author: EZELL, Judge.

text:
    Daniel HYATT v. MUTUAL OF OMAHA INS. CO., et al.
    No. CA 14-282.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2014.

      William E. Wright, Jr., Deutsch, Kerri-gan & Stiles, New Orleans, LA, for Defendant/Appellee, Larry Perron.
    Thomas Edward Loehn, Boggs, Loehn & Rodrigue, Metairie, LA, for Defendant/Appellant, Mutual of Omaha Insurance Company.
    Gregory Paul Allen Marceaux, Mar-ceaux Law Firm, Lake Charles, LA, for Plaintiff/Appellee, Daniel Hyatt.
    Court composed of JOHN D. SAUNDERS, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   EZELL, Judge.

11 This appeal involves the reformation of a disability benefits insurance policy issued by Mutual of Omaha Insurance Company (Mutual) to Daniel Hyatt. The trial court found the policy language was ambiguous and reformed the policy to allow Mr. Hyatt to receive full recovery of benefits. The trial court also awarded penalties and attorney fees. The trial court refused to allow a reduction in benefits based upon Mr. Hyatt’s receipt of social security benefits. However, the trial court granted Mutual’s motion for remittitur based on the settlement by its agent Larry Perron with Mr. Hyatt, finding the two parties to be solidary obligors. Mutual filed the present appeal seeking reversal of the judgment, and Mr. Hyatt answered the appeal seeking reversal of the grant of the remittitur and additional attorney fees for work performed at the appellate level.

FACTS

Daniel Hyatt drove an eighteen-wheeler for a living. In January 2000, he applied for an income replacement policy with Mutual with the help of its agent, Larry Per-ron. In the application, Mr. Hyatt was required to list “Gross annual earned income from your occupation (after business expenses).” He listed his current salary as $60,000.00 and his previous year’s salary as $90,000.00. Mr. Hyatt was issued a policy costing $90.18 a -month and providing benefits of $2,000.00 a month for two years if Mr. Hyatt became disabled from working.

In August 2002, Mr. Hyatt began having difficulty walking and keeping his balance. In March 2008, he was diagnosed with spinal muscular atrophy. Spinal muscular atrophy causes muscle weakness and wasting. In September 2006, Mr. Hyatt made a claim with Mutual for disability benefits. Mutual sent a letter to Mr. Hyatt informing him of the information it needed to begin processing his claim, | gMutual also sent forms that needed to be completed. Mutual never received the requested information from Mr. Hyatt, so it mailed additional letters requesting the information. Mr. Hyatt never proceeded with his claim for disability benefits at that time.

Subsequently, Mr. Hyatt again sought disability benefits from Mutual in March 2008, claiming that he was no longer able to work as of February 1, 2008. In processing his claim, Mutual requested his 2006 and 2007 tax returns. Mr. Hyatt responded by sending the 2005 and 2006 tax returns because his 2007 tax returns had not been prepared. He also enclosed his denial of disability benefits letter from the social security administration from when he applied for benefits in 2006.

Based on the information in the tax returns, Mutual informed Mr. Hyatt on June 9, 2008, that his benefits would be reduced to $200.00 a month. Taking into account that Mr. Hyatt was a sole proprietor, Mutual utilized his net income with the addition of any depreciation expense in calculating his entitlement to disability benefits. This resulted in a negative or minimum income. Using this amount of income, Mr. Hyatt was not entitled to disability benefits. However, pursuant to a relation-to-earnings provision in the policy, $200.00 was the minimum that could be paid to Mr. Hyatt. He was issued a disability draft in the amount of $400.00, representing two months’ disability benefits: Based on the same provision, Mutuál also refunded 90% of the premiums Mr. Hyatt paid to Mutual in the previous twenty-four months in the amount of $1,947.88. This is because he did not qualify for the benefits he paid for.

After receiving the 2007 tax returns, Mutual adjusted Mr. Hyatt’s benefits to $436.00 a month versus $200.00 a month. This meant an additional payment of |s$472.00 was due but also meant that the refund of the premium should have only been $1,670.76 instead of $1,947.88 for a difference of $277.12. Therefore, Mutual sent an additional check in the amount of $194.88 representing the difference between the benefits of $472.00 due minus the overpayment of the premium due of $277.12.

Mutual also requested that Mr. Hyatt provide monthly continuation of disability forms in order to continue his disability past July 1, 2008. Following multiple requests for the forms, Mr. Hyatt’s file was closed in November 2008. Mr. Hyatt never received any additional benefit checks.

On July 17, 2008, Mr. Hyatt filed suit against Mutual and Larry Perron who sold him the disability insurance policy claiming entitlement to $2,000.00 a month in benefits. He also sought damages, penalties, and attorney fees. Mr. Hyatt later amended his petition asking for reformation of the policy to conform to the original intent that it provided disability insurance coverage in the amount of $2,000.00 per month because Mr. Perron represented that the application required him to list his gross annual income.

On February 23, 2009, Mr. Hyatt filed another claim for social security benefits, claiming to be disabled as of September 1, 2007. After an investigation, the Social Security Administration determined that he was disabled.

A bench trial was held in May 2013. After two days of trial, Mr. Hyatt settled with Mr. Perron for $25,000.00. The trial proceeded, and the trial court ruled from the bench on May 16, 2013. The trial court found the policy to be ambiguous regarding the definition of “earnings” and ordered that the policy be reformed to reflect the intention of the parties that Mr. Hyatt was entitled to $2,000.00 a month in disability benefits. The trial court also determined that Mr. |4Hyatt was entitled to the full two-year period of benefits. Pursuant to La.R.S. 22:1821, the trial court awarded penalties in the amount of $48,000.00 and $27,204.00 in attorney fees. In considering Mutual’s motion for remitti-tur filed after the trial, the trial court reduced the award to Mr. Hyatt by $25,000.00 based on his settlement with Mr. Perron, finding Mr. Perron to be a solidary obligor with Mutual.

Final judgment was signed on October 13, 2013. Mutual filed the present appeal, and Mr. Hyatt answered the appeal.

Amount of Benefits

The main argument by both sides in this case involves the definition of “earnings” when calculating the amount of benefits, or extent of coverage, Mr. Hyatt is entitled to. Mutual argues that the policy requires that his net earnings, earnings after business expenses, should be utilized. Mr. Hyatt argues that his gross earnings should be utilized. In making its ruling, the trial court found the policy issued by Mutual was ambiguous regarding the meaning of “earnings.” The trial court further found that Mr. Perron knew that Mr. Hyatt intended to purchase a policy which would provide benefits in an amount which would cover his eighteen-wheeler truck note if he became disabled. The trial court then reformed the insurance policy to provide that Mr. Hyatt’s gross earnings would be considered in determining the amount of benefits he was entitled to.

An insurance policy is a contract between the insured and insurer and is the law between the parties which governs their relationship. La.Civ.Code art. 1983; Peterson v. Schimek, 98-1712 (La.3/2/99), 729 So.2d 1024. In interpreting insurance policies, courts should use general rules of contract interpretation while determining the common intent of the parties as reflected by the words of the | ^insurance policy. Id.; La.Civ.Code art. 2045; Highlands Underwriters Ins. Co. v. Foley, 96-1018 (La.App. 1 Cir. 3/27/97), 691 So.2d 1336.

“The parties’ intent, as reflected by the words of an insurance policy, determines the extent of coverage, and the intent is to be determined in accordance with the plain, ordinary, and popular sense of the language used in the policy, unless the words have acquired a technical meaning.” Palmer v. Martinez, 45,318, p. 5 (La.App. 2 Cir. 7/21/10), 42 So.3d 1147, 1151; La.Civ.Code art. 2047. “When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent” and the policy must be enforced as written. La.Civ.Code art. 2046; Peterson, 729 So.2d 1204; Highlands Underwriters, 691 So.2d 1336. An insurance policy should not be interpreted in an unreasonable manner beyond what is reasonably contemplated by unambiguous terms. Peterson, 729 So.2d 1204. When an insurance policy contains a definition of any word or phrase, the definition is controlling. Washington v. McCauley, 45,916 (La.App 2 Cir. 2/16/11), 62 So.3d 173, writ denied, 11-578 (La.4/29/11), 62 So.3d 115.

“When there is uncertainty or ambiguity as to the terms of a written contract because its provisions are susceptible to more than one interpretation, or when the intent of the parties cannot be ascertained from the language employed, parole evidence is admissible to clarify the ambiguity or show the intention of the parties.” Highlands Underwriters, 691 So.2d at 1340-41. When there is ambiguity, then the court must construe the contract according to the intent of the parties, which is an issue of fact to be inferred from the surrounding circumstances. Id. “A doubtful provision must be interpreted in light of the nature of the contract, equity, usages, the conduct of the parties before and after the formation of the | ficontract, and of other contracts of a like nature between the same parties” La.Civ.Code art. 2053; Highland Underwriters, 691 So.2d 1336.

The determination of whether a contract is ambiguous or not is a question of law. Highland Underwriters, 691 So.2d 1336; Palmer, 42 So.3d 1147. In the case where factual findings are pertinent to the interpretation of a contract, the factual findings of the trial court are not to be disturbed unless manifest error is shown. Id.

