author: PAINTER, Judge.

text:
    Susan ARNAUD, et vir v. Ronald DIES.
    No. 13-834.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 2014.

      Michael W. Robinson, Eunice, LA, for Plaintiffs-Appellants, Susan Arnaud, et vir.
    John F. Wilkes, III, Joy C. Rabelais, Ray F. Lucas, III, Tonya R. Smith, Kathy L. Smith, Adriane M. Reese, Lafayette, LA, for Defendant-Appellee, Chief Ronald Dies, Individually and in his official capacity as Chief of Police for the Eunice Police Department.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, MARC T. AMY, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   PAINTER, Judge.

| plaintiffs, Susan and Robbie Arnaud, appeal the judgment of the trial court granting Defendant, Ronald Dies’, exceptions of res judicata, no cause of action, and no right of action, and his motion for summary judgment. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.

FACTS

Plaintiffs are the owners and operators of Robbie’s Wrecking Service (RWS), a tow truck business. In 2010, Ronald Dies was elected Chief of Police of the City of Eunice (the City). On December 31, 2010, he took RWS off of the rotation list of wrecker services to be called by the City. Dies later issued a statement giving reasons for RWS’s removal from the list. Plaintiffs first filed a mandamus action seeking to be reinstated on the list. The court ruled in Dies’ favor, finding that the inclusion of a business on the list was discretionary with the law enforcement agency. Plaintiffs then filed an action for damages alleging that the statement made by Dies was defamatory and caused damage to the reputation of their business.

The matter was removed to federal court for a time, but later returned to the state district court. Although the filings are not in the record on appeal, it appears that during the removal Defendant filed a motion for partial summary judgment and exceptions of res judicata, no cause of action, and no right of action. In response, Plaintiffs filed a motion for sanctions. The trial court granted the exceptions and the motion for partial summary judgment finding that any claims arising from the removal of RWS from the rotation list by Dies were res judicata and that Dies had shown that no genuine issue of fact existed in relation to the defamation claim. The trial court also granted exceptions of no cause and no right of action without giving reasons therefor. Plaintiffs appeal.

| .DISCUSSION

Exceptions

We first note that the record contains neither the original exceptions and memo-randa in support nor the oppositions thereto. It appears that the exceptions may have concerned only those claims for damages resulting from the removal of RWS from the rotation list. However, since it appears that Defendant persisted in pursuing the exceptions after Plaintiffs conceded the issue of damages from the removal, we will also consider whether the exceptions should have been granted as to the claim for defamation.

Res Judicata

The trial court stated that any claims arising from RWS’s removal from the rotation list were res judicata.

The doctrine of res judicata is set forth in La.R.S. 13:4231. Quoting Burguieres v. Pollingue, 02-1385, p. 7 (La.2/25/03), 843 So.2d 1049, 1053, the supreme court reiterated the five elements that must be established in order for a judgment to have a res judicata effect on a second action:
(1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation.

Succession of Bemat, 13-277, pp. 3-4 (La. App. 3 Cir. 10/9/13), 123 So.3d 1277, 1281.

Although judgment in an action for mandamus will not always be dispositive of all issues, see Leary v. Foley, 07-751 (La.App. 4 Cir. 2/13/08), 978 So.2d 1018, unit denied, 08-589 (La.5/2/08), 979 So.2d 1288, it is dispositive in this matter. Not only have all the requirements of Bemat been met, but the basis for the judgment of the trial court, the discretionary nature of inclusion on the list, forecloses any action for damages as a result of exclusion from the list.

|3We note, however, that Defendants did not establish the elements necessary to show that the defamation claim was res judicata.

Exceptions of No Cause of Action and No Right of Action

We note initially that the exceptions of no cause and no right of action are distinct exceptions with different functions and are not to be conflated. See Industrial Cos., Inc. v. Durbin, 02-665 (La.1/28/03), 887 So.2d 1207.

Having found that any claims resulting from the removal of RWS from the rotation list were rendered res judicata by the judgment in the mandamus action, we need not consider the exceptions of no cause of action and no right of action as to those claims. However, we must determine whether the exceptions were properly granted with regard to the defamation action.

1. No cause of action

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. Fink v. Bryant, 01-0987, p. 3 (La.11/29/01), 801 So.2d 346, 348. The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether the plaintiff is afforded a remedy in law based on the facts alleged in the pleading. Id., pp. 348-349. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. Id. The exception is triable on the face of the papers and for the purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. Id. Because the exception raises, a question of law and the trial court’s decision is based only on the sufficiency of the petition, the appellate court reviewing the judgment should subject the case to a de novo review. Id.
Becnel v. Grodner, 07-1041, pp. 2-3 (La.App. 4 Cir. 4/2/08), 982 So.2d 891, 894. Additionally, to withstand an exception of no cause of action, the cross claim must set forth the material facts upon which the cause of action is based. Legal or factual conclusions, absent facts which support such conclusions, are insufficient. Vermilion Hosp., Inc. v. Patout, 05-82 (La.App. 3 Cir. 6/8/05), 906 So.2d 688; Montalvo v. Sondes, 93-2813 (La.5/23/94), 637 So.2d 127.

\4Castle v. Castle, 13-271, pp. 3-4 (La.App. 3 Cir. 10/9/13), 123 So.3d 1267, 1270-71.

Therefore, accepting the facts alleged in Plaintiffs’ petition to be true, we must determine whether the law affords them any remedy based upon their allegations against Defendant.

The elements of a claim for defamation are “(1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury.” Trentecosta v. Beck, 96-2388, p. 10 (La.10/21/97), 703 So.2d 552, 559. After reviewing the petition, we conclude that Plaintiffs have adequately stated a cause of action for defamation.

2. No Right of Action

“The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit.” Hood v. Cotter, 2008-0215, p. 17 (La.12/2/08), 5 So.3d 819, 829. An appellate court reviewing a lower court’s ruling on an exception of no right of action should focus on whether the particular plaintiff has a right to bring the suit and is a ■ member of the class of persons that has a legal interest in the subject matter of the litigation, assuming the petition states a valid cause of action for some person. Id.; Badeaux v. Southwest Computer Bureau, Inc., 2005-0612, p. 6-7 (La.3/17/06), 929 So.2d 1211, 1217; Turner v. Busby, 2003-3444, p. 4 (La.9/9/04), 883 So.2d 412, 415-416; Reese v. State, Dept. of Public Safety and Corrections, 2003-1615, p. 3 (La.2/20/04), 866 So.2d 244, 246.

Eagle Pipe and Supply, Inc. v. Amerada Hess Corp., 10-2267, 2272, 2275, 2279, 2289, pp. 6-7 (La.10/25/11), 79 So.3d 246, 255-56.

The trial court gave no reasons for its grant of the exception of no right of action. Our review of the record and the law of defamation, lead us to the conclusion that Plaintiffs have an interest in the subject matter of the suit and a right to bring an action for defamation in this matter.

11;Summary Judgment

A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; ie. whether there is any genuine issue of material fact,- and whether the movant is entitled to judgment as a matter of law. Smitko v. Gulf South Shrimp, Inc., 11-1566, p. 7 (La.7/2/12), 94 So.3d 750, 755; Samaha v. Rau, 07-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882-83.
The burden of proof remains with the movant; however, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mov-ant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. La.Code Civ. Proc. art. 966(C)(2). Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Id.

Pociask v. Moseley, 13-262, pp. 5-6 (La.6/28/13), 122 So.3d 533, 539.

Defendant moved for summary judgment arguing that the facts before the court left no question as to whether Plaintiffs sustained financial damages as a result of the statement made by Defendant about why RWS was removed from the rotation list. Defendant supported his motion with a wrecker request summary for 2009-2012, compiled by James K. Lav-ergne, Police Records Clerk for the City of Eunice Police Department, showing that requests for RWS increased from 2010 to 2011, from 40% to 45% and that as of August 23, 2012, the percentage of requests for RWS had further increased for the year 2012, to 62%. This information fulfills Defendant’s burden on summary judgment of showing a lack of factual support for the element of damages required to sustain Plaintiffs’ claim that they were harmed by the allegedly defamatory statements made by Defendant. The document shows that had RWS been on the rotation list, it would still have gotten less profit from requests because fewer requests were made. The record before this court contains |fino opposition to the motion for summary judgment, no documents produced in opposition to the motion, and no transcript of the hearing on the motion. Plaintiffs have asked that the record be supplemented to include their affidavits. However, nothing in the affidavits controverts the information shown in the wrecker request summary. They do not include any information with regard to lost profits from other sources resulting from the alleged defamation. Based on our de novo review of the record, we find that Plaintiffs failed to produce factual support to establish that, at trial, they would be able to satisfy their evidentiary burden of showing financial damages resulting from the statements made by Defendant. Accordingly, we conclude that there is no genuine issue of fact with regard to loss of profits.

