author: THERIOT, J.

text:
    Cary Devon TRAVIS v. SPITALE’S BAR, INC., State of Louisiana, State of Louisiana through the Department of Health and Hospitals, Certain Underwriters at Lloyd’s, London and ABC Insurance Company.
    No. 2012 CA 1366.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 14, 2013.
    Rehearing Denied Sept. 16, 2013.

      Craig R. Nelson, Christina P. Fay, Me-tairie, LA, for Defendant/Appellant/Cross-Appellee State of Louisiana, through the Department of Health and Hospitals.
    Michael C. Palmintier, Jonathan E. Mitchell, Baton Rouge, LA, for Plaintiff/Appellee/Cross-Appellant Cary Devon Travis.
    Before GUIDRY, CRAIN, and THERIOT, JJ.
   THERIOT, J.

| gThis suit arises out of injuries suffered by a restaurant patron who became ill after eating raw oysters. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Spitale’s Bar, Inc. (“Spitale’s”) operates a restaurant and bar in Amite, Louisiana which serves raw oysters. On May 15, 2004, Cary Devon Travis ate two raw oysters at Spitale’s. After consuming the oysters, Mr. Travis, who suffers from nonalcoholic steato hepatitis (NASH), became ill due to vibrio vulnificus bacteria contained in the oysters. Mr. Travis was hospitalized on several occasions after consuming the oysters and ultimately required a liver and kidney transplant.

The Louisiana Sanitary Code requires all establishments that sell or serve raw oysters to display warning signs at the point of sale to alert consumers of the risk associated with the consumption of raw oysters by those with chronic illness of the liver, stomach, or blood, or those with immune disorders. La. Admin. Code tit. 51, pt. IX, § 319(D). The Louisiana Department of Health and Hospitals (“DHH”) is responsible for inspecting these establishments for compliance with the Sanitary Code. La. R.S. 40:4.

On May 15, 2004, the date on which Mr. Travis ate the two raw oysters at Spitale’s, there were no statutorily-mandated signs in the restaurant area of Spitale’s, nor were there any warnings printed on the menus. The only warning sign in Spitale’s was in the bar area, which was separate from the restaurant area where Mr. Travis was seated.

Mr. Travis filed suit for damages against Spitale’s, its insurers, and DHH for failing to warn him of the dangers of consuming raw oysters and Rfor DHH failing to inspect Spitale’s for the warnings. Mr. Travis settled his claim against Spitale’s prior to trial.

Prior to trial, the parties entered the following stipulation into the record:

1. The Louisiana Sanitary Code, Chapter 11, # 1109, requires the following warning:
“All establishments that sell or serve raw oysters must display signs, menu notices, table tents, or other clearly visible messages at the point of sale with the following wording:
THERE MAY BE A RISK ASSOCIATED WITH CONSUMING RAW SHELLFISH AS IS THE CASE WITH OTHER RAW PROTEIN PRODUCTS. IF YOU SUFFER FROM CHRONIC ILLNESS OF THE LIVER, STOMACH OR BLOOD OR HAVE OTHER IMMUNE DISORDERS, YOU SHOULD EAT THESE PRODUCTS FULLY COOKED.”
2. On the day of the incident, there were no signs as required by the aforementioned Sanitary Code provisions on the Spitale’s restaurant menu.
3. On the day of the incident, there were no signs as required by the aforementioned Sanitary Code on the Spitale’s restaurant walls.
4. On the day of the incident, the only sign as required by the aforementioned Sanitary Code provisions in Spitale’s was located in the bar area. Travis was eating in the restaurant area of Spitale’s which was in the same building as the bar but had a wall separating the bar from the restaurant with a door way leading from the bar into the restaurant.

The parties also stipulated to the amount of Mr. Travis’s medical bills; however, DHH did not stipulate that all of those medical expenses were incurred as a result of Mr. Travis’s oyster consumption.

After a jury trial, the jury returned a verdict in favor of Mr. Travis, finding that DHH breached its duty to enforce the Sanitary Code and that DHH’s breach was a cause in fact of Mr. Travis’s injuries. The jury also found that Mr. Travis contributed to his own injuries, and assigned fault as Lfollows: 40% to DHH, 33% to Spitale’s, and 27% to Mr. Travis. The jury awarded Mr. Travis $350,000.00 for his past medical expenses, $140,000.00 for his past lost wages, $60,000.00 for his past physical pain and suffering, $35,000.00 for his past mental anguish and emotional distress, and $100,000.00 for permanent injury. The jury declined to make any award for Mr. Travis’s future medical expenses, future lost wages, future physical pain and suffering, future mental anguish and emotional distress, and for his loss of enjoyment of life. The trial court rendered judgment against DHH in accordance with the jury’s verdict in the total amount of $274,000.00, plus legal interest. DHH filed a motion for new trial or for remitti-tur, which was denied by the court.

Both DHH and Mr. Travis have appealed the trial court judgment. DHH argues on appeal that the trial court erred in refusing to instruct the jury on the law of superseding negligence and in limiting its cross-examination of Mr. Travis. DHH also argues that the jury’s allocation of fault, as well as its awards for past medical expenses and past lost wages, were erroneous and contrary to the evidence. Mr. Travis assigns as error the jury’s allocation of fault, as well as the amount of the individual items of damages. Mr. Travis also argues that the jury abused its discretion by reducing the damage awards by his comparative fault, since the jury had already taken this reduction into account when it assigned to him a percentage of fault on the verdict, thus resulting in an inappropriate “double reduction.”

DISCUSSION

Jury Instructions

DHH alleges that the court erred in failing to properly instruct the jury on the law of superseding negligence. DHH made a request in accordance Rwith La. C.C.P. art. 1793(A) for the following instruction to be given to the jury:

Superceding [sic] Cause: When an incident giving rise to injuries results from two acts of negligence, one more remote and one occurring later, the occurrence of the later act prevents the finding of liability for the person responsible for the more remote act. The subsequent action of the other persons or entities are intervening acts of negligence which the law regards as superceding [sic] the negligent act of the first person who acted.

A jury charge conference was held in accordance with La. C.C.P. art. 1793. Over DHH’s objection, the trial court declined to give the requested instruction, and charged the jury as follows:

Among the questions that we will be asking you to answer are some which concern the degree of fault which is to be assigned to the various parties in this case. Where there are multiple parties in a case alleged to be at fault as we have here, the law requires that you assign degrees of percentages of fault which add up to 100 percent responsibility for this incident. So my questions will be asking you to assign a percentage of fault, if any, to the plaintiff, Louisiana Department of Health and Hospitals or Spitale’s.... If you are satisfied that the plaintiff has established [causation and damages], then the plaintiff is entitled to recover and you should return a verdict for the plaintiff, unless the defendant has prove [sic] by a preponderance of the evidence that the plaintiff contributed to his own injury by his own substandard conduct. If the defendant has proved that the plaintiff was at fault himself and his fault contributed to his own injury, then you should assign a percentage of fault or responsibility to the plaintiff on the forms that I will provide to you.

In a jury trial, the trial court is obligated to give instructions that properly reflect the law applicable in light of the pleadings and facts in each case. Hymel v. HMO of Louisiana, Inc., 06-0042 (La.App. 1 Cir. 11/15/06), 951 So.2d 187, 198, writ denied, 06-2938 (La.2/16/07), 949 So.2d 425. Adequate jury instructions are those instructions that fairly and reasonably point out the issues presented by the pleadings and evidence and that provide | ^correct principles of law for the jury to apply to those issues. Id. Whether or not to include a requested jury instruction is a matter within the wide discretion of the trial court and will not be overturned on appeal absent an abuse of that discretion. Gardner v. Griffin, 97-0379 (La.App. 1 Cir. 4/8/98), 712 So.2d 583, 586.

When assessing an allegedly erroneous jury instruction, it is the duty of the reviewing court to evaluate such impropriety in light of the entire jury charge to determine if it adequately provides the correct principles of law as applied to the issues and whether they adequately guided the jury in its deliberation. Hymel, 951 So.2d at 198. An appellate court must exercise great restraint before overturning a jury verdict on the suggestion that the jury instructions were so erroneous as to be prejudicial. Id.

