author: LOLLEY, J.

text:
    Prentiss BAKER and Sheryl Wiginton, Individually and on Behalf of all Others Similarly Situated, Plaintiffs-Appellees v. PHC-MINDEN, L.P. d/b/a Minden Medical Center, Defendant-Appellant.
    No. 49,122-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 13, 2014.
    Rehearing Denied Sept. 25, 2014.

      Blue Williams, Metairie, by Kurt S. Blankenship, Robert I. Baudouin, for Appellant.
    Martzell & Bickford, New Orleans, by Scott R. Bickford, Lawrence J. Centola, III, Hoffoss Devall, Lake Charles, by J. Lee Hoffoss, Claude P. Devall, Laborde Law Firm, Lafayette, by Derrick G. Earles, Law Offices of Kirby D. Kelly, by Kirby D. Kelly, for Appellees.
    Before BROWN, CARAWAY and LOLLEY, JJ.
   LOLLEY, J.

11 Defendant, PHC-Minden, L.P. d/b/a Minden Medical Center, appeals a judgment of the 26th Judicial District Court, Parish of Webster, State of Louisiana, granting class certification in favor of Prentiss Baker, Sheryl Wiginton, and Ju-dyette Allen. For the reasons that follow, we reverse the trial court’s judgment and decertify the class.

Facts

Prentiss Baker, Sheryl Wiginton, and Judyette Allen (hereinafter referred to as “plaintiffs”) filed this class action on July 13, 2011, alleging improper and illegal billing practices by Minden Medical Center (hereinafter referred to as “MMC” or “the hospital”). In summary, plaintiffs alleged that MMC had a policy in effect since at least 2000 for billing insured patients involved in motor vehicle accidents where a third party is liable for the crash. This policy was implemented across-the-board, regardless of the health insurance issuer involved. With the policy, it was alleged that MMC ignored the Health Care Consumer Billing and Disclosure Protection Act and member provider agreements, and instead, did the following:

1. Upon admission or soon thereafter, MMC collected information from the patient about the offending driver’s liability insurance and the patient’s own car insurance;

2. If the patient did not know the information upon admission, MMC sent a form letter to the patient requesting that the patient get the liability insurance information and contact MMC to get that information;

3. Once the liability insurance information was obtained or the patient’s attorney is known, MMC would send a lien ^pursuant to La. R.S. 9:4752 to the liability insurer and. the patient’s attorney seeking to collect from the patient’s damage settlement the full and undiscounted rate.

4. If the time delays were such that MMC was close to running out of time to file with the patient’s health insurance, MMC would only then file a claim with the health insurance company, but not before it first asserted its lien on the patient’s settlement through the liability insurance company and the patient’s attorney.

Even if MMC filed a claim with and received payment through the health insurance company, MMC still attempted to collect the full rate from the patient’s settlement though the patient’s attorney and the liability insurer using medical liens filed pursuant to La. R.S. 9:4752. The plaintiffs allege that hundreds of other patients have been subjected to this policy, which they argue violates the Health Care Consumer Billing and Disclosure Protection Act, set forth in La. R.S. 22:1871 et seq.

The facts particular to each named plaintiff are as follows.

Prentiss Baker

On January 31, 2007, Baker was involved in a motor vehicle accident in Min-den, Louisiana, resulting in serious injuries requiring medical attention. After being treated for his injuries, Baker incurred medical expenses in the amount of $1,394.56. Although not specifically mentioned in the pleadings, it is assumed that this was the full, undiscounted amount of medical expenses incurred. At the time of treatment, Baker was insured under a Mail Handlers Benefit Plan health insurance policy. On February 7, 2007, Baker’s medical bill was sent by MMC to Mail Handlers for payment. MMC also sent a letter to Baker asking for information regarding any ^automobile insurance that might have been available, since he was involved in a motor vehicle accident. On February 23, 2007, the hospital received a letter from Baker’s attorney, Kirby Kelly, requesting an itemized bill. The record reveals that MMC quoted the full, undis-counted amount and also placed a lien against the proceeds of the lawsuit filed by Baker in which he sought damages, including medical expenses, from the adverse driver.

On June 19, 2007, Mail Handlers sent MMC a denial of the claim stating that they had not received a copy of the plan reimbursement agreement. The hospital followed up by telephone, and Mail Handlers stated that Baker had not returned the necessary subrogation forms; therefore, they denied the claim. Baker then called MMC on July 12, 2007, and indicated that the bill was being turned over to State Farm, the third party insurer, and that they would take care of the bill.

On August 20, 2007, after apparently settling the lawsuit, Kirby Kelly’s office called MMC and inquired into whether the hospital would reduce the bill by 50%. Ultimately, the hospital agreed to reduce the bill by 20%, and accepted $1,115.72 as payment in full. The remaining balance was written off as a loss by MMC.

Sheryl Wiginton

On March 31, 2008, Wiginton was involved in a motor vehicle accident in Min-den, Louisiana, resulting in serious injuries requiring medical attention. After being treated for her injuries, Wiginton incurred medical expenses in the amount of $2,087.00. Again, it is assumed that this was the full, undiscounted amount of medical expenses incurred. At the |4time of treatment, Wiginton was insured under a Blue Cross Blue Shield of Louisiana health insurance policy.

On April 7, 2008, MMC billed Blue Cross Blue Shield for Wiginton’s medical treatment. Blue Cross Blue Shield issued an explanation of benefits setting forth the patient’s liability of $505.66, which was the copayment plus the deductible. However, the record indicates that Wiginton paid $100.00 upon arrival at the emergency room, thus the balance of her liability was $405.66. She later paid $200.00 for a total payment by her of $300.00.

On November 20, 2008, Wiginton’s attorney, Kirby Kelly, called MMC and informed MMC that his office was going to send a check for Wiginton’s medical bills in the amount of $1,773.95. MMC received this check on December 3, 2008, and a note was made by MMC to refund the patient all monies except her liability under the insurance policy. Nevertheless, a clerical error was made on the part of MMC whereby it never reimbursed Wiginton’s payments. It was not until three years later, and after the instant lawsuit was filed, that MMC realized its error and sent a check to Wiginton in the amount of $1,569.29.

Judyette Allen

Allen was involved in a motor vehicle accident on July 8, 2010, in Minden, Louisiana, resulting in serious injuries requiring medical attention. After being treated for her injuries, Allen incurred medical expenses in the amount of $2,756.95. At the time of treatment, Allen was also insured under a Blue Cross Blue Shield of Louisiana health insurance policy. | ¿However, Blue Cross Blue Shield was never billed for Allen’s medical treatment. Instead, on July 14, 2010, a copy of the bill and a lien for the full, undiscounted rate was sent by MMC to State Farm, the third party insurer. Soon thereafter, and after apparently being advised of the lien, Allen called MMC and informed the hospital that she was going to begin making payments on her account until the lawsuit settled with the party at fault.

In due time, State Farm settled the lawsuit pertaining to medical payments and sent a check to Allen’s attorney, Kirby Kelly. Although MMC’s name was on the check, the record indicates that Kirby Kelly refused to forward payment to the hospital until the liability portion of the lawsuit also settled. Since the liability portion of the suit did not settle for some time, Allen again began to make payments on the bill. Ultimately, Allen paid a total amount of $480.00.

Approximately one year later, on September 12, 2011, Allen called MMC and asked that Blue Cross Blue Shield be billed for the medical expenses. Blue Cross Blue Shield was billed and eventually paid MMC in February of 2012. Blue Cross Blue Shield paid $573.27, and the hospital refunded Allen her payment of $480.00.

As a result of these allegedly illegal billing practices, plaintiffs claim that MMC is liable unto petitioners and to those similarly situated for:

(1) repayment of all overpayments;
(2) mental anguish, worry and concern caused by wrongful collection practices and collections;
(3) loss of profits or use;
h(4) out-of-pocket expenses;
(5) emotional distress;
(6) all other damages allowed by law; and
(7) penalties, attorney fees, costs, and expenses.

Seeking class certification, plaintiffs filed a motion to certify class on September 28, 2011. MMC opposed class certification on various grounds. First, MMC argued that it cannot be found to have violated the Health Care Consumer Billing and Disclosure Protection Act for the years 2000 through 2003 since the law was not in existence during that time period. Second, because each plaintiffs’ situation was resolved differently, MMC took issue with a broad and over-encompassing class definition.

After a hearing on the plaintiffs’ motion, the trial court granted class certification. In a lengthy opinion, the trial court recognized that the class should not extend back to January 1, 2000, given the effective date of La. R.S. 18:1871 et seq., but otherwise granted class certification. The trial court also found merit in the defendant’s argument that the different circumstances pertaining to the individual plaintiffs was an obstacle to creating a blanket class. Therefore, the trial court reasoned that subclasses should be formed in accordance with the Third Circuit decision in Desselle v. Acadian Ambulance Serv., Inc., 2011-742 (La.App.3d Cir.02/01/12), 83 So.3d 1243, writ denied, 2012-0518 (La.04/13/12), 85 So.3d 1253.

