) amounts to an admission of liability would result in absurd consequences because such a holding would require an uninsured/underinsured motorist carrier to either make a tender and waive its right to raise the exception of prescription, or not make a tender and face sanctions, Demma, 08-0380 at 5-6, 998 So.2d at 194-195.

After examining the relevant statutes, code articles and the prior jurisprudence of this court with respect to tacit acknowledgments, we find that the court of appeal’s resolution of the prescription exception, on both of the cited grounds, is erroneous.

As an initial matter we note that the court of appeal opinion engrafts an intent requirement on the tacit acknowledgment, holding that “[i]n order for Auto Club’s letter to constitute an acknowledgment, it must contain more than a recognition of the mere existence of a disputed claim; the acknowledgment must be accompanied by or coupled with a clear declaration of intent to interrupt prescription.” Demma, 08-0380 |9at 6; 998 So.2d at 195. However, such an intent requirement has previously been considered and expressly repudiated by this court.

In Lima, supra, this court discussed at length the historical development of an intent requirement in regard to acknowledgment of mineral servitudes:

In Flowers, supra, we expressly noted that while public policy warrants recognizing acknowledgment of ordinary obligations on an informal basis, the same is not true of acknowledgment of a mineral servitude. Indeed, a rigid set of formal rules has been developed, both jurispru-dentially and statutorily, to assure a landowner is fully aware of, and clearly intends the legal consequences of, his act in acknowledging an outstanding mineral servitude. Statutorily, these rigid requirements are set forth in the LSA-R.S. 31:54 and 55. Jurispruclen-tially, these rigid requirements were developed when our courts engrafted onto LSA-C.C. art. 3464 (former LSA-C.C. art. 3520) an intent requirement: the acknowledgment must be accompanied by or coupled with a clear declaration of intent to interrupt the prescription then running. This additional requirement was designed to put to rest the notion that a “mere” or “simple” acknowledgment alone could reinvest a mineral servitude owner with the valuable property right of another term. [Citations and footnotes omitted.]

Lima, 595 So.2d at 632-633. The court went on to explain that the imposition of this intent requirement, even in the context of the mineral servitude, had been criticized by the commentators, but that over time, Louisiana courts had, nevertheless, extended the intent requirement to ordinary obligations, including delictual actions. The court traced the evolution of this extension to one case in particular: Marathon Insurance Company v. Warner, 244 So.2d 353 (La.App. 2d Cir.1971). Holding that the imposition of an intent requirement is inconsistent with the doctrinal writings and the public policy of permitting acknowledgment of ordinary obligations on an informal basis, the Lima court expressly overruled Marathon “insofar as it held that an acknowledgment must be coupled with a clear declaration of intent to interrupt prescription in order to interrupt prescription on a delictual obligation.” Lima, 595 So.2d at 633.

1 mTo the extent that the court of appeal opinion in this case attempts to resurrect the intent requirement expressly rejected by this court in Lima, it errs. Revisiting the doctrinal writings and the prior jurisprudence of this court, we today reaffirm our holding in Lima that imposition of an intent requirement is contrary to the statutory authority (the code article itself is void of any reference to an intent requirement) and civilian doctrine. An acknowledgment requires only that the right or obligation be recognized and requires no particular form.

Having determined that an acknowledgment of a delictual obligation need not be accompanied by or coupled with a clear declaration of intent to interrupt prescription, we turn next to an examination of the $23,000.00 payment by Auto Club to determine whether it represents an unconditional tender such as would constitute an acknowledgment sufficient to interrupt prescription. In making this determination, we do not write on an entirely clean slate.

As stated previously, the lower courts found, and Auto Club does not dispute, that the $23,000.00 payment was made pursuant to LSA-R.S. 22:658(A)(1) and McDill, supra. We have previously determined that a tender made to satisfy the requirements of LSA-R.S. 22:658(A)(1) is made “not in settlement of the case, but to show [the insurers’] good faith in the matter and to comply with the duties imposed upon them under their contract of insurance with the insured.” McDill, 475 So.2d at 1091-1092. Such a tender, we have held, must be unconditional, i.e., “with no strings attached,” and thus by definition cannot be a settlement offer. Clark v. State Farm 11Mutual Automobile Insurance Company, 00-3010, p. 18 (La.5/15/01), 785 So.2d 779, 791. It is an unconditional payment.

In Clark, we were asked to determine whether an uninsured/underinsured motorist carrier’s unconditional tender of benefits to its insured pursuant to LSA-R.S. 22:658(A)(1) was a step in defense of the action or a waiver of the right to have the suit declared abandoned. Clark, 00-3010 at 8, 785 So.2d at 785. In resolving this issue, the court turned to the principles of acknowledgment, reasoning that “[t]he historical and theoretical nature of abandonment as a species of prescription [as provided in LSA-C.C. art. 3464] renders it appropriate to consider prescriptive principles in analyzing res nova abandonment issues such as the issue presented in this case by defendant’s tender.” Clark, 00-3010 at 19, 785 So.2d at 791. Examining the relevant jurisprudence, the court ultimately held that the McDill tender was an acknowledgment sufficient to constitute a waiver of the right to assert abandonment. Clark, 00-3010 at 22, 785 So.2d at 793.

The logical implications of the Clark holding are inescapable for this case: in Clark, the McDill tender was held to constitute an acknowledgment for purposes of abandonment, a species of prescription, precisely because it was recognized to constitute an acknowledgment for purposes of interrupting prescription. No reason has been advanced, nor can we discern one, for treating the McDill tender as an acknowledgment for purposes of waiving the right to assert abandonment, but as something less than an acknowledgment for purposes of interrupting prescription.

The court of appeal opinion in this ease makes no mention of Clark and only a passing reference to the subsequent decision of this court in Mallett, supra, which 112holds that a liability insurer’s unconditional payment of a property damage claim to a third party claimant constitutes an acknowledgment sufficient to interrupt prescription, thereby reinforcing the long line of cases from this court that have consistently recognized unconditional payments as constituting tacit acknowledgments sufficient to interrupt prescription. Instead, the court of appeal’s ultimate resolution of the prescription issue rests solely on its determination that because an insurer is required by LSA-R.S. 22:658 to make a McDill tender or face the imposition of penalties and attorney fees, a holding that a McDill tender amounts to an acknowledgment, or admission of liability, by the insurer would result in absurd consequences in that an insurer would be required to either make the McDill tender and waive its right to raise the exception of prescription (which may or may not materialize in the future), or not make the tender and face sanctions. Devima, 08-0380 at 5; 998 So.2d at 195.