DHH argues that the court’s failure to give the requested jury instruction was a fatal error of law because the instruction would have allowed the jury to consider whether DHH’s prior negligent act in failing to properly inspect Spitale’s was completely superseded by Mr. Travis’s failure to take personal responsibility for his health, follow his doctor’s instructions, and avoid raw seafood. However, the instructions given by the court informed the jury that they were permitted to assign fault to Mr. Travis for his role in causing his own injuries if they believed that his actions played a part in causing his injuries. The jury did in fact assign a percentage of fault to Mr. Travis, evidencing their understanding of this instruction. We find that the court’s instructions fairly and reasonably pointed oht the issues presented to the jury and provided correct principles of law for the jury to apply. Thus, we cannot say that the court committed reversible error in refusing to give DHH’s requested jury instruction. This assignment of error is without merit.

| limitation of Cross Examination

DHH argues that the trial court erred in limiting its cross-examination of Mr. Travis. At trial, Mr. Travis testified that he had no knowledge and had never been told by anyone, including his doctors, that he should not eat raw oysters because of his liver disease. Mr. Travis also testified that he was a regular patron of Spi-tale’s restaurant and that he occasionally walked through the bar on his way into the restaurant. DHH attempted to ask Mr. Travis whether he had ever seen a sign in the bar area warning people with certain medical conditions not to eat raw oysters. Mr. Travis’s counsel objected to the question, arguing that DHH was trying to get around their pre-trial stipulation regarding the absence of signs. The court originally overruled the objection, saying that DHH could question Mr. Travis about whether or not he ever saw the sign in the bar area, as long as DHH did not attempt to back off of their stipulation and argue that the presence of a sign in the bar relieved DHH of liability for failing to inspect the restaurant area. However, after further consideration, the court sustained the objection and DHH was not permitted to question Mr. Travis about whether he had ever seen a warning sign in the bar area of Spitale’s. On appeal, DHH argues that the question was relevant to the issue of his personal knowledge and credibility, and further that it was an abuse of discretion for the trial court to exclude the evidence.

|RGenerally, the trial court is granted broad discretion on its evidentiary rulings, and its determinations will not be disturbed on appeal absent a clear abuse of that discretion. Turner v. Ostrowe, 01-1935, p. 5 (La.App. 1 Cir. 9/27/02), 828 So.2d 1212, 1216, writ denied, 02-2940 (La.2/7/03), 836 So.2d 107. Except as otherwise provided by law, all relevant evidence is admissible. La. C.E. art. 402. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. La. C.E. art. 401. Whether evidence is relevant is within the discretion of the trial court, and its ruling will not be disturbed on appeal in the absence of a clear abuse of that discretion. Boudreaux v. Mid-Continent Cas. Co., 05-2453, p. 8 (La.App. 1 Cir. 11/3/06), 950 So.2d 839, 845, writ denied, 06-2775 (La.1/26/07), 948 So.2d 171.

The court was correct in its initial ruling that DHH’s question to Mr. Travis concerning whether or not he had ever seen a warning sign in Spitale’s bar does not conflict with DHH’s stipulation concerning the absence of signs in the restaurant or on the menu. DHH stipulated that the law requires signs at the point of sale, that the only sign in Spitale’s on the date of the incident was in the bar area, and that Mr. Travis ate in the restaurant area (which had no signs) on the day of the incident. Mr. Travis had testified that he had walked through the bar area in Spitale’s in the past. Therefore Mr. Travis’s testimony about his personal knowledge of the dangers of eating raw oysters prior to this incident was relevant to the issue of Mr. Travis’s share of fault. The trial court erred in sustaining the objection. However, the harmless error analysis applies to erroneous evidentiary rulings on appeal. See Thongsavanh v. Schexnayder, 09-1462, p. 7 (La.App. 1 Cir. 05/7/10), 40 So.3d 989, 995, writ denied, 10-1295 (Laj9/24/10),9 45 So.3d 1074. The trial court’s error in excluding this testimony was harmless because the jury received other evidence indicating that Mr. Travis may have been aware of the risk of consuming raw oysters, and the jury was apparently persuaded by that evidence given its conclusion that Mr. Travis was comparatively negligent. This assignment of error has no merit.

Apportionment of Fault

Both DHH and Mr. Travis have appealed the jury’s apportionment of fault. While DHH believes that the jury should have assigned 100% of the fault to Mr. Travis, Mr. Travis believes that the jury erred in assigning any fault at all to him.

The allocation of fault between comparatively negligent parties is a finding of fact. Sims v. State Farm Auto. Ins. Co., 981613, p. 2 (La.3/2/99), 731 So.2d 197, 199. In apportioning fault, the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relationship between the conduct and the damages claimed. Gibson v. State Through Dept. of Transp. and Development, 95-1418, p. 12 (La.App. 1 Cir. 4/4/96), 674 So.2d 996, 1005 (citing Campbell v. Louisiana Dept. of Transp. and Development, 94-1052, p. 7 (La.1/17/95), 648 So.2d 898, 902, writs, denied, 96-1862, 96-1895, 96-1902 (La.10/25/96), 681 So.2d 373, 681 So.2d 374). We review a fact finder’s apportionment of fault under the manifest error-clearly wrong standard of review. Clement v. Frey, 951119, 951163, p. 7 (La.1/16/96), 666 So.2d 607, 610.

The evidence presented at trial clearly supported the jury’s conclusion that the parties were comparatively negligent and that an assignment of some degree of fault to all of the parties was appropriate. There was evidence presented at trial, which the jury in its weighing of the evidence was free to accept or reject, that Mr. Travis knew or should have known of the dangers |inof eating raw oysters and chose to take that risk. There was also evidence in the form of DHH’s stipulation that DHH failed in its duty to inspect Spitale’s to ensure that the appropriate warning signs were displayed. Upon a thorough review of the record, we cannot say the jury’s apportionment of fault was manifestly erroneous or clearly wrong. These assignments of error by DHH and Mr. Travis are both without merit.

Damages

The remaining assignments of error by both parties concern the amount of the damage awards. It is well settled that a judge or jury is given great discretion in its assessment of quantum, of both general and special damages. Guillory v. Lee, 090075, p. 14 (La.6/26/09), 16 So.3d 1104, 1116. Furthermore, the assessment of quantum, or the appropriate amount of damages, by a trial judge or jury is a determination of fact that is entitled to great deference on review. Wainwright v. Fontenot, 000492, p. 6 (La.10/17/00), 774 So.2d 70, 74. Because the discretion vested in the trier of fact is great, and even vast, an appellate court should rarely disturb an award on review. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

Past and Future Medicals

Both DHH and Mr. Travis argue on appeal that the jury’s award of $350,000.00 for Mr. Travis’s past medical expenses was erroneous. Prior to trial, DHH and Mr. Travis stipulated that the total amount of Mr. Travis’s medical bills was $684,686.63; however, DHH did not stipulate causation. Under Louisiana law, a tort victim may recover past (from injury to trial) and future (post-trial) medical expenses caused by tortious conduct. The victim must, however, establish that he incurred past medical expenses in good faith as a result of his injury and future medical expenses will more |nprobably than not be incurred. Menard v. Lafayette Ins. Co., 09-1869 (La.3/16/10), 31 So.3d 996, 1006.

In order to recover, a plaintiff must prove, by a preponderance of the evidence, both the existence of the injuries and a causal connection between the injuries and the accident. See Yohn v. Brandon, 01-1896, p. 6 (La.App. 1 Cir. 9/27/02), 835 So.2d 580, 584, writ denied, 02-2592 (La.12/13/02), 831 So.2d 989. The test to determine if that burden has been met is whether the plaintiff proved through medical testimony that it is more probable than not that the injuries were caused by the accident. Id. Generally, the effect and weight to be given medical expert testimony is within the broad discretion of the trier of fact. Yohn, 01-1896, p. 7, 835 So.2d at 584. The law is well settled that where the testimony of expert witnesses differ, the trier of fact has great, even vast, discretion in determining the credibility of the evidence, and a finding in this regard will not be overturned unless it is clearly wrong. Cotton v. State Farm Mutual Automobile Insurance Company, 10-1609, pp. 7-8 (La.App. 1 Cir. 5/6/11), 65 So.3d 213, 220, writ denied, 11-1084 (La.9/2/11), 68 So.3d 522.

Mr. Travis argues on appeal that the jury did not have the authority to award less than the stipulated amount of $684,686.63 in past medical expenses; however, this argument is without merit. DHH did not admit causation for all medical expenses; therefore, if there is a reasonable evidentiary basis upon which the jury could have found portions of the medical bills were unrelated to the initial injuring event, then an award for less than the total stipulated amount may be upheld. See White v. Longanecker, 93-1122, p. 9 (La.App. 1 Cir. 5/23/94), 637 So.2d 1213, 1218.

112DHH argues that the jury’s award of $350,000.00 for past medical expenses was erroneous. DHH urges that the jury’s award of less than the full amount of medical expenses indicates the jury did not believe that Mr. Travis’s second hospitalization was caused by his consumption of vibrio-infected oysters, and therefore the award of medical expenses should be limited to the cost of his initial hospitalization. Accordingly, DHH requests that we reduce the award for past medical expenses to $55,409.26, the cost of Mr. Travis’s initial hospitalization from May 17 through May 30, 2004.

DHH’s argument is incorrect as it asserts the only possible cut off for recovery is the date of Mr. Travis’s initial discharge. If the jury concluded that portions of the treatment received in the second hospitalization were caused by DHH’s breach, then an award for more than his initial hospitalization expenses would be appropriate. A thorough examination of the record supports this conclusion.

During Mr. Travis’s second hospitalization, he received treatment and surgeries for damaged skin and tissue in his lower extremities, problems present at his initial discharge. Both Mr. Travis’s treating physician and DHH’s medical expert agreed that Mr. Travis initially went into septic shock from vibrio vulnificus bacteria acquired by consuming raw oysters. However, when Mr. Travis was initially discharged on May BO, 2004, his MELD scores (a numerical representation of liver status based on three medical tests including kidney function), had returned to baseline levels present before his consumption of the raw oysters. DHH’s medical expert contended that no further treatment for the initial bacterial infection was recommended at that point (with the exception of continued antibiotics for ongoing inflammation in his legs) and testified that when Mr. Travis returned to the hospital on June 7, 2004, tests showed no evidence of the 11Svibrio vulnificus bacteria in his liver, but instead identified a different organism, Candida albicans, in his abdomen and urine. DHH’s medical expert charged it was this organism that caused an unrelated sepsis, which ultimately necessitated Mr. Travis’s organ transplants, and testified that Mr. Travis could have developed this Candida infection without a previous vibrio insult due to his underlying liver condition.