The common question, the court concluded, is whether MMC’s alleged billing practices violated the Health Care Consumer Billing and Disclosure Protection Act. The court stated that the evidence showed that |7the class of individuals is so numerous that joinder is impracticable, the issue is common to the class, and the claims of the representatives appointed are typical of the claims of the class. The court also found that it would be imprudent to try the cases individually as they may result in incompatible judgments. The court further stated that a class action is appropriate due to the possibility that many of the claims made by the class members may be small or nominal in nature. Finally, the court found that the class action procedure is superior to any other available method and certified the class as follows:

All persons currently and/or formerly residing in the United States of America from January 1, 2004, through December 31, 2011:
(1) Having “Health Insurance Coverage” [as defined by La. R.S. 22:1872(18) ] providing coverage for themselves or for others for whom they are legally responsible, with any “Health Insurance Issuer” [as defined by La. R.S. 22:1872(19) ] at the time “covered health care services” [as defined by La. R.S. 22:1872(8) ] were provided by an facility operated by PHC-Minden, L.P. d/b/a Minden Medical Center; and
(2) With which “Health Insurance Issuer” PHC-Minden, L.P. d/b/a Min-den Medical Center was a “contracted health care provider” at the time of service [as defined by La. R.S. 22:1872(6)]; and
(3)From whom PHC-Minden, L.P. d/b/a Minden Medical Center collected, and/or attempted to collect, the “Health Insurance Issuer’s Liability” [as defined by La. R.S. 22:1872(20) ], including, but not limited to, any collection or attempt to collect from any settlement, judgment, or claim made against any third person or insurer who may have been liable for any injuries sustained by the patient (which insurers include those providing liability coverage to third persons, uninsured/underinsured coverage, and/or medical payments coverage); and/or
[(4) From whom PHC-Minden, L.P. d/b/a Minden Medical Center collected, and/or attempted to collect, any amount in excess of the “Contracted Reimbursement Rate” [as defined by La. R.S. 22:1872(7) ], including but not limited to, any collection or attempt to collect from any settlement, judgment, or claim made against any third person or any insurer which may have been liable for any injuries sustained by the patient (which insurers include those providing liability coverage to third persons, uninsured/underin-sured coverage, and/or medical payments coverage);
(5) From whom PHC-Minden, L.P. d/b/a Minden Medical Center collected, and/or attempted to collect, any amount without first receiving an explanation of benefits or other information from the Health Insurance Issuer setting forth the liability of the insured as required by La. R.S. 22:1874(A)(2) and (3).

As mentioned above, the trial court further divided the class into the following subclasses in accordance with Desselle, supra:

“Attempt to Recover” subclass: A subclass of persons who received covered health care services, and who had health insurance coverage, and from whom Minden Medical Center attempted to recover any amount in excess of the “contracted reimbursement rate” from January 1, 2004, through December 31, 2011. “Payor” Subclass: A subclass of persons who received covered health care services, and who had health insurance coverage, and/or who paid Minden Medical Center in any manner including but not limited to liability insurance proceeds and/or from proceeds of a settlement or judgment, an amount in excess of the “contracted reimbursement rate” either directly and/or through their attorney and/or through a liability insurance carrier and/or any third party from January 1, 2004, through December 31, 2011.

The trial court then ordered that Pren-tiss Baker and Sheryl Wiginton be appointed class representatives for the “Payor” subclass, and Judyette Allen be appointed class representative for the “Attempt to Recover” subclass. J. Lee Hoffoss, Jr., Claude P. Devall, Derrick G. Earles, Lawrence |flJ. Centola, III, and Scott R. Bickford were appointed as class counsel. MMC appeals, and as its sole assignment of error, it contends that the trial court erred in granting class certification.

Discussion

A class action is a nontraditional litigation procedure that permits a representative with typical claims to sue or defend on behalf of, and stand in judgment for, a class of similarly situated persons when the question is one of common interest to persons so numerous as to make it impracticable to bring them all before the court. Brooks v. Union Pacific R.R. Co., 2008-2035 (La.05/22/09), 13 So.3d 546. The purpose and intent of the class action procedure is to adjudicate and obtain res judicata effect on all common issues applicable not only to persons who bring the action, but also to all others who are similarly situated. Id.

The determination of whether a class action meets the requirements imposed by law involves a rigorous analysis in which the trial court must evaluate, quantify, and weigh the relevant factors to determine what extent the class action would in each instance promote or detract from the goals of effectuating substantive law, traditional efficiency, and individual fairness. Id. In doing so, the trial court must actively inquire into every aspect of the case and not hesitate to require showings beyond the pleadings. Id. Going beyond the pleadings is necessary, as a court must understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of the certification issues. Dupree v. Lafayette Ins. Co., 2009-2602 (La.11/30/10), 51 So.3d 673.

110Under Louisiana law, the requirements for class certification are set forth in La. C.C.P. art. 591. Article 591(A) provides five threshold prerequisites that must be met:

A. One or more members of a class may sue or be sued as representative parties on behalf of all, only if:
(1) The class is so numerous that join-der of all members is impracticable.
(2) There are questions of law or fact common to the class.
(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class.
(4) The representative parties will fairly and adequately protect the interests of the class.
(5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case. This prerequisite shall not be satisfied if it is necessary for the court to inquire into the merits of each potential class member’s cause of action to determine whether an individual falls within the defined class.

In addition to these five prerequisites, La. C.C.P. art. 591(B) lists additional requirements that must be met, depending on the type of class action sought. In this case, the parties submit that the additional requirement that must be satisfied is found in La. C.C.P. art. 591(B)(3), which provides:

(3) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superi- or to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to these findings include:
ln(a) The interest of the members of the class in individually controlling the prosecution or defense of separate actions;
(b) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(c) The desirability or undesirability of concentrating the litigation in the particular forum;
(d) The difficulties likely to be encountered in the management of a class action;
(e) The practical ability of individual class members to pursue their claims without class certification;
(f)The extent to which the relief plausibly demanded on behalf of or against the class, including the vindication of such public policies or legal rights as may be implicated, justifies the costs and burdens of class litigation.

A trial court has wide discretion in deciding whether to certify a class and the decision will not be overturned absent a finding of manifest error or abuse of discretion. Howard v. Willis-Knighton Med. Ctr., 40,634 (La.App.2d Cir.03/08/06), 924 So.2d 1245, writs denied, 2006-0850 (La.06/14/06), 929 So.2d 1268, and 2006-1064 (La.06/14/06), 929 So.2d 1271. Any errors to be made in deciding class action issues should be in favor of and not against the maintenance of the class action, because a class certification order is subject to modification, if later developments during the course of the trial so require. McCastle v. Rollins Envtl. Servs. of La., Inc., 456 So.2d 612 (La.1984).

The burden of establishing that the statutory criteria are met falls on the party seeking to maintain the class action. Howard, supra. Thus, in this case, the plaintiffs were required to prove the five prerequisites of La. |12C.C.P. art. 591(A), namely: numerosity, commonality, typicality, adequacy of the representative parties, and objectively definable class. But also, under La. C.C.P. art. 591(B), the plaintiffs were required to prove that common questions of law or fact predominate over individual issues and that the class action is superior to any other method for resolving the controversy fairly and efficiently. Id.

Prior to our analysis, it is necessary to provide an overview of the recent developments of the Health Care Consumer Billing and Disclosure Protection Act. In general, the Act provides that a contracted health care provider, such as MMC, is prohibited from discount billing, dual billing, attempting to collect from, or collecting from an insured a “health insurance issuer liability” or any amount in excess of the contracted reimbursement rate for covered health care services. La. R.S. 22:1874. A health insurance issuer liability is defined as the “contracted reimbursement rate” reduced by the patient’s responsibility, which includes coinsurance, copayments, deductibles, or any other amounts identified by the health insurance issuer as an amount for which the enrollee or insured is liable for the covered service. La. R.S. 22:1872(20)(b). The contracted reimbursement rate is defined as the aggregate maximum amount that a contracted health care provider has agreed to accept from all sources for provision of covered health care services under the health insurance coverage applicable to the enrollee or insured. La. R.S. 22:1872(7). Thus, under the Act, MMC is prohibited from collecting or attempting to collect any amount in excess of | isthe contracted reimbursement rate from a patient who is covered under a health insurance policy.

Various plaintiffs have armed themselves with this language and have brought lawsuits all across this State against hospitals such as MMC, alleging violations under the Act. Most recently, in Anderson v. Ochsner Health Syst, 2013-2970 (La.07/01/14), - So.3d -, 2014 WL 2937101, the Louisiana Supreme Court was asked to determine whether an individual plaintiff is afforded a private right of action under La. R.S. 22:1871 et seq. Prior to Ochsner, supra, defendants were arguing that based on the language found in the Act, the exclusive method for a plaintiff to obtain relief was via the Attorney’s General Office and the Louisiana Unfair Trade and Practices Act. The Louisiana Supreme Court rejected this argument, and reached the conclusion that both an express and implied private right of action is available under the Act. The Court first found that the legislative intent is such to support the existence of a private right of action and further held that the practice of asserting a medical lien is equivalent to “maintaining an action at law,” which in turn triggers an express right of action for an individual insured plaintiff to bring a lawsuit.

However, despite the recent influx of these cases, no jurisprudence exists whatsoever in regard to the actual merits of a claim brought as the result of alleged violations under the Act. Although the Louisiana Supreme Court has provided guidance in that plaintiffs have a private right of action under La. R.S. 22:1871 et seq. and that the practice of asserting a medical lien constitutes “maintaining an action at law,” many unanswered questions 114remain, including those pertaining to what damages a successful plaintiff would be entitled to receive. For example, in the instant matter, plaintiffs expressly requested mental anguish as a component of their general damages. However, the law is not clear as to whether a plaintiff would even be entitled to nonpecuniary damages in a setting such as this arising from contractual relations between an insured, his health care provider, and a hospital. See La. C.C. art. 1998. Moreover, as the record now stands, there are no specific allegations demonstrating the calculation of pecuniary losses to any of the named plaintiffs. Without knowing how the parties’ losses arise and are calculated, it is difficult to group them together in a common class.