However, as Judge Guidry points out in his dissent, the insurer obligated to make a McDill tender is not presented with a proverbial “Catch-22.” By its express terms, LSA-R.S. 22:658(A)(1) only requires a payment by the insurer when the insurer has been provided by the insured with a satisfactory proof of loss. In the context of a claim under an uninsured/underinsured motorist policy, a “satisfactory proof of loss” is established when the insurer receives sufficient facts which fully apprise the insurer “that (1) the owner or operator of the other vehicle involved in the accident was uninsured or underin-sured; (2) that he was at fault; (3) that such fault 1 isgave rise to damages; and (4) establish the extent of those damages.” McDill, 475 So.2d at 1089. In other words, providing a satisfactory proof of loss within the meaning of LSA-R.S. 22:658(A)(1) is tantamount to establishing a right to recover under the insurance contract. As a result, an insurer is only required to make an unconditional payment under the statute when the insured has demonstrated that he or she is entitled to recover under the contract. The statute thus requires the insurer to pay only when it indisputably owes payment under the insurance contract and only the amount that it indisputably owes. An insurer who has a reasonable basis to defend the claim and who acts in good faith reliance on that defense is not subject to sanctions under LSA-R.S. 22:658(B) unless clear proof is presented that the insurer was arbitrary, capricious, or without probable cause in refusing to pay. Reed v. State Farm Mutual Automobile Insurance Company, 03-0107, p. 13 (La.10/21/03), 857 So.2d 1012, 1021.

In this regard, it is important to note that the unconditional payment that is owed by the insurer is not owed under the statute, but pursuant to the insurance contract. The amount that must be unconditionally tendered to the insured is not tendered in settlement of the claim, but as a demonstration of the insurer’s good faith and in order to comply with the duties imposed under the contract of insurance. McDill, 475 So.2d at 1091-1092. In other words, LSA-R.S. 22:658 is simply a mechanism for enforcing existing contractual obligations between the insurer and the insured, and deterring bad faith on the part of insurers in opposing valid claims. Viewed in this light, the MeDill tender can most accurately be defined as a good faith act on the part of the insurer acknowledging the insurer’s contractual obligation to pay damages. This unconditional tender and the tacit acknowledgment effected as a result thereof do not work against each other to the detriment of the insurer; rather |Mthey work in tandem to insure good faith and compliance by the insurer with its contractual obligations when there is no question of liability.

Moreover, it is clear that had the legislature intended the conclusion reached by the court of appeal in this case, ie., that an unconditional payment pursuant to LSA-R.S. 22:658(A)(1) cannot be construed to constitute an acknowledgment, or admission of liability, sufficient to interrupt prescription, it could have so stated. For example, LSA-R.S. 22:661 provides that no settlement made under a motor vehicle policy of a claim against any insured thereunder shall be construed as an admission of liability. Rather than declare that no settlement shall be construed as an admission of liability, the legislature could have very easily provided that no payment shall be construed as an admission of liability. Such a provision would have clearly indicated a legislative intention to exempt the payment made pursuant to LSA-R.S. 22:658(A)(1) from the effects of an acknowledgment. However, as we pointed out in Mallett, the legislature did not choose this course, and instead deliberately used the term “settlement” to clearly and unambiguously limit the application of the statute to a compromise or transaction as defined by LSA-C.C. art. 3071, and not an unconditional payment. Mallett, 05-2289, 05-2322 at 14, 939 So.2d at 1263. See also, Gary v. Camden Fire Insurance Company, 96-0555, p. 5, (La.7/2/96), 676 So.2d 553, 556, noting that, were it not for the enactment of LSA-R.S. 23:1204, which provides that the voluntary payment of compensation benefits by an employer does not constitute an admission of liability for compensation benefits, the voluntary ^payment of compensation benefits would constitute an acknowledgment of the employer’s debt to the injured employee sufficient to interrupt prescription. Clearly, had the legislature intended to exempt the unconditional payment pursuant to LSA-R.S. 22:658(A)(1) from the effects of the acknowledgment sufficient to interrupt prescription recognized in LSA-C.C. art. 3464, it could have done so. It did not.

Having examined the relevant code articles and statutory provisions, and the doctrinal writings and jurisprudence that inform and elucidate those provisions, we reaffirm our holding in Mcdlett that the unconditional payment of a portion of a debt is a tacit acknowledgment sufficient to interrupt prescription and that the McDill tender is, by definition, just such an unconditional payment. We further find that an uninsured/underinsured motorist carrier’s unconditional payment of monies to its insured pursuant to LSA-R.S. 22:658(A)(1) and McDill, supra, constitutes an acknowledgment sufficient to interrupt prescription. Our determination that Auto Club’s unconditional payment pursuant to LSA-R.S. 22:658(A)(1) was a tacit acknowledgment sufficient to interrupt prescription is consistent with the policy considerations underlying prescription which require that any doubt be resolved in favor of maintaining a plaintiffs action. Mcdlett, 05-2289, 05-2322 at 5; 939 So.2d 1258 (“Statutes regulating prescription are strictly construed against prescription and in favor of the obligation sought to be extinguished; thus, of two possible constructions, that which favors maintaining, as opposed to barring, an action should be adopted.”) Our analysis of the code articles and statutory provisions, in conjunction with the jurisprudence and the doctrinal writings, is consistent with civilian doctrine.

| ^CONCLUSION

Based on the foregoing, we hold that Auto Club’s unconditional payment of $23,000.00 to Marco Demma, III, pursuant to LSA-R.S. 22:658(A)(1) and McDill, supra, was a tacit acknowledgment that interrupted prescription. The unconditional payment was tendered on November 8, 2006, after which date, prescription began to run anew. See LSA-C.C. art. 3466 (“Prescription commences to run anew from the last day of interruption.”). Dem-ma’s suit, filed on May 14, 2007, was therefore timely. The lower courts erred in sustaining the exception of prescription. Accordingly, we reverse the decisions of the court of appeal and the district court maintaining the exception of prescription and remand this case to the district court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

GUIDRY, J., concerns in the result and assigns reasons.

VICTORY, J., concurs in the result.

GUIDRY, Justice,

concurs in the result and assigns reasons.

IT agree that the court of appeal erred in requiring that, for an acknowledgment, tacit or otherwise, to be sufficient to interrupt prescription, it must be accompanied by or coupled with a clear declaration of intent to interrupt prescription. Ante, pp. 101-02.

However, as to the majority’s holding that a partial payment or unconditional tender made directly to the insured pursuant to La.Rev.Stat. 22:658 constitutes an acknowledgment sufficient to interrupt prescription, my view is that this case turns more upon the ambiguous and poorly drafted letter from the insurer which does not attempt to reserve any rights relating to amounts claimed in excess of the $23,000.00 actually tendered. The letter’s language could have reasonably lulled the insured into believing that the insurer was not going to contest liability. This alone would be enough to constitute a tacit acknowledgment of liability sufficient to interrupt prescription. See Lima v. Schmidt, 595 So.2d 624, 634 (La.1992). Thus, I do not believe that we need to reach the question of whether Mallett v. McNeal, 05-2289 (La.10/17/06), 939 So.2d 1254, should be extended to the factual circumstances of this case.