In the case before us, the trial court made a determination that the insurance policy was ambiguous as to the definition of “earnings” and a factual determination that the policy’s language did not provide for the use of Mr. Hyatt’s gross earnings in calculating his benefit entitlement as contemplated by the parties when Mr. Hyatt bought the policy. Therefore, as in Highland Underwriters, we must first determine if the meaning of “earnings” in the policy issued to Mr. Hyatt by Mutual was ambiguous as found by the trial court. If we find that the language of the policy is explicit and unambiguous, then the policy must be enforced as written. However, if the language of the policy is unclear and ambiguous, the policy must be construed in light of the intention of the parties.

Ambiguity

Pursuant to Part P of the insurance policy, the amount of disability owed to Mr. Hyatt is determined by his earnings at the time his disability starts as follows:

Relations of Earnings to Insurance: The Monthly Benefit will be payable on a reduced basis when you have too much loss of earnings or disability coverage for what you earn. You will be deemed to have too much loss of earnings or disability coverage when the total amount of weekly or monthly benefits under all of your valid loss of earnings or disability coverage is more than the weekly or monthly earnings you had when the disability started, or more than your average weekly or monthly earnings for the two years just before the loss started, whichever is greater. The amount of benefits payable under this policy will be that proportionate amount of such benefits as the amount of such weekly or monthly earnings bears to the total 17amount of weekly or monthly benefits for the same loss under all such coverages that you had when the disability started.

The dispositive issue in the case requires an interpretation of the provision in the Mutual policy defining “earnings” and whether it is clear or ambiguous as to the use of gross or net earnings. The policy issued to Mr. Hyatt defined “earnings” in the definitions section found in Part F as “salaries, bonuses, commissions, fees and other amounts received for personal services rendered or work performed. Earnings do not include dividends, rents, royalties, annuities or other forms of unearned income. Proof of earnings may be required when filing a claim.”

Clearly, there is no language indicating whether net or gross earnings are to be used in determining the amount of benefits are payable. Mr. Hyatt received money for driving the truck which would be listed as his gross income. There is also no requirement in the definition of “earnings” that business expenses be deducted from earnings. Complicating the matter even further is the application filled out by Mr. Hyatt which requested “Gross annual earned income from your occupation (after business expenses).”

Louisiana Revised Statutes 22:881 provides that an application attached to or made part of the policy becomes part of the policy. “[T]he intent to make the application part of the insurance contract must be clearly expressed on the face of the policy.” Peterson, 729 So.2d at 1031. The first page of the policy provides that: “The premium you paid, the application you completed and our reliance on your answers to the application questions have put this policy in force on the Policy Date. That date is shown on the Schedule. A copy of your application is attached.”

IsThe application itself refers to “gross income” but then attempts to define gross income as not including business expenses. This itself is confusing because the application could have simply asked for net income. Therefore, we find that the policy was not clear and unambiguous and will look to the parties’ intent as to whether gross or net income should be used in calculating the amount of benefits.

Intent

Judith Edwards, now retired from Mutual, was a specialist assigned to Mr. Hyatt’s case. As a specialist, she would review files handled by a claims analyst. Ms. Edwards agreed that Mr. Hyatt would qualify for $2,000.00 a month if Mutual used his gross earnings. She admitted that the definition of earnings in the policy did not state that business expenses were to be deducted, nor did it state that any depreciation amount was to be added back to the net income amount, as Mutual did, in determining Mr. Hyatt’s monthly benefit. Ms. Edwards testified that Mutual customarily deducted business expenses of a sole proprietor, although there is no provision in the policy that allows this.

Mr. Perron testified that Mr. Hyatt came to him because he wanted income protection. The application was filled out in his office. Mr. Hyatt explained that he wanted to purchase an insurance policy that would pay the truck note if he became disabled. He indicated that when he filled out the application he thought Mutual was asking for gross income as opposed to net income. Mr. Hyatt’s wife, Judy, agreed that they wanted to purchase insurance to cover the truck note in case Mr. Hyatt became sick or disabled. She also thought Mutual was requesting gross amount of income.

The parties themselves were not clear on whether gross or net earnings should be used. Mr. Hyatt clearly thought gross income was the proper amount to [¡¡submit based on the language in the application. Mutual was of the opinion that it could use net earnings since Mr. Hyatt was a sole proprietor.

While the trial court did not give a lot of weight to Mr. Hyatt’s testimony on other issues, it did find that Mr. Hyatt’s testimony that he wanted a policy of insurance to cover his truck note credible. We find no error in this ruling. After reviewing the policies and the testimony of the parties, we agree with the trial court and find that the policy is ambiguous as to whether gross or net earnings should be used in determining the amount of disability benefits an insured is entitled to receive.

Both sides have based their arguments on the fact that the trial court reformed the insurance policy to reflect the parties’ intentions. Reformation is used by the courts when the policy issued does not express the agreement of the parties. A policy that is reformed may not necessarily contain any ambiguities. However, in this case, there is no need to reform the policy to conform to the parties’ intentions since we agree that an ambiguity exists. See Peterson, 729 So.2d 1024. Our law clearly provides what to do when an insurance policy contains an ambiguous provision.

If an ambiguity remains in an insurance policy after applying the general rules of construction, the ambiguous contractual provision is to be construed against the insurer who furnished the policy’s text and in favor of the insured. La.Civ.Code art. 2056; Peterson, 729 So.2d 1024. Since we find that the policy issued to Mr. Hyatt contains an ambiguity, we must construe the provision against Mutual and in favor of Mr. Hyatt. Therefore, we find that the trial court was correct in using gross earnings as opposed to net earnings in determining the amount of disability benefits.

| inMutual also argues that it was error for the trial court to use the gross receipts of Hyatt Trucking, LLC to establish Mr. Hyatt’s personal income. Mr. Hyatt submitted his 2005, 2006, and 2007 tax returns to Mutual as proof of his earnings prior to his disability. These tax returns were introduced into evidence at trial.

At trial, Mr. Hyatt introduced the testimony of his CPA, Darla Perry, who prepared the tax returns. Ms. Perry explained that Schedule C attached to an income tax return is a schedule of income of a sole proprietorship. It includes gross income and deductions of a business. She further explained that Hyatt Trucking, LLC is a sole member limited liability company so you include its income on the member’s tax returns.

The law does provide that a limited liability company is a juridical person and that an LLC and its member(s) are wholly separate persons. La.R.S. 12:1301; Ogea v. Merritt, 13-1085 (La.12/10/13), 130 So.3d 888. However, the law further provides that the profits and losses of a limited liability company are to be allocated among the members. La.R.S. 12:1323.

We find that the trial court did not err in using Mr. Hyatt’s gross earnings as listed on his income tax returns since he is a member of Hyatt Trucking, LLC and included its profits and losses on his personal income tax returns. As previously-stated, there is no dispute that Mr. Hyatt would be entitled to the maximum benefit provided by the policy issued to him by Mutual when using his gross earnings. Therefore, based on Mr. Hyatt’s earnings, he was entitled to receive a monthly benefit in the amount of $2,000.00.

InTOTAL AND PERMANENT DISABILITY

Mutual claims that the trial court erred in finding Mr. Hyatt totally and permanently disabled and exempt from having to provide updated proof of his disability in order to continue receiving his benefits. Mutual argues that Mr. Hyatt’s tax returns after 2008 make it clear that he continued to work and that no one drove his truck for him, not even his wife. The trial court recognized that Mr. Hyatt had credibility issues. However, it found that Mr. Hyatt was entitled to the full amount of policy coverage based on the language of the policy. It found that the physician’s statement that Mr. Hyatt was unable to work from “February 1, 2008 to lifetime” was sufficient to establish his disability and no more paperwork was required.

In order to reverse a factual determination by the trier of fact, the appellate court must apply a two-part test: (1) the appellate court must find' that a reasonable factual basis does not exist in the record for the finding; and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong/manifestly erroneous. Stobart v. State through the Dep’t ofTransp. & Dev., 617 So.2d 880 (La.1993).

Under Mutual’s policy benefits are payable for loss or earnings resulting from an injury or sickness. “Sickness” is “a sickness, disease, or physical condition” which causes loss while the policy is in force and is not excluded from coverage. Mutual’s policy provides for “Total Loss of Earnings” when the insured is unable to earn more than 30% of his average earnings in any occupation for which he is suited because of education, training, or experience, and received medical treatment.

h ¡After reviewing the policy, we agree with Mr. Hyatt that there is no provision that requires Mr. Hyatt to give monthly notice of his continuing disability. We further agree with the trial court that the statement by Mr. Hyatt’s doctor that he was permanently disabled from working for the rest of life was sufficient to prove his claim that he was medically unable to work.

At trial, Mr. and Mrs. Hyatt explained that she drove the truck once he could no longer drive it. Mr. Hyatt testified that he did not drive the truck in 2009, but he was confronted with his deposition testimony in which he stated that he drove the truck in 2009. Mrs. Hyatt explained that she got her commercial driver’s license in 2010. Before she got her license, Mrs. Hyatt stated that another company was using the truck with other drivers even though their tax returns indicated fuel expenses in those years. She could not remember the name of the company and had no records because they burned the records when cleaning the files.