Nonetheless, it was uneontroverted that the inflammation of the skin and tissue in Mr. Travis’s lower extremities was present when he was initially discharged, that the vibrio bacteria commonly lodges itself in the skin, and that resulting inflammation could cause damage to the skin and surrounding tissues, requiring corrective surgical procedures. DHH’s expert agreed that the inflammation in Mr. Travis’s legs and surrounding tissue from the vibrio infection was ongoing when he was initially discharged. Furthermore, medical records stated that his need for skin grafts and his leg injuries were caused by the vibrio infection. Mr. Travis’s treating physician also noted this distinction between his organ functions and legs, testifying that upon initial discharge, Mr. Travis appeared to be recovering well, except for his ongoing “leg wounds.” Thus, the verdict and evidence reasonably suggest and support that the jury concluded that some, though not all, of Mr. Travis’s health complications were caused by the ingestion of the vibrio vulnificus.

When medical expenses have been incurred for the treatment of multiple injuries or conditions, and a jury finds that some, though not all, of those injuries or conditions were caused by the.event in question, the jury’s great discretion permits it to award something less than the full amount of the medical expenses. See, Kaiser v. Hardin, 06-2092 (La.4/11/07), 953 So.2d 802, 810-811; Fontana v. Newman, 11-1793 (La.App. 1 Cir. 5/22/12) (unpublished), 2012 WL 1856969, Shoats v. McKenzie, 11-0573 (La.App. 1 Cir. 11/9/11) (unpublished), 2011 WL 5408737, writ denied, 12-0262 (La.3/30/12), 85 So.3d 123.

When reviewing a jury’s factual conclusions with regard to special damages, including the jury’s decision to award an amount less than the medical expenses claimed by a plaintiff, an appellate court must satisfy a two-step process based on the record as a whole: first, there must be no reasonable factual basis for the fact finder’s conclusions, and second, the finding must be clearly wrong. Kaiser v. Hardin, 2006-2092 (La.4/11/07), 953 So.2d 802,

810 (per curiam). The jury awarded Mr. Travis the sum of $350,000;00 in past medical expenses. The jury was confronted with conflicting expert testimony and. a stipulation of the medical expenses incurred during multiple hospitalizations for treatment of multiple conditions. Upon the evidence presented, an item-by-item allocation of medical expenses was not, and is not, possible, nor would justice be served by awarding all of the expenses to Mr. Travis or refusing to award any of the expenses to Mr. Travis.. Under the circumstances, the jury’s award of a portion of the medical expenses was not an abuse of its discretion, and illustrates the jury’s discretion to arrive at a verdict that is just. Applying the two-step process enumerated in Kaiser, id., and considering the record in its entirety, we are unable to say the jury abused its discretion in rendering awards for past and future medical expenses.

Past & Future Lost Wages

DHH contends on appeal that the jury’s award of $140,000,00 for past lost wages was in error. DHH argues this amount should be reduced to zero because prior to becoming ill from consuming the oysters at Spitale’s, the plaintiff had reduced his workload due to his underlying NASH and had not h ¿worked at all in his occupation as a boilermaker for one month. Alternatively, DHH argues that if an award for past lost wages is appropriate, then that award should be reduced by the amount Mr. Travis could have earned if he had begun working as a teacher in January 2009. DHH contends that the maximum award for Mr. Travis’s past lost wages, taking, into account his income potential as a teacher, should be $73,832.42. DHH correctly notes that it is the plaintiffs burden to prove past lost wages, and that such an award is susceptible of mathematical calculation from the proof offered at trial. Daigle v. United States Fidelity and Guaranty Insurance, 94-0304, p. 15 (La.App. 1 Cir. 05/05/95), 655 So.2d 431, 441. Nonetheless, in light of the evidence submitted regarding Mr. Travis’s injuries and ability to work, it cannot be said that the jury’s award for past lost wages was in error or that the amount awarded was clearly erroneous.

There was conflicting testimony at trial whether Mr. Travis’s girlfriend ever stated that he had been working “less and less” due to his underlying liver disease prior to the vibrio infection; nevertheless, it was established at trial that work as a boilermaker was varied and seasonal. Therefore, in light of the conflicting testimony and logical alternative basis for Mr. Travis’s month of unemployment, it cannot be said that the jury clearly erred in concluding Mr. Travis would have continued employment as a boilermaker but for DHH’s breach. It was also uncontested that after the vibrio infection, Mr. Travis could no longer continue working as a boilermaker due to his orthopedic limitations. DHH did present evidence that a Functional Capacity Examination conducted by an occupational therapist in late January 2008 cleared Mr. Travis for “light physical demand” work despite his orthopedic limitations. Further, a vocational rehabilitation counselor cleared Mr. Travis for employment as a teacher (Mr. Travis | ^required two classes to become a certified teacher), and testified that Mr. Travis could have been employed as such had - he ever attempted to do so. DHH’s economist testified that Mr. Travis could have begun working as a teacher in January of 2009, and would have earned $41,640.00 annually in that capacity. DHH argues on appeal that this figure must be subtracted from the total award for past lost wages.

It is clear from the lack of a jury award for future lost wages that the jury concluded that Mr. Travis could have begun working at some point before trial and with an earning potential that was at least as high as before the vibrio insult. The jury was presented with evidence that placed Mr. Travis’s annual wages before this injuring event between $25,775.00 and $42,307.00. Accepting the earliest argued date of Mr. Travis’s potential employment, January 1, 2009, Mr. Travis would have suffered lost wages for 4.63 years from the initial date of injury (May 15, 2004 — January 1, 2009). Considering a wage-loss period of 4.63 years, the jury’s past lost wages award of $140,000.00 would amount to an award of $30,237.58 per year, a figure well within the range of potential income for Mr. Travis. Thus, the jury’s award for Mr. Travis’s past lost wages is not erroneous.

Likewise, Mr. Travis argues on appeal that the lack of a jury award for future lost wages was incongruous with the testimony and the jury’s finding of a permanent injury. This argument is also without merit. Although the loss of future wages encompasses the “loss of a plaintiffs earning potential — the loss or reduction of a person’s capability to do that for which he is equipped by nature, training and experience, and for which he may receive recompense,” Smith v. Porche Bros. Lumber and Supply, Inc., 491 So.2d 412, 415 (La.App. 1 Cir.1986), it was established at trial that Mr. Travis had a college degree in education and could have found 117employment as a teacher, in spite of his orthopedic limitations. DHH’s economist placed Mr. Travis’s future earning potential as a teacher at $41,640.00 annually. As previously noted, the jury could have reasonably determined that Mr. Travis’s earning potential as a teacher was equal to or higher than the annual salary Mr. Travis earned prior to his injury as a boilermaker, making an award for future lost wages inappropriate. This determination by the trier of fact cannot be said to be clearly erroneous.

General Damages

Mr. Travis’s next assignment of error is that the lack of jury awards for loss of enjoyment of life, future physical pain and suffering, or future mental anguish is incongruous with the finding of permanent injury in light of the circumstances, and was thus an abuse of the jury’s discretion. Unlike special damages, these challenged awards are general damages, which cannot be determined with pecuniary exactitude. See Duncan v. Kansas City Southern Railway Co., 00-0066, p. 13 (La.10/30/00), 773 So.2d 670, 682; see also, Youn, 623 So.2d at 1261. Mindful of the deferential standard of review this court is obliged to follow, it cannot be said that the jury’s general damage award was an abuse of its discretion.

When assessing damages, “much discretion must be left to the judge or jury.” La. C.C. art. 2324.1. Due to the innate inexactitude of general damages in particular, the role of the appellate court in reviewing these awards is limited. The court should not decide what it believes is an appropriate award, but rather should review the discretion of the trier of fact in accordance with the circumstances of the case. Youn, 623 So.2d at 1260 (La.1993). The discretion vested in the trier of fact to set general damage amounts is “great, and even vast,” so an appellate court should rarely change such awards. Id. at 1261. Only if an award is beyond what any reasonable | ^person could have assessed for the injury suffered in light of the evidence may an appellate court disturb a jury award for general damages. Id. In addition, only after determining that the fact finder abused its great discretion may an appellate court consider awards in similar cases, and even then may only do so for the purpose of determining the highest or lowest figures within the fact finder’s discretion. Howard v. Union Carbide Corp., 09-2750, pp. 5-6, 50 So.3d 1251, 1256 (La.10/19/10) (citing Coco v. Winston Indus. Inc., 341 So.2d 332 (La.1976)).

Notably, a cursory examination of personal injury cases reveals that general damage itemization varies. Courts may combine or separate physical and mental pain and suffering, combine or separate past and future pain and suffering, reflect permanent injuries as permanent disability or impairment or disfigurement, or reflect mental anguish as mental pain and suffering or mental suffering and emotional distress. See e.g., McGee v. AC And S, Inc. 05-1036 (La.07/10/06), 933 So.2d 770; Matos v. Clarendon Nat. Ins. Co., 00-2814 (La.App. 1 Cir. 02/15/02), 808 So.2d 841; Rickerson v. Fireman’s Fund Ins. Co., 543 So.2d 519 (La.App. 1 Cir.1989). In reviewing an attack on a general damage award, the entire damage award is reviewed for an abuse of discretion, and if the total general damage award is not abusively low, it may not be disturbed. Graham v. Offshore Specialty Fabricators, Inc., 09-0117 (La.App. 1 Cir. 1/8/10), 37 So.3d 1002, 101; Smith v. Goetzman, 97-0968 (La.App. 1 Cir. 9/25/98), 720 So.2d 39, 48.