      . Retired Judge Phillip Ciaccio, assigned as Justice ad hoc, sitting for Justice Chet D. Traylor, now retired.

      . LSA-R.S. 22:658 was redesignated as LSA-R.S. 22:1892 by 2008 La. Acts No. 415 § 1.

      . In his application for writ of certiorari to this court, Demma additionally argued that prescription was suspended under the doctrine of contra non valentem. Because of our favorable resolution of Demma's argument regarding interruption of prescription, it is not necessary for us to reach this issue.

      . While the issue of acknowledgment is a mixed question of law and fact, which is generally subject to the manifest error standard of review, Dufrene v. Morgan Equipment Rental, Inc., 98-1582, p. 8 (La.App. 1 Cir. 9/24/99), 754 So.2d 1000, ¡005, where, as here, there is no dispute as to the dispositive facts, the issue can be decided as a matter of law and the review is de novo. Kevin Associates, L.L.C. v. Crawford, 03-0211, p. 15 (La. 1/30/04), 865 So.2d 34, 43.

      . The McDill case holds that the failure of an insurer, after receiving satisfactoiy proof of loss, to unconditionally tender to its insured the amount of damages over which reasonable minds could not differ, where such failure is arbitrar)' and capricious, subjects the insurer to penalties and attorney fees under LSA-R.S. 22:658. For this reason, the unconditional lender of policy benefits by the insurer upon satisfactoiy proof of loss is commonly referred to as a McDill tender.

        . At the time of Auto Club's payment, LSA-R.S. 22:658 provided, in pertinent part:
      A. (1) All insurers issuing any type of contract, other than those specified in R.S. 22:656, 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 satisfactoiy proofs of loss from the insured or any party in interest. The insurer shall notify the insurance producer of record of all such payments for property damage claims made in accordance with this Paragraph.
      (4) All insurers shall make a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactoiy proofs of loss of that claim.
      B. (1) Failure to make such payment within thirty days after receipt of such satis-factoiy written proofs and demand therefor or failure to make a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactoiy 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 fifty percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, or to any of said employees, or in the event a partial payment or tender has been made, fifty percent of the difference between the amount paid or tendered and the amount found to be due as well as reasonable attorney fees and costs. 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.

      . The court of appeal’s statement that an acknowledgment must be coupled with a clear declaration of intent to interrupt prescription is apparently culled without attribution from Stagni, supra, which in turn cites to Marathon, supra, the case that was expressly overruled by this court in Lima. Like the Marathon decision on which it relies, Stagni is hereby overruled to the extent that it holds that an acknowledgment must be coupled with a clear declaration of intent to interrupt prescription in order to interrupt prescription on a delictual obligation.

      . LSA-C.C. art. 3464 provides: "Prescription is interrupted when one acknowledges the right of a person against whom he had commenced to prescribe.”

      . Indeed, it is difficult to ascertain how the insurer is prejudiced by the McDill tender. If, at the time of receipt of satisfactory proof of loss, the claimant's case is prescribed, a tender is not required because a reasonable basis to defend the claim exists. If the case is not prescribed, there is no prescription defense to waive. Moreover, by virtue of having received a proof of loss from the claimant, the insurer is fully and timely informed of the existence of the claim and none of the policy considerations the exception of prescription is intended to promote — the avoidance of stale claims and the resultant loss or nonpreservation of relevant evidence — are invoked.

      . Redesignated as LSA-R.S. 22:1290 by 2008 La. Acts No. 415 § 1, the statute states:
      No settlement made under a motor vehicle liability insurance policy of a claim against any insured thereunder arising from any accident or other event insured against for damage to or destruction of property owned by another person shall be construed as an admission of liability by the insured, or the insurer's recognition of such liability, with respect to any other claim arising from the same accident or event.


source: Caselaw Access Project

license: Public Domain

text:
    In re Gordon BLACKMAN, Jr.
    No. 2009-B-1794.
    Supreme Court of Louisiana.
    Aug. 6, 2009.
   ORDER

Considering the Joint Petition for Interim Suspension filed by respondent, Gordon Blackman, Jr., and the Office of Disciplinary Counsel,

IT IS ORDERED that Gordon Black-man, Jr., Louisiana Bar Roll number 1714, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.3, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately-

/s/ Benjamin Jones Justice, Supreme Court of Louisiana


text:
    In re Alton BATES.
    No. 2009-B-1844.
    Supreme Court of Louisiana.
    Aug. 12, 2009.
   ORDER

Considering the Joint Petition for Interim Suspension filed by respondent, Alton Bates, and the Office of Disciplinary Counsel,

IT IS ORDERED that Alton Bates, Louisiana Bar Roll number 17913, be and he hereby is suspended from the joractice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19, pending further orders of this court.

IT IS FURTHER ORDERED that necessary disciplinary proceedings be instituted in accordance with Supreme Court Rule XIX, §§ 11 and 19.

/s/ John L. Weimer Justice, Supreme Court of Louisiana


text:
    In re Kevin R. REES.
    No. 2009-B-1875.
    Supreme Court of Louisiana.
    Aug. 18, 2009.
   ORDER

Considering the Petition for Interim Suspension for Threat of Harm filed by the Office of Disciplinary Counsel,

IT IS ORDERED that Kevin R. Rees, Louisiana Bar Roll number 2066, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

IT IS FURTHER ORDERED that the Office of Disciplinary Counsel may seek the appointment of a trustee(s) to protect the interests of respondent’s clients pursuant to the provisions of Supreme Court Rule XIX, § 27, if appropriate.

/s/ John L. Weimer Justice, Supreme Court of Louisiana


author: CHARLES R. JONES, Judge. CHARLES R. JONES, Judge.

text:
    Anthony TODD v. The DELTA QUEEN STEAMBOAT COMPANY.
    No. 2007-CA-1518.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 6, 2008.
    Opinion Granting Rehearing June 17, 2009.

      W. Steven Mannear, Poynter, Mannear & Colomb (APLC), Baton Rouge, LA, for PlaintiffiAppellee.
    Wilton E. Bland, III, Patrick E. Costello, Jacques P. DeGruy, Mouledoux, Bland, Legrand & Brackett, L.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., and Judge ROLAND L. BELSOME).
   CHARLES R. JONES, Judge.

| ¡The Appellant, Delta Steamboat Company (hereinafter referred to as Delta), appeals a judgment in favor of the Appel-lee, Anthony Todd. We affirm in part, reverse in part and remand in part.

Mr. Todd was an employee of the Delta Steamboat Company, which was the owner/operator/manager of the vessel the America Queen. Mr. Todd was employed as a relief executive chief on the America Queen. While working in the galley of the vessel, on or about January, 2, 2000, Mr. Todd, who was 45 years old at the time, sustained a right knee injury when his knee came in contact with a loaded metal cart that was being handled by his coworker, Henry Fant.