Mutual introduced the testimony of Geraldine Duplantis, the region manager with the Office of Motor Vehicles. Ms. Duplan-tis testified that the first date that Mrs. Hyatt received her commercial driver’s license was June 11, 2012. On rebuttal, Mrs. Hyatt explained that she had a learner’s permit before 2012 which allowed her to drive the truck legally with a licensed driver before she got a commercial driver’s license.

Mr. Hyatt testified that his disease has gotten progressively worse since he was first diagnosed in 2002. Mrs. Hyatt testified that her husband cannot walk without stumbling or losing his balance. This probably explains why he applied for disability benefits in 2006. Mr. Hyatt explained that he returned to his doctor asking him to let him continue working in 2006 so he did not continue pursuing his [^disability claim with Mutual. Finally, in 2008 he could not work anymore, which is when he once again applied for disability benefits.

When Mr. Hyatt sought social security disability benefits again in 2009, he was sent for an independent medical examination with the Southern Medical Group. The doctor that examined Mr. Hyatt made the following observation regarding his disease:

The claimant has a history of spinal muscular atrophy followed by a neurologist and his examination findings are consistent with this disease process. This disease currently has a dismal prognosis and ultimately results in eventual death secondary to weakness of respiratory muscles requiring mechanical ventilation. The progression of the disease is variable but relentless with an uncertain time frame. There is no effective therapy for his condition and treatment is supportive.

We agree with the trial court that the Hyatts have some serious credibility issues. However, we also find that there is sufficient other evidence to support the trial court’s determination. There is no doubt that Mr. Hyatt suffers with spinal muscular atrophy as diagnosed by a doctor. This disease progresses over time. According to the doctor, this illness rendered Mr. Hyatt unable to work as of February 2008. Based on our review of the testimony and evidence in the record, we find no error in the trial court’s determination that Mr. Hyatt was totally and permanently disabled entitling him to benefits under Mutual’s policy.

OFFSET FOR SOCIAL SECURITY

Pursuant to Part G of the Mutual policy, benefits payable are reduced by other income replacement benefits. The policy provides that income replacement benefits include social security disability or retirement benefits. During the course of discovery, Mutual was informed that Mr. Hyatt again applied for social security disability benefits. It then obtained the social security file and introduced part of it |14at trial. ■ At trial, Mr. Hyatt objected to the introduction of any evidence regarding payment of social security disability benefits because Mutual did not specifically plead offset as an affirmative defense. Mutual argues that the trial court erred in not allowing it an offset for social security benefits because it pleaded all terms and conditions of the policy in its answer and it is simply seeking to enforce the terms and conditions of its policy. Mutual claims that the reduction of benefits based on Mr. Hyatt’s receipt of social security disability benefits is not a policy exclusion under which coverage is barred. Rather, offset is part of the coverage itself and the calculation of benefits, so it was not necessary to plead it as an affirmative defense.

Pursuant to La.Code Civ.P. art. 1005, an affirmative defense must be specifically pled in the answer. The determination of whether an issue is an affirmative defense is a question of fact resolved by examining the circumstances of the individual case. Fishbein v. State ex rel. LSU Health Sciences Ctr., 06-549 (La.App. 1 Cir. 3/9/07), 960 So.2d 67, writ denied, 07-730 (La.6/22/07), 959 So.2d 495. “[A]n affirmative defense raises a new matter, which assuming the allegations in the petition are true, constitutes a defense to the action. The new matter must be one, however, that is not raised in the plaintiffs petition.” Sher v. Lafayette Ins. Co., 07-2441, p. 23 (La.4/8/08), 988 So.2d 186, 204. Offset has been recognized as an affirmative defense which must be specifically pled in the defendant’s answer. Ducote v. City of Alexandria, 95-1197 (La.App.B Cir.3/6/96), 670 So.2d 1378.

In Fishbein, 960 So.2d 67, and Bates v. City of New Orleans, 13-1153 (La.App. 4 Cir. 3/26/14), 137 So.3d 774, the issues involved computation of benefits available to the plaintiffs under different statutory schemes. The plaintiffs argued that the defendants should have raised the defenses to the computations | ^contained in the statutory schemes as an affirmative defense. The appellate courts held that a defense to a plaintiffs claim that arises by operation of the law under which the plaintiff is seeking recovery need not be affirmatively pleaded because there can be no unfair surprise since no one may avail himself of ignorance of the law.

Mutual claims that the offset it is seeking is simply part of the calculation of benefits owed to Mr. Hyatt. It argues that it is not an exclusion to receipt of benefits.

We find that offset in this case is an affirmative defense because it reduces the full coverage Mr. Hyatt is entitled to tinder the policy. The fact that it is not defined as an exclusion in the policy makes no difference in the effect it has the receipt of benefits. In this specific case, Mr. Hyatt has never raised any issue regarding the receipt of social security disability benefits. While, Mutual did make a blanket claim of all provisions in the policy, it was still required to specifically plead the affirmative defense of offset because it was a new matter not raised by Mr. Hyatt.' See Sher, 988 So.2d 186. Even after discovering that Mr. Hyatt applied for social security disability benefits, Mutual never amended its answer to assert the affirmative defense of offset. For these reasons we find the trial court was correct in excluding any evidence of offset.

PENALTIES AND ATTORNEY FEES

Mutual claims the trial court erred in finding it liable for penalties and attorney fees pursuant to La.R.S. 22:1821. Louisiana Revised Statutes 22:1821(A) provides:

All claims arising under the terms of health and accident contracts issued in this state, except as provided in Subsection B of this Section, shall be paid not more than thirty days from the date | ^upon which written notice and proof of claim, in the form required by the terms of the policy, are furnished to the insurer unless just and reasonable grounds, such as would put a reasonable and prudent businessman on his guard, exist. The insurer shall make payment at least every thirty days to the assured during that part of the period of his disability covered by the policy or contract of insurance during which the insured is entitled to such payments. Failure to comply with the provisions of this Section shall subject the insurer to a penalty payable to the insured of double the amount of the health and accident benefits due under the terms of the policy or contract during the period of delay, together with attorney fees to be determined by the court. Any court of competent jurisdiction in the parish where the insured lives or has his domicile, excepting a justice of the peace court, shall have jurisdiction to try such cases.

Mutual argues that its actions were not arbitrary and capricious and its decision to not pay benefits to Mr. Hyatt was based on a reasonable interpretation of the policy language and the facts and circumstances that were presented to it at the time Mr. Hyatt made his claim for disability.

The insurer assumes the risk of misinterpreting its own policy provisions. Barton v. Avoyelles Parish Sch. Bd., 13-445 (La.App. 3 Cir. 4/9/14), — So.3d —, 2014 WL 1382549. The determination of whether or not an insurer has just and reasonable grounds for refusal to pay insurance policy benefits is a question of fact which is to be determined based on the individual facts and circumstances of each case. Id. Factual determinations by the trial court will not be overturned in the absence of manifest error. Id.

As previously discussed, Mutual’s policy does not even come close to defining the use of gross or net income in calculating the amount of benefits Mr. Hyatt is entitled to. The policy does not indicate that sole proprietors are to be treated differently than other insureds in determining the amount of income used for calculating disability benefits. Furthermore, the policy contains no provision which requires an insured to provide monthly updates of his continuing disability. 117Mr. Hyatt submitted satisfactory proof of his claim, and Mutual simply made a decision based on its internal practices and procedures in making its decision that Mr. Hyatt was not entitled to full benefits under the policy and in discontinuing the benefits it was paying. We find the trial court was correct in assessing penalties and attorney fees.

REMITTITUR

In his answer to the appeal, Mr. Hyatt seeks a reversal of the partial granting of Mutual’s motion for remittitur, which reduced the judgment against Mutual by $25,000.00. Prior to judgment, Mr. Hyatt settled with Mr. Perron for $25,000.00. Mutual claimed it was entitled to a reduction in judgment because Mr. Perron was a solidary obligor.

Pursuant to La.Civ.Code art. 1803, remission of a debt by the obligee in favor of one obligor, benefits the other solidary obligors in amount of the portion of that obligor. “When a plaintiff settles with and releases one of several joint tort-feasors, he deprives the remaining obligors of the right to contribution against the released obligor.” Farbe v. Cas. Reciprocal Exch, 00-76, p. 4 (La.7/6/00), 765 So.2d 994, 996. A plaintiff has no further rights against a released solidary obligor to which a remaining obligor can be subro-gated. Id.

Under La.Civ.Code art. 1804 and comparative fault principles, “judgments are reduced in proportion to the percentage of fault allocated to the released tort-feasor.” Id. at 997. .“Importantly, a non-settling tortfeasor is entitled to a reduction in the judgment only if he proves at trial that the released party was at fault and therefore solidarily liable.” Id.