At trial, the judge correctly and fully informed the jury of their broad discretion in awards for general damages and authorized them to consider past and future pain and suffering, inconvenience, mental distress, and loss of enjoyment of life. On appeal, Mr. Travis challenges the lack of a jury award for loss of enjoyment of life. Louisiana courts have held that La. C.C. art. 2315 allows a victim to be compensated for damages caused by the delictual act of another, including damages for one’s loss of enjoyment of life. McGee, 05-1036 at p. 4, 933 So.2d at 774; In re Medical Review Panel on Behalf of Laurent, 94-1661, p. 13 (La.App. 1 Cir. 06/23/95), 657 So.2d 713, 722.

Loss of enjoyment of life refers to the detrimental alterations of a person’s life or lifestyle or a person’s inability to participate in the activities or pleasures of life he enjoyed prior to the injury. McGee, 05-1036 at p. 5, 933 So.2d at 775 (La.07/10/06). The Louisiana Supreme Court has further explained that “whether or not a plaintiff experiences a detrimental lifestyle change depends on both the nature and severity of the injury and the lifestyle of the plaintiff prior to the injury.” McGee, 05-1036 at p. 5, 933 So.2d at 775. Only if detrimental changes in a victim’s lifestyle (comparative to before the injuring event) would otherwise go uncompensated by other general damage awards is a separate award for loss of enjoyment of life warranted. See Id. 05-1036 at pp. 6-7, 933 So.2d at 775-76.

Mr. Travis cites Fontana v. Newman, 11-1793 (La.App. 1 Cir. 05/22/2012), 2012 WL 1856969, in support of his argument that the lack of a jury award for loss of enjoyment of life is an abuse of discretion in light of an award for permanent injuries when testimony indicates a victim suffers from ongoing problems. However, his reliance on Fontana is inappropriate, as the cases are factually distinguishable. In the instant case, the jury could have reasonably concluded that Mr. Travis’s leg injuries and the subsequent long term care for those leg injuries were caused by DHH’s breach, but that his organ transplants and related care were not. With respect to the limitations caused by his leg injuries, Mr. Travis testified that the problems he suffered with his legs were ongoing, that he suffered continued swelling |2nin his legs, and that to relieve his symptoms he elevated his legs when given the opportunity. Additionally, it was uncontroverted that Mr. Travis could no longer work as a boilermaker due to his leg injuries and the physical requirements of this career. Finally, Mr. Travis’s treating physician testified that he could never fully recover from the leg injuries.

Testimony was also presented which indicated Mr. Travis was becoming progressively more fatigued prior to the vibrio insult, and medical testimony confirmed that NASH could affect a person’s stamina and abilities adversely through such fatigue. Further, in spite of his leg injuries and resulting limitations, Mr. Travis has continued to coach football, attend baseball games, and is even able to go deer hunting, although he can no longer use climbing stands. Although he was a college athlete years before the vibrio insult, and despite testifying that he was a sporadic jogger before the incident, the jury could have reasonably concluded in light of his questioned lifestyle before the injury, his ability after the injury to continue doing many of the activities he previously enjoyed, and even his clearance for “light exertional work,” that Mr. Travis did not suffer the sort of detrimental lifestyle change which could not be fairly compensated via another compensable identity of general damages.

Mr. Travis further argues that the jury abused its discretion by failing to award him any amount for future pain and suffering or future mental anguish. Mr. Travis was awarded $60,000.00 for past physical pain and suffering and $35,000.00 for past mental anguish, seemingly as compensation for Mr. Travis’s severe initial septic shock, resultant blistering in his legs, skin graft surgeries, hospitalization, requisite wound care, and other leg problems. The jury’s decision not to award Mr. Travis any damages for future physical pain and suffering or mental anguish is not an |21 abuse of discretion in consideration with the other awards and apparent findings of the jury.

In Louisiana, physical and mental pain and suffering and mental anguish are two compensable identities of general damages that refer to the “pain, discomfort, inconvenience, anguish, and emotional trauma that accompanies an injury.” McGee, 05-1036 at p. 5, 933 So.2d at 775. However, in this case, the jury could have reasonably concluded that Mr. Travis’s organ transplants were unrelated to DHH’s breach. Therefore, the unchallenged testimony showing Mr. Travis required and would require future ongoing monitoring and medical care for his organs, including blood work, laboratory evaluations, and clinic follow-ups were not grounds for an award for future discomfort or inconvenience. Similarly, although Mr. Travis may suffer with continued difficulties resulting from his transplant medicines, diarrhea, and upset stomach, the jury could have reasonably found these problems unrelated to DHH’s breach and thus rightly refused compensation for same.

Despite Mr. Travis’s testimony that he continued to have pain and swelling in his legs, the jury could have reasonably concluded that his unquestionably severe leg injuries and resulting treatments merited compensation via an award for pain and suffering while, going forward, his permanent injuries and limitations could be fairly compensated via an appropriate award for permanent injuries. This finding was well supported by various testimony, including that of Mr. Travis’s girlfriend, treating physician, and friend, and was not an abuse of the jury’s broad discretion.

The evidence indicated that Mr. Travis suffered limitations including orthopedic-related leg weakness, and an inability to climb, jump, jog, or walk as well as before. When considering these circumstances, the jury |22Could have reasonably concluded these limitations were best qualified as “permanent injuries,” and thus prospectively compensated Mr. Travis in the amount of $100,000.00. In total, Mr. Travis received $195,000.00 in general damages. We find these figures are not so disproportionate as to require revision.

Improper Reduction of Damage Awards

Finally, Mr. Travis alleges that the jury erred in improperly reducing the damage awards by Mr. Travis’s comparative fault, resulting in a “double reduction.” Mr. Travis offers no explanation for his assertion that the jury reduced the damage awards by Mr. Travis’s percentage of fault; the amounts of the damage awards are round numbers and do not appear to have been reduced by 27%. Mr. Travis’s argument on appeal Is simply that the jury instruction given on comparative fault, as well as the special verdict form, confused the jury into reducing the amount of Mr. Travis’s damage awards by his percentage of fault.

An objection to the court’s failure to give a particular jury charge or interrogatory must be made before the jury retires to deliberate. La. C.C.P. arts. 1793 and 1812. Failure to object timely constitutes a waiver of that objection, and an appellant may not raise the issue for the first time on appeal. Wiggins v. Exxon Corp., 590 So.2d 1209, 1210 (La.App. 1 Cir.1991). Our review of the record, including the transcript of the jury charge conference where the instruction and interrogatory were discussed in detail, shows plaintiff made no objection to the now complained-of jury instructions or interrogatories. Thus, the issue may not be raised on appeal. This assignment of error is without merit.

| ^CONCLUSION

For the reasons set forth herein, the trial court judgment is affirmed. Costs of this appeal, in the amount of $14,899.50, are to be borne equally by the parties.

AFFIRMED.

GUIDRY, J., concurs.

      . Vibrio vulnificus is a marine bacteria that is not dangerous to people in good health but can cause life-threatening illness in people with certain health conditions.

      . At the close of the evidence, or at such earlier time as the court reasonably directs, a party may file written requests that the court instruct the jury on the law as set forth in the requests. La. C.C.P. art. 1793(A).


source: Caselaw Access Project

author: DANIEL L. DYSART, Judge. LOB RANO, J.,

license: Public Domain

text:
    Jeffery Mark GARRETT v. ADCOCK CONSTRUCTION CO.
    No. 2013-CA-0134.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 14, 2013.

      Scott Patrick Shea, New Orleans, LA, for Appellant.
    Al J. Robert, Jr., Law Office of Al J. Robert, Jr., LLC, New Orleans, LA, for Appellee.
    (Court composed of Judge DANIEL L. DYSART, Judge JOY COSSICH LOBRANO, Judge SANDRA CABRINA JENKINS).
   DANIEL L. DYSART, Judge.

|,In this appeal, Jeffrey Garrett seeks review of the summary judgment granted on behalf of Adcock Construction Company (Adcock). For the following reasons, we affirm.

FACTUAL BACKGROUND:

Plaintiff filed a disputed claim for compensation with the Office of Workers’ Compensation alleging that he sustained an injury while working at the Astor Crowne Plaza Hotel (Hotel). He listed both the general contractor, Adcock, and the hotel owner, Prism Hotels & Resorts (Owner), as his employers.

Plaintiff, the owner of J & C Furniture Specialists, Inc. (J & C), entered into a contract on July 15, 2008, with Lisambiance Design, the interior decorating firm hired for the renovation job, to refinish armoires in the guest rooms. The contract between J & C and Lisambiance Design provided that the contract was for the first payment only, and that the contract would be assigned to Adcock after Adcock signed a contract with the owner of the Hotel.

On July 21, 2008, Adcock entered into an agreement with the Owner to renovate the Hotel. Michael Adcock, owner of Adcock, testified by affidavit that he has performed hotel renovations across the United States for twenty-five years. J^This was the first time that any furniture in a hotel was being restored rather than replaced outright. Adcock testified his company had never restored furniture before and that restoring furniture is not part of its business or necessary to the company’s ability to generate work. Adcock did not exercise control or approval over plaintiff, except to provide a room for him to perform refinishing work. No tools or materials were provided by Adcock. Adcock noted that Lisa Condon of Lisambiance Design, recommended J & C for the refinishing job, and that J & C was hired as the refinisher of the armoires prior to Adcock signing its contract to renovate the Hotel. However, the contract between Adcock and the Owner provided that Adcock would “manage the modifications and refinishing of the existing armoires.”