It is disputed between the parties how Mr. Todd’s injury actually occurred. Mr. Todd alleges that he was in the kitchen when he heard Mr. Fant shout that he was “coming through” a constricted kitchen aisle with a loaded metal cart. Mr. Todd then proceeded to clear the pathway by removing a garbage can and a plate cart. Mr. Fant proceeded through the pathway prior to Mr. Todd clearing his path, resulting in Mr. Todd’s knee being struck by the moving metal cart.

^Nevertheless, Delta avers that Mr. Todd hit his knee on the cart while it was stationary. According to Delta, Mr. Fant advised Mr. Todd of his approach with the cart by yelling “coming through” to him. Mr. Todd then removed a garbage can and other items that were in Mr. Fant’s way. After doing so, Mr. Todd turned into the cart, which was stationary, and struck his knee.

As a result of the incident, Mr. Todd’s right knee was fractured. Delta referred him to an orthopedic surgeon, Dr. Patrick Barry. Mr. Todd presented himself for treatment complaining of pain in his light knee, pain behind his right kneecap and numbness in his foot. Dr. Barry testified that Mr. Todd suffered from a preexisting medical condition in both knees called bipartite patella. Dr. Barry further testified that bipartite patella is a congenital condition, yet he opined that Mr. Todd was asymptomatic prior to his accident on the America Queen. Dr. Barry treated Mr. Todd from March 29, 2000 to November 30, 2000.

Mr. Todd filed suit against Delta in November of 2000. In his petition, he raised a Jones Act claim and a general maritime claim. Trial of this matter was held on November 6, 2006. The district court rendered judgment with reasons on May 18, 2007. Upon finding Delta liable solely under the Jones Act, the district court awarded Mr. Todd $120,000.00 in general damages, and $259,171.00 for past lost wages, plus judicial interest and court costs.

Thereafter, Delta filed a motion and application for new trial, and amendment of judgment and hearing. The district court denied the motion for new [3trial and amended its previous judgment to state that judicial interest was awarded on the total damage award of $379,171.00 from the date of demand as permitted by “the Bankruptcy Laws of the United States of America.” Thereafter, Delta timely filed the instant appeal.

On appeal, Delta raises nine (9) assignments of error:

1. the district court erred in finding that Mr. Todd proved that he sustained any loss of his earning capacity;
2. the district court erred in awarding Mr. Todd past lost income;
3. the district court erred in the way it computed the award for past lost income where the district court used Mr. Todd’s gross income in its computation instead of his net income;
4. the district court erred in not crediting Delta for wages paid to Mr. Todd post injury;
5. the district court erred in awarding pre-judgment interest:
6. the district court erred in concluding that Todd’s injury was caused or contributed to by any negligence on the part of Delta;
7. the district court erred in awarding $120,000.00 in general damages;
8. the district court’s award of $120,000.00 in damages was excessive, and
9. the district court erred in not finding Mr. Todd guilty of some percentage of contributory or comparative negligence.

The appellate court standard of review for a factual finding of a trial court is that of manifest error, or the clearly wrong standard. Stiltner v. National Union Fire Ins. Co., 00-2230, pp. 3-4 (La.App. 4 Cir. 10/3/01), 798 So.2d 1132, 1135 (citing Newman v. Fernwood Transportation, 00-1036 (La.App. 4 Cir. 4/25/01), 4785 So.2d 1026; Mistich v. Volkswagen of Germany, Inc., 95-0939 (La.1/29/96), 666 So.2d 1073). However, if a trial court’s findings of fact are not reasonable in light of the record reviewed in its entirety, then a court of appeal may reverse. Id., 00-2230, pp. 3-4, 798 So.2d at 1135 (citing Stobart v. State, Through Dept. of Transp. & Development, 617 So.2d 880 (La.1993)). Legal errors are subject to the de novo standard of review. Evans v. Lungrin, 97-541, p. 7 (La.2/6/98), 708 So.2d 731, 735.

The first assignment of error raised by Delta is that the district court erred in finding that Mr. Todd proved that he sustained any loss of his earning capacity. Delta alleges that the evidence adduced at trial showed that Mr. Todd was making $45,000.00 per year at the time of his injury, and upon being discharged in November of 2000, he was capable of earning the same amount.

Delta further avers that upon being discharged by Dr. Barry, Mr. Todd was scheduled to take a functional capacity evaluation (FCE) to determine his ability to function in the work place, and his endurance in the work place. Delta contends that the results of the FCE show that Mr. Todd was capable of heavy work, and that Dr. Barry’s trial testimony was that Mr. Todd could return to his prior employment.

Mr. Todd argues that in consideration of the standard of review, it cannot be said that district court erred in making its finding of fact. Additionally, Mr. Todd avers that the district court’s factual findings were reasonable. We agree.

“Undfer Louisiana jurisprudential law, wage losses may be established by any proof which reasonably establishes the claim, including the plaintiffs own reasonable testimony.” Daniels v. Burridge, 00-1089, p. 7 (La.App. 4 Cir. 53/21/01), 785 So.2d 906, 911(citations omitted). Additionally, in Daniels, we noted:

As for a claim for past-lost wages, the Third Circuit has provided:
While claims for past lost wages must be established with some degree of certainty, Dupre v. Exxon Pipeline Co., 93-1528 (La.App. 3 Cir. 6/1/94); 638 So.2d 1118, writ denied, 94-2200 (La.11/18/94); 646 So.2d 379, they need not be proven with mathematical certainty, but only by such proof as reasonably establishes the plaintiffs claim. Veazey v. State Farm Mut. Auto Ins., 587 So.2d 5 (La.App. 3 Cir.1991). This award may be supported by the plaintiffs detailed and uncorroborated testimony. Craig v. Burch, 228 So.2d 723 (La.App. 1 Cir.1969), writ denied, 255 La. 475, 231 So.2d 393 (1970).
Dauzat v. Canal Insurance Co., 96-1261 (La.App. 3 Cir. 4/9/97), 692 So.2d 739, 748.

Id.

Furthermore, under the Jones Act, a seaman is able to recover damages for past lost wages, loss of earning capacity or future lost wages, loss of fringe benefits, and medical expenses. Lopinto v. Crescent Marine Towing, 2004 WL 1737901, p. 5 (E.D.La.2004) (citing 46 U.S.C. § 688 et seq.; Levine v. Zapata Protein (USA), Inc., 961 F.Supp. 942, (E.D.La.1996)). The plaintiff bears the burden of proving his damages by a preponderance of the evidence. Id., (citing Clements v. Chotin Transportation, Inc., 496 F.Supp. 163, 168 (M.D.La.1980)). “Speculation, possibilities and conjecture are not sufficient.” Id.