Additionally, we note that despite the Supreme Court’s ruling in Ochsner, supra, the Court made no attempt to measure the use by a health care provider of the lien right afforded under La. R.S. 9:4752 against the provisions of the Health Care Consumer Billing and Disclosure Protection Act. Whether these two provisions by the legislature can be harmonized or whether La. R.S. 22:1871 et seq. now prohibits a hospital’s use of the lien statute remains a difficult question in our law. See La. Atty. Gen. Op. No. 05-0056, 2005 WL 1429238 (La.A.G.05/17/05).

Yet, faced with this undeveloped legal storm, we are asked to approve certification of certain classes of plaintiffs when little guidance is available. To reiterate the legal principles outlined above, a court must go beyond the pleadings, and understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of | ^certification issues. Here, we find it impossible to do so given the uncharted territory of litigation associated with actions brought pursuant to La. R.S. 22:1871 et seq.

As pointed out by MMC at trial and on appeal, Louisiana courts will deny class certification when presented with novel and untested legal theories. Ford v. Murphy Oil U.S.A., Inc., 96-2913 (La.09/09/97), 703 So.2d 542; see also Banks v. New York Life Ins. Co., 98-0551 (La.12/07/98), 722 So.2d 990, 995 (“Federal courts, and this court will not certify a class where the theory of law is novel and untested”). In Ford, supra, at 15, 703 So.2d 542, citing Castano v. American Tobacco Co., 84 F.3d 734 (5th Cir.1996), the Louisiana Supreme Court stated “[T]he court must have experience with a tort in the form of several individual actions before it can certify issues in a way that preserves judicial resources.” Applying this same reasoning to the matter before us, we too find that courts must have experience with lawsuits brought pursuant to the Health Care Consumer Billing and Disclosure Protection Act before we can certify issues in a way that preserves judicial resources. In fact, the Desselle opinion, which was relied on so heavily by the trial court in this case, was rendered prior to an understanding of whether a plaintiff even had a private right of action under the Act.

Accordingly, we do not find that a class action is the superior procedural method for resolving this controversy. Unfortunately, until the legislature or courts of this state clarify the remaining legal issues 11fisurrounding the Health Care Consumer Billing and Disclosure Protection Act, only then will this claim be proper as a class action.

Having found class certification to be improper, we do not find it necessary to proceed further in our analysis; therefore, we pretermit our discussion as to whether plaintiffs met their burden of proving the remaining elements under La. C.C.P. art. 591(A) and (B).

Conclusion

So considering, the trial court’s judgment certifying class certification in favor of Prentiss Baker, Sheryl Wiginton, and Judyette Allen is reversed. All costs of this appeal are assessed to plaintiffs.

REVERSED.

APPLICATION FOR REHEARING

Before BROWN, CARAWAY, MOORE, LOLLEY and PITMAN, JJ.

Rehearing denied.

      . Since the institution of this lawsuit, Prentiss Baker died and his widow, Dorothy Baker, has been substituted as the party plaintiff.


source: Caselaw Access Project

author: STEWART, J.

license: Public Domain

text:
    STATE of Louisiana, Respondent v. Joe Louis WYATT, Applicant.
    No. 48,598-KH.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 13, 2014.
    Joe Louis Wyatt, pro se.
    Jerry L. Jones, District Attorney, Geary S. Aycock, Assistant District Attorney, for Respondent.
    Before STEWART, LOLLEY and MOORE, JJ.
   STEWART, J.

11Applicant, Joe Wyatt (“Wyatt”), who pled guilty to first degree murder committed when he was 17 and was sentenced to life imprisonment in 1987, applied for supervisory review of a judgment denying his motion to correct an illegal sentence. Wyatt based his motion on the new constitutional rule of law established in Miller v. Alabama, 567 U.S. —, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), which held that the Eighth Amendment forbids mandatory life sentences without the possibility of parole for juvenile offenders, unless the sentencing court holds a hearing to consider mitigating factors before imposing such a severe penalty. Based on the recent decision of the Louisiana Supreme Court in State v. Tate, 2012-2763 (La.11/5/13), 130 So.3d 829, cert. denied, — U.S. —, 134 S.Ct. 2663, 189 L.Ed.2d 214 (2014), which held that Miller does not apply retroactively to cases on collateral review, we affirm the district court’s judgment denying Wyatt’s motion.

FACTS

In June 1986, Wyatt, age 17, conspired with another person to rob the owner of a furniture store in Monroe. During the armed robbery, Wyatt shot and killed Carl Gresham, Sr., the owner of the store. In exchange for the state’s agreement not to seek the death penalty, Wyatt pled guilty to first degree murder on January 12, 1987, and was sentenced to life imprisonment without benefit of probation, parole, or suspension of sentence. He did not appeal.

On February 8, 2013, following the Miller decision, Wyatt filed the instant motion to correct an illegal sentence. The trial court denied Wyatt’s | ¡¿motion on May 10, 2013, after considering filings by both the state and Wyatt. The trial court concluded that, although Miller, supra, set forth a new rule, the new sentencing rale did not satisfy either exception of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), discussed infra, for retroactive application to cases on collateral review.

Following the trial court’s adverse ruling, Wyatt filed a writ application with this court. On July 26, 2013, we granted his writ to consider whether the Miller rule applies retroactively on collateral review. We ordered the record and briefs by the parties so that the matter could be submitted for a decision on the next available appellate calendar. Additionally, on August 13, 2013, this court ordered the parties to address the application to Wyatt’s case of new legislation, Act No. 239, which amended the parole eligibility statute, La. R.S. 15:574.4, and added La. C. Cr. P. art. 878.1, both discussed infra.

Then, on August 20, 2013, the Louisiana Supreme Court granted a motion by the state to stay the proceedings pending the finality of its decision in Tate, supra, addressing the same issues as presented by Wyatt. After the Tate decision became final, the stay was lifted by order of this court on March 19, 2013, and briefing resumed.

Wyatt argues that the trial court erred in not finding that the new sentencing rale set forth in Miller, supra, applies retroactively to his case. However, Wyatt’s brief ignores the Tate decision, which is disposi-tive of his motion and offers him no relief.

IsDISCUSSION

The Supreme Court in Miller held that mandatory sentencing schemes of life in prison without the possibility of parole for juvenile offenders violate the Eighth Amendment. However, the Supreme Court did not bar such sentences for juvenile offenders. Instead, it mandated that the sentencing court conduct a hearing to consider mitigating factors, such as the youth of the offender, before imposing such a severe penalty. Miller, 132 S.Ct. at 2469.

Miller involved two cases, both with 14-year-old defendants convicted of murder and given mandatory life-without-parole sentences. One case was raised on a direct appeal; the other was raised on collateral review. Without distinguishing between the case on direct appeal and that on collateral review, the Court reversed the lower courts in both cases and remanded for further proceedings consistent with its opinion.

In Tate, supra, our state supreme court granted writs to resolve a dispute between the two lower courts about whether Miller should be applied retroactively on collateral review. The defendant, Darryl Tate, pled guilty to second degree murder committed as a juvenile (age 17) and received a mandatory life sentence without the possibility of parole. Tate’s sentence became final in 1984. Following the Miller decision, Tate filed a motion for resentencing. The district court denied Tate’s motion, but the fourth circuit granted writs and remanded for a sentencing hearing in accordance with the principles of Miller.

14To determine whether Miller applies retroactively to claims by juvenile homicide offenders like Tate, whose convictions were final when the decision was rendered, the supreme court applied the inquiry set forth by Teague, supra, for determining retroactivity of new rules of law. Tate, supra. First, the court determined that Tate’s conviction became final in 1984 when he did not apply for rehearing from the appellate court judgment affirming his conviction and sentence. Here, the record shows that Wyatt plead guilty to first degree murder on January 12,1987, and that he did not appeal his conviction and sentence. Wyatt’s conviction and sentence became final in 1987 when the delays for filing an appeal expired.

Next, the supreme court examined whether Miller, supra, established a “new rule,” meaning one that is not “dictated by precedent existing at the time the defendant’s conviction became final.” Tate, 2012-2763, p. 7, 130 So.3d at 835, citing Wharton v. Bockting, 549 U.S. 406, 416, 127 S.Ct. 1173, 1180, 167 L.Ed.2d 1 (2007). The parties did not dispute this issue, and the supreme court determined that Miller established a new rule. Tate, supra. The court then determined that the new rule established by Miller is “properly classified as procedural,” rather than substantive, because “it simply altered the range of permissible methods for determining whether a juvenile could be sentenced to life imprisonment without parole[.]” Id., p. 10, at 837.

Finally, the supreme court examined whether the holding of Miller established a “watershed rule” of criminal procedure, such that it must be applied retroactively. Id., p. 13, at 839. The court noted that the watershed 1¡¡rule is an “extremely narrow” exception. Id. A watershed rule must satisfy two requirements. It “must be necessary to prevent an impermissibly large risk of an inaccurate conviction,” and it “must alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding.” Id., citing Wharton, 549 U.S. at 418, 127 S.Ct. at 1182. The supreme court concluded that Miller does not satisfy the requirements necessary to be considered a watershed rule subject to retroactive application. It neither pertains to trial procedures that lead to conviction, nor does it establish a previously unrecognized bedrock procedural element essential to a fair proceeding. Tate, p. 15, at 840.