The renovations were performed floor by floor. On each floor, a room was designated for plaintiff to refinish the armoires. Because plaintiff utilized chemicals to refinish the armoires, the rooms required ventilation. However, because the windows in the Hotel were not operational, a window in each room in which plaintiff worked was broken. During the course of the renovations to the Hotel, plaintiff broke a window to provide ventilation and suffered a laceration, which required several surgeries.

In his affidavit in support of the opposition to the summary judgment, plaintiff testified that he initially dealt with Lisam-biance Design, but he was informed in writing that his contract with Lisambiance Design had been assigned to Adcock. Plaintiff stated that he reported to and billed all invoices to Adcock |-¡during the Hotel renovation. Plaintiff claimed that all of his personal dealings were with Mr. Adcock or Adcock employees. Plaintiff attested that there were no written contracts between him and Lisambiance Design or between him and Adcock Construction. Plaintiff explained that Adcock employees assisted him in preparing his work site, including breaking windows and moving the armoires, and that Adcock provided dumpsters for use by J & C.

Adcock filed a motion for summary judgment arguing that Mr. Garrett was not its employee and not entitled to recovery under the Workers’ Compensation Act. Plaintiff opposed the motion, arguing that he was an employee at the time of the accident. Alternatively, plaintiff submitted that he was a borrowed employee, a statutory employee, or an independent contractor engaged in manual labor. Thus, plaintiff concluded that he was entitled to recovery under the Act. After a hearing and a consideration of the record, the Office of Workers’ Compensation determined that Adcock lacked control over J & C and granted the motion for summary judgment filed by Adcock. Mr. Garrett’s timely appeal followed.

STANDARD OF REVIEW:

This Court has consistently noted that the standard of review on a motion for summary judgment is as follows:

Favored in Louisiana, the summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action’ and shall be construed to accomplish these ends. An appellate court ■ reviews a district court’s decision granting summary judgment de novo, using the same standard applied by the trial court in deciding the motion for summary judgment. Under this standard, summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the Laffidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.

Steinfelds v. Villarubia, 10-0975, p. 4 (La.App. 4 Cir. 12/15/10), 53 So.3d 1275, 1278-1279, quoting Lingoni v. Hibernia Nat’l Bank, 09-0737, pp. 4-5 (La.App. 4 Cir. 3/3/10), 33.So.3d 372, 375.

DISCUSSION:

Plaintiff argues that the contract between Adcock and the Owner provided that Adcock, would manage the refinishing of the armoires and,. therefore, the language of the contract created a factual issue as to whether Adcock had control over him. This issue of fact precluded the granting of summary judgment. He notes that the trial court determined that Ad-cock lacked control over plaintiff without testimony. Alternatively, plaintiff argues that he is entitled to workers’ compensation benefits as a borrowed servant or an independent contractor engaged in manual labor.

Generally, an employee’s exclusive remedy against his employer for an on-the-job injury is workers’ compensation. La. R.S. 23:1032. “A person rendering service for another in any trades, businesses or occupations covered by. this Chapter is presumed to be an employee under this Chapter.” La. R.S. 23:1044.

The statutory presumption contained in La. R.S. 23:1044 is based on the employer/employee relationship, “the essence of [which] is the right to control.” Hillman v. Comm-Care, Inc., 01-1140, p. 8 (La.1/15/02), 805 So.2d 1157, 1162. Four factors evidencing the right to control are: 1) selection and engagement; 2) payment of wages; 3) power of dismissal; and, 4) power of control. Id. No one factor dominates. Instead, the totality of the circumstances must be considered. | ¡¡Further, the burden of proof is on the party seeking to establish an employer/employee relationship. Id., 01-1140, p. 9, 805 So.2d at 1163.

In reviewing the factors evidencing the right to control, we note that the only written document evidencing the selection and engagement of J & C is the contract between J & C and Lisambiance Design dated July 15, 2008. Adcock entered into a contract with the Owner on July 21, 2008, after the signing of the contract between J & C and Lisambiance Design. Thus, Adcock did not select and hire J & C.

Adcock paid the invoices submitted by J & C for the work performed by plaintiff, then received reimbursement, without any mark-up for administration (as is the industry custom), from the Owner. There is no evidence that Adcock paid wages directly to plaintiff.

There is no evidence that Adcock possessed the power to dismiss plaintiff. Indeed, in an affidavit filed in opposition to the Owner’s motion for summary judgment, plaintiff stated that he worked directly with and reported directly to George Seager, a Prism Hotel employee. In the affidavit submitted in opposition to the motion for summary judgment filed by Adcock, plaintiff stated that he answered directly to Mr. Adcock. “An inconsistent affidavit offered only after the motion for summary judgment [is] filed is not sufficient to create a genuine issue of material fact where no justification for the inconsistency is offered.” Bourgeois v. Curry, 05-0211, p. 12 (La.App. 4 Cir. 12/14/05), 921 So.2d 1001, 1009-1010, quoting Douglas v. Hillhaven Rest Home, Inc., 97-0596 (La. App. 1 Cir. 4/8/98), 709 So.2d 1079, 1083. Plaintiff has offered no justification for the inconsistency posed by his conflicting affidavits. Thus, the inconsistent affidavit is not sufficient to create a genuine issue of material fact.

| ^Lastly, Mr. Adcock testified that he did not have the right to exercise control or approve plaintiffs work. Mr. Adcock stated that his company merely provided plaintiff a room in which to do his work. Considering the totality of the circumstances, Adcock did not possess the right to control Mr. Garrett. Hence, there is no statutory presumption of an employer/employee relationship.

Alternatively, plaintiff argues he is entitled to receive workers’ compensation as he was a borrowed servant or an independent contractor engaged in manual labor at the time of his injury.

To determine whether an employee should be considered a borrowed servant, jurisprudence has established nine factors to be considered by the court, namely:

1. Who had control over the employee and the work he was performing beyond mere suggestion of details or cooperation?
2. Whose work was being performed?
3. Was there an agreement, understanding, or meeting of the minds between the original and the borrowing employer?
4. Did the employee acquiesce in the new work situation?
5. Did the original employer terminate his relationship with the employee?
6. Who furnished tools and place for performance?
R7. Was the new employment over a considerable length of time?
8. Who had the right to discharge the employee?
9. Who had the obligation to pay the employee?

Sanchez v. Harbor Const. Co., Inc., 07-0234, pp. 4-5 (La.App. 4 Cir. 10/3/07), 968 So.2d 783, 786, quoting Hall v. Equitable Shipyard, Inc., 95-1754, p. 4 (La.App. 4 Cir. 2/29/96), 670 So.2d 543, 545-546. We separately analyze each of these factors.

1. Control

This factor addresses who directly supervises the employee while the work is being performed. Sanchez, 2007-0284, p. 5, 968 So.2d at 786.

Plaintiff submits that Adcock controlled the renovation project. In his brief, he contends that Adcock paid him, furnished him with supplies and manpower, and coordinated all of the work he performed. However, as noted earlier, plaintiff attested that he worked directly with and reported to George Seager, a Prism Hotel employee. When faced with the instant motion for summary judgment filed by Adcock, plaintiff stated in his affidavit that he answered directly to Mr. Adcock.

Plaintiffs affidavit does not state that Adcock furnished him with supplies, only that Adcock supplied him with use of a dumpster. The record supports that Ad-cock paid invoices submitted by J & C; it did not pay plaintiff directly. The coordination of the work to be performed by plaintiff consisted of providing him with a room to perform refinishing, and moving the refinished armoires back to the guest rooms. This, along with Adcock supplying plaintiff a dumpster, speaks to cooperation, not control of the method and means by which plaintiff performed the refinishing. This factor does not support a finding of borrowed servant status.

2.Whose work

|sMr. Adcock testified that his company is in the business of renovating hotels, not refinishing furniture, and in over twenty-five years, he had never seen a hotel refinish furniture before this job. Plaintiff presented no evidence to refute the affidavit of Mr. Adcock. The work was being performed on the Hotel premises, for the benefit of the Hotel. This factor does not support a finding of borrowed servant status.

3. Agreement

As noted earlier, there was no written agreement between Adcock and J & C. The contract between Adcock and the Owner provided that Adcock would manage the modifications and refinishing of the existing armoires. J & C entered into a contract with Lisambiance Design. While the contract between J & C and Lisambiance Design stated that the contract would be assigned to Adcock, there is no evidence of an agreement, understanding, or meeting of the minds between the original employer, J & C, and the alleged borrowing employer, Adcock. The only factor that would suggest an agreement is that Adcock paid J & C’s invoices. However, because Adcock did not benefit from this arrangement, the factor has no bearing on borrowed servant status.

4. Did the employee acquiesce?

This factor evaluates whether the employee had time to assess the risks of his new work situation and was willing to accept those risks and the new work conditions. Foreman v. Danos & Curole Marine Contractors, Inc., 97-2038, p. 6 (La.App. 1 Cir. 9/25/98), 722 So.2d 1, 6. Plaintiff, as owner of J & C, was aware of the work risks and conditions before Adcock entered into the equation. He had signed the contract with Lisambiance Design pri- or to any arrangements being made with Adcock. We find this factor to be neutral.

|95. Did J & C terminate its relationship with plaintiff?