However, a finding that no issue of fact remains as to financial damages only partially resolves the issues raised by a defamation action.

Damages resulting from defamation can include injury to reputation, personal humiliation, embarrassment, and mental anguish and suffering. Rennier v. State, Through Department of Public Safety, 428 So.2d 1261 (La.App. 3 Cir. 1988). These are separate elements of damage. Rennier. Defamation damages must be proved by competent evidence, but there is no need to establish the actual pecuniary value of the injury suffered. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); Trahan v. Ritterman, 368 So.2d 181 (La.App. 1st Cir.1979).

Lege v. White, 619 So.2d 190, 191 (La.App. 3 Cir.1993).

Plaintiffs may still be able to prove damages for one of the other categories of damages which may result from defamation. These damages were not addressed by defendant in his motion for summary judgment and are, thus, still before the court as are the remaining elements of the defamation claim.

Sanctions

Plaintiffs responded to the filing of the exceptions by filing a motion for sanctions. The trial court, in its judgment in this matter, stated that:

17[T]here was not willful violation of any court order by defendant and plaintiffs [sic] prayer for sanctions for the nondisclosure or non-production of documents to plaintiff[s] are denied.

The motion for sanctions and memorandum in support thereof are not in the record on appeal in their entirety. On appeal, Plaintiffs argue that the exceptions were meritless and sanctionable.

Louisiana Code of Civil Procedure Article 863 provides that:

A. Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading and state his address.
B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading, and that to the best of his knowledge, information, and belief formed after reasonable inquiry, he certifies all of the following:
(1) The pleading is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.
(2) Each claim, defense, or other legal assertion in the pleading is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law.
(3) Each allegation or other factual assertion in the pleading has evidentiary support or, for a specifically identified allegation or factual assertion, is likely, to have evidentiary support after a reasonable opportunity for further investigation or discovery.
(4) Each denial in the pleading of a factual assertion is warranted by the evidence or, for a specifically identified denial, is reasonably based on a lack of information or belief.
C. If a pleading is not signed, it shall be stricken unless promptly signed after the omission is called to the attention of the pleader.
D. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party the 18amount of the reasonable expenses incurred because of the filing of the pleading, including reasonable attorney fees.
E. A sanction authorized in Paragraph D shall be imposed only after a hearing at which any party or his counsel may present any evidence or argument relevant to the issue of imposition of the sanction.
F. A sanction authorized in Paragraph D shall not be imposed with respect to an original petition which is filed within sixty days of an applicable prescriptive date and then voluntarily dismissed within ninety days after its filing or on the date of a hearing on the pleading, whichever is earlier.
G. If the court imposes a sanction, it shall describe the conduct determined to constitute a violation of the provisions of this Article and explain the basis for the sanction imposed.

The second circuit in In re Godfrey Trust, 43,264, p. 4 (LaApp. 2 Cir. 6/4/08), 986 So.2d 812, 815, 'writ denied, 08-1471 (La.10/10/08), 993 So.2d 1285, explained the imposition and appellate review of sanctions as follows:

Appellate review of the decision to impose sanctions is under the manifest error/clearly wrong standard of review. Jones v. Bethard, 39,575 (La.App.2d Cir.04/13/05), 900 So.2d 1081, writ denied, 05-1519 (La.12/16/05), 917 So.2d 1115. This court has noted that the threat of sanctions pursuant to La. C.C.P. art. 863 “tends to chill the nature of the proceedings by limiting the adversarial nature of such,” and thus should not be imposed if a party or attorney merely made an “unpersuasive and inartful” argument. McKoin v. Harper, 37,984 (La.App.2d Cir.12/10/03), 862’ So.2d 410, 414.

In Caldwell v. Griggs, 40,838 (La. App.2d Cir.03/08/06), 924 So.2d 464, this court discussed at length the appropriate standards for the application of sanctions:

Initially, we note that statutes which authorize the imposition of penalties or sanctions are'to be strictly construed. Colquitt v. Claiborne Parish, Louisiana, 36,260 (La.App.2d Cir.08/14/02), 823 So.2d 1103. Article 863 is intended only for exceptional circumstances and is not to be used simply because parties disagree as to the correct resolution of a legal matter. Green v. Wal-Mart Store No. 1163, 96-1124 (LaApp. 4th Cir.10/17/96), 684 So.2d 966. The slightest justification for the exercise of a legal right precludes sanctions. Only when the evidence is clear that there is no justification for the legal right exercised should sanctions be considered. Any lesser standard would serve |sto seriously impair the rights of the party as a litigant. Id., citing Fairchild v. Fairchild, 580 So.2d 513 (LaApp. 4th Cir.1991). (Emphasis added).

Id. at 470.

After reviewing the record herein, we cannot say that the trial court abused its discretion in denying an award of sanctions or that the denial was clearly wrong or manifestly erroneous.

CONCLUSION

For these reasons, the judgment of the trial court is affirmed in part, reversed in part, and remanded for further proceedings. Consistent with this opinion, costs of this appeal are assessed one-half to Plaintiffs-Appellants and one-half to Defendant-Appellees.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.


source: Caselaw Access Project

author: MARC E. JOHNSON, Judge.

license: Public Domain

text:
    Nykareha N. CLEMENT v. Nicole M. CARBON & Her Unknown Insurance Company, ABC Insurance Company, Frank Carbon and His Insurance Company, and Allstate Property & Casualty Insurance Company, and State Farm Mutual Automobile Insurance Company, As the Uninsurer/Underinsured Insurance Carrier and Jovan Clement.
    No. 13-CA-827.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 9, 2014.

      Fred R. Defrancesch, Tomy J. Acosta, Attorneys at Law, LaPlace, Louisiana, James A. Harry, Attorney at Law, Springfield, LA, for Plaintiff/Appellant.
    Matthew M. Friedman, Attorney at Law, Metairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges MARC E. JOHNSON, ROBERTA. CHAISSON, and HANS J. LILJEBERG.
   MARC E. JOHNSON, Judge.

|2In this automobile accident case, Plaintiff, Nykareha Clement, appeals the trial court’s judgment in favor of Defendant, Allstate Insurance Company (“Allstate”), dismissing her claims. .For the reasons that follow, we reverse.

Plaintiff filed suit on February 11, 2011, alleging she suffered personal injuries and damages in an automobile accident that occurred on May 25, 2010. She named as defendants: Nicole Carbon, as the tortfea-sor; Ms. Carbon’s father Frank Carbon, as the named insured for the offending vehicle; Allstate, as insurer of the offending vehicle; and State Farm Mutual Automobile Insurance Company, as Plaintiff’s uninsured/underinsured motorist carrier. Prior to trial, Plaintiff stipulated that her damages did not exceed $50,000. The matter proceeded to a bench trial on May 23, 2013. At the beginning of trial, Plaintiff agreed to dismiss the Carbons, and Allstate stipulated to liability.

|aThe evidence at trial showed that on May 25, 2010, Plaintiff was stopped at a stop sign at Bonnabel Blvd. and Codifer Blvd. in Metairie when the car she was driving was struck from behind by a vehi-ele driven by Nicole Carbon. According to Ms. Carbon, she was stopped behind Plaintiff at the stop sign. When Plaintiff started to inch forward, Ms. Carbon took her foot off the brake and struck the rear of Plaintiffs car when Plaintiff re-applied her brakes. Conversely, Plaintiff testified that Ms. Carbon was traveling anywhere between 25 and 45 mph at the time of impact. The impact caused $286.44 in property damage to Plaintiffs car and no damage to Ms. Carbon’s vehicle.

Plaintiff sought medical treatment the next day at the River Parish Hospital emergency room for neck pain. The emergency room physician noted a right trapezius spasm and diagnosed Plaintiff with whiplash. She was given an anti-inflammatory and a muscle relaxer, and instructed to follow up with her primary care physician.