Having found that Miller, though a new procedural rule, is neither substantive nor a watershed rule, the supreme court concluded that Tate and other “similarly situated defendants are not entitled to the retroactive benefit of the Miller rule in post-conviction proceedings.” Id., p. 16-17, at 841. Therefore, Wyatt, like Tate, is not entitled to any relief under Miller.

In Tate, supra, the supreme court also addressed whether Act 239 passed by the legislature on June 12, 2013, in response to Miller should apply retroactively to Tate and similarly situated defendants. Act 239 provides for parole consideration for juvenile offenders sentenced to life imprisonment for first or second-degree murder. It created La. C. Cr. P. art. [fi878.1, which requires a hearing to determine whether a sentence of life imprisonment is to be imposed with or without parole eligibility for defendants who were under the age of 18 at the time of the offense and have been convicted of first or second degree murder. Act 239 also enacted La. R.S. 15:574.4(E), which sets forth the conditions that a juvenile offender serving a life sentence with a judicial determination of parole eligibility must meet to be considered for parole.

Applying the principles of statutory interpretation, the supreme court determined that La. C. Cr. P. Art. 878.1, which applies when an offender under the age of 18 at the commission of the offense “is to be sentenced to life imprisonment” for a first or second-degree murder conviction, is a new procedural rule that, by its plain and unambiguous language, is to be applied prospectively only. Tate, p. 20, at 843. The court concluded that because Tate and similarly situated defendants have already been sentenced for their convictions of first or second-degree murder, neither provision under Act 239 applies to them. Id., p. 20-21, at 844.

Wyatt, like the defendant Tate, is not entitled to the benefits of the Miller holding or the provisions enacted by our legislature in passing Act 239. In light of the Tate decision, Wyatt cannot show that Miller is retroactive and applicable on collateral review. We find no merit to Wyatt’s claim that his sentence is illegal.

CONCLUSION

For the reasons stated, we affirm the trial court’s denial of Wyatt’s motion to correct an illegal sentence.

AFFIRMED.

      . Chief Justice Johnston, joined by Justice Hughes, issued a strong dissent and would find that Miller established “a new substantive rule of constitutional criminal procedure which should be applied retroactively on collateral review[J" Tate, dissenting opinion, p. 8, at 849. As acknowledged in both Chief Justice Johnston’s dissenting opinion and the majority opinion, the supreme courts in Mississippi and Iowa have held that Miller is to be applied retroactively. See Jones v. State, 122 So.3d 698 (Miss.2013) and State v. Rag-land, 836 N.W.2d 107 (Iowa 2013).
      In State v. Mantich, 287 Neb. 320, 842 N.W.2d 716 (2014), the Nebraska supreme court held that Miller is a new substantive rule that applies retroactively on collateral review.


author: MOORE, J.

text:
    Heather COVINGTON, Plaintiff-Writ Respondent v. Christopher HOWARD and Knight Transportation, Inc., Defendant-Writ Applicant.
    No. 49,135-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 13, 2014.

      Richard L. Fewell, Jr., Duncan M. Jones, West Monroe, for Writ Respondent.
    Cook, Yancey, King & Galloway, Shreveport, by Brian A. Homza, Allison C. Foster, for Defendant Writ Applicants.
    Before CARAWAY, MOORE and GARRETT, JJ.
   MOORE, J.

|/The defendants, Christopher Howard and Knight Transportation, Inc., applied for a writ of review of the district court’s judgment denying their motion for summary judgment. We granted the application, docketed the case for oral argument and directed the parties to submit briefs. For the following reasons, we make the writ peremptory, grant the motion for summary judgment and dismiss the plaintiffs claim.

Facts

On February 14, 2011, Heather Coving-ton was driving west on 1-20 when she drove over an object in the road that she mistakenly believed was a paper plate or paper cup. In fact, the object was a drive shaft that had fallen from a tractor-trailer truck driven by Christopher Howard and owned by Knight Transportation, Inc. Howard had pulled over on the roadside further down the Interstate. Traveling at 70 miles per hour, Covington decided to straddle the object with her vehicle. As she passed over the object, she felt the car jerk and heard a noise. Alarmed, she pulled her car onto the shoulder. The drive shaft was lodged under her vehicle. Friction from the drive shaft rubbing the concrete surface created enough heat to ignite a minor grass fire. Covington’s vehicle also suffered some minor damage, including a flat tire.

Although she suffered no physical injuries, Covington filed a petition for damages on February 13, 2012, against Knight and Howard (collective!y “Knight”) for pain and suffering, mental anguish and medical expenses caused by their negligence. Cov-ington began seeing a psychologist, Dr. |2E.H. Baker, on March 10, 2011.

Knight filed an answer denying the allegations and alleging nine “affirmative defenses.” Thereafter, on July 10, 2013, Knight filed a motion for summary judgment asserting that the plaintiff cannot meet her burden of proving that Knight’s acts or omissions constituted “outrageous conduct” that caused the plaintiff genuine and serious emotional distress. Attached to their motion were the affidavit of Cov-ington and her psychologist, Dr. E.H. Baker. Knight alleged no issues of material fact and entitlement to summary judgment as a matter of law.

Covington opposed the motion. She argued that the special circumstances of the accident created by her fragile pre-existing mental condition caused her to suffer genuine emotional distress which she continues to experience. This mental distress, she argues, has led to physical consequences such as sleeplessness, nightmares and poor appetite. Dr. Baker stated in his deposition that the accident was the final straw (that broke the camel’s back), pushing her over the edge into generalized anxiety disorder.

After a hearing on December 17, 2013, the district court denied Knight’s motion, stating that there remained issues of material fact regarding the report of Dr. Baker, who acknowledged that the incident would have aggravated the plaintiffs pre-existing mental condition. The court also noted that there was some property damage to the plaintiffs vehicle that distinguished the case from Moresi v. State, Through Dept, of Wildlife & Fisheries, 567 So.2d 1081 (La.1990). This writ application followed.

^Discussion

The defendants’ sole assignment of error is that the trial court erred by denying their motion for summary judgment because the plaintiff cannot meet her burden of proving certain essential elements of her claim for negligent infliction of emotional distress. Specifically, they contend she cannot meet her burden of proving: (1) the “especial likelihood of genuine and serious mental distress arising from special circumstances” required to recover mental distress damages; (2) outrageous conduct by the defendants; and, (3) that her mental distress was caused by the incident.

General Principles

The motion for summary judgment is a procedural device to avoid a full-scale trial when there is no genuine issue of material fact. Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963); Jones v. Foster, 41,619 (La.App. 2 Cir. 12/13/06), 945 So.2d 262; Foley v. Sportran, 40,624 (La.App. 2 Cir. 5/17/06), 930 So.2d 368. Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action, except certain domestic actions; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2); Racine v. Moon’s Towing, 2001-2837 (La.5/14/02), 817 So.2d 21. The motion should be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

Supporting and opposing affidavits “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, Rand shall show affirmatively that the affiant is competent to testify to the matters stated therein.” La. C.C.P. art. 967(A). Personal knowledge means something the witness actually saw or heard, as distinguished from what he learned from some other person or source. Barnes v. Sun Oil Co., 362 So.2d 761 (La. 1978); Wells v. Red River Parish Police Jury, 39,445 (La.App. 2 Cir. 3/2/05), 895 So.2d 676, writ not cons., 2005-0854 (La.5/13/05), 903 So.2d 438.

The burden of proof remains with the mover; however, if the mover will not bear the burden of proof at trial on the matter before the court on the motion for summary judgment, then the mover may merely point out to the court the absence of factual support for one or more elements essential to the plaintiffs claim. The burden then shifts to the plaintiff to present evidence demonstrating that genuine issues of material fact remain. La. C.C.P. art. 966(C)(2); Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606; Foley v. Sportran, supra. If the plaintiff then fails to produce such evidence, then summary judgment is proper. King v. Phelps Dunbar LLP, 98-1805 (La.6/4/99), 748 So.2d 181.

Appellate review of the grant or denial of a summary judgment is de novo. Jones v. Estate of Santiago, 2003-1424 (La.4/14/04), 870 So.2d 1002; Jones v. Foster, supra; Row v. Pierremont Plaza LLC, 35,796 (La.App. 2 Cir. 4/3/02), 814 So.2d 124, writ denied, 2002-1262 (La.8/30/02), 823 So.2d 952.

“Negligent Inñiction of Emotional Distress

Although negligent infliction of emotional distress (“NIED”) is not an independent tort like battery, trespass, or intentional infliction of emotional | ¡¡distress, etc., Moresi, supra, it is now well established in Louisiana jurisprudence that a claim for NIED unaccompanied by physical injury is viable under La. C.C. art. 2315, which provides, in pertinent part, that “[e]very act whatever of man that causes damages to another obliges him by whose fault it happened to repair it.” Courts utilize a duty-risk analysis to assist in determining whether one may recover under La. C.C. art. 2315. Bordelon v. St. Frances Cabrini Hosp., 93-1331 (La.App. 3 Cir. 5/4/1994), 640 So.2d 476. For liability to attach, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard (the breach of duty element); (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) actual damages (the damages element). Mathieu v. Imperial Toy Corp., 94-0952 (La.11/30/94), 646 So.2d 318. A negative answer to any of those inquiries results in a determination of no liability. Mathieu, 94-0952 at p. 11, 646 So.2d at 326.