Regardless of whether Mr. Perron is a solidary obligor, the judgment does not assess any fault to Mr. Perron. In oral reasons the trial court found that Mr. | ^Perron and Mutual were solidary obli-gors. However, it never made a finding as to what percentage of fault should be assessed to Mr. Perron, if any. See Bridges v. State, DOTD, 32,018 (La.App. 2 Cir. 6/16/99), 738 So.2d 1149. Mutual has not appealed a finding that Mr. Perron was not assessed any fault. Furthermore, our ruling in this ease finds that Mutual is liable to Mr. Hyatt because its policy was ambiguous not because of Mr. Perron’s actions. Therefore, Mutual is 100% responsible to Mr. Hyatt. For these reasons, Mutual is not entitled to receive credit for any sums paid by Mr. Perron. Taylor v. U.S. Fidelity & Guar. Ins. Co., 630 So.2d 237 (La.1993). The trial court erred in granting Mutual’s motion for re-mittitur.

AMOUNT OF ATTORNEY FEES

Mutual complains that the trial court erred in casting it with 100% of the attorney fees. Mutual argues that the award failed to leave out unrelated amounts ap-portionable to work performed by Mr. Hyatt’s attorney in pursuing a claim against Larry Perron.

Louisiana Code of Civil Procedure Article 1920 provides for the assessment of court costs and “[t]he default rule is that the party cast in judgment is liable for all costs.” Davis v. State ex rel. DOTD, 11-1386, p. 2 (La.App. 3 Cir. 4/11/12), 87 So.3d 396, 398. Pursuant to La.Civ.Code art. 1920, a court may render judgment for all or any part of the costs against any party it considers equitable. “Article 1920 vests the trial court with vast, but not unbounded, discretion in assessing costs.” Davis, 87 So.3d at 398.

In Davis (a case involving a single-car accident), this court determined that the trial court did not abuse its discretion in assessing 100% of the court costs to the DOTD, as the lone, minimally-liable defendant, even though it was only 25% [19at fault. The other 75% of fault was assessed to the driver of vehicle who was killed in the accident.

As discussed previously in this opinion, Mutual is responsible to Mr. Hyatt for the full amount of disability benefits under policy because of ambiguity in its own policy. This was not Mr. Perron’s fault. We find no abuse of discretion in assessing all attorney fees against Mutual.

Mr. Hyatt also answered the appeal asking for additional attorney fees for work performed on appeal. An award for additional attorney fees is proper for work necessitated by the appeal when an award for attorney fees is granted at the trial level. Oracle 1031 Exchange, LLC v. Bourque, 11-1133 (La.App. 3 Cir. 2/8/12), 85 So.3d, 736, writ denied, 12-546 (La.4/20/12), 85 So.3d 1272.

Mr. Hyatt was awarded attorney fees in the trial court. In addition to successfully defending the appeal by Mutual, Mr. Hyatt was also successful in getting Mutual’s motion for remittitur reversed. We find an additional award of $5,000.00 is appropriate for work performed on appeal.

For the reasons expressed in this opinion, the judgment of the trial court granting Mutual of Omaha Insurance Company’s motion for remittitur in the amount of $25,000.00 is reversed. We also amend the judgment to include an additional award of $5,000.00 in attorney fees. In all other respects, the judgment of the trial court is affirmed. All costs of this appeal are assessed to Mutual of Omaha Insurance Company.

REVERSED IN PART; AFFIRMED AS AMENDED.


source: Caselaw Access Project

author: PAINTER, Judge.

license: Public Domain

text:
    Joshua I. CROMPTON v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY.
    No. 14-283.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2014.

      Harrietta J. Bridges, Stephen A. Quidd, Baton Rouge, LA, for Defendant-Appellant, State of Louisiana, Department of Public Safety and Corrections, Office of Motor Vehicles.
    Adam Johnson, Lake Charles, LA, for Plaintiff-Appellee, Joshua I. Crompton.
    Court composed of JOHN D. SAUNDERS, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

| j Defendant, the State of Louisiana, Department of Public Safety and Corrections, Office of Motor Vehicles (the DPS), appeals a trial court judgment dismissing the Application for Review and ordering the DPS not to keep an internal record of Plaintiff, Joshua I. Crompton’s, refusal to submit to the chemical test for intoxication on June 10, 2012. Finding that the matter of destruction of the records was not properly before the court, we reverse the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

Plaintiff was arrested on June 10, 2012, for driving while intoxicated. Because he refused the chemical testing to obtain a blood alcohol level, the DPS suspended his license for a year. Plaintiff requested an administrative hearing at the conclusion of which the administrative law judge affirmed the suspension of his license. Plaintiff filed an Application for Review by the district court.

In the meantime, the separate criminal charge for DWI was amended to reckless operation, and Plaintiff pled guilty to the reduced charge. On August 1, 2018, his driving privileges were reinstated when he paid the fine of $100.00 imposed for the reduced offense.

A trial on the Application for Review was held on September 11, 2013. Plaintiff moved for dismissal of the application for judicial review then asked that the DPS be ordered to remove from its internal records the notation of Plaintiffs refusal to submit to a chemical test for intoxication. The trial court granted both the motion to dismiss and the issuance of the order. The DPS appeals.

DISCUSSION

The DPS asserts that this matter was not properly before the court on the Application for Review, and we agree. La.R.S. 44:9(A) provides in pertinent part 12for the expungement of a misdemeanor arrest and destruction of the records, as follows:

(1) Any person who has been arrested for the violation of a municipal or parish ordinance or for violation of a state statute which is classified as a misdemeanor may make a written motion to the district, parish, or city court in which the violation was prosecuted or to the district court located in the parish in which he was arrested, for expungement of the arrest record, under either of the following conditions:
(a) The time limitation for the institution of prosecution on the offense has expired, and no prosecution has been instituted; or
(b) If prosecution has been instituted, and such proceedings have been finally disposed of by dismissal, sustaining of a motion to quash, or acquittal.
(2) If the court finds that the mover is entitled to the relief sought as authorized by this Subsection, it shall order all agencies and law enforcement offices having any record of the arrest, whether on microfilm, computer card or tape, or on any other photographic, electronic, or mechanical method of storing data, to destroy any record of arrest, photograph, fingerprint, or any other information of any and all kinds or descriptions. The court shall order such custodians of records to file a sworn affidavit to the effect that the records have been destroyed and that no notations or references have been retained in the agency’s central repository which will or might lead to the inference that any record ever was on file with any agency or law enforcement office. The original of this affidavit shall be kept by the court so ordering same and a copy shall be retained by the affiant agency which said copy shall not be a public record and shall not be open for public inspection but rather shall be kept under lock and key and maintained only for internal record keeping purposes to preserve the integrity of said agency’s files and shall not be used for any investigative purpose. This Subsection does not apply to arrests for a first or second violation of any ordinance or statute making criminal the driving of a motor vehicle while under the influence of alcoholic beverages or narcotic drugs, as denounced by R.S. 14:98 or 98.1.

While the statute states that it does not apply to arrests for first or second offence DWI, this provision was found unconstitutional by the Louisiana Supreme Court in State v. Bradley, 360 So.2d 858 (La.1978).

laSince Plaintiff did not file a written motion for the expungement of his arrest and destruction of the records, it was not properly before the trial court at the time of the hearing on the Application for Review. Accordingly,'we reverse the judgment of the trial court insofar as it orders the destruction of any internal records of Plaintiffs refusal to submit to chemical testing.

CONCLUSION

For these reasons, the judgment of the trial court is reversed insofar as it orders that the DPS is not to keep an internal record of Plaintiff’s refusal to submit to chemical testing. The matter is remanded to the trial court. Costs of this appeal are assessed to Plaintiff, Joshua I. Crompton.

REVERSED IN PART AND REMANDED.

      . An alternate means of obtaining destruction of records is contained in La.R.S. 44:9(J).


author: EZELL, Judge. SAUNDERS, J.,

text:
    Marc BORDELON v. LAFAYETTE CONSOLIDATED GOVERNMENT.
    No. WCA 14-304.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2014.
    Mark Alfred Ackal, Attorney at Law, Lafayette, • LA, for Defendant/Appellee: Lafayette Consolidated Government.

      John Vito Quaglino, Juge, Napolitano, etc., Metairie, LA, for Defendant/Appellee: Lafayette Consolidated Government.
    Harry Karl Burdette, The Glenn Ar-mentor Law Corp., Lafayette, LA, for Plaintiff/Appellant: Marc Bordelon.
    Court composed of JOHN D. SAUNDERS, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   EZELL, Judge.

Ijln this matter, Marc Bordelon appeals the decision of the workers’ compensation judge below denying his disputed claim for workers’ compensation benefits against the Lafayette Consolidated Government (LCG). For the following reasons, we hereby affirm the decision of the workers’ compensation judge.

Dr. Bordelon was injured in the course and scope of his employment with LCG in September of 2003, suffering a disc protrusion that required surgery. His injury requires that he take prescription medication for muscle spasms and pain. He had been receiving his medications via mail from Injured Workers Pharmacy (IWP). LCG issued Dr. Bordelon a prescription medication card to receive his medications through CVS/Caremark and notified Dr. Bordelon and IWP in May of 2010 that any further bills for medications from IWP would not be authorized. In April of 2011, Dr. Bordelon ordered medications from IWP, despite the notice to both that bills for any such orders would not be paid by LCG. Dr. Bordelon filed a 1008 in June of 2011 seeking choice of pharmacy. In February of 2012, the workers’ compensation judge granted summary judgment in favor of LCG, finding that it, not Dr. Bordelon, had choice of pharmacy. However, the workers’ compensation judge told Dr. Bor-delon at the time that, if the medications were not delivered in a reasonable time-frame, he could file a motion to change the pharmacy.