The next day, on May 27, 2010, Plaintiff sought treatment with Dr. Robert Dale, a chiropractor at River Parishes Chiropractic. According to Dr. Dale, Plaintiff primarily complained of neck pain and right upper thoracic pain with weakness in the right arm. She also complained of low back pain and right hip pain. His physical exam revealed Plaintiff had restricted range of motion of the cervical spine with severe pain in right rotation, weakness in her right arm and hand, and loss of lumbar movement. Dr. Dale’s treatment consisted of ultrasound, interferential electrother-apy, ice packs to reduce her cervical spasms, and dry hydrotherapy.

Dr. Dale continued to treat Plaintiff 51 times over .the following 13 months, until June 2011. Dr. Dale testified that treatment of Plaintiffs low back and right hip area was highly successful, with the last treatment to those areas occurring in [^December 2010. Thereafter, he focused his treatment on Plaintiffs cervical area and right thoracic area. However, Dr. Dale explained that’ Plaintiff did not respond well to treatment and continued to complain of weakness in the right arm and decreased sensation in the right hand. He testified that Plaintiff had persistent differences in the strength of her right arm; specifically, her right arm was weaker than her left arm.- Because of Plaintiffs continued complaints and lack of improvement, Dr. Dale suspected she had some disc damage that was causing her neck and shoulder problems. As a result, on March 18, 2011, Dr. Dale requested a cervical MRI.

On May 17, 2011, prior to obtaining the MRI ordered by Dr. Dale, Plaintiff was involved in a second automobile accident. She saw Dr. Dale after this second accident on May 25, 2011. At that time, Plaintiff told Dr. Dale that the second accident slightly aggravated her neck problems, but claimed there was not much change in her neck condition. She still had the right arm issues and intermittent hand numbness, which she had experienced prior to the second accident. Plaintiffs primary complaint from the second accident was low back and left hip pain.

A cervical MRI was performed on May 26, 2011, and showed a bulge of the C5-6 disc and some ligamentous thickening at the C6-7 vertebra, which according to Dr. Dale indicated some damage to the ligament and possible ¿carring. Dr. Dale opined that it was more likely than not that the disc problems were the result of the first accident because Plaintiff had consistently complained of neck pain and radicular symptoms after the first accident and prior to the second accident.

Dr. Dale stopped treating Plaintiffs neck pain after the second accident because he had referred her for medical evaluation based on the MRI results. [¡¡However, he continued to treat Plaintiff for the low back and hip pain she experienced after the second accident through January 2012.

Plaintiff testified that after Dr. Dale referred her to specialists, she saw Dr. Thad Broussard, an orthopedic surgeon, and Dr. David Wyatt, an orthopedist. Neither of these doctors testified, but their medical records were introduced into evidence. Dr. Broussard’s records show that he examined Plaintiff on June 15, 2011. He reported that Plaintiff complained of neck and back pain and numbness or sensory loss in her right hand. He reviewed her MRI and noted a bulging disc at C5-6. Dr. Broussard diagnosed Plaintiff with a cervical sprain, cervical disc disease, and low back syndrome. He believed that she had probably reached maximum medical improvement and was not a surgical candidate. He further believed she should discontinue chiropractic care. He prescribed an anti-inflammatory and gave her an injection.

Dr. Wyatt’s records show that he first saw Plaintiff on January 20, 2012, at which time she complained of back and left hip pain. Dr. Wyatt’s records show that Plaintiff only related an automobile accident of May 2010; however, Plaintiff testified at trial that she told Dr. Wyatt that she had been in two accidents, one in May 2010 and one in May 2011. Dr. Wyatt prescribed an anti-inflammatory and recommended she continue with chiropractic care. Dr. Wyatt next saw Plaintiff on August 16, 2012, and prescribed a back brace.

After Plaintiff concluded her case, Allstate called its only witness, David Centan-ni, a private investigator. Mr. Centanni testified that he conducted surveillance on Plaintiff four times in July 2012, but only actually observed Plaintiff on one occasion. On that one occasion, Mr. Centanni observed Plaintiff for a total of ten minutes and saw Plaintiff walk towards her residence and then he saw her leave her residence.

| fiAt the conclusion of trial, the trial court took the matter under advisement. It rendered judgment the next day in favor of Allstate and against Plaintiff. In its reasons for judgment, the trial court stated that it found Plaintiff and her case lacked credibility, and it believed Plaintiff was hurt in the second accident and not the first and, therefore, should not recover in this case.

Plaintiff appeals the trial court’s judgment and raises three issues. First, she contends the trial court improperly considered the settlement amount for her second accident. Second, she argues the trial court erred in allowing Allstate to call a witness who was not listed on the witness list under the guise of being a rebuttal witness. And, third, Plaintiff maintains the trial court was manifestly erroneous in refusing to accept uncontroverted evidence and award her damages.

We need not discuss Plaintiffs first two assignments of error because we find the trial court committed manifest error in failing to award damages.

An appellate court will not set aside the trial court’s factual findings in the absence of manifest error. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). In order to reverse a trial court’s factual findings, an appellate court must find from a review of the entire record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes the trial court’s finding is clearly wrong. Maranto v. Goodyear Tire & Rubber Co., 94-2603 (La.2/20/95); 650 So.2d 757, 762. An appellate court must determine whether the factfinder’s conclusion was a reasonable one, not whether the trier of fact was right or wrong. Westley v. Allstate Ins. Co., 05-100 (La.App. 5 Cir. 5/31/05); 905 So.2d 1127, 1134. When there are two permissible views of the evidence, the fact-finder’s choice between them cannot be manifestly erroneous. Id. Therefore, if the appellate court finds that the trial court’s findings of fact are reasonable on review |7of the entire record, it may not reverse the judgment, even if it would have weighed the evidence differently were it the trier of fact. Id.

In the present case, the trial court found that Plaintiff did not carry her burden of proving that her injuries were caused by the accident. After reviewing the entire record, we find the trial court was clearly wrong in its finding.

In a suit for personal injury, the plaintiff bears the burden of proving, by a preponderance of the evidence, a causal relationship between the injury sustained and the accident which caused the injury. Maran-to, 650 So.2d at 759. The test for determining this causal relationship is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident. Id. Uncontroverted evidence should be taken as true to establish a fact for which it is offered absent any circumstances in the record casting suspicion as to the reliability of this evidence and sound reasons for its rejection. Earls v. McDowell, 07-17 (La.App. 5 Cir. 5/15/07); 960 So.2d 242, 248.

There is a causal presumption that:

[a] claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.

Housley v. Cerise, 579 So.2d 973, 980 (La.1991).

The uncontroverted evidence in the record clearly shows that there is a reasonable possibility of causal connection between the May 2010 accident and Plaintiffs injuries, which necessitated the medical care she received. The day after the accident, Plaintiff sought treatment in the emergency room where it was noted Plaintiff had a muscle spasm in her right trapezius. Within the week, she sought treatment with Dr. Dale, who testified that Plaintiff complained of neck and low 18back pain with no history of similar complaints. Dr. Dale explained that while Plaintiffs low back pain resolved in December 2010 with treatment, she continued to complain of radicular symptoms involving her right arm and hand, which led Dr. Dale to believe Plaintiff had disc involvement. Plaintiffs cervical MRI, which was ordered two months before her second accident, showed a bulging disc at C5-6. Dr. Dale opined that the bulging disc was caused by the first accident because Plaintiff had consistently complained of radiculopathy after the first accident and before the second accident. This medical evidence was uncon-troverted, and we find nothing in the record to cast doubt upon the medical evidence.

Additionally, the record shows that Plaintiff was in good health prior to the accident. Nothing in the record shows Plaintiff suffered from neck or back pain or was treated for similar pains prior to the May 2010 accident. Further, Plaintiff testified that she walked approximately two miles a day for exercise prior to the accident, but was unable to walk for exercise after the accident for almost a year because of the pain. No evidence was introduced to negate this. Although Allstate attempted to disprove Plaintiffs claim that she was unable to walk for exercise for a period of time after the accident through the testimony of Mr. Centanni, his testimony was of no value. Mr. Centanni’s surveillance of Plaintiff occurred more than two years after the first accident, which was more than one year after Plaintiff testified that she resumed walking. Additionally, Mr. Centanni only observed Plaintiff for a period of ten minutes on one of four occasions. During those ten minutes, Mr. Centanni merely saw Plaintiff walking around in front of her home. His testimony did nothing to cast doubt on Plaintiffs testimony or the uncontroverted medical evidence.