Additionally, for those NIED claims unaccompanied by physical injury, recovery is limited to facts constituting “special circumstances” involving the especial likelihood of real and serious mental distress arising from the particular circumstances. Moresi, supra; Crockett v. Car-dona, 97-2346 (La.App. 4 Cir. 5/20/98), 713 So.2d 802. The guidelines for limiting recovery in NIED cases unaccompanied by physical injury reflect “the intent of the legislature and courts ⅜ * * to limit the class of claimants and | (¡prevent false claims. This policy protects the court’s time and limited resources.” Crockett, supra at 805. The practical effect of these policy limitations is to narrow the scope of the defendant’s duty.

Both parties in this case contend that the principles laid down in Moresi for evaluating the viability of a NIED claim support their respective positions.

In Moresi, supra, the plaintiffs alleged that they suffered mental distress as a result of a “threatening” note written on the back of a wildlife agent’s business card and pinned to their camp door. The note read: “We missed you this time but look out next time.” Just two months earlier, the plaintiffs had been subjected to an allegedly wrongful search, seizure and arrest by game agents, and they assumed that the note on their door constituted further harassment by the agents. The evidence at trial indicated that the agents, who were not involved in the prior investigation, mistakenly believed they were placing the note on the camp of their friend, but misread the directions to his camp. Nevertheless, the trial court awarded each plaintiff $1,000 for his mental distress resulting from the misplaced message. The court of appeal affirmed the award. The supreme court granted certiorari.

The supreme court observed that most jurisdictions follow the general rule that recovery for emotional distress is available “for the independent tort of intentional infliction of emotional distress,” but “if the defendant’s conduct is merely negligent and causes only mental disturbance, without accompanying physical injury, illness or other physical consequences, the defendant is not liable for such emotional disturbance.” Id. at 1095. 17However, Louisiana courts have deviated from this general rule in some cases. All of these exceptional cases had in common “the especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious.” Id. at 1096.

Finding that the facts did not meet those criteria, the court held that the game agents were not liable for the plaintiffs’ mental disturbance caused by their negligence. “The agents’ acts were not intentional, outrageous or related to another tort, nor was the plaintiffs’ mental disturbance severe, or related to personal injury or property damage, and the plaintiffs were not in great fear for their personal safety.” Id. The court concluded that “this case does not fall within any category having an especial likelihood of serious and genuine mental distress, and thus lacks any recognized elements guaranteeing the genuineness of the injury claimed.” Id.

| ¿The Special Circumstances and Outrageous Conduct Requirements

Later cases following Moresi have limited recovery for NIED to those cases that involved facts where the defendant’s conduct was outrageous or deemed outrageous because the defendant breached a special direct duty to the plaintiff and where the resulting mental distress the plaintiff suffered was easily associated with the defendant’s conduct. Jenkins v. Washington & Wells, L.L.C., 46,825 (La. App. 2 Cir. 1/25/12), 86 So.3d 666, writ denied, 2012-0427 (La.4/9/12), 85 So.Bd 705; Doe v. Dunn, 39,179 (La.App. 2 Cir. 12/22/04), 890 So.2d 727, writ denied, 2005-0443 (La.4/29/05), 901 So.2d 1066; Succession of Harvey, 97-2815 (La.App. 4 Cir. 6/24/98), 716 So.2d 911, writ denied, 98-2025 (La.11/6/98), 728 So.2d 391. See, e.g., Bordelon v. St. Frances Cabrini Hospital, supra (hospital liable for NIED where it breached an independent direct duty to the plaintiff by negligently giving her someone else’s blood after she made special arrangements with the hospital to receive only her blood and resulting in mental distress arising from fear of contracting the AIDS virus). Utilizing a duty-risk analysis rather than focusing on an “outrageous” act, some courts have required that the plaintiff prove that the defendant owed an independent, direct duty to the plaintiff, that the duty afforded protection to the plaintiff for the risk and harm caused, that the duty was breached, and that the mental anguish suffered was genuine and serious. Dennis v. Wiley, 2009-0236 (La.App. 1 Cir. 9/11/09) 22 So.3d 189, writ denied, 2009-2222 (La.12/18/09), 23 So.3d 949 (sheriffs office owed no special duty to rape victim to preserve evidence obtained during investigation of the crime for the benefit of the victim); Bacas v. Falgoust, 99-1312 (La.App. 5 Cir. | ¡,5/30/00), 760 So.2d 1279, (McManus, J. concurring with reasons) (defendant, a private investigator assisting attorney with worker’s compensation claim, owed a direct duty to this client/plaintiff because he knew of her strained emotional condition after she had been raped, and breached that duty by attempting to coerce her to have sex with him). However, if the negligent conduct that causes emotional distress is accompanied by physical injury, illness, or other physical consequences, the conduct need not be outrageous for the plaintiff to recover. Page v. Benson, 2012-244 (La.App. 3 Cir. 11/7/12), 101 So.3d 545.

Turning now to the instant case, Knight argues that the plaintiff will be unable to show that this case falls into that category of cases that indicate an “especial likelihood of genuine and serious mental distress arising from special circumstances.” Knight argues that its conduct amounted to, at most, simple negligence, and does not meet the outrageous conduct needed to support a claim for NIED. The only exceptions to the special circumstances requirements, argues Knight, are those cases in which the plaintiff has suffered physical injury, illness or other physical consequences, or in some cases where the plaintiff suffered property damage.

On the other hand, Covington argues that her case meets the special circumstances requirement of Moresi because she submitted Dr. Baker’s deposition as evidence that her claim is not spurious and shows that she is particularly susceptible to severe mental distress even as a result of this minor incident and that her mental distress is genuine and severe. Dr. Baker stated in his deposition that Covington had suffered from several mental stresses in her life prior to the accident, including the loss of her father in an |inautomobile accident, and being raped while in high school. Additionally, Covington contends that she does not have to show “outrageous conduct” by the defendants to prevail, charging that the defendants are confusing the elements of intentional infliction of emotional distress” with the elements of NIED, which she alleges requires only a simple “duty-risk” analysis, citing Page v. Benson, supra. She further argues that she does not have to show outrageous conduct because she has suffered “physical injuries,” namely, sleeplessness, nightmares, and loss of appetite. She contends that, in any event, a drive shaft falling off a vehicle traveling at Interstate speeds constitutes outrageous conduct. Finally, she argues that she suffered property damage to her vehicle that dispenses with the need to show outrageous conduct.

After review of the facts and evidence in the record, we conclude that Covington cannot meet the threshold requirements of Moresi, supra, nor can she meet the elements of a duty-risk analysis.

The common thread of the special circumstances NIED cases collected in Moresi is that each of those cases present facts proving that the defendant’s act created a very strong and obvious likelihood that the plaintiff would suffer genuine and severe mental distress. Typically, the defendant’s conduct under the circumstances is deemed so unconscionable or outrageous such that a person of ordinary sensibilities would suffer genuine and severe emotional distress. Moresi, supra; Doe v. Dunn, supra; Succession of Harvey, supra. However, the phrase “special circumstances” is not necessarily limited to objectively “outrageous” conduct, such as when the defendant owes the plaintiff an independent, direct duty, and his breach |nof that duty is deemed unconscionable or outrageous under the circumstances, or when a defendant knew or should have known that the plaintiff was particularly vulnerable to emotional distress from his act. See, e.g. Bordelon v. St. Frances Cabrini Hosp., supra. “[UJnless the actor has knowledge of the plaintiffs particular susceptibility to emotional distress, the actor’s conduct should be judged in the light of the effect such conduct would ordinarily have on a person of ordinary sensibilities.” Succession of Harvey, supra at 917, quoting Scamardo v. Dunaway, 94-545 (La. App. 5 Cir. 2/15/95), 650 So.2d 417, writ denied, 97-1395 (La.9/5/97), 700 So.2d 517. The defendant’s knowledge that a plaintiff is particularly susceptible to emotional distress is a factor to be considered.

The “special circumstances” requirement is not met in this case. Although Covington presented evidence that tends to show that her mental distress is genuine, and therefore, arguably not spurious, introducing such evidence does not transform the case into that category of cases in which the circumstances ensure that the claim is not spurious. The categories of cases listed in Moresi involved cases where the defendant’s conduct was outrageous or he knew or should have known that his conduct, judged in the light of the effect such conduct would have on a person of ordinary sensibilities, would cause genuine and severe mental distress, and is thus deemed to be outrageous. However, if the defendant knows that the plaintiff is particularly susceptible to emotional distress, this is a factor to be | ^considered in the equation of the “special circumstances.” In this instance, the defendants had no knowledge of Coving-ton’s fragile mental condition such that their simple negligence could be easily associated with the harm of her extreme mental distress. The special circumstances of Moresi require facts that indicate either that the defendant should have known that his outrageous conduct would cause genuine and severe mental distress to a person of ordinary sensibilities, or the defendant had actual knowledge of the plaintiffs heightened susceptibility to mental distress such that his conduct would be deemed outrageous.

Covington also argues that she does not have to show outrageous conduct because her mental distress is accompanied by physical injuries, namely, sleeplessness, nightmares and loss of appetite. Although she does not cite any cases in support of this contention, Covington is clearly arguing that sleeplessness, nightmares and loss of appetite are physical consequences or physical illness accompanying her mental distress.