The district court was presented with evidence and testimony that Mr. Todd had a pre-existing knee condition; however, his knee condition was asymptomatic and did not impact his ability to work prior to this accident. After being injured, Mr. Todd participated in physical therapy contemporaneous with Dr. Barry’s | (¡treatment. Dr. Barry treated Mr. Todd with a series of Hylagen injections and performed arthroscopic surgery on Mr. Todd’s right knee. Dr. Barry also testified that prior to Mr. Todd’s discharge, Dr. Barry diagnosed Mr. Todd as having a 15% permanent impairment of his right leg, or a 6% whole body permanent impairment. In November of 2000, Dr. Barry released Mr. Todd from his care and opined that Mr. Todd could not return to his job as a chef, and that he had reached maximum medical improvement. Dr. Barry also scheduled Mr. Todd for a functional capacity evaluation (FCE) upon his discharge.

Despite FCE results showing Mr. Todd was able to work in the heavy category of work, the results also showed that “[m]odi-fications should be made to limit his standing time to a frequent level, and/or alternating between sitting and standing.” Dr. Sherry Carthane, a vocational rehab specialist who assessed Mr. Todd’s physical condition in 2001, opined in her report that Mr. Todd had poor endurance for aerobic capacity for a man of his age, and she disagreed with the FCE results showing that Mr. Todd could perform work of a heavy nature.

Lastly, Mr. Todd earned $45,000.00 a year as a chef working for Delta prior to this accident. He was not hampered in carrying out his duties by his pre-existing knee condition. Yet, Mr. Todd testified that after being discharged from Dr. Barry, he attempted working as a chef, but he was physically unable to carry out his duties. He testified that in 2002, while employed as a chef at the Fountainbléu Hilton, he had to leave that position within a month because his knee began swelling, and he was unable to move around on his leg. He further testified that his condition is painful and his knee frequently swells up, buckles, burns and aches.

17From 2001 to 2005, Mr. Todd has been self-employed as a carpenter/cabinetmaker. He testified that he earned approximately $15,000.00 as a carpenter/cabinetmaker in 2003, about l/3rd of what he earned as a chef. Based upon the record before us and the district court’s determination that Mr. Todd’s injuries were caused by Delta’s negligence, we do not find that the district court erred in finding that Mr. Todd sustained a loss in earning capacity. This assignment of error is without merit.

Moreover, with regard to Delta’s second assignment of error, that the district court erred in awarding past lost income to Mr. Todd, for the foregoing reasons we also find this assignment of error to be without merit. Appellate review of an award for past wages is limited to a determination of whether the trier of fact abused its much discretion and whether the award may be considered excessive. Burns v. United Gas Pipeline Co., 598 So.2d 397, 402 (La.App. 4 Cir.1992). As discussed above, Mr. Todd demonstrated that he sustained an economic loss as a result of his injuries from the subject incident. Therefore, the district court did not abuse its discretion in awarding past lost wages to Mr. Todd.

The third issue that Delta raises is that the district court erroneously computed Mr. Todd’s past lost income award. Delta avers that the district court should have computed Mr. Todd’s past lost income award using his net income instead of his gross income. Mr. Todd contends that pursuant to Perez v. State, Through DOTD, 578 So.2d 1199 (La.App. 4 Cir.1991) — which is not a maritime case — that gross wages and not net wages are to be used in calculating past and future lost wages.

The district court determined that based upon evidence submitted by Mr. Todd, that his wage loss for the year 2000 was $24,144.00. This award was based |son Mr. Todd’s $45,000.00 salary less the $20,856.00 Delta paid Mr. Todd for the year 2000. The district court added to that sum: $42,883 for 2001; $41,637 for 2002; $40,033 for 2003; $40,558 for 2004; $38,306 for 2005, and $31,610 for 2006. The total award was 259,171.00.

We note that “[i]n a maritime context, an award for lost wages must be based on after-tax earnings.” Harrison v. Diamond Offshore Drilling, Inc., Civ. A. No. 07-4176, 2008 WL 708076, p. 17 (E.D.La.2008). However, in the instant case, it is not clear from the district court’s reasons how it computed Mr. Todd’s past lost wage award.

Considering this lack of clarity and that the calculation for Mr. Todd’s wage loss for the year 2000 was based on his gross income, we remand this issue to the district court to re-calculate it’s award of past lost wages to the extent its previous computation may have been based on Mr. Todd’s gross income, and to provide an explanation of its computation.

Mr. Todd’s fourth assignment of error is that the district court erred in not crediting Delta for wages paid to Mr. Todd after his injury. Delta specifically avers that it executed a stipulation with Mr. Todd that it paid him $4,673.34 in wages after his injury.

The record shows that the parties entered into a stipulation that was filed on November 6, 2006, which provided:

The parties agree to stipulate that between May 20, 2000 to July 21, 2000(,) The Delta Queen Steamboat Company, Inc. paid $4,673.34 in ‘unearned wages’ to Anthony Todd while he was not fit for duty.

The stipulation, however, does not state that the “unearned wages” would be credited toward any damage award for past lost wages against Delta. Additionally, [flthe stipulation was before the district court, which determined not to credit Delta for the “unearned wages.” Because of the district court’s consideration of the stipulation and the lack of specificity in the wording contained therein, we find that the district court did not err in not crediting Delta for its payments of “uneaimed wages” to Mr. Todd post-injury. This assignment of error is without merit.

Delta’s fifth assignment of error is that the district court erred in awarding prejudgment interest when it did not find the vessel to be unseaworthy. Additionally, Delta avers that interest on any judgment against Delta stopped running as of the date it declared Chapter 11 bankruptcy.

The Louisiana Supreme Court in Milstead v. Diamond M. Offshore, Inc., 676 So.2d 89 (La.1996), explained that when a Jones Act case is tried as an admiralty case without a jury, the district court can award pre-judgment interest on past damages, but may not award prejudgment interest on future damages. Id., 95-2446, pp. 15-16, 676 So.2d at 97. In the instant case, the district court awarded prejudgment interest on a past lost wage award. This is permissable under Mil-stead,. Thus, despite the fact that the district court did not find Mr. Todd’s un-seaworthy claim to have merit, it was permissible for the court to award prejudgment interest for Jones’ Act claims tried to the court.

Regarding the district court’s award of prejudgment interest, Delta contends that interest is not recoverable once it filed for Bankruptcy on October 19, 2001. We note that the district court issued an amended judgment on August 24, 2007, stating that its total damages award of $379,171.00 was being awarded with judicial interest “as may be permitted by the Bankruptcy Laws of the United States of America.” We interpret this to mean that to the extent that the bankruptcy laws do not permit an award of prejudgment interest, interest would not then be |10awarded. The application of bankruptcy laws lies within the jurisdiction of the Bankruptcy Courts. Nevertheless, the district court did not err in awarding prejudgment interest on past wages in a Jones Act case while the court was sitting in admiralty. This assignment of error is without merit.