In Maranto v. Goodyear Tire & Rubber Co., supra, the supreme court decided a similar issue of causation. The plaintiff was involved in a three-car | flaccident. She sought treatment with her internist the first business day after the accident for general aches and pains. After unsuccessful treatment with her internist, the plaintiff sought treatment with an orthopedic surgeon. A subsequent MRI revealed a herniated disc at L5. The record showed the plaintiff was in good health prior to the accident, but immediately started suffering pain that progressively worsened after the accident. The trial court found the medical testimony did not support a finding that the plaintiffs disc injury was related to the accident, a finding that was affirmed by the appellate court. The supreme court reversed, finding the trial court and appellate court committed manifest error in finding the plaintiffs injuries were not related to her accident.

Similar to Maranto, we find the trial court committed manifest error by determining Plaintiffs injuries were not related to her accident. The uncontroverted medical evidence clearly shows that Plaintiff suffered injuries as a result of the May 2010 accident, for which she treated for one year before being involved in a second accident. Accordingly, we reverse the judgment of the trial court.

When a factfinder does not reach an issue because of an earlier finding which disposes of the case, the appellate court, in reversing the earlier finding, must make a de novo determination of the undecided issues from the facts in the record. LeBlanc v. Stevenson, 00-0157 (La.10/17/00); 770 So.2d 766, 771-72. Thus, when the trial court has made no award for damages because it found the accident did not cause the damages at issue, the appellate court must make an award that is just and fair based on a de novo review of the record. Id.; See also, Mart v. Hill, 505 So.2d 1120, 1129 (La.1987).

Upon a de novo review of the record, an appellate court is not constrained to the lowest or highest amount reasonable for damages. Instead, the appellate court hois empowered to award an amount which represents appropriate compensation for the damages revealed in the record. Taylor v. State Farm Mutual Automobile Ins. Co., 01-0317 (La.App. 3 Cir. 10/3/01); 796 So.2d 802, 808.

The record shows Plaintiff suffered a soft tissue injury to her lower back and a bulging disc at C5-6 as a result of the May 2010 accident. Although the MRI was not taken until after the second accident, Plaintiffs complaints of radicular symptoms prior to the second accident were consistent with a disc problem. Dr. Dale ordered the MRI two months prior to the second accident because he believed Plaintiffs symptoms were being caused by disc involvement. Dr. Dale opined that Plaintiffs bulging disc was more likely than not caused by the first accident because she complained of neck pain and radicular symptoms after the first accident and prior to the second accident. Further, the record shows Plaintiffs main complaints after the second accident were limited to her lower back and left hip. While Plaintiff indicated she had a slight aggravation of her neck pain after the second accident, she stated there was not much difference in her neck and right arm and hand pain before and after the second accident.

As a result of the May 2010 accident, Plaintiff treated for her low back injury for seven months. Additionally, Plaintiff had chiropractic treatment for her-neck for one year and still suffers pain related to the bulging disc. The last treatment she received for her neck was an injection one year and one month after the accident.

Based on our review of similar awards, we find that Plaintiff is entitled to $30,000 in general damages. Compare Boudwin v. General Insurance Co. of America, 11-270 (La.App. 1 Cir. 9/14/11), 2011 WL 4433578 In (unpublished opinion) — general damage award of $33,654 for the plaintiff who suffered low back injury and disc bulge at C5-6 and C6-7; Mixter v. Wilson, 10-464 (La.App. 5 Cir. 12/14/10); 54 So.3d 1164-general damage award of $30,000 for a cervical sprain with two disc ruptures and a bulging disc, for which the plaintiff treated more than one year; Gomez v. Bardwell, 09-1334 (La.App. 1 Cir. 2/12/10), 2010 WL 502788 (unpublished opinion) — general damage award of almost $38,000 for minimal disc bulge at C5-6 and C6-7; Nugent v. Continental Casualty Co., 93-867 (La.App. 3 Cir. 3/2/94); 634 So.2d 406 — general damage award of $40,000 for bulging discs at L4-5 and C5-6 and carpal tunnel syndrome; ANMAC Foundation Inc. v. St. Patrick Hospital of Lake Charles, 594 So.2d 951 (La.App. 3rd Cir.1992) — general damage award of $27,000 for cervical and lumbar strain, bulging disc at C5-6; Henry v. Nat’l Union Fire Ins. Co., 542 So.2d 102 (La.App. 1st Cir.1989), writ denied, 544 So.2d 405 (La.l989) — general damage award of $65,000 for two bulging discs at C5-6 and C6-7 with pressure on or damage to the nerve roots with 51% chance for future surgery.

Additionally, we award special damages in the amount of $9,434.00 related to the medical expenses Plaintiff incurred as a result of her injuries. These damages include imaging services in the amount of $2,710.00 from' East Jefferson Imaging, $660.00 for treatment from River Parishes Hospital, $5,564.00 for treatment from Dr. Robert Dale at River Parishes Chiropractic, and $500.00 for treatment from Dr. Thad Broussard. We do not find Plaintiff is entitled to the expenses she incurred for treatment with Dr. David Wyatt. His medical records show that Plaintiff first saw him eight months after the second accident and her 11{>main complaints at that time were low back and left hip pain, which were related to the second accident and not the May 2010 accident.

DECREE

For the foregoing reasons, we reverse the judgment of the trial court and render judgment in favor of Plaintiff, Nykareha Clement, against Defendant, Allstate Insurance Company, in the amount of $39,434.00 together with interest and costs. Costs of this appeal are to be paid by Allstate Insurance Company.

REVERSED AND JUDGMENT RENDERED.

LILJEBERG, J., Concurs-With Reasons.

      . Plaintiff dismissed State Farm prior to trial.

      . La. C.C.P. art. 2168 provides that unpublished opinions of the supreme court and the courts of appeal shall be posted by such courts on the courts’ Internet websites and that those posted opinions may be cited as authority.


author: EDWIN A. LOMBARD, Judge. LOVE, J., EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana in the Interest of C.J.
    No. 2014-CA-0241.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 23, 2014.
    Opinion on Rehearing for Clarification Sept. 3, 2014.
    Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, Mithun Kamath, Law Clerk, Parish of Orleans, New Orleans, LA, for Appellee/State of Louisiana.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Appellant.

      (Court composed of Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge MADELEINE M. LANDRIEU, Judge SANDRA C. JENKINS).
   EDWIN A. LOMBARD, Judge.

|,The juvenile, C.J., appeals his adjudication as a delinquent, arguing that the evidence is insufficient, the sentences were imposed without the requisite disposition hearing, and the fee assessed exceeds the statutory maximum. After review of the record in light of the applicable law and arguments of the parties, we affirm the juvenile’s adjudication, but vacate the sentences and fee imposed and remand the matter back to the trial court for a disposition hearing in accordance with La. Ch. Code art. 892.

Relevant Facts and Procedural History

On June 10, 2018, the fourteen-year old juvenile was arrested and removed from Odyssey House (where he had been sent by court order to receive substance abuse treatment) after Jerry Glen Estopinal, principal/teacher at Odyssey House Academy, saw him strike another juvenile (C.E.) three times on the back of the head and then, after being removed from the area to speak with a counselor, return and slap another juvenile (on the back of the head). The purported victims did not give a statement to the arresting officer.

On June 19, 2013, the juvenile was charged by petition with two counts of simple battery, a violation of La.Rev.Stat. 14:35. Represented by counsel, he |2denied the charges. On motion by defense counsel and in accordance with La. Ch.Code art. 834, the juvenile court appointed a competency commission. Based on the reports of the commission members, the court determined on February 4, 2014, that the juvenile was competent to proceed. On that same date, the court set and held the adjudication hearing. The following evidence was adduced.

The only witness, Mr. Estopinal, testified that on the morning of the incident C.J. walked into the cafeteria (where the resident students were gathered before beginning their group therapy sessions), approached C.E. and struck him on the head three times. According to Mr. Estopinal, C.E. “screamed a little bit and winced in pain and complained and held his head” after C.J. struck him. The counselor separated the students, taking C.J. out of the cafeteria. After five to ten minutes, C.J. returned alone to the cafeteria and “punched the other student [J.B.] in the back of the head ... once or twice, maybe three times.... ” According to Mr. Esto-pinal, the attack was unprovoked and J.B. “just sort of grabbed his head and winced and went over like that and kind of cried and complained.” The police were called and C.J. was arrested. On cross-examination, Mr. Estopinal stated that he had no knowledge of prior confrontations of C.J. and C.E. or J.B.

At the end of Mr. Estopinal’s testimony, alleging that the State failed to meet its burden of proof, defense counsel moved for a judgment of acquittal. The motion was denied and both sides rested without further testimony. Defense counsel again asserted in closing argument that the State failed to meet its burden because it put forth no evidence that the victims did not consent to the battery and, alternatively, because Mr. Estopinal could not testify as to what happened between |3the boys (who shared a dorm room) prior to the incident there was no evidence that C.J. did not act in self-defense.