Claiming such delays occurred, Dr. Bor-delon filed a motion for his choice of pharmacy on May 11, 2012. The workers’ compensation judge ruled that LCG’s choice of pharmacy was reasonable and that there were no deficiencies in the filling of Dr. Bordelon’s prescriptions that would require a change. The workers’ compensation judge also limited the payment of outstanding pharmacy bills to IWP |2to $750 under La.R.S 23:1142 and denied Dr. Bordelon penalties and attorney fees. From that decision, Dr. Bordelon appeals.

Dr. Bordelon asserts three assignments of error on appeal. He claims that the workers’ compensation judge erred in not granting his choice of pharmacy; in limiting the payment of outstanding pharmacy bills to $750 under La.R.S 23:1142; and in failing to award him penalties and attorney fees.

In his first assignment of error, Dr. Bordelon claims that the workers’ compensation judge erred in not granting him his choice of pharmacy. We disagree. In holding that LCG’s plan was reasonable and contained no failings so great as to require a change, the workers’ compensation judge, relied on this court’s opinion in Sigler v. Rand, 04-1138 (La.App. 3 Cir. 12/29/04), 896 So.2d 189, writ denied, 05-0278 (La.4/1/05), 897 So.2d 611. Dr. Bordelon claims that this ruling conflicted with a separate opinion of this court, Louisiana Clinic v. Patin’s Tire Service, 98-1973 (La.App. 3 Cir. 5/5/99), 731 So.2d 525. However, that alleged conflict was directly addressed in Sigler, wherein, we stated:

[the employee] takes issue with [employer’s] reason for its action and asserts that in any event [the employer] was not entitled to cho[o]se the pharmaceutical provider for his medications, citing Louisiana Clinic v. Patin’s Tire Service, 98-1973 (La.App. 3 Cir. 5/5/99), 731 So.2d 525. Patin’s involved the administration of án MRI by a certain healthcare provider, Louisiana Clinic. The employer and workers’ compensation insurer in that case authorized the MRI but refused to authorize Louisiana Clinic to administer the diagnostic test. We explained: “We have found no authority that allows the employer or insurer to dictate the place and physician to perform diagnostic testing ordered by a treating physician.” Id. at 528.' Because the administration of medical diagnostic testing, the type of equipment used, and the interpretation of the results obtained from the testing involve individual skill levels and perhaps comfort levels for patients, we find that Pa-tin’s does not apply to the circumstances of this case. Unlike in the Patin’s case, the medication Sigler obtained was the same regardless of which pharmaceutical company provided it.
[¡¡Thus, we do not find that [the employer] violated its obligation to Sigler simply because it chose to have his prescriptions filled by a different pharmaceutical company.

Sigler, 896 So.2d at 198.

Dr. Bordelon was informed by LCG and its pharmacy plan on how to properly fill his prescriptions in a timely manner, but his failure to follow the instructions he was provided was not the fault of LCG. Had Dr. Bordelon wanted his prescriptions filled quicker than the timeframe set by the mail order option he chose on his own accord, he had an ample number of local pharmacies in which to do so, or he could have simply sent in the prescriptions in the timeframe set out to him by CVS/Care-mark. We can find no error in the workers’ compensation judge’s determination that, under Sigler, LCG was entitled to choose the pharmacy to be used by Dr. Bordelon.

In his next assignment of error, Dr. Bordelon argues that the workers’ compensation judge erred in limiting the payment of the outstanding pharmacy bill to $750.00 through an allegedly erroneous application of La.R.S. 23:1142. Dr. Borde-lon argues that the workers’ compensation judge should have instead applied La.R.S. 23:1203 to award the lesser of the actual cost or the cost allowed under the reimbursement schedule for the prescribed medication at issue. Again, we disagree.

This issue was discussed by this court in Rebel Distributors Corp., Inc. v. LUBA Workers’ Comp., 2012-909 (La.App. 3 Cir. 4/2/14), 137 So.3d 91, 95-97, wherein we stated (first through fourth alterations in original):

Louisiana Revised Statutes Article 23:1142 is located in Subpart G, entitled “ATTORNEYS AND PHYSICIANS[,]” of Part I, “SCOPE AND OPERATION[,]” of the Workers’ Compensation Act. At the time of the transaction at issue in this litigation, La.R.S. 23:1142 read, in pertinent part:
|4B. Nonemergency care. (1) Except as provided herein, each health care provider may not incur more than a total of seven hundred fifty dollars in nonemergency diagnostic testing or treatment without the mutual consent of the payor and the employee as provided by regulation. Except as provided herein, that portion of the fees for nonemergency services of each health care provider in excess of seven hundred fifty dollars shall not be an enforceable obligation against the employee of the employer or the employer’s workers’ compensation insurer unless the employee and the payor have agreed upon the diagnostic testing or treatment by the health care provider.
(2)(a) When the payor has agreed to the diagnostic testing or treatment, the health care provider shall not issue any demand for payment to the employee or his family until the payor denies liability for the diagnostic testing or treatment. Notwithstanding the foregoing, the health care provider may reasonably communicate with the employee or his attorney or representative for the purpose of pursuing its claim against the payor.
(b) A health care provider who knowingly and willfully violates this Paragraph may be ordered by the workers’ compensation judge to pay penalties not to exceed two hundred fifty dollars per violation plus reasonable attorney fees. The penalty shall not exceed one thousand dollars for any demand for payment to an employee or his family which is issued after the health care provider has been penalized for a previous demand for payment to that employee or his family.
Although La.R.S. 23:1142(B)(1) does not specifically include prescription medication in the “nonemergency diagnostic testing or treatment” which is subject to the $750.00 cap, we find no error in the WCJ’s application of La.R.S. 23:1142 to [Plaintiffs’] claim against [the Defendant].

We choose to follow this prior ruling of this court. Furthermore, in this case, LCG provided Dr. Bordelon and his pharmacy, IWP, with notice in writing that payment to that IWP would cease to be made, effective June 1, 2010. This notice was followed up by another letter to IWP reiterating that LCG would not pay for [sany charges to it for Dr. Bordelon after June 1, 2010. LCG received no bills from IWP until April and May of 2011, while Dr. Bordelon used the LCG service. When those bills from IWP were received, LCG immediately sent notice that the bills would not be paid, as previously told to IWP, and tendered $750 for payment for Dr. Bordelon’s prescriptions. Dr. Borde-lon and' IWP knowingly incurred more than $750 in expenses without LCG’s consent, despite prior notification IWP would not be paid for services rendered to Dr. Bordelon. Dr. Bordelon argues that once LCG told IWP it would not approve the purchase of drugs from them, it was a denial of his claims and that authorization was no longer required. However, LCG never denied Dr. Bordelon his claim for prescription drugs and, in . fact, set up a system by which he could receive them through 113 pharmacies locally or via the mail. Dr. Bordelon simply refused to use that system properly. We find no merit in this assignment of error.

Finally, Dr. Bordelon claims the workers’ compensation judge erred in failing to assess penalties and attorney fees for the failure to timely pay for the prescription medication. “The determination of whether an employer should be cast with penalties and attorney fees in a workers’ compensation case is essentially a question of fact and subject to the manifest error/clearly wrong standard of review.” Krogh v. Tri-State Refrigeration, 11-697, p. 2 (La.App. 3 Cir. 11/2/11), 79 So.3d 445, 447 (citing Reed v. Abshire, 05-744 (La.App. 3 Cir. 2/1/06), 921 So.2d 1224). As we have found no error in the workers’ compensation judge’s findings above, we cannot say that the workers’ compensation judge erred in not awarding Dr. Bordelon penalties and attorney fees.

|ñFor the above reasons, we hereby affirm the decision of the workers’ compensation judge. Costs of this appeal are hereby assessed against Dr. Marc Borde-lon.

AFFIRMED.

SAUNDERS, J., dissents with written reasons.

SAUNDERS, J.,

dissenting.

hi respectfully dissent from the majority’s decision to affirm the worker’s compensation judge’s determination that, under Sigler, LCG was entitled to choose the pharmacy to be used by Dr. Bordelon.

The trial court focused on the reasonableness of the employer’s choice of pharmacy. While I do not disagree that the employer’s choice was reasonable, I do not believe that “reasonableness” of the employer’s choice of pharmacy is the focus of our inquiry. I believe the issue to be examined is whether an injured employee in Louisiana may choose his healthcare provider, including a pharmacist. I believe he may for the reasons set forth below.