Delta’s sixth assignment of error addresses the district court’s apportionment of fault between the parties. Delta’s avers that the district court erred in concluding that Mr. Todd’s injury was caused or contributed to any negligence on the part of the Delta Steamboat Company.

In a Jones Act case, the court should determine the negligence of the employer according to the standard of a reasonable employer under like circumstances, and should determine the contributory negligence of the seaman according to the standard of a reasonable seaman under like circumstances. Vendetto v. Sonat Offshore Drilling Co., 97-3103, p. 9 (La.1/20/99), 725 So.2d 474, 479, cert. denied, 527 U.S. 1023, 119 S.Ct. 2369, 144 L.Ed.2d 773 (1999).

As indicated above, the facts in this case were in dispute. Mr. Todd alleged that his knee was struck by a loaded cart after he cleared a passageway for Mr. Fant, a Delta employee. Nevertheless, Delta avers that Mr. Todd hit his knee on the loaded cart when it was stationary.

The district court — as the factfin-der — determined upon review of the evidence and testimony presented at trial that Mr. Todd’s version of events is what actually transpired. “Where there are two permissible views of the evidence, the fact-finder’s choice cannot be manifestly erroneous or clearly wrong.” Stobart v. State, Through Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993). We cannot say that the district court’s determination that Mr. Todd’s knee was struck with the loaded cart that was being pushed by a Delta employee, who prematurely |, ¡proceeded through the kitchen/galley aisle, was manifestly erroneous. Delta is vicariously liable for Mr. Fant’s negligent actions under the doctrine of respondeat superior. See Broussard v. Stolt Offshore, Inc., 467 F.Supp.2d 668, 669 (E.D.La.2006). It follows then that we cannot say the district court erred in determining that Mr. Todd’s injury was caused or contributed to any negligence on the part of the Delta Steamboat Company. This assignment of error is without merit.

Delta’s seventh and eighth assignments of error address the district court’s award of $120,000.00 in general damages to Mr. Todd. Delta contends that district court erred in awarding said amount and that the award is excessive.

The district court is vested with great discretion when awarding damages. Miller v. LAMMICO, 07-1352, p. 28 (La.1/16/08), 973 So.2d 693, 711. “An appellate court may disturb a damages award only after an articulated analysis of the facts discloses an abuse of discretion.” Id. “It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.” Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993). Lastly, under the Jones Act, a plaintiff may recover all of his pecuniary losses (e.g., loss of earning capacity, medical expenses, and pain and suffering). Harrison, 2008 WL 708076, p. 17 (citing Cruz v. Hendy Int’l Co., 638 F.2d 719, 723 (5th Cir.1981) and Daigle v. L. & L Marine Transp. Co., 322 F.Supp.2d 717, 730 (E.D.La.2004)).

Furthermore, “when a defendant’s [negligence] aggravates or accelerates a plaintiffs pre-existing condition and disables a plaintiff, thus rendering him unable to continue his work, or said aggravation awakens a dormant condition that causes a plaintiff to experience pain although he had suffered no pain from the condition 112prior to the aggravation, such defendant is liable in full for the disability and/or pain it caused.” Lopinto v. Crescent Marine Towing, 2004 WL 1737901, p. 5 (E.D.La.2004) (citing Milos v. Sea-Land Serv. Inc., 478 F.Supp. 1019, 1023 (S.D.N.Y.1979), aff'd 622 F.2d 574 (2nd Cir.1980), cert. denied, 449 U.S. 954, 101 S.Ct. 360, 66 L.Ed.2d 219 (1980)).

In the case sub judice, Mr. Todd fractured his knee. During his eight (8) month treatment period for his knee fracture, Mr. Todd received a series of Hyla-gen injections, participated in physical therapy and underwent knee surgery. Moreover, he was diagnosed as having a 15% permanent impairment of his right leg or a 6% whole body permanent impairment. Lastly, Mr. Todd continues to experience knee pain and is unable to work on his feet for an extended period of time.

Furthermore, the district court examined general damage awards for plaintiffs who sustained knee injuries similar to Mr. Todd. The district court examined the general damage awards for plaintiffs who sustained knee injuries in Courville v. Cardinal Wireline Specialists, Inc., 775 F.Supp. 929 (W.D.La.1991) and Richard v. St. Paul Fire and Marine Ins. Co., 942112 (La.App. 1 Cir. 6/23/95), 657 So.2d 1087. In Courville, a 29 year-old injured seaman who underwent two knee surgeries and who was forced to give up employment in heavy manual labor was awarded $175,000 in general damages. Courville, 775 F.Supp. at 938. In Richard, a plaintiff sustained a knee injury, underwent arthroscopic surgery and was no longer be capable of performing manual labor. Richard, 657 So.2d at 1092. The First Circuit affirmed the jury’s award of $125,000 in general damages in 113Richard. Id. The district courts general damages award in the instant case is consistent with the proceeding awards as well as other general damage awards made within our jurisdiction for lcnee injuries. We neither find that the district court abused its discretion in awarding Mr. Todd $120,000.00 nor do we find that such an award is excessive in light of the evidence and testimony presented to the district court. Thus, these assignments of error are without merit.

Delta’s final assignment of error is that the district court erred in not finding that Mr. Todd was guilty of some percentage of contributory or comparative negligence. As indicated above, the facts in this case were in dispute. Mr. Todd alleged that his knee was struck by a loaded cart after he cleared a passageway for Mr. Fant. Nevertheless, Delta avers that Mr. Todd hit his knee on the loaded cart when it was stationary.

As we stated in our discussion of the sixth assignment of erroi', where there are two permissible views of the evidence, the district court’s choice cannot be manifestly erroneous or clearly wrong.” Stobart, 617 So.2d at 882. We cannot say that the district court’s determination that Mr. Todd’s right knee was struck with the loaded cart to be manifestly erroneous. It follows then that we cannot say that the district court erred in not finding Mr. Todd contributorily or comparatively at fault, where the district court determined that Mr. Fant prematurely pushed the loaded cart through the kitchen before Mr. Todd had an opportunity to clear the constricted kitchen passageway. This assignment of error is without merit.

DECREE

For the foregoing reasons, the judgment of the district court is reversed with regard to its computation and calculation of Mr. Todd’s past lost wages and the | ^matter is remanded to the district court for a new calculation and explanation. In all other respects, the judgment of the district court is affirmed.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

ON APPLICATION FOR REHEARING

CHARLES R. JONES, Judge.

liThe Application for Rehearing filed by-Anthony Todd is granted for the limited purpose of addressing the issues raised by Mr. Todd in his Answer to Appeal. Mr. Todd specifically raised four (4) issues in his Answer to Appeal: 1) the district court erred in not awarding Mr. Todd anything for loss of future earnings and/or loss of future earning capacity; 2) the judgment of the district court should have found that the injuries caused to Mr. Todd on January 2, 2000, resulted from the unseaworthy condition of the M/V American Queen; 3) the district court’s award of $120,000.00 for past, present and future pain and suffering, mental anguish, and loss of enjoyment of life was abusively low and should be increased, and 4) the district court’s judgment of August 24, 2007, should not have made reference to the bankruptcy laws of the United States of America.