After a brief recess, the juvenile was adjudicated delinquent as to both counts of simple battery. The trial court immediately sentenced the juvenile to concurrent six month commitments to the Department of Public Safety and Corrections, suspended the sentence and placed the juvenile on one-year active probation under the supervision of the Office of Juvenile Justice. In addition, the juvenile court ordered that the “parents are accessed a $55.00 fee....”

This appeal is timely.

Assignment of Error No. 1

The juvenile argues that the court erred in adjudicating him delinquent “merely upon an observance of an aggressive act.”

Battery is defined as “the intentional use of force or violence upon the person of another.” La.Rev.Stat. 14:33. “Simple battery is a battery committed without the consent of the victim.” La.Rev.Stat. 14:35. The juvenile asserts that because the victims did not testify the State faded to prove the victim’s non-consent and “[i]n this case, the simple slaps were not egregious injuries warranting an automatic invalidation of consent.”

Consent is defined as the “Agreement, approval, or permission as to some act or purpose.” Black’s Law Dictionary 323 (8th ed. 2004). Consent may be express, i.e., “clearly and unmistakably stated,” or implied, ie., “inferred from one’s conduct.” Id.

The juvenile’s argument is without merit. The response of the two victims in this case, as observed and testified to by Mr. Estopinal, was clearly neither explicit nor implied. Both victims reacted with pain and complaints. Given our | Jimited role in viewing the evidence in the light most favorable to the prosecution, see Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. KM., 10-0649, pp. 4-5 (La.App. 4 Cir. 9/29/10), 49 So.3d 460, 463-464, we must find that the evidence is sufficient to support the juvenile’s adjudication on both counts of simple battery.

Assignment of Error No. 2

The juvenile argues that the court erred in failing to conduct the required disposition hearing and in assessing an excessive fee. We agree.

Pursuant to La. Ch.Code art. 892, the court “shall conduct a disposition hearing” prior to entering a judgment of disposition. Although “[t]he disposition hearing may be conducted immediately after the adjudication,” La. Ch.Code art. 892, “unless the child waives a presentation, the court shall hear evidence as to whether the child is in need of treatment or rehabilitation and shall make and file its findings.” La. Ch. Code art. 893.

There is no indication in the record that the juvenile waived a presentation in this case. The transcript reveals that immediately after adjudicating him delinquent, the court imposed sentence. The record indicates that the child has serious emotional issues, including a suicide attempt in the intervening months between arrest and adjudication, but the court articulated no oral or written reasons for its disposition and, thus, apparently did not consider whether the juvenile is in need of treatment as mandated by La. Ch.Code art. 893. In addition, the $55.00 fee assessed is in excess of that authorized by La.Rev. Stat. 13:1595.2. Accordingly, the disposition is vacated.

1RConclusion

The juvenile’s adjudication is affirmed, but we vacate the disposition (sentences and fee) and remand the matter back to the juvenile court for a disposition hearing in accordance with La. Ch.Code art. 893 and assessment of fees authorized by La. Rev.Stat. 18:1595.2

ADJUDICATION AFFIRMED; DISPOSITION VACATED; REMANDED.

LOVE, J., dissents and assigns reasons.

LOVE, J.,

dissents and assigns reasons.

|,I respectfully dissent from the majority in that I find the State failed to establish “lack of consent,” an element of simple battery, beyond a reasonable doubt. “While delinquency proceedings may in many ways implicate criminal proceedings, sometimes even mimicking them, they are nonetheless civil in nature ... Because delinquency proceedings are not criminal proceedings, the scope of review in Louisiana extends to both law and facts.” State ex rel D.R., 10-0405, p. 5 (La.App. 4 Cir. 10/18/10), 50 So.3d 927, 930 (citations omitted). Thus, on appellate review, this Court applies the clearly wrong or manifest error standard of review in juvenile cases. Id., 10-0405, p. 9, 50 So.3d at 932. Additionally, “in order for the court to adjudicate a child delinquent, the state must prove beyond a reasonable doubt that the child committed a delinquent act alleged in the petition.” La. Ch.C. Art. 883.

The trial court adjudicated C.J. a delinquent for two counts of simple battery, a violation of La. R.S. 14:35. Lack of consent is an element of the offense and pursuant to La. Ch. C. Art. 883 must be established beyond a reasonable doubt. The State claims that under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), standards the circumstantial evidence, namely Mr. Estopinal’s testimony, was sufficient for the trial court to adjudicate C.J. a delinquent.

LThe only evidence presented was that of Mr. Estopinal, who admitted that he had no knowledge of the interaction among the juveniles. He was only able to testify as to his observations, but could not state what led to the interaction or what may have provoked it. He testified that at the time he was trying to supervise all the juveniles and prepare for group therapy. Thus, Mr. Estopinal’s speculating that “nothing that particular day” incited the incident simply because he did not observe anything falls short of the beyond a reasonable doubt burden of proof. Additionally, although immediately after the victims complained about the slaps, neither filed a complaint nor provided a statement to the arresting officer. Likewise, neither victim testified at trial to offer an account of what led or may have provoked the incident.

I find Mr. Estopinal’s testimony alone insufficient to establish beyond a reasonable doubt that the alleged battery was committed without consent. For these reasons, I find the trial court erred in adjudicating C.J. a delinquent for two counts of simple battery. Considering I find the evidence insufficient to prove beyond a reasonable doubt simple battery, I find the disposition hearing issue moot.

ON APPLICATION FOR REHEARING

(Court composed of Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge MADELEINE M. LANDRIEU, Judge . SANDRA C. JENKINS).

EDWIN A. LOMBARD, Judge.

_JjOn application for rehearing, counsel for the juvenile correctly points out that the standard of review in a juvenile proceeding is a dual one. Although the State’s burden of proof in a juvenile proceeding is the same as in a criminal proceeding, delinquency proceedings are civil in nature and our scope of review extends to both law and facts. State in the Interest of Batiste, 367 So.2d 784, 788 (La.1979). As such, however, “a factual finding made by a trial court in a juvenile adjudication may not be disturbed by an appellate court unless the record evidence as a whole does not furnish a basis for it, or it is clearly wrong.” State in the Interest of J.J., 13-0548, pp. 2-3 (La.App. 4 Cir. 9/25/13), 125 So.3d 1248, 1250; see also In re A.J.F., 00-0948 (La. 6/30/00), 764 So.2d 47, 61 (“an appellate court cannot set aside a juvenile court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong”); Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) (“if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would, have weighed the evidence differently”). Thus, even where there are two permissible views of the evidence, the fact finder’s choice cannot be clearly wrong and an appellate court may not substitute its opinion for that of the juvenile court | ¿judge “who is in the unique position to see and hear the witnesses as they testify.” In re A.J.F., 764 So.2d at 62.

As previously narrated, Mr. Estopinal testified that C.J. walked into the cafeteria and struck C.E. on the head three times and then, after being removed for five to ten minutes, returned and punched J.B. in the back of the head “once or twice, maybe three times;” both C.E. and J.B. reacted in pain and, according to Mr. Estopinal, the attack was unprovoked. Although appellate counsel suggests that there may have been a prior provocation in a shared dorm room, the defense presented no evidence relating to a prior provocation at the delinquency hearing and, contrary to appellate counsel’s suggestion, the burden was not on the State to prove the absence of any prior provocation.

Accordingly, because we were remiss in omitting reference to the civil standard of review, we grant rehearing for the limited purpose of iterating that under both the “rational fact-finder” (criminal) standard of Jackson v. Virginia and the “clearly wrong-manifest error” (civil) standard of Rosell v. ESCO, the testimony of Mr. Es-topinal supports the trial court judgment adjudicating the juvenile a delinquent.

REHEARING GRANTED FOR CLARIFICATION ONLY.

LOVE, J., dissents and assigns reasons.

LOVE, J., dissents and assigns reasons.

hi respectfully dissent from the majority’s granting of rehearing for clarification only. I would grant the application for rehearing and reverse the trial court’s ruling finding C.J. a delinquent in violation of La. R.S. 14:35.

      . As is customary, juveniles are referred to only by initials.


author: GUIDRY, J.

text:
    Lashanta MALANCON v. ACE TRANSPORTATION, LLC and Ace American Insurance Co.
    No. 2013 CA 1641.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 20, 2014.