We have found no cases in Louisiana expressly or directly deciding this particular issue; however, in our review of cases in which such symptoms are discussed as injuries or damages, we find that courts classify these injuries as emotional or psychological injuries arising from some kind of physical injury. See, e.g., Parker v. Day, 516 So.2d 1211 (La.App. 2 Cir. 12/2/87), writ denied, 519 So.2d 127 (La.1988).

However, there are numerous cases from other jurisdictions concerning this particular issue in NIED claims. Those cases are divided on whether these three injuries can be treated as “physical” injuries or illness in the context of a NIED claim. See, Wilson v. Sears, Roebuck & Co., 757 Fj2d13 948 (8 Cir.1985) (the only condition of the plaintiff manifesting itself and shown to be related to the defendant’s negligence was post-traumatic stress disorder, which was not the type of physical injury that could support recovery); Michalezewslci v. CSX Tramp., Inc., 2007 WL 2875627, at *7 (N.D.I11.9/30/07) (a diagnosis of post-traumatic distress accompanied by “sleeplessness, discomfort, fear, and regret are exactly the sorts of intermediate effects that consistently fail to meet the high bar of [NIED] impact”); Myseros v. Sissler, 289 Va. 8, 387 S.E.2d 463, 465 (1990) (post-traumatic stress disorder, anxiety disorder, nausea, difficulty sleeping and breathing, and loss of appetite and weight, are manifestations of an underlying emotional disturbance, not of a physical injury). Cf. Bloom v. Consolidated Rail Corp., 41 F.3d 911, 915 n. 5 (3d Cir.1994) (noting, in dicta, that “[the plaintiff] did demonstrate physical manifestation [of emotional distress] through weight loss, loss of sleep, nightmares, vomiting, and diagnosed post-traumatic stress disorder); Maldonado v. National Acme Co., 73 F.3d 642 (6 Cir. 1996) (evidence that the plaintiff suffered from asthma, high blood pressure, heart problems, and paranoia related to his post-traumatic stress disorder, and felt jittery, anxious, irritable, depressed, and fearful of death, created an issue of material fact as to whether the plaintiff suffered objective physical injury as a result of his initial emotional distress); Marchica v. Long Island R. Co., 31 F.3d 1197, 1203-04 (2 Cir.1994) (for purposes of his NIED claim, the plaintiffs emotional distress manifested itself physically in post-traumatic stress disorder, accompanied by sleeplessness, weight loss, vomiting, rashes, and anxiety); Botek v. Mine Safety Appliance Corp., 531 Pa. 160, 611 A.2d 1174, 1176-77 (1992) (plaintiff 1 ucould recover for his psychological and emotional injuries, including his post-traumatic stress disorder, where such psychological and emotional injuries were accompanied by nausea and headaches, two “objective, measurable, observable physical injuries”).”

In those cases in which the court listed sleeplessness or anxiety as a physical manifestation of emotional distress, the plaintiffs also suffered additional, objective, measurable symptoms such as high blood pressure, heart problems, nausea, vomiting or rashes. Those additional, measurable physical symptoms are not present in this case. While sleeplessness, nightmares and loss of appetite can affect behavior that necessarily involves the body’s rest and maintenance, they are usually considered to be subjective aspects or elements indicative of mental or emotional distress. Standing alone, they are not ordinarily considered to be physical injuries or illness.

Additionally, Dr. Baker indicated that Covington suffered from many symptoms prior to the accident due to the stress from her parents’ divorce, the death of her father in an automobile accident three years ago, and the rape in high school. He indicated, however, that the accident likely made the symptoms worse. We note that Covington reported no weight loss, which could have supplied objective evidence of her loss of appetite. In fact, she reported in her deposition that she has gained weight from her normal 115 pounds prior to or near the time of the accident. For these reasons, we are not persuaded that her sleeplessness, nightmares and loss of 11flappetite constitute physical injuries or consequences resulting from the accident. These symptoms are generally considered to be emotional harms because they lack the kind of objective manifestation required to constitute physical injury or physical consequences. We conclude therefore that Covington suffered no physical injuries accompanying the accident.

Covington also asserts that she is not required to show outrageous conduct by the defendant because she suffered property damage to her automobile. This argument has no merit. Those cases cited by the supreme court in Moresi, supra, in which property damage caused extreme emotional distress involved extensive loss or destruction of property of great or special value to the plaintiff. Besides, Cov-ington never claimed that the severe emotional distress she suffered from was caused from the property damage she incurred to her vehicle.

When we utilize the duty-risk analysis, the significance of the Moresi decision to the “legal cause” inquiry or “legal duty” question becomes manifest. All motorists have a general duty to maintain their vehicles in reasonably good working condition such that they do not become a hazard to other motorists. Assuming Knight failed to properly maintain its truck, with the result that the drive shaft assembly fell off the vehicle onto the Interstate highway, this failure was a cause-in-fact of the accident. The critical question is whether the risk of the resulting harm that Covington suffered falls within the scope of protection of Knight’s general duty (the “scope of protection” or the “legal cause” inquiry). Roberts v. Benoit, 605 So.2d 10321 ifi(La.l991).

Clearly, the risk of damage to Coving-ton’s vehicle and any physical injuries sustained would fall within the scope of protection afforded by Knight’s general duty. However, Moresi, in accord with policy considerations, clearly places limitations on the scope of protection this duty affords in NIED cases where there is no physical injury. In determining the limitation to be placed on liability for a defendant’s substandard conduct, that is, whether there is a duty-risk relationship, the proper question is how easily the risk of injury to plaintiff can be associated with the duty sought to be enforced. Roberts, supra at 1045; Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972). Although ease of association encompasses the idea of foreseeability, it is not based on foreseeability alone. Where there is not an ease of association between the duty breached and the damages h7sustained, courts have found legal fault lacking. Roberts, supra; Hill, supra; Sibley v. Gif-ford Hill & Comp., 475 So.2d 315, 319 (La.1985); see also Williams v. Southfield School, Inc., 494 So.2d 1339,1342 (La.App. 2 Cir.1986).

Because the incident in this case did not result in any physical injury and only minor property damage, we do not find an “ease of association” between Covington’s mental distress and Knight’s conduct. Nor do the facts indicate that Knight owed an independent, direct duty to Covington. The summary judgment evidence does not show that Knight had any knowledge of Covington’s particular susceptibility to emotional distress; thus, “its negligence must be judged in the light of the effect such conduct would ordinarily have on a person of ordinary sensibilities.” Succession of Harvey, supra. Dr. Baker’s deposition testimony indicated that Covington’s mental distress from this accident occurred because she was particularly susceptible to emotional distress due to previous events in her life. He stated that this incident was the proverbial “straw that broke the camel’s back.”

Considering the above facts, circumstances, and the special restrictions in NIED cases, we find that the ease of association between Knight’s alleged negligence and the risk of severe mental distress to this plaintiff is very attenuated, if not altogether lacking. “Seldom does a rule protect every victim against every risk that may befall him, merely because it is shown that the violation of the rule played a part in producing the injury.” Malone, Ruminations on Cause-In-Fact, 9 Stan L.Rev. 60, 73 (1956). The intent of the legislature and courts is to limit the class of claimants and prevent false claims. Crockett v. Cardona, supra. This policy protects the | ^court's time and limited resources. Id.

We conclude that Knight’s conduct was not a legal cause of Covington’s mental distress. Therefore, this element of the duty-risk analysis is lacking.

Finally, Covington attempts to counter this argument with the principle that “a tortfeasor takes his victim as he finds him” — the so-called “eggshell plaintiff’ rule. Under this principle, the tort-feasor is responsible for the full extent of the plaintiffs damages even if those injuries would not have occurred but for the plaintiffs pre-existing physical condition, disease, or susceptibility to injury. Although her “pre-existing” condition is not a physical condition or illness as with the ordinary eggshell plaintiff, she argues that the same rule should apply. We disagree. The eggshell plaintiff principle concerns the amount or extent of damages recoverable from the defendant due to his negligence when the plaintiff has pre-existing injuries. It does not ease or lessen the plaintiffs burden of showing that the defendant’s breach was a legal cause of her injury. Even if the eggshell plaintiff rule applied to NIED cases where there are no physical injuries, the defendant’s conduct is judged under an objective standard, i.e., the effect such conduct would have on a person of ordinary sensibilities, unless the defendant knew or should have known that the plaintiff is particularly susceptible to emotional distress. Knight’s negligence in this case would ordinarily result in little more than annoyance to the victim. Therefore, there is no “ease of association” between the harm claimed, i.e., severe emotional distress, and the conduct of Knight.

119Conclusion

For the reasons state above, we conclude that the plaintiff cannot carry her burden of proof at trial. The threshold requirements of Moresi, supra, for a viable cause of action for NIED are not present. The special circumstances involving the especial likelihood of genuine and severe mental distress are absent, and the defendants’ conduct was not outrageous. Nor can the plaintiff show under a duty-risk analysis that the defendants’ conduct was a legal cause of the plaintiffs harm.

Accordingly, the writ is granted and made peremptory, Knight’s motion for summary judgment is granted and the plaintiffs claim is dismissed at her cost.

WRIT GRANTED AND MADE PEREMPTORY; SUMMARY JUDGMENT GRANTED; CLAIM DISMISSED.

      . Plaintiff’s vehicle may have sustained two flat tires.