The Appellee’s first issue is that the district court erred in not awarding Mr. Todd anything for loss of future earnings and/or loss of future earning capacity. La. C.C. art. 2324.1, entitled Damages; discretion of judge or jury, provides: “[i]n the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury.” Furthermore, the role of an appellate court in reviewing general 12damages is not to decide what it considers to be an appropriate award of damages, but rather to review the exercise of discretion by the lower court. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993).

The district court set forth various reasons why it did not award Mr. Todd damages for future earnings and/or loss of future earning capacity: 1) he did not present an economist in support of his claim; 2) he failed to present adequate evidence to support such an award; and 3) his extrapolation of future wage loss was inaccurate as it failed to take into account tax consequences and use of a discount rate. We do not find that the district court abused its vast discretion in not awarding Mr. Todd damages. This issue is without merit.

The second issue we consider is that the judgment of the district court should have found that the injuries caused to Mr. Todd on January 2, 2000, resulted from the unseaworthy condition of the M/V American Queen. In reasoning that Mr. Todd did not demonstrate that an unsea-worthy condition was the proximate cause of his injury, the district court set forth in its Reasons for Judgment that the metal cart — that injured Mr. Todd — was customarily used on the M/V American Queen to transport large quantities of canned food. The district court determined as fact that the metal cart was not an unsafe or inappropriate type of equipment to be used by the crew in carrying out said function and that it was reasonably fit for its intended use.

The appropriate standard of review in a Jones Act and unseaworthiness claim is the manifest error or the clearly wrong standard. Foster v. Destin Trading Corp., on rehearing, 96-0803 (La.5/30/97), 700 So.2d 199, 202. Furthermore, as we recently explained in Henry v. Bally’s Louisiana, Inc., 2007-0655, p, 5 (La.App. 4 Cir. 3/19/08), 982 So.2d 860, 864:

Is... the doctrine of unseaworthiness cannot be interpreted without acknowledging that merely because an accident occurs on a ship does not mean that a vessel is unseaworthy.

In the instant case, we do not find that the district court erred in determining that Mr. Todd did not have a viable unseawor-thy claim. This issue is without merit.

Mr. Todd’s third issue is that the district court’s award of $120,000.00 for past, present and future pain and suffering, mental anguish, and loss of enjoyment of life was abusively low and should be increased. In our opinion of August 6, 2008, Todd v. Delta Queen Steamboat Co., 07-1518, *7-8 (La.App. 4 Cir. 8/6/08), 15 So.3d 107, 2008 WL 3119499, we discussed whether the district court abused its discretion in the amount of its award of general damages to Mr. Todd. We rationalized as follows:

[t]he district court is vested with great discretion when awarding damages. Miller v. LAMMICO, 07-1352, p. 28 (La.1/16/08), 973 So.2d 693, 711. “An appellate court may disturb a damages award only after an articulated analysis of the facts discloses an abuse of discretion.” Id. “It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.” Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993). Lastly, under the Jones Act, a plaintiff may recover all of his pecuniary losses (e.g., loss of ' earning capacity, medical expenses, and pain and suffering). Harrison v. Diamond Offshore Drilling Inc., Civ. A. 07-4176 (E.D.La.2008), 2008 WL 708076, p. 17 (citing Cruz v. Hendy Int’l Co., 638 F.2d 719, 723 (5th Cir.1981) and Daigle v. L. & L Marine Transp. Co., 322 F.Supp.2d 717, 730 (E.D.La.2004)).
|4In the case sub judice, Mr. Todd fractured his knee. During his eight (8) month treatment period for his knee fracture, Mr. Todd received a series of Hylagen injections, participated in physical therapy and underwent knee surgery. Moreover, he was diagnosed as having a 15% permanent impairment of his right leg or a 6% whole body permanent impairment. Lastly, Mr. Todd continues to experience knee pain and is unable to work on his feet for an extended period of time.
Furthermore, the district court examined general damage awards for plaintiffs who sustained knee injuries similar to Mr. Todd. The district court examined the general damage awards for plaintiffs who sustained knee injuries in Courville v. Cardinal Wireline Specialists, Inc., 775 F.Supp. 929 (WD.La.1991) and Richard v. St. Paul Fire and Marine Ins. Co., 942112 (La.App. 1 Cir. 6/23/95), 657 So.2d 1087. In Courville, a 29 year-old injured seaman who underwent two knee surgeries and who was forced to give up employment in heavy manual labor was awarded $175,000 in general damages. Courville, 775 F.Supp. at 938. In Richard, a plaintiff sustained a knee injury, underwent arthroscopic surgery and was no longer be capable of performing manual labor. Richard, 657 So.2d at 1092. The First Circuit affirmed the jury’s award of $125,000 in general damages in Richard. Id. The district court’s general damages award in the instant case is consistent with the proceeding awards as well as other general damage awards made within our jurisdiction for knee injuries. We neither find that the district court abused its discretion in awarding Mr. Todd $120,000.00 nor do we find that such an award is excessive in light of the evidence and testimony presented to the district court. Thus, these assignments of error are without merit.

As discussed above, we do not find that the district court abused its discretion in awarding Mr. Todd $120,000.00. The district court’s award was not abusively low where the court considered general damages awards made by other courts (i.e. in Comville and Richard) for plaintiffs who |3sustained similar knee injuries, and awarded general damages in the same range. Thus, this issue is without merit.

Lastly, Mr. Todd argues that the district court’s August 24, 2007 judgment should not have made reference to the bankruptcy laws of the United States of America. The district court rendered an amended judgment on August 24, 2007, setting forth that its total damage award of $379,171.00 was being awarded with judicial interest “as may be permitted by the Bankruptcy Laws of the United States of America.” We explained previously that we interpreted the language of the district court to mean that to the extent that the bankruptcy laws do not permit an award of prejudgment interest, interest would not then be awarded. The language at issue refers solely to the amount of judicial interest that could be awarded to Mr. Todd. This issue is without merit.

DECREE

For the foregoing reasons, we grant the application for rehearing of Anthony Todd, and affirm the opinion of this Court previously rendered.

APPLICATION FOR REHEARING GRANTED.

BELSOME, J., concurs.

      .The Court notes that Mr. Todd refers to himself as an appellant in his appellee's brief. As the record shows that only Delta filed a Motion for Appeal with the district court, we shall treat Mr. Todd solely as an appellee.