      D. Steven Wanko, Jr., Chase T. Villeret, Covington, LA, for Plaintiff/Appellant, Lashanta Malancon.
    Frederic C. Fondren, Roy A. Jefferson, Jr., Houma, LA, for Defendants/Appellees, Ace Transportation, LLC and ACE American Insurance Company.

      Before PARRO, GUIDRY, and DRAKE, JJ.
   GUIDRY, J.

|2Claimant, Lashanta Malancon, appeals a judgment of the Office of Workers’ Compensation (OWC), asserting that the OWC judge erroneously calculated his pre-injury wages for purposes of determining what indemnity benefits were owed.

FACTS AND PROCEDURAL HISTORY

In July 2010, Mr. Malancon executed an “Independent Contractor Operating Agreement,” whereby he leased his 2003 Chevrolet pickup truck to Ace Transportation, LLC. The agreement required Mr. Malancon to provide Ace the use of his 2003 Chevrolet pickup truck, “along with one or more professional truck drivers and other incidental transportation-related services,” on an as needed basis. In an addendum to the agreement, Mr. Malancon designated himself as the driver to operate his leased truck. The agreement became effective on July 22,2010.

On September 3, 2010, while returning from a delivery made for Ace, Mr. Malan-con’s vehicle was hit from behind. On February 25, 2011, Mr. Malancon filed a disputed claim for compensation against Ace and ACE American Insurance Company, Ace’s insurer (collectively “Ace”), based on the accident, seeking a determination of his average weekly wage, indemnity benefits, authorization for medical treatment, penalties, and attorney fees. Prior to the hearing on Mr. Malancon’s disputed claim, the parties reached an agreement wherein Ace agreed to reimburse the appropriate parties for the costs of medical treatment related to the accident received by Mr. Malancon from Dr. Rand Voohries and the Chabert Medical Center. Ace also agreed to pay $6,000 in ^penalties and $6,000 in attorney fees. Thus, at the hearing, the primary issue presented to the OWC judge to determine was Mr. Malancon’s average weekly wage. Based on that determination, the OWC judge then considered whether Mr. Malan-con was owed any additional benefits and whether Ace would be liable for the assessment of additional penalties and attorney fees for failure to pay the proper amount of indemnity benefits or whether Ace would be entitled to any reimbursement for overpayment of benefits.

At the hearing, the parties submitted Mr. Malancon’s medical records, records of his work and payment history with Ace, and a copy of the .parties’ lease contract. The only witnesses to testify at the hearing were Mr. Malancon and Richard Yan-dle, the risk manager for Ace. After receiving post-trial briefs and taking the matter under consideration, the OWC judge rendered judgment finding Mr. Ma-lancon’s average weekly wage to be $282.55, entitling him to indemnity benefits in the amount of $188.46. The OWC judge then found that Ace had underpaid Mr. Malancon by $18.68 per week, so the OWC judge ordered Ace to pay Mr. Malancon $1,617.16, the difference between the amount of benefits paid and the amount owed. The OWC judge also assessed Ace with $2,000 in penalties for miscalculating Mr. Malancon’s average weekly wage and corresponding indemnity benefits, as well as $10,000 in attorney fees. It is from this judgment that Mr. Malancon appeals.

DISCUSSION

A determination of Mr. Malancon’s pre-injury wages is needed to determine the amount of temporary, total indemnity benefits to which he is entitled. See La. R.S. 23:1221(l)(a). Because Mr. Malancon was not paid on han hourly, monthly, or annual basis, the method of calculating his wages must be determined in accordance with La. R.S. 23:1021(13)(d), which statute provides:

Other wages. If the employee is employed on a unit, piecework, commission, or other basis, his gross earnings from the employer for the twenty-six week period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said twenty-six week period and multiplied by the average number of days worked per week; however, if such an employee has worked for the employer for less than a twenty-six week period immediately preceding the accident, his gross earnings from the employer for the period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said period and multiplied by the , average number of days worked per week.

Thus, in order to determine Mr. Malan-con’s pre-injury wages, his gross earnings from Ace must be known.

In this appeal, Mr. Malancon objects to the OWC judge’s decision to use 33-1/3 percent of the gross receipts paid him as his gross earnings rather than simply using the total amount of the gross receipts paid him, relying on Vickery v. Venture Logistics, 11-329 (La.App. 3d Cir.10/5/11), 74 So.3d 861, writ denied, 11-2378 (La.12/16/11), 76 So.3d 1207. Further, Mr. Malancon argues that use of the 33-1/3 percentage as the “industry standard” is an arbitrary figure. Instead, Mr. Ma-lancon asserts that Ace had the burden of proving an actual amount of expenses to deduct from the gross receipts paid, with the resulting difference being considered his wages, and in absence of such proof, he was | sentitled to have the full sum of his gross receipts considered as his wages. We disagree.

As recognized by this court in Fontenot v. Trans Gulf, Inc., 95-0342, pp. 13-14 (La.App. 1st Cir.11/9/95), 664 So.2d 1238, 1247 (citing Nesmith v. Reich Bros., 203 La. 928, 935, 14 So.2d 767, 769 (1943)), “if the furnishing of equipment with which the work is done forms a considerable portion of the service for which the employee is paid, the rental value of the equipment should be deducted from the total amount paid in order to compute the employee’s weekly wages.” In Fontenot, this court held that it was error for the hearing officer in that matter to conclude that the claimant’s “gross receipts” constituted his “gross earnings” for purposes of calculating his pre-injury wages. Likewise, for the same reason, we reject Mr. Malancon’s argument that it would |fibe proper to simply use the gross receipts paid him as his gross earnings for purposes of calculating his pre-injury wages under La. R.S. 23:1021(13)(d) in this case.

This leaves us to consider whether the OWC judge erred in her determination of the amount of the gross receipts received by Mr. Malancon to attribute as his “gross earnings.”

In the absence of a designation by the parties of a specific portion or amount of the gross receipts to be considered as gross earnings, case law reveals three methods in which courts have determined the pre-injury wages of a claimant when the compensation paid the worker includes sums for the provision and use of equipment owned by the worker, as well as for the worker’s labor. See Covington v. Ace Transportation, Inc. 36,507, p. 5 (La.App. 2d Cir.10/23/02), 830 So.2d 495, 498. Courts have: (1) used the wages paid another worker doing the same or similar work on a wage basis, see Dunning v. Dapco Ventures, L.L.C., 01-2366, p. 11 (La.App. 1st Cir.11/8/02), 834 So.2d 448, 455, writ denied, 03-0215 (La.3/28/03), 840 So.2d 576 and Paddie v. American Interstate Insurance Company of Georgia, 95-293, pp. 5-7 (La.App. 3d Cir.10/4/95), 663 So.2d 187, 190-91, writ denied, 95-2679 (La.2/9/96), 667 So.2d 528; (2) deducted from the gross receipts the rental value of the equipment and related expenses incurred by the worker, see Herrin v. Georgia Casualty & Surety Company, 414 So.2d 1323, 1328 (La.App. 2d Cir.1982); or (3) used a percentage of the gross receipts typically used in the industry as the standard for determining wages, see Brown v. Vernon Sawyer, Inc., 25,959, p. 3 (La.App. 2d Cir.10/26/94), 645 So.2d 260, 264.

The OWC judge in this matter used method (3), an industry standard, to calculate Mr. Malancon’s gross earnings. We observe that other than Mr. Malan-con’s vague conjectures that he incurred little or no expenses during the |7six-week period that he worked for Ace, the record contains no evidence on which to calculate Mr. Malancon’s gross earnings pursuant to methods (1) or (2) listed above. Nevertheless, Mr. Malancon contends that it was improper to use an industry standard in this case because the evidence presented to establish the industry standard used was based solely on the testimony of Mr. Yandle, Ace’s risk manager. We find no error in the OWC judge’s use of Mr. Yan-dle’s testimony to establish the industry standard.

In Fontenot the evidence used to establish the industry standard consisted of the testimony of the corporate secretary and treasurer of the defendant company. According to that opinion, the secretary/treasurer testified that “she utilized one-third of the gross receipts as the ‘driver pay,’ a percentage which she obtained from her insurance agent.” The secretary/treasurer in Fontenot testified that she had collected data from truck owners who leased their trucks to the company and hired drivers to actually haul the loads, which data demonstrated that those owners paid their drivers no more than 25 percent of the gross receipts received by the truck owner. In considering that evidence, this court specifically found that the secretary/treasurer’s testimony could be used to determine the claimant’s gross earnings in that case. Fontenot, 95-0342 at p. 15, 664 So.2d at 1248.