Louisiana Revised Statutes 22:1964(15)(a) generally provides that issuance of any health benefits policy which “prohibits or limits a person who is an insured or beneficiary of the policy ... from selecting a pharmacy or pharmacist of the person’s choice ... or in any manner interferes with that person’s selection of a pharmacy of pharmacist” is an unfair or deceptive practice. While this statute does not directly apply to worker’s compensation policies, reading this law in conjunction with the laws concerning worker’s compensation, as a policy of insurance, it generally implies a legislative intent to preserve an insurance benefits |2recipient’s right to his choice of pharmacy and pharmacist. Further, this court has previously refused to restrict an injured employee’s choice of healthcare providers, except where the choice is specifically given to the employer. See Louisiana Clinic v. Patin’s Tire Serv., 98-1973 (La.App. 3 Cir. 5/5/99), 731 So.2d 525, 528 (“We have found no authority that allows the employer or insurer to dictate the place and physician to perform diagnostic testing ordered by a treating physician.”)

Dovetailing with this analysis is the second circuit’s interpretation of La.R.S. 23:1203 in Brown v. KTBS, Inc., 42,847 (La.App. 2 Cir. 1/9/08), 974 So.2d 784, amended on rehearing (2/7/08), writ denied, 08-0353 (La.2/15/08), 974 So.2d 1279. In this opinion, the court found that Louisiana was a “patient choice” state, explaining:

La. R.S.23:1203 does not address the issue of which party has the right to choose a vendor for a reasonable and necessary medical device ... [but] does set forth the obligation of an employer to a claimant, which is simply that of reimbursement of the lesser of the amount provided by the fee schedule or the actual amount paid for a recommended medical device.
What is contemplated by the legislature is that a claimant will incur expenses for necessary drugs, supplies, care, services, or, as in this case, a medical device, then obtain reimbursement from his or her employer. Under the circumstances of this case, claimant clearly has the right to choose the providers of the necessary drugs, supplies, services, etc., and defendants are protected by: (1) the requirement that said drugs, supplies, services, etc., be necessary and (2) the cost limit established La.R.S. 23:1203(B).

Id. at 786 (emphasis in original).

Moreover, the Attorney General, in opinion No. 89-47, agreed that the employer could not compel an injured .employee to use the pharmacy of its choice.

laThis court, in Sigler v. Rand, 04-1138, p. 15 (La.App. 3 Cir. 12/29/04), 896 So.2d 189, 198, writ denied, 05-0278 (La.4/1/05), 897 So.2d 611, concluded that an employee was entitled to choose the provider of diagnostic testing services “[b]ecause the administration of medical diagnostic testing, the type of equipment used, and the interpretation of the results obtained from the testing involve individual skill levels and perhaps comfort levels for patients.” This court further opined that an employee was not entitled to choose his own pharmaceutical provider because “the medication [the employee] obtained was the same regardless of which pharmaceutical company provided it,” Id. at 198, clearly suggesting that pharmaceutical providers provide merely ministerial services, rather than services that involve any level of skill. These conclusions were mere dicta in the case and, I submit, incorrect. For the reasons articulated below, I think that Si-gler was wrongly decided, I think that this case was wrongly decided. While the majority finds itself bound by the holding of Sigler, I would overrule Sigler.

It is simply common knowledge that pharmacists provide more than merely ministerial services. Pharmacists are responsible for, among many other duties, accurately dispensing prescribed medications in the proper dosage to the proper patient, for advising the patient of any potential drug interactions, of any potential side effects, and of any recommendations concerning how and when to take medication, for communicating with pres-cribers when a prescription order is unclear or potentially harmful for the patient, for promoting general health by sharing advice concerning nonprescription remedies and supplements, such as vitamins, over-the-counter medications, and herbal remedies, and staying abreast of new medications and drug therapy protocol. Often, patients share confidential and personally sensitive information with their pharmacists. These tasks are much more than merely ministerial. They are an important part of a patient’s treatment |4and require advanced knowledge, a high-level of individual skill, and the comfort of the patient.

Further, pharmacists must go through a rigorous process to become licensed to administer pharmacy care in Louisiana. The applicant for a pharmacy license must:

1) be at least 21 years of age;
2) be of good moral character and temperate habits;
3) obtain a professional pharmacy degree from an approved college of pharmacy;
4) obtain a minimum of one year experience, under the supervision of a licensed pharmacist, in providing pharmacy care. La.R.S. 37:1202; and
5) complete any examinations required by the Board of Pharmacy.

Further, according to the Application for Louisiana Pharmacist License, promulgated by the Louisiana Board of Pharmacy, applicants must not only successfully complete a licensure examination, but must also complete a second examination and submit to a criminal background check. Finally, prior to their annual license renewal, pharmacists must complete a minimum of fifteen hours of continuing education. La.Admin Code tit. 46, §§ 505, 507. Surely the legislature would not have imposed such rigorous requirements on persons who provide no more than a ministerial duty.

It is my belief that Louisiana is overwhelmingly a “patient choice” state. In the absence of a clear expression from the legislature to the contrary, it should remain so. I would reverse worker’s compensation judge’s determination that LCG was entitled to choose the pharmacy to be used by Dr. Bordelon.


text:
    Kenneth TURNER v. SHOP RITE, INC. d/b/a Black Gold Casino; Gielen Properties, LLC; Blake Joseph Hebert; and Timothy James Hutchinson.
    No. 14-315.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2014.
    M. Terrance Hoychick, Eunice, LA, for Plaintiff-Appellant, Kenneth Turner.
    Thomas J. Solari, Lance B. Vinson, Lake Charles, LA, for Defendants-Appellees, Shop Rite, Inc., d/b/a Black Gold Casino; and Gielen Properties, LLC.
    Court composed of JOHN D. SAUNDERS, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

|, Plaintiff, Kenneth Turner, appeals the trial court’s grant of Defendants’ motion for partial summary judgment finding “that the percentage of fault of the intentional tortfeasor must be assigned and applied to reduce plaintiffs recovery as to any defendant found to have been negligent in this case.” For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On July 7, 2012, Turner went to the Black Gold Casino (the casino) in Duson, Louisiana accompanied by Connie Cred-eur. They left the casino at about 12:15 a.m. on July 8, 2012. In the parking lot, Turner went to help Ashley Domingue look for her car keys, which had been thrown into a nearby field by Blake Joseph Hebert, who is alleged to have been intoxicated. While Turner was talking to Do-mingue, Hebert ran up to him, body slammed him, beat him as he lay on the ground, and bit off the tip of his nose. Hebert’s companion, Timothy James Hutchinson, joined him and hit and kicked Turner while he was on the ground. Another bystander intervened before casino security responded to calls for help.

Turner filed this suit against Hebert and Hutchinson. He also filed suit against the casino and Gielen Properties, Ltd., the owner of the building and property which is operating as the casino (the casino defendants). Among other things, Turner prayed that the damages due him not be reduced as against any negligent defendants for the percentage of fault of the intentional tortfeasors. The casino defendants filed a motion for partial summary judgment with regard to whether an allegedly negligent tortfeasor may be ordered to compensate a plaintiff for the full amount of damages where an intentional tortfeasor caused the damages in full or in part.

|;>The trial court granted the motion, finding that the percentage of fault of the intentional tortfeasors must be assigned to reduce the recovery from negligent tort-feasors. Plaintiff appeals.

DISCUSSION

Plaintiff argues that the trial court should have denied the summary judgment based on the holding of Veazey v. Elmwood Plantation Associates, Ltd., 93-2818 (La.11/30/94), 650 So.2d 712, that negligent tortfeasors should not be allowed to reduce their fault based on the intentional fault of another tortfeasor. This court in McIntosh v. McElveen, 04-1041, pp. 12-13 (La.App. 3 Cir. 2/2/05), 893 So.2d 986, 995-96 (emphasis in original), explained as follows:

In Morrison v. Kappa Alpha Psi Fraternity, 31,805 (La.App. 2 Cir. 5/7/99), 738 So.2d 1105, writs denied, 99-1607, 99-1622, 99-1668 (La.9/24/99), 747 So.2d 1120, 749 So.2d 634, 635, the second circuit explained its approval of comparing the fault of an intentional tortfeasor with that of negligent parties. The court stated:
Plaintiffs argue that the trial court erred in allowing the jury to apportion fault to Jessie Magee, an intentional tortfeasor, and in refusing to instruct the jury on fault apportionment as set forth by the supreme court in Veazey v. Elmwood Plantation Associates Ltd., 93-2818 (La.11/30/94), 650 So.2d 712.
A divided supreme court in Veazey, supra, held that generally, negligent tortfeasors should not be allowed to reduce their fault by the intentional act of another when they had a duty to prevent such intentional conduct. Veazey involved the interpretation of La. C.C. art. 2323, Louisiana’s comparative fault provision, prior to its overhaul by the legislature in 1996.
In the 1996 Extraordinary Legislative Session, the legislature amended Civil Code articles 2323 and 2324 to a*' require that fault be allocated to all persons causing a plaintiffs injuries (La.C.C. art. 2323) and to limit liability of each wrongdoer, with certain exceptions, to their percentage of fault.(La.C.C. art. 2324).
In Keith v. United States Fidelity & Guaranty Company, 96-2075 (La.05/09/97), 694 So.2d 180, the | ¡¡supreme court held that the 1996 revision of La.C.C. art. 2323 was procedural and to be applied retroactively-
La. C.C. art. 2323 as amended by Act Three of 1996 provides in part:
A. In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person’s insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person’s identity is not known or reasonably ascertainable. If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death or loss.
B. The provisions of Paragraph A shall apply to any claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability....
Given the clear pronouncement of our supreme court on this issue, we find that the trial court properly instructed the jury to compare the fault of all involved actors.
Morrison, 738 So.2d at 1112-13 (footnotes omitted) (emphasis in original).
Even more recently, the Louisiana Supreme Court has removed any remaining doubt that Louisiana Civil Code Article 2323 “clearly requires that the fault of every person responsible for a plaintiffs injuries be compared, whether or not they are parties, regardless of the legal theory of liability asserted against each person.” Dumas v. La. Dept. of Culture, Recreation & Tourism, 02-563, p. 3 (La.10/15/02), 828 So.2d 530, 537. See also Ashmore v. Hilton, 02-816 (La.App. 3 Cir. 12/11/02), 834 So.2d 1131, writs denied, 03-746, 03-750 (La.5/9/03), 843 So.2d 401, 402.

|4Plaintiff further points to Le v. Nitetown, Inc., 10-1239 (La.App. 3 Cir. 7/20/11), 72 So.3d 374, in support of his contention that the fault of the intentional tortfeasors should not be allocated to reduce his recovery from any negligent defendant. However, we find Le to be distinguishable from the case currently before us.