“This factor evaluates the lending employer’s relationship with the employee while the borrowing occurs.” Sanchez, 2007-0234, p. 7, 968 So.2d at 787, citing Foreman v. Danos and Curole Marine Contractors, Inc., 97-2038, p. 11 (La.App. 1 Cir. 9/25/98), 722 So.2d 1, 6. Clearly J & C, the contracting party, did not terminate its relationship with plaintiff, the owner of the company.

6. Who furnished the tools and place?

Plaintiff performed his work in a room designated by Adcock. However, other than a dumpster, there is no evidence that Adcock provided tools or materials that plaintiff used to perform the refinishing. This factor does not support a finding of borrowed servant status.

7. Length of time?

If the length of time the employee has worked for the borrowing employer is considerable, this factor is significant and supports a finding of borrowed servant status. Sanchez, 07-0234, p. 9, 968 So.2d at 788, citing Foreman, 97-2038, p. 7, 722 So.2d at 12.

It was estimated that the renovations took place over four months. “A short term employment will generally require a finding of neutrality as to this factor.” Sanchez, 2007-0234, p. 9, 968 So.2d at 788, citing Foreman, 97-2038, pp. 12-13, 722 So.2d at 7. We find this factor to be inapplicable to the facts of this case because there is no evidence that plaintiff did Ad-cock’s work. The work performed by plaintiff was not work performed as part of Adcock’s regular business.

|in8. Right to discharge?

This factor requires analyzing whether the borrowing employer had the authority to terminate the employee’s services with itself. Sanchez, 07-0234, p. 9, 968 So.2d at 788. In this instance, there is no evidence that Adcock possessed the authority to terminate plaintiffs services, factor does not support a finding of borrowed servant status. Thus, this

9. Obligation to pay?

Under this last factor, the focus is placed on who paid the employee. Sanchez, 07-0234, p. 10, 968 So.2d at 789. “When the borrowing employer pays the lending employer an hourly rate and the lending employer pays from that sum a lower rate to the borrowed employee, a finding of borrowed servant status is supported.” Sanchez, 07-0234, p. 9, 968 So.2d at 788. In this instance, the only evidence introduced regarding payment were invoices submitted to Adcock from J & C. After paying the invoices, Adcock in turn submitted those invoices to the Owner, and received reimbursement for the exact sums paid to J & C. This factor does not support a finding of borrowed servant status. Based on the above analysis, we find that Mr. Garrett did not obtain borrowed servant status.

Next, Mr. Garrett argues that he was an independent contractor performing manual labor. Generally, independent contractors are excluded from workers’ compensation. Under the Workers’ Compensation Act:

“Independent contractor” means any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or as a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished, and are expressly excluded from the provisions of this Chapter unless a substantial part of the work time of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter.

1 uha. R.S. 23:1021(7).

For an independent contractor to be covered under the “manual labor exception”, “he must show that a substantial part of his work time is spent in manual labor in carrying out the terms of his contract with the principal and the work performed by him is part of the principal’s trade, business or occupation.” Steinfelds v. Villarubia, 10-0975, p. 9 (La.App. 4 Cir. 12/15/10), 53 So.3d 1275, 1281, citing Lushute v. Diesi, 354 So.2d 179, 182 (La.1977). “Moreover, the jurisprudence has uniformly defined manual labor’ as work where the ‘physical’ element predominates over the ‘mental’ element.” Id., citing Riles v. Truitt Jones Constr., 94-1224, p. 10 (La.1/17/95), 648 So.2d 1296, 1300.

In this case, plaintiffs work as a furniture refinisher was physical in nature. In his affidavit, plaintiff stated that he considered his work to be a skilled trade that included manual labor. However, the question remains whether the work performed by plaintiff was part of Adcock’s trade, business, or occupation.

“Work shall be considered part of the principal’s trade, business, or occupation if it is an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.” La. R.S. 23:1061(A)(1). Stated another way, “[t]he test is whether the person’s services were a substantial, essential and recurring part of the defendant’s regular business. Steinfelds, 10-0975, p. 12, 53 So.3d at 1283, quoting Ross v. Oak Manor Farms, 96-1070, p. 6 (La.App. 5 Cir. 9/17/97), 700 So.2d 906, 908-909.

Mr. Adcock stated that Adcock was in the business of performing hotel renovations, and that in twenty-five years, no hotel had ever requested that furniture be refinished rather than replaced entirely. He further stated that his | ^company was not in the business of refinishing furniture, and was therefore not an integral or essential part of his business.

Plaintiff argued that Adcock was to renovate the hotel, including refinishing the armoires. Thus, refinishing furniture was a part of Adcock’s business.

There is no evidence in the record before us that refinishing furniture was a substantial, essential, and recurring part of Adcock’s regular business. The contract between Adcock and the Owner provided that Adcock would manage the work being done by the refinisher, not that Adcock would actually perform the work. Therefore, we find plaintiff is not an independent contractor entitled to workers’ compensation coverage as an independent contractor performing manual labor.

Lastly, plaintiff argues that he was not provided adequate time to conduct discovery. While Adcock filed its motion for summary judgment on October 17, 2010, a stay was in effect at the time, so the motion was not set for hearing. However, the January 14, 2011 stay order did not prohibit the parties from conducting discovery. It merely stayed proceedings against third-party defendant, D. Earls Company, during the pendency of D. Earls Company’s application for supervisory writ.

On June 6, 2012, the OWC issued a notice that a hearing would be held on Adcock’s motion for summary judgment on August 17, 2012. On August 10, 2012, counsel for plaintiff filed a motion to continue the August 17, 2012 hearing due to a conflict with a previously scheduled hearing. The motion to continue contains no mention of the need to conduct discovery. The OWC continued the hearing until September 14, 2012. At no time did plaintiff ask for additional time to conduct discovery.

| ^Regardless, there is no requirement that discovery be completed prior to a hearing on a motion for summary judgment. Bourgeois, 05-0211, p. 10, 921 So.2d at 1008. Indeed, a defendant may file a motion for summary judgment at any time. La. C.C.P. art. 966(A)(1). There is no evidence that Adcock prevented discovery from being conducted in some manner. Any need to conduct discovery should have been mentioned in a motion to the OWC. Bourgeois, 05-0211, p. 10, 921 So.2d at 1008.

Accordingly, our de novo review finds that there is no genuine issue of material fact and that Adcock is entitled to summary judgment as a matter of law. We affirm the decision of the OWC granting Adcock’s motion for summary judgment against plaintiff.

AFFIRMED.

LOB RANO, J., Dissents with Reasons.

LOB RANO, J.,

Dissents with reasons.

I respectfully dissent from the majority’s decision affirming the OWC’s granting of summary judgment in favor of Adcock Construction Company. I find that genuine issues of material fact remain.

      .We note that the record does not support this statement. Rather, the record indicates that plaintiff signed a contract with Lisambiance Design, which stated that the contract would be assigned to Adcock once Adcock signed its contract with the Owner. There is nothing in writing in the record indicating that this was done; however, Adcock did pay plaintiff's invoices and was reimbursed by the Owner.

      . Clearly, this statement is contradictory to his previous statement concerning contracts.

      . Previously, both Prism Hotel and Resorts and Canal New Orleans Hotel, L.L.C. were dismissed from the suit via motions for summary judgment.

      . La. R.S. 23:1031(0 provides that:
      In the case of any employee for whose injury or death payments are due and who is, at the time of the injury, employed by a borrowing employer in this Section referred to as a "special employer”, and is under the control and direction of the special employer in the performance of the work, both the special employer and the immediate employer, referred to in this Section as a "general employer”, shall be liable jointly and in solido to pay benefits as provided under this Chapter. As between the special and general employers, each shall have the right to seek contribution from the other for any payments made on behalf of the employee unless there is a contract between them expressing a different method of sharing the liability. Where compensation is claimed from, or proceedings are taken against, the special employer, then, in the application of this Chapter, reference to the special employer shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the general employer by whom he is immediately employed. The special and the general employers shall be entitled to the exclusive remedy protections provided in R.S. 23:1032.


author: MADELEINE M. LANDRIEU, Judge.

text:
    Bonnetta Barberot DIECIDUE v. Jack A. TITTLE, Jr., William P. Tittle and ABC Insurance Company.
    No. 2012-CA-0903.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 14, 2013.
    Jacques F. Bezou, Jacques F. Bezou, Jr., The Bezou Law Firm, Covington, LA, for Plaintiff/Appellee.

      Michael A. McNulty, Jr., John A. Hollis-ter, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge PAUL A. BONIN, Judge MADELEINE M. LANDRIEU, Judge SANDRA CABRINA JENKINS).
   MADELEINE M. LANDRIEU, Judge.

[iThe defendant, Mr. Jack Tittle, appeals the trial court’s granting of Mrs. Barbara Diecidue’s motion for partial summary judgment on the issue of Mr. Tittle’s liability for legal malpractice. For the reasons that follow, we dismiss the appeal for lack of jurisdiction.

FACTS AND PROCEEDINGS BELOW

The plaintiffs husband, Mr. Ladner “Pat” Barberot, died on April 5, 2007. During his lifetime, Mr. Barberot executed at least three wills, all of which were drafted by Mr. Tittle and were executed by Mr. Barberot in the presence of Mr. Tittle. In each will, Mrs. Diecidue is named the executrix of the estate.