      . Dr. Barry practices medicine in the state of Florida.

      . Bipartite patella is a patella that has two fragments. The condition can also be referred to as a fracture, according to the testimony of Dr. Barry. Additionally, Dr. Barry testified that Mr. Todd had abnormal lateral positioning of the patella, which means that his kneecap did not sit in the correct groove. Dr. Barry testified that Mr. Todd also suffered from chondromalacia of the patella and numbness in his right foot. Chondromalacia is the degeneration of the cartilage tissue in the knee.


author: WALTER J. ROTHSCHILD, Judge.

text:
    Kendra Ormsby ROUGELOT v. John Henry ROUGELOT, Jr.
    No. 08-CA-1257.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 28, 2009.
    Rehearing Denied June 1, 2009.

      Zoe Olivia Fleming, Attorney at Law, Gretna, LA, Plaintiff/Appellee.
    Larry P. Boudreaux, Sr., Attorney at Law, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and MADELINE JASMINE, Pro Tempore.
   WALTER J. ROTHSCHILD, Judge.

| gThis is an appeal from a trial court judgment rendered on July 31, 2008 on the issue of child support. For the reasons stated herein, we affirm.

Facta and Procedural History

On May 1, 2007, Kendra Ormsby Rouge-lot filed a petition for divorce from John Henry Rougelot, Jr. and among other things, sought sole custody and child support for the minor child, Kaine William Rougelot. Mr. Rougelot was served with a copy of this petition on August 10, 2007, and an answer was filed on August 27, 2007. The matter was initially set before the hearing officer on October 19, 2007; however, the matter was continued several times.

Both parties appeared before the heai*-ing officer on April 4, 2008, and the parties agreed at this time to continue the matter of child support until April 29, 2008. At this time, both parties submitted obligation worksheets to be used for the calculation of the total support obligation. It -was also stipulated by the parties that Mr. Rougelot pay child support in the amount of $500.00 per month pending the hearing. Mr. Rougelot agreed to produce |3financial documents, including his 2006 and 2007 tax returns or supporting documentation, no later than April 18, 2008.

Mr. Rougelot failed to produce this information and also requested continuance of the April 29, 2008 hearing date. The hearing was rescheduled for June 5, 2008, and all parties received notice of this date.

On June 5, 2008, the issue of child custody and support came before the hearing officer. Although Ms. Rougelot and her attorney were present at this hearing, neither Mr. Rougelot nor his attorney appeared. Following this hearing, the hearing officer entered an interim judgment ordering Mr. Rougelot to pay child support in the amount of $1,155.00 per month effective May 1, 2007, with credits for all amounts paid prior to this date. The hearing officer stated he based this award on the provisions of La. R.S. 9:315, et seq., and the results of the worksheet calculation based on the parties’ stated incomes which were attached to the judgment.

On the same date, Kendra Rougelot filed a request for default hearing before the district court to ensure that the order of the hearing officer be made permanent. On June 10, 2008, the trial court ordered that the objections to the findings of the hearing officer and/or the request for the default hearing be set for July 31, 2008. Service of this order was requested on John Rougelot, Jr. through his attorney of record.

The supplemental record in this case indicates that the order setting a default hearing was personally served on Larry Boudreaux, Sr., the counsel of record for Mr. Rougelot, on June 24, 2008 at 9:00 a.m. The service information indicates that a copy of the order was attached, indicating that any objections to the hearing officer’s findings were to be heard before the trial court on July 31, 2008.

|,tThe record before us fails to contain any objection to the hearing officer’s findings on behalf of Mr. Rougelot. At the hearing on July 31, 2008, the trial court found that Mr. Rougelot failed to appear at the scheduled hearing on June 5, 2008 or to obtain an order granting continuance of this hearing. The court also found that Mr. Rougelot had failed to timely object to the findings of the hearing officer, despite counsel’s arguments that an objection had been sent to the trial court on July 3, 2008. After hearing testimony of Mrs. Rougelot on the child support matter, the trial court granted judgment in favor of Mr. Rougelot based on the recommendations of the hearing officer.

Mr. Rougelot now appeals from this judgment, seeking reversal and remand to the district court for recalculation of his child support obligation.

Discussion

By this appeal, Mr. Rougelot contends that the hearing officer erred in setting his child support obligation without a proper consideration of his ordinary and reasonable business related expenses which would have reduced his gross income as stated on his financial statement. He contends that he filed an objection to the hearing officer’s findings immediately upon learning of the findings, but the objection was not timely filed into the record due to an administrative error.

The rules for family and domestic relations proceedings in the Twenty-Fourth Judicial District Court are set forth in the Rules 23 and 24 of the local rules for that court. Rule 23(E)(5)(b)(2)(a) authorizes the domestic hearing officer to act as a finder of fact and make written recommendations to the court on the establishment of child support. Rule 24(A)(l)(a)(2) provides that a party who fails to appear at a hearing must file an objectionto the written findings within three days of receipt of the judgment or order. Thereafter, the order or judgment becomes order or judgment of the court.

In the present case, Mr. Rougelot was aware of the hearing scheduled before the domestic hearing officer on June 5, 2008, but failed to obtain a continuance of that hearing and failed to appear. On April 4, 2008, Mr. Rougelot submitted a financial statement to the hearing officer and agreed to submit further financial documentation before April 18, 2008. Despite being given several opportunities, Mr. Rougelot continually failed to produce this information, and the hearing officer did not abuse his discretion in calculating the child support obligation on the basis of the information submitted by Mr. Rougelot at the time of the June 5, 2008 hearing. The income listed by Mr. Rougelot on his prepared statement, along with the financial information supplied by Ms. Rougelot, supports the calculation of child support in this case.

Although counsel for Mr. Rougelot was aware of the scheduled hearing date on June 5, 2008, he avers that he was unaware of the order issued until July 2, 2008 when he received correspondence from opposing counsel regarding the child support order. However, the record fails to support this claim. The supplemental record indicates that the order setting the default hearing and objections to the hearing officer’s findings was personally served on counsel for Mr. Rougelot on June 24, 2008. Thus, assuming Mr. Rougelot or his counsel was not aware prior to this date of the order, Mr. Rougelot had three days, or until June 27, 2008 to file an objection to the hearing officer’s written recommendations.

As previously stated, the record contains no evidence that an objection to the June 5, 2008 recommendations was filed on behalf of Mr. Rougelot. | fiAlthough counsel for Mr. Rougelot argued in the trial court that an objection was filed on July 3, 2008 but was returned for failure to pay filing fees, such an objection even if properly filed would not have been timely. Thus, absent a timely objection, the order of the hearing officer became an order of the court.

Under the circumstances presented here, the trial court did not err in entering an order of default and confirming the order of the hearing officer which set child support in this matter. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.