In this case, Mr. Yandle testified that for workers like Mr. Malancon, who not only owned the equipment leased to Ace, but also operated the leased equipment (an owner-operator), the percentage used to determine the portion of the owner-operator’s gross receipts to attribute as pay solely for his labor, and not for the rental of his truck or expenses associated with use and rental of the equipment, is 33-1/3 percent. Mr. Yandle acknowledged that for twenty years, |she has been personally familiar with the customary amount that Ace and its predecessor companies usually allocated for driver wages of the gross receipts paid. He further stated that the customary amount that is allocated within Ace’s industry is “one-third of the gross commissions ... that would be paid to the truck owner.” Mr. Yandle explained that he knew this to be the standard percentage used in the industry to calculate the portion of gross receipts to attribute as wages through his general experience with the oilfield trucking industry and his association with the Louisiana Motor Transport Association, which is comprised of oilfield transportation companies like Ace. He further explained that he had been advised by the workers’ compensation insurer for Ace that workers’ compensation insurance companies use the one-third figure to determine what constitutes a worker’s wage when there is no W-2 wage that can be used to calculate the premium for the worker.

Considering this testimony, we can find no reason for holding that the OWC judge’s acceptance of Mr. Yandle’s testimony for establishing the industry standard is error. While Mr. Malancon objects to the OWC judge’s reliance on Mr. Yandle’s testimony as evidence of the industry standard for the prevailing wage rate, there was no countervailing evidence presented nor do we find any legal basis to discredit Mr. Yandle’s testimony as evidence of the applicable industry standard. As such, we cannot say that the OWC judge erred in using the industry standard, as testified to by Mr. Yandle, to determine Mr. Malancon’s pre-injury wages and his related indemnity benefits. Accordingly, as we1 have found no error in the OWC judge’s ruling in this matter, we reject Mr. |9MaIancon’s request for an award of additional attorney fees for work performed in perfecting this appeal.

CONCLUSION

Therefore, considering the record before us and the applicable law, we affirm the judgment of the Office of Workers’ Compensation. All costs of this appeal are assessed to Lashanta Malancon.

AFFIRMED.

      . The record contains an unsigned copy of a consent judgment that memorialized the agreement of the parties. At the hearing, it was indicated that a copy of the judgment was sent for filing, but never made it into the record. The unsigned consent judgment was entered into evidence as a joint exhibit by the parties.

      . At the time of the hearing, Ace had become United Vision Logistics. Mr. Yandle indicated that he had been employed with the company, in its various incarnations, for 25 years.

      . By 2013 La. Acts, No. 337, § 1, the Louisiana Legislature amended La. R.S. 23:1021 to add paragraph 13, which, according to the text of Act 337, should have provided a definition of the term "payor.” However, pursuant to the statutory revision authority of the Louisiana State Law Institute, paragraphs 12 and 13 were redesignated to appear in alphabetical order, so that the definition of "payor” appears in paragraph 12, and the text of the former paragraph 12, defining "wages,” was moved to the newly added paragraph 13. See Historical and Statutory Notes for La. R.S. 23:1021.

      . Specifically, Mr. Malancon points out the third circuit’s observation that La. R.S. 23:1021(12)(d) (currently La. R.S. 23:102I(13)(d)) "provides nothing about applying an industry standard” in situations where a truck lease is silent as to the specific percentage of gross receipts that will be designated as wages. Vickery, 11-329 at p. 4, 74 So.3d at 863.

      . Likewise, in Malone & Johnson, Workers’ Compensation, § 327 in 14 Louisiana Civil Law Treatise 116 and 120 (2010)(footnotes omitted), it is noted:
      The term "wages” means the amount earned by the employee through his own labor, rather than profits for his enterprising or rental for any equipment he may provide. Where an employee furnishes his own truck or other piece of equipment or provides his own helpers, an adjustment is ordinarily made in arriving at his wage so as to exclude those sums paid by the employer in remuneration for these items. Care must be exercised to be sure that the allocation of a part of the wage as a supposed reimbursement for use of equipment is not a ruse to make it appear that the wage is actually less than it really is.

      The amendments [to the statute defining "wages," now contained in La. R.S. 23:1021(13),]continue to refer only to employees, even though the fact that some independent contractors are entitled to compensation is now well known; if a specific provision for computation of their "wage” had been desired it could have been made. There remains the problem that if the "gross earnings” of the independent contractor are used, the average weekly wage figure is likely to be substantially inflated beyond the normal return on his manual labor. Accordingly, it is probably more equitable to determine what a person genuinely an employee would earn doing the same manual labor which brought the contractor under the [Workers’ Compensation] Act in the first place. This will quite satisfactorily carry out the intention of coverage of certain independent contractors: to prevent employers from avoiding compensation by classifying persons who are engaged in a substantial amount of manual labor as "contractors”. There is no reason to extend that intention to figure into the "wage” of such persons amounts which are not wages at all, but return on capital or profit from an enterprise.

      . The parties stipulated, however, that Mr. Malancon had worked 13 days for Ace over the period of five weeks prior to the accident for the purposes of calculating his pre-injury wages under La. R.S. 23:1021(13)(d).

      . The gross receipts paid to Mr. Malancon by Ace were $4,242.56, one-third of which equals $1,412.77. Thus, applying the formula provided in La. R.S. 23:102l(13)(d) for an employee who has worked for an employer less than 26 weeks (the gross earnings of $1,412.77 divided by the 13 days actually worked and multiplied by the average number of days worked per week of 2.6 (calculated using the parties’ stipulation that Mr. Malan-con worked five weeks prior to accident)) results in the average weekly wage computed by the OWC judge of $282.55.


author: McClendon, j. PETTIGREW, J.,

text:
    Lloyd M. HUGHES v. ZURICH AMERICAN INSURANCE COMPANY.
    No. 2013 CA 2167.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 20, 2014.
    Rehearing Denied Sept. 26, 2014.

      George R. Blue, Jr., Covington, LA, for Plaintiff/Appellant, Lloyd M. Hughes.
    Thomas L. Gaudry, Jr., Jairo F. Sanchez, Gretna, LA, for Defendani/Appellee, Zurich American Insurance Co.
    Before PETTIGREW, McDONALD, and McClendon, jj.-
   McClendon, j.

|PAt issue is whether an insurance policy issued by Zurich American Insurance Company provided underinsured/unin-sured motorist (UM) coverage to Lloyd Hughes, who was driving a vehicle that was insured under the policy. Because we conclude that the policy did not provide UM coverage, we affirm the trial court’s judgment granting Zurich’s motion for summary judgment.

FACTS AND PROCEDURAL HISTORY

In January 2010, Mr. Hughes, an employee of Dupre Logistics, LLC, (Dupre), was injured when the truck he was driving was rear-ended by a vehicle driven by Robert M. Coleman. Mr. Hughes settled a claim with Coleman’s liability insurer for its policy limits. Thereafter, Mr. Hughes filed a petition for damages, naming Zurich as a defendant. Mr. Hughes alleged that Zurich provided his employer, Dupre, uninsured/underinsured motorist (UM) coverage for the truck he was driving at the time of the accident.

In February 2013, Zurich filed a motion for summary judgment, contending that it did not provide Dupre UM coverage on the vehicle driven by Mr. Hughes at the time of the accident. Specifically, Zurich provided affidavits, the insurance policy, and several UM selection forms in support of its assertions that it did provide trucker’s liability coverage to Dupre since October 2005,. but that Dupre had always rejected UM coverage.

In opposition, Mr. Hughes did not dispute that Dupre validly waived UM coverage when it originally secured the policy in October 2005. Mr. Hughes also did not dispute that Dupre validly waived UM coverage in subsequent UM rejection forms on renewal policies dated 10/1/06, 9/28/07, and 8/28/08. Mr. Hughes contended, however, that Dupre did not waive UM coverage on the fourth renewal policy for the policy period from 10/1/09 through 10/1/10 insofar as the representative for Dupre failed to place his initials in the appropriate blank on the form rejecting UM coverage. Mr. Hughes asserted that the representative’s failure to place his initials on the form evidences his intent to secure UM coverage on behalf of Dupre.

. IsAfter taking the matter under advisement, the trial court granted Zurich’s motion, concluding that “the initial rejection of coverage was sufficient to show the intent to reject coverage on the renewal policies.” Mr. Hughes has appealed, asserting that the trial court erred in granting Zurich’s motion for summary judgment.