      . The court gave the following examples:
      A number of courts have allowed recovery against a telegraph company for the negligent transmission of a message, especially one announcing death, indicating on its face a potential for mental distress. E.g., Graham v. Western Union, 109 La. 1069, 34 So. 91 (1903). Some others have allowed similar recoveiy for the mishandling of corpses, see French v. Ochsner Clinic, 200 So.2d 371 (La. App. 4 Cir.1967); Blanchard v. Brawley, 75 So.2d 891 (La.App. 1 Cir. 1954); Morgan v. Richmond, 336 So.2d 342 (La.App. 1 Cir. 1976); Shelmire v. Linton, 343 So.2d 301 (La.App. 1 Cir. 1977); failure to install, maintain or repair consumer products, Pike v. Stephens Imports, Inc., 448 So.2d 738 (La.App. 4 Cir. 1984); failure to take photographs or develop film, Grather v. Tipery Studios, Inc., 334 So.2d 758 (La.App. 4 Cir.1976); negligent damage to one’s property while the plaintiffs were present and saw their property damaged, Holmes v. Le Com Corp., 99 So.2d 467 (Orl.La.App.1958); Lambert v. Allstate Ins. Co., 195 So.2d 698 (La.App. 1 Cir.1967); and in cases allowing damages for fright or nervous shock, where the plaintiff was actually in great fear for his personal safety. Pecoraro v. Kopanica, 173 So. 203 (Orl.La.App. 1937); Klein v. Medical Building Realty Co., 147 So. 122 (Orl.La.App.1933); Laird v. Natchitoches Oil Mill, Inc., 10 La.App. 191, 120 So. 692 (2 Cir. 1929); Cooper v. Christensen, 212 So.2d 154 (La.App. 4 Cir. 1968).

      . The Scamardo court was quoting from the supreme court opinion in White v. Monsanto, 585 So.2d 1205 (La.1991), at 1210, discussing the level of mental distress required for a plaintiff to recover for intentional infliction of emotional distress, unless the defendant has knowledge that the plaintiff is particularly susceptible to emotional distress.

      . See 4 Bruner & O’Conner, Construction Law, § 11:80.10, "Bodily Injury and the need for physical manifestations.”

      . Holmes v. Le Cow Corp., supra n. 2, and Lambert v. Allstate Ins. Co., supra n. 2.

      . Discussing this inquiry, the court stated:
      The scope-of-protection inquiry is significant in "fact-sensitive” cases in which a limitation of the "but for” consequences (cause-in-fact inquiry) of the defendant’s substandard conduct is warranted.
      There is no "rule” for determining the scope of the duty. Regardless if stated in terms of proximate cause, legal cause, or duty, the scope of the duty inquiry is ultimately a question of policy as to whether the particular risk falls "within the scope of the duty.” Citing Edwards v. State, 556 So.2d 644, 648-49 (La.App. 2 Cir. 1990). In making this policy determination, this court has previously quoted the following language from Malone, Ruminations on Cause-In-Fact, 9 Stan. L.Rev. 60, 73 (1956), which is worthy of repetition.
      All rules of conduct, irrespective of whether they are the product of a legislature or are a part of the fabric of the court-made law of negligence, exist for purposes. They are designed to protect some persons under some circumstances against some risks. Seldom does a rule protect every victim against every risk that may befall him, merely because it is shown that the violation of the rule played a part in producing the injury. The task of defining the proper reach or thrust of a rule in its policy aspects is one that must be undertaken by the court in each case as it arises. How appropriate is the rule to the facts of this controversy? This is a question that the court cannot escape.
        Roberts, supra at 1044.


author: WILLIAMS, J.

text:
    Jerry SMITH, Appellee. v. SAFEWAY INSURANCE COMPANY OF LOUISIANA, et al., Appellee. Ricky Stewart, Appellant v. Safeway Insurance Company of Louisiana, Allison Youngblood, National Automotive Insurance Company and Jerry Smith, Appellee.
    Nos. 49,136-CA, 49,137-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 13, 2014.

      James L. Leathern, Shreveport, for Appellant, Ricky Stewart.
    Charles D. McNeill, John S. Stephens, for Appellee, Jerry Smith.
    Kenneth E. Pickering, New Orleans, for Appellee, Jerry Smith and National Automotive Insurance Company.
    Jacob M. Oakley, Shreveport, Tracy L. Oakley, Ruston, for Appellee, Allison Youngblood and Safeway Insurance Company of Louisiana.
    Before WILLIAMS, DREW and PITMAN, JJ.
   WILLIAMS, J.

hThe plaintiff, Ricky Stewart, appeals a judgment in favor of the defendants, National Automotive Insurance Company, Jerry Smith, Safeway Insurance Company of Louisiana and Allison Youngblood. The trial court found that Stewart failed to prove that the defendants were liable for his injuries. For the following reasons, we affirm in part, reverse in part and render.

FACTS

On April 3, 2011, Ricky Stewart was a passenger in a pickup truck owned by Jerry Smith, who was driving on St. Vincent Avenue in Shreveport. Allison Youngblood was driving her automobile on Ockley Drive. Patty Johnson was driving her vehicle behind Youngblood. There was a traffic light at the intersection of St. Vincent and Ockley. A collision occurred when Youngblood’s vehicle turned left onto St. Vincent from Ockley across the path of Smith’s truck. Stewart and Youngblood sought medical treatment as a result of the accident.

Subsequently, the plaintiff, Jerry Smith, filed a petition for damages against the defendants, National Automotive Insurance Company (“National Automotive”), his insurer, Allison Youngblood and her insurer, Safeway Insurance Company of Louisiana (“Safeway”). The plaintiff, Ricky Stewart, filed a petition against defendants, Youngblood, Safeway and alternatively, Smith and National Automotive. The two cases were consolidated for trial by the district court upon a joint motion by the parties.

At trial, Smith testified that he was driving on St. Vincent and the traffic light was green when he reached the intersection. Stewart and |2Leonard Bryant, who said that he was behind Smith’s truck, also testified that the St. Vincent light was green. Henry Scott testified that he was walking toward that intersection on Ockley prior to the accident and he saw that the light was red, but that he did not know the color of the light at the time of the collision. In contrast, Youngblood testified that she was driving on Ockley and that the light turned green as she approached the intersection. Johnson testified that as she and the preceding auto were approaching the intersection the Ockley light was red, but that the light turned green before they reached St. Vincent. Johnson further testified that the driver in front of her then entered the intersection to turn left and was hit by a truck.

After trial, the court issued oral reasons finding that the evidence did not establish that either driver was liable for the accident because of the conflicting testimony about the circumstances of the collision. The court also questioned whether all of Stewart’s medical treatment was related to his injury resulting from the accident. The trial court rendered judgment dismissing the claims of both Stewart and Smith. Stewart appeals the judgment. Smith did not file an appeal.

DISCUSSION

Stewart contends the trial court erred in failing to apply the guest passenger presumption and assess one or both drivers with fault in causing the accident. Stewart argues that the evidence supports a finding that Smith was liable for the accident because an independent witness testified that the light was green for the other driver.

In an action for damages the degree or percentage of fault of all |spersons causing or contributing to the injury shall be determined. LSA-C.C. art. 2823. In civil suits, the plaintiff has the burden of proving the negligence of the defendant by a preponderance of the evidence. In certain situations, the party with the burden of proof may be aided by a presumption. Miller v. Leonard, 588 So.2d 79 (La.1991).

An automobile collision case may involve the guest passenger presumption, which provides that when an innocent party is injured through the concurrent acts of two parties under circumstances where one or the other must be at fault, the burden is upon these parties to exculpate themselves from negligence. Eason v. Hartford Accident & Indem. Co., 327 So.2d 187 (La.App. 2d Cir.1976). The guest passenger rule is an evidentiary rule, not a rule of substantive law, and does not exempt the plaintiff from the burden of proving his case. Eason, supra.

Under the presumption, the plaintiff guest passenger must first prove his innocence as to the accident and second, he must prove that the circumstances of the accident compel a finding that one or both drivers must be at fault. Once the plaintiff meets this burden, each defendant driver then must attempt to exculpate himself, not by mere denials, but by asserting facts and circumstances of affirmative force. Richardson v. Aldridge, 37,192 (La. App.2d Cir.5/16/03), 854 So.2d 923, writ denied, 2003-3034 (La.2/6/04), 865 So.2d 743; Eason, supra.

Where witnesses differ, the courts should reconcile if possible the apparent contradictions of their testimony. If this cannot be done, then the probabilities or improbability of their respective statements must be | considered in light of their capacity, opportunity or incentive for observation, the amount of any corroboration and the degree of proof required. Miller, supra; Richardson, supra.

A trial court’s factual findings will not be disturbed on appeal unless they are .manifestly erroneous or clearly wrong. Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742. However, upon finding that the trial court made a reversible error of law or a manifest error of material fact, an appellate court must, when possible, redetermine the facts de novo from the entire record and render a judgment on the merits. Ferrell, supra; Richardson, supra.

In the present case, Patty Johnson testified that after shopping she was driving on Ockley directly behind Youngblood’s vehicle. Johnson stated that she did not personally know Youngblood, Smith or Stewart. Johnson testified that when initially approaching the intersection at St. Vincent, the light on Ockley was red and the car in front of her was stopping; however, just before they reached the intersection, the light turned green, Youngblood’s auto entered the intersection to turn left and was hit by a pickup truck. Johnson stated that she was positive the light on Ockley was green when the car in front of her entered the intersection. Johnson testified the police officer at the scene did not ask her any questions and she did not wait because she had provided her contact information to Youngblood and was on her way to get her grandson. Johnson explained that she submitted a written witness statement to the police the following day.