After Mr. Barberot’s death, Mrs. Dieci-due attempted to probate the latest of these testaments, dated February 7, 2007, in the 22nd Judicial District Court in St. Tammany Parish. On June 16, 2009, Mr. Barberot’s son by a prior marriage, Bryan Barberot, filed a petition to annul the testament. Mrs. Diecidue filed a motion for summary judgment in the St. Tammany Parish proceeding seeking to dismiss Mr. Barberot’s petition to annul. On June 15, 2010, the trial judge denied Mrs. Dieci-due’s motion for summary judgment, finding that the will was an | {.absolute nullity pursuant to Louisiana Civil Code article 1578 due to fatal defects in form and execution. Mrs. Diecidue did not seek review of this judgment. Rather, she filed for probate of an earlier will, one executed by Mr. Barberot in 2001, in the 22nd Judicial District Court. This 2001 will and the February 7, 2007 will are substantially the same except for the disposition of Mr. Barberot’s ownership of the Jefferson Orleans North, a venue for wedding receptions and other similar events.

On October 21, 2009, Mrs. Diecidue filed the instant legal malpractice action against Mr. Tittle in Orleans Parish Civil District Court alleging that he was negligent in his preparation and the execution of the February 7, 2007 will and that this negligence caused her damages. She contends in her lawsuit that her damages are the difference between what she would have received under the February 7, 2007 will and that which she will ultimately receive pursuant to the 2001 will in the succession proceeding pending in St. Tammany Parish.

In the malpractice action, Mr. Tittle filed an exception of peremption claiming that Mrs. Diecidue instituted her lawsuit more than one year after she knew or should have known that the February 7, 2007 will was invalid. Mrs. Diecidue filed an opposition to this motion and filed a motion for partial summary judgment on the issue of liability. These matters both came for hearing on the same day before the trial court. After the hearing the trial judge denied the exception of peremption. The court then granted the motion for partial summary judgment, finding that no material issue of fact existed as to Mr. Tittle’s liability for legal malpractice in connection with the drafting of the February 7, 2007 will.

|3Mr. Tittle filed both a writ application and the instant appeal seeking review of the granting of the motion for partial summary judgment. He did not raise the trial court’s denial of his exception of peremption as an issue on appeal. However, on January 7, 2013, Mr. Tittle filed an exception of peremption directly with this court, contending that the exception can be raised at any stage of the proceedings, including the appellate level, pursuant to Louisiana Code of Civil Procedure article 2163.

JURISDICTION

Prior to considering the merits of the issues raised by Mr. Tittle, we must determine whether this court has jurisdiction to consider the appeal.

As previously stated, Mr. Tittle filed both an application for supervisory review and an appeal from the trial court’s granting of Mrs. Diecidue’s motion for partial summary judgment on the issue of liability. In denying the writ application on July 27, 2012, this court found that the trial court did not err in granting the plaintiffs motion for summary judgment.

This court generally considers an application for supervisory review only when the ruling of the lower court is not final. Thus, although not raised by the parties, we first consider whether the trial court’s judgment is final, as only final judgments are appealable. See La. C.C.P. art. 2083.

Louisiana Code of Civil Procedure article 1915(A) provides, in pertinent part:

14A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
⅜ * *
(3)Grants a motion for summary judgment, as provided by Articles 966 through 969, but not including a summary judgment granted pursuant to Article 966(E).
* ⅜ *
(5) Signs a judgment on the issue of liability when that issue has been tried separately by the court, or when, in a jury trial, the issue of liability has been tried before a jury and the issue of damages is to be tried before a different jury.

Here, the motion for partial summary judgment was granted as to the liability of Jack Tittle for legal malpractice pursuant to Louisiana Code of Civil Procedure article 966(E), leaving only the issue of damages to be tried. Therefore, by virtue of the literal language of Louisiana Code of Civil Procedure article 1915(A)(3), the judgment is not immediately appealable in the absence- of a designation of finality pursuant to art. 1915(B). In Crescent City Physicians, Inc. v. Desse, 2004-1280 (La.10/1/04), 883 So.2d 963, the Louisiana Supreme Court reversed this court and dismissed the appeal of a partial summary judgment on the issue of liability. In his concurrence, Chief Justice Calogero noted that La. C.C.P. art. 1915(A)(5) “is not applicable in this case because the issue of liability was not tried separately by the court...Instead, the trial court granted a partial summary judgment on the liability issue pursuant to ... art. 966(E).” Id. (Calogero, C.J., concurring).

1 ¿Accordingly, we find that absent a designation of finality pursuant to Louisiana Code of Civil Procedure 1915(B), the partial summary judgment rendered by the trial court on the issue of liability is not appealable. Because we lack jurisdiction, we dismiss the instant appeal.

CONCLUSION

For the reasons stated, the appeal is dismissed.

APPEAL DISMISSED.

      . In the 2007 will, Mr. Barberot bequeaths a 25% interest in the sale of the stock or the assets of the Jefferson Orleans North to Mrs. Diecidue; in the 2001 will, he does not bequeath any interest in this asset to Mrs. Dieci-due.

      . See Diecidue v. Tittle, 2012-0474 (La.App. 4 Cir. 7/27/12) (unpub). We note that "our denial of a writ application, regardless of the reasons assigned for the denial, has no prece-dential value and is a mere statement that the court is declining to review the issues addressed at that time. The relator-in-writ may again raise the issue on appeal." State v. Davis, 2009-0438, p. 19 (La.App. 4 Cir. 1/13/10), 30 So.3d 201, 211; see also: State v. Williams, 00-1725, p. 4 n. 3 (La. 11/28/01), 800 So.2d 790, 795; St. Tammany Manor, Inc. v. Spartan Building Corp., 509 So.2d 424, 428 (La.1987).

      . Because we lack appellate jurisdiction, we also lack authority to consider the exception of peremption.


author: MADELEINE M. LANDRIEU, Judge. TOBIAS, J.,

text:
    INSULATION TECHNOLOGIES, INC. v. INDUSTRIAL LABOR AND EQUIPMENT SERVICES, INC.
    No. 2013-CA-0194.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 14, 2013.

      Daniel Aubry Ranson, Michael Don Pey-tavin, Gaudry, Ranson, Higgins & Gremil-lion, L.L.C., Gretna, LA, for Plaintiff'Appellant.
    Shannon Skelton Holtzman, Erin Lynn Delatte, Liskow & Lewis, APLC, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge MAX N. TOBIAS, JR, Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRANO).
   MADELEINE M. LANDRIEU, Judge.

| ,The plaintiff, Insulation Technologies, Inc. [“Insultech”], appeals the trial court’s dismissal of its amended petition based upon the granting of an exception of no cause of action raised by defendants B.P. America Production Company and B.P. Exploration and Production, Inc. [hereinafter collectively referred to as “B.P.”]. For the reasons that follow, we affirm.

FACTS AND PROCEEDINGS BELOW

Insultech instituted this action on April 19, 2011 by filing a “Petition for Breach of Contract and for Recovery of Amounts Due on Open Account” against defendant Industrial Labor and Equipment Services, Inc. [“ILES”]. The petition alleges that Insultech, as subcontractor, entered into a Master Service Agreement with ILES, as contractor, whereby Insultech agreed to supply certain labor, materials and equipment for use by ILES in performance of its duties under a Master Service Agreement ILES had entered into with BP regarding the BP Oil Response Project MC252 [“the BP oil spill cleanup project”]. According to the petition, the contract between Insultech and ILES required Insul-tech to submit | ¡Invoices for payment to ILES on the 15th and the last day of each month, with payment due 30 days from the issuance of the invoices. Any amount not paid by the due date was to bear interest at a rate of 1.5% per month from the due date until paid. According to the petition, the term of the agreement between Insul-tech and ILES was to run concurrently with the term of the BP oil spill cleanup project, including any renewals or extensions of the contract between BP and ILES. The petition further alleges that, starting in September of 2010, ILES ceased paying Insultech’s invoices, thereby breaching the contract and causing its premature termination. Insultech alleges that ILES owes it in excess of $2,550,000.00, for services provided under the contract.

On June 4, 2012, Insultech filed an amended petition against BP, the dismissal of which is the subject of the instant appeal. The amended petition alleges that BP refused to pay ILES for certain services it provided on the oil spill cleanup project because there was a cap on the maximum amount payable to ILES under its contract with BP. Insultech alleges that it was unaware of this cap. It further alleges that once the cap was exceeded, BP continued to request services from ILES, and ILES continued to provide those services, acquiring them from Insultech. Allegedly, BP stopped paying ILES after the cap was exceeded, at which point ILES stopped paying Insultech. In its amended petition Insultech alleges that BP has been unjustly enriched at the expense of Insul-tech and prays for | <¡$2,550,000.00 in damages, plus penalties and interest pursuant to La. R.S. 9:2784. Additionally, Insul-tech alleges that BP is liable for abuse of rights because the cap in the BP-ILES contract is manifestly unjust, contrary to public policy, and unenforceable.

In response to the amended petition, BP raised an exception of failure to state a cause of action. On October 15, 2012 the trial judge heard counsels’ arguments on the exception and stated that he would take the matter under advisement to consider the allegations of the amended petition in view of the applicable law. On November 13, 2012, the trial court rendered written judgment granting the exception of no cause of action. In accompanying Reasons for Judgment, the trial court explained why he had concluded that the amended petition failed to state a cause of action against BP for unjust enrichment or abuse of rights. The trial court further stated that Insultech would not be afforded an opportunity to amend its petition because Insultech failed to demonstrate the existence of facts upon which it could base a valid cause of action against BP. The court therefore dismissed the claims against BP.