STANDARD OF REVIEW

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Duncan v. U.S.A.A. Ins. Co., 06-363 (La.11/29/06), 950 So.2d 544, 546. Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Costello v. Hardy, 08-1146 (La.1/21/04), 864 So.2d 129,137. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. See LSA-C.C.P. art. 966(B)(2). Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Craig v. Bantek West, Inc., 04-0229 (La.App. 1 Cir. 9/17/04), 885 So.2d 1241, 1245.

DISCUSSION

Louisiana Revised Statutes 22:1295 (formerly 22:680) addresses UM coverage in Louisiana and the statute is to be liberally construed. Duncan, 950 So.2d at 547. Given the liberal construction, any statutory exceptions to coverage must be strictly interpreted. Id. Insurers in Louisiana are required to include UM coverage unless specifically rejected by the insured. Dyess v. American National Property and Cas. Co., 08-1971 (La.App. 1 Cir. 6/25/04), 886 So.2d 448, 453, writ denied, 04-1858 (La.10/29/04), 885 So.2d 592. It is the rejection of UM coverage, and not its acceptance, that must be the | ^affirmative act of the insured. Dyess, 886 So.2d at 453. Unless the insured’s expression of his desire to reject or select lower limits of UM coverage meets the formal requirements of law, the expression does not constitute a valid rejection. Id.

The parties do not dispute that Dupre validly rejected UM coverage on the prescribed form when it first acquired its liability policy in 2005. Once coverage was validly rejected on the prescribed form, it remains “valid for the life of the policy and shall not require the completion of a new selection form when a renewal, reinstatement, substitute, or amended policy is issued to the same named insured by the same insurer or any of its affiliates.” LSA-R.S. 22:1295(l)(a)(ii) (formerly 22:680(l)(a)(ii)). “Any changes to an existing policy, regardless of whether these changes create new coverage, except changes in the limits of liability, do not create a new policy and do not require the completion of new insurance motbrist selection forms.” LSA-R.S. 22:1295(l)(a)(ii) (formerly ,22:680(l)(a)(ii)).

Although there was no legal requirement that new selection forms be completed, Zurich had a representative for Dupre sign the prescribed form each year on its renewal policies. On the fourth renewal, which covered the policy period in effect at the time of the accident, the UM waiver form did not meet all the requisite requirements for a valid waiver insofar as Dupre’s representative did not reject UM coverage by initialing in the appropriate blank on the form.

Mr. Hughes notes that Dupre was not obligated to execute a new ÚM coverage forra unless the insured wanted to change the original UM motorist selection or rejection. Mr. Hughes contends that because Dupre signed the form without rejecting UM coverage, it evidenced Dupre’s intent to secure such coverage. Mr. Hughes concludes that absent an express, affirmative act on the Rpart of Dupre which clearly, unmistakably, and unambiguously rejected UM coverage, such coverage must be read into the liability policy.

In this regard, we find McElroy v. Continental Cas. Co., 43,868 (La.App. 2 Cir. 6/24/09), 15 So.3d 377, to be instructive. Therein, the plaintiff, who was injured in an accident while driving his employer’s vehicle, sought UM recovery from his employer’s business auto coverage insurer. The employer had executed a valid UM rejection form when it initially secured the policy. The employer attempted to reject UM coverage for the next policy year when the policy was renewed, but the rejection was ineffective because the employer’s representative did not initial the UM rejection selection on the form. Instead, the representative circled the number next to the selection. McElroy, 15 So.3d at 379. The second circuit noted that because the second policy was a renewal, a new form rejecting UM coverage was not required to be executed. Id. at 381. Because the employer “attempted to execute a new form rejecting UM coverage with the renewal policy does not serve to make the earlier UM rejection ineffective, or make the later form supersede the earlier form.” Id. The appellate court further noted that the initial form, similar to the form signed by Dupre in this case, clearly stated that the employer could change its mind to accept UM coverage by making “a written request for a change,” and the submission of the latter form was not a written request for a change in UM coverage. Id. Accordingly, the appellate court granted summary judgment in favor of the insurer, concluding that its policy did not provide UM coverage. See also Doyle v. Allstate Ins. Co., 10-1020 (La.App. 3 Cir. 3/2/11), 58 So.3d 606, writ denied, 11-0677 (La.5/20/11), 63 So.3d 980 (failure to include company name and policy number in a renewal policy does not invalidate prior valid UM waiver); Rashall v. Pennington, 08-0001 (La.App. 3 Cir. 4/30/08), 982 So.2d 301, 305, writ denied, 08-1543 (La.10/10/08), 993 So.2d 1286 (failure to date the waiver form in a renewal policy did not invalidate a prior valid UM waiver) and LeBlanc v. Guntenaar, 07-904 (La.App. 5 Cir. 3/25/08), 984 So.2d 136, writ denied, 08-0841 (La.6/6/08), 983 So.2d 923 (placing an “x” to reject | ^coverage rather than initialing the selection in a renewal policy did not invalidate prior valid UM waiver).

In this case, Dupre validly rejected UM coverage in the trucker’s liability insurance policy. The simple fact that Dupre attempted to execute a new UM rejection form with the fourth renewal policy does not serve to make the earlier UM rejection ineffective, or make the later form supersede the earlier form. See LSA-R.S. 22:1295(l)(a)(ii) and McElroy, 15 So.3d at 381. Like the form in McElroy, the initial UM waiver form, which the parties do not dispute was valid, states:

The choice I made by my initials on this form will apply to all persons insured under my policy. My choice shall apply to the motor vehicles described in the policy and to any replacement vehicles, to all renewals of my policy, and to all reinstatement or substitute policies until I make a written request for a change in my Bodily Injury Liability Coverage or UMBI Coverage.

Since there was no requirement that Dupre execute a new UM rejection form for the policy period at issue, we cannot find that the failure to initial said form equates to a selection of UM coverage by Dupre. Accordingly, we conclude that the trial court did not err in granting summary judgment.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting summary judgment in favor of Zurich is affirmed. Costs of this appeal are assessed to appellant, Lloyd Hughes.

AFFIRMED.

PETTIGREW, J., dissents, and assigns reasons.

PETTIGREW, J.,

dissents, and assigns reasons.

hit should be noted that under the facts of this case, we are not dealing with an invalid uninsured/underinsured motorist coverage rejection form, but we are dealing with a valid form. An uninsured/un-derinsured motorist coverage rejection form is a legal document that has legal consequences if properly executed. Though Zurich did not need, nor were they-obligated, to get its insured to execute another uninsured/underinsured coverage rejection form for the renewal period of October 1, 2009, through October 1, 2010, the uncontested facts of this case establish that Zurich did get its insured to execute another form. By doing so, that document had legal consequences. The requirements to properly reject uninsured motorist coverage are set out in Duncan v. USAA Ins. Co., 950 So.2d 544 (La.2006), at 551-552. The fact is, the insured through its authorized officer, Coussan, did not reject uninsured motorist or underinsured-motorist coverage on the form submitted to him by Zurich. Since, he did not reject uninsured motorist coverage, by law, he has uninsured motorist coverage or under-insured motorist coverage under the Zurich policy at issue in this case. Dixon v. Direct General Ins. Co. of Louisiana, 2008-0907 (La.App. 1 Cir. 3/27/09), 12 So.3d 857. See also La. R.S. 22:1295 lA(ii),

... An insured may change the original uninsured motorist selection or rejection on a policy at any time during the life of the policy by submitting a new uninsured motorist selection form to the insurer on the form prescribed by the Commissioner of Insurance....

This is exactly what happened in this case.

In my humble opinion, the trial court’s granting of summary judgment in favor of Zurich should be reversed.

      . Rejection of coverage shall be made on a form prescribed by the commissioner of insurance. LSA-R.S. 22:1295(l)(a)(ii) (formerly 22:680(l)(a)(ii)). A properly completed UM rejection form must meet six requirements: (1) initialing the selection or rejection of coverage chosen; (2) if limits lower than the policy are chosen, then filling in the amount of coverage selected for each person and each accident; (3) printing the name of the named insured or legal representative; (4) signing the name of the named insured or legal representative; (5) Filling in the policy numbers; and (6) filling in the date. Duncan, 950 So.2d at 551.

      . In reaching this conclusion on our de novo review, we have not relied upon the three affidavits offered by Zurich. As such, we pre-termit discussion of whether the trial court .should have granted Mr. Hughes's motion to strike the affidavits.