In Le, two bar patrons brought an action against the bar for injuries received from the bar’s bouncers. The defendant’s conduct was found to be intentional. One of the two patrons was found to be comparatively negligent. This court, pursuant to the provisions of La.Civ.Code art. 2323(C), found that the claim of the comparatively negligent patron could not be reduced by his share of negligence. The court further refused to reduce the recovery of the non-negligent defendant by the share of fault in his injuries which were attributable to his co-plaintiff, who he had not made a defendant. The court stated that:

It is clear that the legislature intended to carve out a protection for plaintiffs injured by intentional torts, and there is no indication in the article that a completely innocent plaintiff, i.e., one who is not negligent, should not be afforded the same protection as his partially negligent co-plaintiff who was injured by the same tortfeasor.

Le, 72 So.3d at 379.

In the case sub judice, one non-negligent plaintiff is pursuing a recovery against two parties under an intentional tort theory and against two other defendants under a theory of negligence. Under La.Civ.Code art. 2324, these two sets of parties, because they did not conspire to commit an intentional act, are jointly liable rather than solidarily liable. As such, the joint tortfeasor may not be held liable for more than his portion of the fault. We note that Le did not concern joint tortfea-sors, and there was no possibility that a double recovery could result from the failure to reduce the recovery by the comparative fault of the intentional tortfeasor. In this case, Plaintiff would potentially be due the full amount of his | .¡damages from each set of tortfeasors, resulting in double recovery. Accordingly, we find the reasoning of Le to be inapplicable to this case.

Therefore, pursuant to La.Civ.Code art. 2324, we find that the trial court correctly ruled that “the percentage of fault of the intentional tortfeasors must be assigned and applied to reduce plaintiffs recovery as to any defendant found to have been negligent in this case.”

CONCLUSION

For these reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Plaintiff-Appellant, Kenneth Turner.

AFFIRMED.


author: GARRETT, J.

text:
    ACROSS THE STATE BAIL BONDS, Individually and as Agent for Bankers Insurance Company (Surety for Billy Ray Benefield, Jr.), Plaintiffs-Appellants v. STATE of Louisiana, Defendant-Appellee.
    No. 49,130-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 1, 2014.

      Kenneth J. Beck, Harvey, for Appellants.
    J. Schuyler Marvin, District Attorney, Matt Altimus, Robert Randall Smith, Assistant District Attorneys, for Appellee.
    Before BROWN, CARAWAY and GARRETT, JJ.
   GARRETT, J.

hA bail bond company and its surety appeal from a trial court judgment which declined to annul a judgment of bond forfeiture against the surety after the court found that there was no fortuitous event relieving it from its bond obligations. We affirm the trial court judgment.

FACTS

On June 5, 2010, Billy Ray Benefield, Jr., was arrested in Bossier Parish for DWI-4th Offense, driving under suspension (DUS), and speeding. Following Benefield’s initial court appearance “via video” on June 7, 2010, appearance bonds were posted on his behalf by Across the State Bail Bonds (ASBB) as bondsman and Bankers Insurance Company as surety, and Benefield was released from the custody of the Bossier Parish Sheriffs Office (BPSO). The guaranty appearance bond on the DWI-4th Offense, which was signed by Benefield and by Donald Whitaker on behalf of ASBB and Bankers, listed an address in Ashdown, Arkansas, for Bene-field. Additional bonds were posted for the DUS and speeding charges.

Benefield was later charged by the Bossier Parish District Attorney (BPDA) with DWI-lst Offense, a misdemeanor, instead of the DWI-4th Offense felony charge for which he was arrested and on which the bond was provided.

Benefield failed to appear in court in September 2010. A bench warrant and bond forfeiture were ordered. In November 2010, a judgment of bond forfeiture was granted against Benefield and the bonding company. However, for reasons which do not appear in the appellate record, this judgment was subsequently set aside and the bench warrant was recalled.

liiOn May 2, 2012, Benefield failed to appear in court again, and another bench warrant and bond forfeiture were ordered. On May 30, 2012, a judgment of bond forfeiture was rendered against Benefield as principal and Bankers Insurance Company as surety. As will be explained below, efforts by the bail bondsmen to surrender Benefield in order to exonerate the surety from liability on the bond obligation were unsuccessful.

On April 22, 2013, ASBB — individually and as agent for Bankers Insurance Company — filed a Petition to Annul the Judgment of Bond Forfeiture in a separate civil suit. The crux of the petition was that the reduction of the felony charge of DWI-4th Offense to a misdemeanor charge of DWI-1st Offense resulted in the bail bondsmen’s inability to surrender Benefield. The petition alleged that, because Benefield’s misdemeanor DWI-lst Offense charge was not entered in the National Crime Information Center (NCIC) registry, authorities in Arkansas — where Benefield lived— would not allow the bonding agents to apprehend and detain him for extradition to Louisiana. It further asserted that the bonding agents were unable to surrender Benefield to the jurisdiction of Bossier Parish due to th’#Vctions of the BPDA in reducing the charge to a misdemeanor and that those actions were beyond their control. Consequently, the plaintiffs alleged that all those actions constituted a “fortuitous event” under La. R.S. 15:88 and La. C. Cr. P. art. 345(1), which made it impossible for them to surrender ¡.¡Benefield within the time period allowed by law. They further contended that the actions of the BPDA constituted fraud or ill practices, making the judgment of forfeiture subject to annulment under La. C.C.P. art. 2004. They requested that the May 30, 2012, judgment of bond forfeiture be annulled and that they be exonerated from liability on their bail obligations. A hearing on the petition was set for May 15, 2013. The BPDA filed a general denial on May 1, 2013.

At the May 15, 2013, hearing, the plaintiffs presented the testimony of two witnesses: Donald Whitaker, the owner of ASBB, and Anthony Bowers, the owner of Four Aces Bail Bonds (FABB). According to the testimony, ASBB is a subcontractor of FABB. Whitaker testified that he issued bonds to secure Benefield’s release after he was arrested in June 2010 and that one was a felony bond in the amount of $10,000 for a charge of DWI-4th Offense. After Benefield failed to show up for court, Whitaker tried to put him in the NCIC registry. However, because the felony charge had been reduced to a misdemeanor, the BPSO would not put Benefield in the NCIC registry. Although Benefield was actually located in Arkansas as part of a “stakeout” by the bail bondsmen, Bowers testified that they were unable to obtain assistance from law enforcement in that state to secure Bene-field’s return to Louisiana. Bowers explained that before making entry into a house to retrieve a fugitive, they must notify local law enforcement officers, who verify through the NCIC registry that there is a felony warrant on the fugitive. Bowers testified that even though the forfeiture judgment referred to a felony charge, the BPSO refused to put the warrant in the |4NCIC registry when he tendered the $25 fee, instead suggesting that he talk to Marilyn Lee in the BPDA’s Office. According to Bowers, Lee said that the reduced charge could not be placed in the NCIC registry. Bowers testified that, as a result, he could not apprehend and return Benefield within the six-month window allowed by law. The state presented no witnesses. The trial court ordered the parties to brief the issues and took the matter under advisement.

On June 11, 2013, the trial court provided detailed and cogent reasons for the ruling made in open court. It found no fraud or ill practices by the BPDA’s office. Furthermore, it found that the reduction of charges by the BPDA was a “very common occurrence” and not a “fortuitous event” under La. R.S. 15:83. As a result, the trial court upheld the bond forfeiture. A judgment denying the plaintiffs’ petition to.annul the judgment of bond forfeiture and upholding the bond forfeiture was signed on August 14, 2013.

The plaintiffs appeal.