Corporal C. Rose, a Shreveport police officer, testified that he arrived |Bat the accident scene at 8:22 p.m. and prepared a report after speaking with the drivers. Cpl. Rose stated that Youngblood seemed slightly disoriented from the collision and he initially understood her to say that she was turning left from St. Vincent onto Ockley. He explained that he spoke with her a day later and she said that actually she had been turning from Ockley. Cpl. Rose testified that the damage to the driver’s side of Youngblood’s vehicle was consistent with her entering the intersection on Ockley. Cpl. Rose also testified that Smith had stated he was driving north on St. Vincent and that his light was green. Cpl. Rose stated that he was given Johnson’s witness statement after he had completed the accident report. Cpl. Rose explained that his notation in the report that Youngblood’s vehicle failed to yield was based on his initial mistaken belief that she had turned left from St. Vincent in front of an oncoming vehicle. Cpl. Rose testified that the traffic light appeared to have been functioning properly at the time of the accident and that he did not see any indication the signal was defective.

Jerry Smith testified that prior to the accident he was driving along St. Vincent on the way to assist his nephew, Michael, whose auto had broken down. Smith stated that he asked Stewart to accompany him to help tow Michael’s auto back to his house. Smith testified that he saw the light on St. Vincent was green when he was approximately two blocks from Ockley and the light remained green until he reached the intersection. According to Smith, he was driving approximately 25 to 30 miles per hour and slowed slightly when near the intersection, but he did not see the other vehicle before the collision. Smith asserted that although he was almost blind in his Rleft eye, he could see “pretty good.”

Allison Youngblood testified that before the accident she was driving on Ockley toward her home. Youngblood stated that as she approached St. Vincent, she saw that the light on Ockley was red and she slowed down, but then the light turned green. Youngblood testified that as she proceeded into the intersection to turn left, her auto was hit on the driver’s side by a pickup truck. Youngblood stated that when she saw the red light she applied her brake, but she did not come to a complete stop because the light turned green before she reached the intersection and she then took her foot off the brake. Youngblood testified that when the light turned green she entered the intersection and did not look to her left.

Ricky Stewart testified that he was a passenger in Smith’s pickup truck and as they approached the Ockley intersection the light on St. Vincent was green. According to Stewart, as Smith reached the intersection, the other vehicle came across their lane and Smith’s truck hit the driver’s side of the vehicle. Stewart also testified that he saw a red light on St. Vincent when Smith’s truck was approximately three car lengths from the intersection traveling at 35 miles per hour and that he did not slow down because the light turned green. However, Stewart acknowledged previously stating in his deposition that he had seen a green light when Smith was three car lengths from the intersection. Stewart testified that he first saw the other vehicle pass in front of the truck as Smith was going through the light. Stewart stated that he was Smith’s neighbor and had known him for a number of years.

17Leonard Bryant testified that he knew of Smith, who had lived across the street from his mother for many years. Bryant stated that while living with his mother he had seen Smith coming and going, but that they had never met or spoken prior to the accident. Bryant testified that at the time of the accident he had been driving on St. Vincent approximately three car lengths behind Smith’s truck. Bryant stated that he was approximately two to three blocks from the intersection when he saw that the light was green, that the light remained green and that neither he nor Smith slowed down as they neared the intersection. Bryant testified that he stopped briefly after seeing Smith’s truck hit the other vehicle in the intersection, but he then drove away without getting out of his vehicle. Bryant testified that he drove through the same intersection some time later and saw the police at the scene, but he did not stop to identify himself as a witness to the accident. Bryant stated that he first spoke with Smith some months later when he recognized Smith at a grocery store and asked him about the accident. Bryant testified that he gave a statement about the accident to Smith’s attorney approximately four months after the collision.

This record shows that Stewart, as a guest passenger who did not exercise control over either driver, was innocent from fault. In addition, the circumstances of the collision in an intersection controlled by a traffic light compel a finding that one or both of the drivers must be at fault. Thus, the trial court erred in failing to apply the guest passenger presumption and determine whether either defendant exculpated himself from fault. Consequently, we must conduct a de novo review of the record and render | ¿judgment assessing fault based upon our consideration of the evidence.

The investigating police officer testified that the traffic light was functioning properly at the time of the accident. We note that the testimony of Smith, Stewart and Bryant that the light on St. Vincent was green for a period of time as they approached the intersection does not contradict Youngblood’s testimony that the Ockley light was red when she was approaching the intersection at the same time. Although Smith stated that he was looking at a green light when he reached Ockley, his testimony that he failed to see Youngblood’s vehicle before the collision indicates that his attention was likely not directed toward the traffic light as he neared the intersection. In addition, the damage to the front driver’s side of Young-blood’s vehicle shows that she had entered the intersection before the collision, so that Smith should have seen her vehicle sooner had he been looking toward the traffic light.

Furthermore, Youngblood testified that she was positive that the light on Ockley was green when she entered the intersection and her -testimony was corroborated by that of Johnson, a disinterested witness. We note that the trial court specifically found that Johnson was credible, but did not make a similar finding about Bryant. The record shows that Johnson provided her contact information to Youngblood immediately after the accident and submitted a written witness statement to police the next day. In contrast, Bryant did not identify himself as a witness to anyone at the accident scene and did not make a statement about the collision until four months later and only after discussing the accident with Smith, his mother’s neighbor. After 13considering the testimony as a whole, we find that Johnson is the more reliable witness.

Based upon this record, we conclude that Youngblood exculpated herself from fault by presenting evidence demonstrating that Smith’s failure to maintain a proper lookout and stop at the red light was the cause of the collision. Thus, the trial court erred in finding that Smith is not liable and we shall reverse that portion of the judgment.

Damages

Stewart contends the trial court erred in failing to award damages. Stewart argues that a damage award is supported by evidence that his injuries were caused by the auto accident.

An appellate court may award damages when the trial court initially denies the plaintiffs demands and the record contains sufficient proof of damages. Beckham v. St. Paul Fire and Marine Ins. Co., 614 So.2d 760 (La.App. 2d Cir.1993). In making an initial award of damages at the appellate level, we set the award in an amount which is reasonable compensation for the damages shown by the record. Beckham, supra.

In the present case, Stewart was transported from the accident scene to the hospital by EMS, but he left before being seen. Two days later, Stewart returned to the emergency room of LSU Health Sciences Center complaining of neck and low back pain. The physical exam showed muscle spasm and limited range of motion of Stewart’s neck. He was diagnosed with neck sprain and pain relief medication was prescribed. The total amount of this hospital treatment was $681.98.

|inLorenzo Erickson, a licensed chiropractor, testified that Stewart was seen at the Mayfield-Bacon Clinic for three visits in April 2011, with complaints of neck and low back pain after an auto accident. Dr. Erickson stated that Stewart’s physical exam showed a muscle spasm in his lower back, tightness in his neck and swelling in both knees. Dr. Erickson reported that Stewart was treated with moist heat and electric muscle stimulation on each visit. Dr. Erickson opined that Stewart’s physical symptoms were caused by the auto accident. The total amount for Stewart’s chiropractic treatment was $853.

Dr. Richard Kamm testified that he first saw Stewart on June 80, 2011, with complaints of pain in his lower back and knees. Dr. Kamm stated that Stewart’s physical exam showed tenderness in his lower back with increased muscle tension, but no spasm, and no swelling of the knees. Dr. Kamm diagnosed Stewart with muscle strain of the lower back and soft tissue injuries to both knees. Dr. Kamm reported that he saw Stewart in July 2011, when he said his knees were better, but he still felt back pain. After each visit, Dr. Kamm prescribed anti-inflammatory and pain medication. Dr. Kamm testified that Stewart’s last visit was August 24, 2011, when he said his low back had improved, but he still felt knee pain. Dr. Kamm stated that he recommended an x-ray of Stewart’s knees because the normal exam of his knees did not explain his pain complaints. Dr. Kamm opined that Stewart’s low back strain and injuries of both knees resulted from the auto accident. The total amount of Dr. Kamm’s treatment was $920.

The record shows that Stewart was injured as a result of the 1 n automobile accident and required the above stated medical treatment. Stewart was also charged $344.54 for pain medication. Thus, Stewart is entitled to an award of medical expenses in the amount of $3,423.52.

In addition, Stewart testified he still felt intermittent pain, but he was able to work and his physical symptoms did not require him to give up any hobbies or other activities. We note that Stewart’s soft tissue injuries had substantially resolved within four months. Dr. Kamm opined that at the time of Stewart’s visit in August 2011, his prognosis was good to excellent. Based on the medical evidence presented, we conclude that Stewart is entitled to a general damage award in the amount of $3,000.

CONCLUSION

For the foregoing reasons, that portion of the judgment dismissing Ricky Stewart’s claims against National Automotive Insurance Company and Jerry Smith is reversed. Judgment is hereby rendered against National Automotive Insurance Company and Jerry Smith, awarding Ricky Stewart total damages of $6,423.52. Expert witness fees of $750 for Dr. Kamm and $500 for Dr. Erickson are assessed as court costs to National Automotive Insurance Company and Jerry Smith; the judgment is otherwise affirmed. Costs of this appeal are assessed to the appellees, National Automotive Insurance Company and Jerry Smith.

AFFIRMED IN PART; REVERSED IN PART AND RENDERED.