Insultech appeals the trial court’s judgment.

1 ¿ISSUES

Insultech admits that it has no contract with BP and therefore no direct contractual remedy against it. On appeal, Insultech argues that the trial court erred by: (1) finding that Insultech failed to state a cause of action for unjust enrichment; (2) finding that Insultech failed to state a cause of action for abuse of rights; and (3) dismissing the amended petition without affording Insultech an opportunity to amend.

STANDARD OF REVIEW

An appellate court reviews a ruling sustaining an exception of no cause of action under a de novo standard because the exception raises a question of law, and the trial court’s determination is based solely on the sufficiency of the petition. Badeaux v. Southwest Computer Bureau, Inc., 2005-0612, 0719, p. 7 (La.3/17/06), 929 So.2d 1211, 1217. An exception of no cause of action questions whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition. Id. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. La. C.C.P. art. 931. Therefore, the court, accepting the well-pleaded allegations of fact as true, must determine whether, on- the face of the petition, the plaintiff is legally entitled to the relief sought. Jackson v. State ex rel. Dep’t of Corr., 2000-2882, pp. a-4 (La.5/15/01), 785 So.2d 803, 806. A petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. Wallace C. Drennan, Inc. v. Sewerage & Water Bd. of New Orleans, 98-2423, p. 4 (La.App. 4 Cir. 9/22/99), 753 So.2d 861, 864.

DISCUSSION

We must determine, as did the trial court, whether the plaintiffs amended petition sets forth facts sufficient to state a cause of action against BP, and if not, whether Insultech must be afforded the opportunity to amend pursuant to Louisiana Code of Civil Procedure article 934. Because we find that the trial court’s well-written, thorough Reasons for Judgment present a correct application of the law to the facts alleged in the petition before us, we reach the same conclusions as did that court.

I. Unjust Enrichment

Insultech’s amended petition alleges that BP continued to order labor, materials and supplies from ILES although BP knew the contractual cap had been exceeded; that BP knew Insultech was providing some of the labor, supplies and materials as subcontractor; that BP nonetheless refused to pay ILES; and that ILES therefore refused to pay Insultech. Based upon these facts, the amended petition alleges that BP was unjustly, enriched and Insul-tech was correspondingly impoverished.

Louisiana Civil Code article 2298 provides, in pertinent part:

A person who has been enriched without cause at the expense of another person is bound to compensate that person. The term “without cause” is used in this context to exclude cases in which the enrichment results from a valid juridical act or the law. The remedy declared here is subsidiary and shall not be available if the law provides another remedy for the impoverishment or declares a contrary rule.

Ijn Baker v. Maclay Properties Co., 94-1529, pp. 18-19 (La.1/17/95), 648 So.2d 888, 897, the Louisiana Supreme Court stated that there are five elements required for a showing of unjust enrichment:

(1) there must be an enrichment;
(2) there must be an impoverishment;
(3) there must be a connection between the enrichment and resulting impoverishment;
(4) there must be an absence of “justification” or “cause” for the enrichment and the impoverishment; and
(5) there must be no other remedy at law available to the plaintiff.

To recover in an unjust enrichment action, the plaintiff must prove each of the five elements. See Fagot v. Parsons, 06-1528, pp. 4-5 (La.App. 4 Cir. 5/9/07), 958 So.2d 750, 752-53. Under Article 2298, the remedy of unjust enrichment is subsidiary in nature, and is “only applicable to fill a gap in the law where no express remedy is provided.” Walters v. MedSouth Record Management, LLC, 10-0353, p. 2 (La.6/4/10), 38 So.3d 243, 244 (quoting Mouton v. State, 525 So.2d 1136, 1142 (La.App. 1 Cir.1988)). Accordingly, in Fagot v. Parsons, supra, this court affirmed the dismissal of the plaintiffs petition on an exception of no cause of action because of the existence of alternative remedies against parties other than the defendant in the action.

In the case before us, the trial court correctly found that Insultech’s unjust enrichment allegations fail to state a cause of action against BP because Insultech [7has other available remedies, and thus cannot satisfy the fifth requirement listed by the Court in Baker, supra. On appeal, as it did in the trial court, Insultech argues that it has no other remedies at law because it has no contractual or other remedy against BP besides unjust enrichment. The trial court correctly rejected that argument, stating: “The pertinent question here is not whether Insultech has a remedy against BP, but whether it has any available remedies. Insultech clearly has available remedies against ILES.” Insultech has a contractual remedy against ILES. This lawsuit, in which ILES remains a defendant, is a means of pursuing that remedy. The existence of a contractual remedy against ILES for the compensation it owes to Insultech precludes Insul-tech from maintaining a cause of action in unjust enrichment against BP for the same damages.

Accordingly, we conclude the trial court did not err by finding that Insultech has failed to state a cause of action against BP for unjust enrichment.

II. Abuse of Rights

Insultech next argues that the trial court erred by finding that Insultech has failed to state a cause of action against BP for abuse of rights.

The abuse of rights doctrine, which has been invoked sparingly in Louisiana, is a civilian concept that applies only in limited circumstances because its application renders unenforceable one’s otherwise judicially protected rights. Lee v. Pennington, 2002-0381, pp. 7-8 (La.App. 4 Cir. 10/16/02), 830 So.2d 1037, 1043. The principle is essentially that “fault” in the delictual sense can be imposed upon a party who attempts to exercise a legal right with the primary |8intention of harming or imposing a detriment upon another. See Lambert v. Maryland Cas. Co., 403 So.2d 739, 755 (La.App. 4th Cir.1981). Therefore, a cause of action for abuse of rights does not exist unless two conditions are met: (1) there is no benefit to the person exercising the legal right; and (2) there is damage or injury to the person against whom the legal right is asserted. Id. at 757.

Insultech alleges in its amended petition that BP is liable for abuse of rights because the cap in the contract between BP and ILES is manifestly unjust, contrary to public policy, and unenforceable. We agree with the trial court that Insultech’s allegations fail to satisfy either of the two threshold requirements for the existence of an abuse of rights claim. First, it is not alleged that BP failed to benefit from imposing a cap on its payments to ILES under the contract, as such a cap obviously would benefit BP. Moreover, the cap is being imposed on ILES, not Insultech. Therefore, the allegation that Insultech was damaged by the imposition of a cap does not satisfy the second requirement, because Insultech is not the party against whom the right is being asserted. We therefore agree with the trial court that Insultech has failed to state a cause of action against BP for abuse of rights.

Accepting all allegations to be true, we conclude that Insultech’s amended petition presently fails to state a cause of action under any theory of law.

| flIII. Leave to Amend

Insultech argues that the trial court erred by refusing to grant it leave to amend in order to allege facts sufficient to state a cause of action against BP. Louisiana Code of Civil Procedure article 934 provides:

When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.

As this court has stated: “The right to amend [pursuant to La. C.C.P. art. 934] is not absolute. Amendment is not permitted when it would constitute a vain and useless act.” Smith v. State Farm Ins. Companies, 2003-1580, p. 6 (La.App. 4 Cir. 3/3/04), 869 So.2d 909, 913. The decision to allow amendment is within the trial court’s discretion and will not be disturbed absent manifest error. Fortier v. Hughes, 2009-0180, p. 5 (La.App. 4 Cir. 6/17/09), 15 So.3d 1185, 1188. In the present case, we recognize, as did the trial court, that the absence of a cause of action by Insultech against BP under the circumstances presented here is a legal conclusion and cannot be cured by a factual amendment. See Smith v. State Farm, supra. We therefore find that the trial court did not abuse its discretion by refusing to afford Insultech an opportunity to amend.

CONCLUSION

Accordingly, for the reasons stated, we affirm the judgment of the trial court.

AFFIRMED

TOBIAS, J., Concurs in Part and Dissents in Part.

TOBIAS, J.,

Concurs in Part and Dissents in Part.

hi concur in the majority conclusion that the appellant’s petition does not presently state a cause of action, I respectfully dissent from the majority’s decision to prohibit the appellant from amending his petition to assert an oblique action. La. C.C. 2044; Nicholson Management & Consultants, Inc. v. Bergman, 96-0557, 96-0558 (La.App. 4 Cir. 9/25/96), 681 So.2d 471. I cannot ascertain from the record before us that the appellant may not have such a cause of action. Therefore, I would remand to permit the appellant to amend and supplement.

      . Insultech additionally alleges in the petition that ILES committed a bad faith breach of the contract by informing Insultech’s employees that their services were being terminated and that they would no longer be allowed to work on the BP oil spill cleanup project unless they became employees of ILES. The petition seeks additional damages for this bad faith breach.

      . La. R.S. 9:2784 provides rules concerning payment by contractors to subcontractors and suppliers, and sets forth penalties for noncompliance with its provisions.

      . See La. C.C.P. art. 934, quoted infra.

      . Additionally, in order for the doctrine to be applied, one of the following factors must exist: (1) the predominant motive for the exercise of the right is to cause harm; (2) no legitimate motive exists for the exercise of the right; (3) the exercise of the right violates moral rules, good faith, or elementary fairness; or (4) the right is being exercised for some purpose other than that for which the right was granted. Lee, supra, p. 8, 830 So.2d at 1043.

      . Insultech would have no standing to assert that ILES was damaged.