LAW

La. C. Cr. P. art. 349.8(A)(1) states:

For bonds that have a face value under fifty thousand dollars, a judgment forfeiting the appearance bond shall at any time, within one hundred eighty days after the date of mailing the notice of the signing of the judgment of bond forfeiture, be fully satisfied and set aside upon the surrender of the defendant or the appearance of the defendant. The surrender of the defendant also relieves the surety of all obligations under the bond and the judgment.
La. C. Cr. P. art. 349.9 provides:
A. A judgment decreeing the forfeiture of an appearance bond shall not be rendered if it is shown to the satisfaction of the court that the defendant, principal in the bond, is prevented from attending because of any of the following:
|R(1) He has a physical disability, illness, or injury.
(2) He is being detained in the jail or penitentiary of another jurisdiction.
(3) He is serving in the armed forces of the United States.
(4) He is a member of the Louisiana National Guard called to duty pursuant to R.S. 29:7. This provision does not apply to appearances in a state military court.
B. An affidavit by the jailer, warden, or other responsible officer where the principal is detained, or commanding officer, attesting to the cause of the failure to appear of the defendant shall be considered adequate proof of the inability to appear by the defendant.
C. If a judgment of bond forfeiture is rendered while the defendant is prevented from appearing for any reason enumerated in this Article, and if the defendant or his sureties file a motion to set aside the judgment of bond forfeiture within one hundred eighty days after the date of the mailing the notice of the signing of the judgment of bond forfeiture, and it is shown to the satisfaction of the court that the defendant was prevented from attending for any cause enumerated in this Article, the court shall declare the judgment of bond forfeiture null and void.
La. R.S. 15:83 states, in relevant part:
B. The surety, when entering into a criminal bail bond obligation, must consider the risks of his undertaking and assume those risks reasonably foreseeable.
C. (1) The surety is not liable for his failure to perform when it is caused by a fortuitous event that makes performance impossible. A surety is, however, liable for his failure to perform when he has assumed the risk of such a fortuitous event.
(2) A fortuitous event is one that, at the time the contract was made, could not have been reasonably foreseen by the surety. [Emphasis added.]

In pertinent part, La. C. Cr. P. art. 345 states:

G. During the period provided for surrendering the defendant, the surety may request that the officer originally charged with the detention of a felony defendant place the name of the felony defendant into the National Crime Information Center registry. The surety shall pay to that officer a fee of twenty-five dollars for processing the placement. If, after payment of the twenty-five-dollar fee, the name of the defendant is removed from the National Crime Information Center registry without cause during the period provided [fifor surrendering the defendant, the surety shall be relieved of all obligations under the bond.
I. In addition to and notwithstanding any other provision of law, a surety may seek an extension of time to surrender a defendant, or have the judgment of bond forfeiture set aside by filing a motion in the criminal court of record and after contradictory hearing with the district attorney and with proof satisfactory to the court that a fortuitous event has occurred and that the event has made it impossible to perform as required under the contract. A motion seeking relief pursuant to this Paragraph must be filed within three hundred sixty-six days from the date of the fortuitous event, excluding legal delays. The court in its discretion may do any of the following:
(1) Set aside the forfeiture or grant the nullity.
(2) Grant an extension of up to three hundred sixty-six days from the expiration of the initial time period allowed for the surrender of the defendant from the date of the mailing of proper notice of bond forfeiture. If the court grants that extension, judicial interest shall be suspended during that additional time period.
(3) Deny the relief. [Emphasis added.]

DISCUSSION

We note at the outset that none of the reasons recognized by our legislature for nullifying a judgment of bond forfeiture under La. C. Cr. P. art. 349.9 apply in this case. The plaintiffs argue that the actions of the BPDA constituted a “fortuitous event” under La. C. Cr. P. art. 345(1) and La. R.S. 15:83, which could not have been reasonably foreseen at the time the surety contract was made. They fault both the BPDA and the BPSO for. their alleged failure to assist them in apprehending Benefield. In support of their argument, they cite State v. Allen, 2011-0693 (La. App. 4th Cir.8/8/12), 98 So.3d 926, writ denied, 2012-1995 (La.4/1/13), 110 So.3d 138, in which the surety encountered difficulty in timely producing to state authorities a defendant who had apparently become a cooperating witness in a federal case and been placed in federal protective custody. The trial court |7granted the surety’s motion to set aside the bond forfeitures. It accepted the surety’s argument that the delay in surrendering the defendant was caused by a “fortuitous event” under La. C. Cr. P. art. 345(1), that event being the action of another governmental entity. The appellate court affirmed.

The plaintiffs also cite State v. Harris, 2003-2328 (La.App. 1st Cir.9/17/04), 887 So.2d 519, for the proposition that the BPSO should have entered the defendant’s name in the NCIC registry when such was requested and the fee was tendered. However, that case involved a charge of bank fraud, which is a felony, for which there was a $40,000 appearance bond. The $25 fee was tendered to the sheriffs office, which did not enter the information in the NCIC registry because a representative of the district attorney’s office instructed it not to honor such requests from bonding agents. The trial court denied the surety’s motion to be discharged from its obligation. The court of appeal reversed, finding that the sheriffs office was required to enter the name into the registry after a request was properly made and after the processing fee was accepted. Failure to do so was tantamount to removing the defendant’s name from the NCIC registry. The appellate court specifically declined to address situations where the sheriffs office refused to accept the fee and informed the person making the request that it would not be honored.

The state contends that felony charges are reduced all the time and, since Bene-field provided an Arkansas address on the bail bond agreement, the plaintiffs should have known that the instant situation could arise. Furthermore, the state argues that control of the NCIC registry entry belongs |Rto the sheriff’s office and that the district attorney’s office has no authority to enter or refuse to enter a name or warrant.

Like the trial court, we fully agree with the state’s position. The record reveals that the surety was completely aware that Benefield lived in another state when it bonded him out of a Louisiana jail on several arrest charges, only one of which was a felony. The bonding agreement stipulated that “defendant shall not leave the state without permission of this court.” Nothing in the record indicates Benefield or the surety obtained such permission. As noted by the trial court, reduction by the prosecutor of an initial arrest charge to a lesser offense is a daily, commonplace occurrence in the criminal justice system. Also, it is not unheard of for an out-of-state defendant to fail to return to this state for court appearances. When entering into a criminal bail bond obligation, a surety “must consider the risks of his undertaking and assume those risks reasonably foreseeable.” La. R.S. 15:83(B). Furthermore, La. C. Cr. P. art. 345(G) permits a surety to 19request placement in the NCIC registry of the name of only a “felony defendant.” As a result, in this case where a felony charge was reduced to a misdemeanor after the defendant was released on bond, we cannot conclude that the trial court erred in refusing to find that there was a “fortuitous event” which the surety “could not have ... reasonably foreseen” and which made performance impossible under La. R.S. 15:83(0 and La. C. Cr. P. art. 345(I).

Furthermore, like the trial court, we find no basis for annulling the bond forfeiture judgment for fraud or ill practices under La. C.C.P. art. 2004. Neither the BPDA’s actions in reducing Benefield’s charge from DWI-4th Offense to DWI-lst Offense, nor the BPSO’s refusal to place the name of Benefield, a misdemeanor defendant, into the NCIC registry amount to “some improper practice or procedure which operates, even innocently, to deprive the party cast in judgment of some legal right.” Yellowbird Investments, L.L.C. v. Barber, 46,977 (La.App. 2d Cir.3/14/12), 87 So.3d 970, writ not considered, 2012-0866 (La.6/1/12), 90 So.3d 422. Accordingly, we affirm the trial court judgment.

CONCLUSION

The trial court judgment is affirmed. Costs are assessed to the plaintiffs, Across the State Bail Bonds and Bankers Insurance Company.

AFFIRMED.

      . According to the criminal court minutes filed in the record before us, Benefield never appeared in court after he was bonded out on June 7, 2010.

      . The judgment lists the charges against Benefield as "DWI 4th, DUS AND SPEEDING” and recites the bonds for these offenses as being, respectively, $10,000, $400, and $150. Judgment was given in the amount of $10,550, together with legal interest from date of judgment, plus all costs.

      . See La. C. Cr. P. art. 326(A), which provides that one of the conditions of bail undertaking is that the defendant "will not leave the state without written permission of the court.”

      . See State v. Bobby Darren Boomer, Bankers Ins. Co., 48,555 (La.App. 2d Cir. 1/15/14), 130 So.3d 1004. There the same bail bond company and surety as in the instant case bonded out a New York resident who thereafter failed to appear in court. In affirming the trial court’s refusal to set aside the bond forfeiture, this court observed that it "cannot have been a surprise that Boomer might return to New York....”
      See also State v. De La Rosa, 43,696 (La. App. 2d Cir. 10/22/08), 997 So.2d 165, in which this court held:
      [T]he risk that a defendant, particularly an alien defendant, will flee the jurisdiction of the court, possibly to his native country, and fail to make a court appearance is an obvious and foreseeable risk involved in a bail bond obligation. Such a risk must be contemplated by the surety when entering into the bail bond obligation. Therefore, the possibility that a defendant will travel to his native country and not be able to return to the jurisdiction of our courts is not a fortuitous event.

      .We also take note of the relatively new offense of out-of-state bail jumping, La R.S. 14:110.1.1, which became effective August 15, 2010. Under this statute, Benefield’s refusal to return to Louisiana could have been construed as a felony offense for which the bonding agents and surety could have sought his prosecution.