text:
    Hervey J. MORVANT v. SHOP RITE, INC.
    No. 12-956.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 2013.
    Rehearing Denied March 27, 2013.

      H. Douglas Hunter, Guglielmo, Lopez, Tuttle, Hunter & Jarrell, Opelousas, LA, for Defendant/Appellant, Shop Rite, Inc.
    Michael Benny Miller, Miller <& Miller, Crowley, LA, for Plaintiff/Appellant, Her-vey J. Morvant.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   THIBODEAUX, Chief Judge.

_JjIn this workers’ compensation case, the employee and employer signed a Consent Judgment to resolve several underlying claims. Following numerous alleged violations of the Consent Judgment by Shop Rite, Hervey Morvant filed suit with the Office of Workers’ Compensation. After a trial on the merits, the Workers’ Compensation Judge (WCJ) found that Shop Rite committed several infractions. Namely, the WCJ assessed penalties for Shop Rite’s failure to approve epidural steroid injections and EMG/nerve conduction studies, and she assessed a penalty for Shop Rite’s underpayment of weekly compensation benefits and its failure to pay legal interest on those benefits. The WCJ also awarded $3,500.00 in attorney fees to Mr. Morvant. Both parties appeal the judgment, and Mr. Morvant seeks additional attorney fees for work done on this appeal. For the following reasons, we affirm the judgment as amended, and award $3,000.00 in attorney fees to Mr. Morvant’s attorney for work done on appeal.

I.

ISSUES

We will consider whether the trial court erred by:

(1) assessing a $2,000.00 penalty for Shop Rite’s failure to approve epidural steroid injections for Mr. Mor-vant;
(2) assessing a $3,000.00 penalty for Shop Rite’s failure to approve EMG/ nerve conduction studies;
(3) assessing a single $3,000.00 penalty for Shop Rite’s $1.00 underpayment of weekly compensation benefits and for its failure to pay legal interest on back due weekly compensation; and
(4) awarding Mr. Morvant’s counsel $3,500.00 in attorney fees.

_b.IL

FACTS AND PROCEDURAL HISTORY

Mr. Morvant was injured in the course and scope of his employment with Shop Rite in October 2008. He claimed injuries to his back, neck, right thumb, and shoulder. Litigation ensued. In the trial pleadings, several issues were raised, including Shop Rite’s failure to approve epidural steroid injections and EMG/nerve conduction studies. Shortly before trial began, however, the parties entered into a Consent Judgment that was later signed by the WCJ. The Consent Judgment reads as follows:

IT IS ORDERED, ADJUDGED AND DECREED that HERVEY MORVANT was injured in the course and scope of his employment with SHOP RITE on October 23, 2008; that as a result of his accident, HERVEY MORVANT is entitled to temporary total disability benefits in the amount of $272.67 per week beginning March 29, 2010 subject to a credit for all weekly compensation payments and all reasonable and necessary medical treatment.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that HER-VEY MORVANT is entitled to $6,000.00 in penalties, $8,450.00 in attorney fees and one additional week of comp in the amount of $272.67, which settles all penalties and attorney fees which may have been raised as of August 16, 2010.

In September 2011, Mr. Morvant filed a Motion for Penalties and Attorney Fees, claiming several infractions of the Consent Judgment. Mr. Morvant claimed that Shop Rite failed to properly pay in accordance with the judgment. He also claimed that Shop Rite erroneously denied authorization for epidural steroid injections and EMG/nerve conduction studies.

After a trial on the merits, the WCJ found in Mr. Morvant’s favor. Specifically, she assessed a $2,000.00 penalty pursuant to La.R.S. 23:1201(F) for Shop Rite’s failure to authorize epidural steroid injections for Mr. Morvant and a $3,000.00 penalty for Shop Rite’s failure to authorize EMG/ nerve conduction |sstudies of Mr. Mor-vant’s upper extremities. She also assessed a $3,000.00 penalty pursuant to La. R.S. 23:1201(G) for Shop Rite’s failure to pay legal interest on back due compensation and underpayment of $1.00 in sums due in the judgment. Finally, the WCJ awarded $3,500.00 in attorney fees to Mr. Morvant. Both parties appeal.

III.

LAW AND DISCUSSION

Standard of Review

The WCJ’s findings of fact are reviewed under the “manifest error” or “clearly wrong” standard. Dean v. Southmark Const., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117. We cannot disturb the WCJ’s findings of fact as long as they are reasonable and supported by the record. Id. The WCJ’s findings as to whether the claimant has met his burden of proof are factual and cannot be disturbed on review unless clearly wrong or manifestly erroneous. Stutes v. Koch Services, Inc., 94-782 (La.App. 3 Cir. 12/7/94), 649 So.2d 987, writ denied, 95-846 (La.5/5/95), 654 So.2d 335.

Failure to Approve Epidural Injections

Concluding that the epidural steroid injections were “reasonable and necessary treatment,” as outlined by the Consent Judgment, the WCJ awarded a $2,000.00 penalty for Shop Rite’s failure to approve the steroid injections. We agree that the epidural injections were a reasonable and necessary treatment covered by the Consent Judgment. Epidural steroid injections have become commonplace in treatment of injuries such as Mr. Mor-vant’s. To argue, as Shop Rite does, that even though the issue of steroid injections was discussed at trial, it must be specifically articulated in the Consent Judgment to be covered is legally Rtenuous at best. Listing all contemplated medical treatment in a judgment is unreasonable and cumbersome. We refuse to place that burden on the parties or on the trial courts.

We also find no merit in Shop Rite’s argument that imposition of penalties and attorney’s fees for failure to authorize these treatments is barred by res judicata. Reasonable and necessary medical treatment was contemplated by the Consent Judgment, and Shop Rite’s failure to authorize those treatments justifies the penalties for conduct occurring after the Consent Judgment.

Though we agree that Shop Rite should be penalized for its failure to authorize the epidural injections, we find error in the WCJ’s methodology in assessing the penalty. Specifically, the WCJ erroneously applied La.R.S. 23:1201(F), rather than La.R.S. 23:1201(G).

Louisiana Revised Statutes 23:1201(0 provides as follows:

If any award payable under the terms of a final, nonappealable judgment is not paid within thirty days after it becomes due, there shall be added to such award an amount equal to twenty-four percent thereof or one hundred dollars per day together with reasonable attorney fees, for each calendar day after thirty days it remains unpaid, whichever is greater, which shall be paid at the same time as, and in addition to, such award, unless such nonpayment results from conditions over which the employer had no control. No amount paid as a penalty under this Subsection shall be included in any formula utilized to establish premium rates for workers’ compensation insurance. The total one hundred dollar per calendar day penalty provided for in this Subsection shall not exceed three thousand dollars in the aggregate.

In Deshotel v. Carolyn’s Wholesale Bait & Tackle, 02-1148, p. 4 (La.App. 3 Cir. 3/5/03), 839 So.2d 1134, 1136, we stated:

Several circuits, including this one, have held that Consent Judgments fall within the final, nonappealable judgments governed by 23:1201(G). See Sanders v. Harrisonburg Nursing Home, 95-114 (La.App. 3 Cir. 5/31/95); 657 So.2d 394, writ denied, 95-1629 (La.10/6/95); 661 So.2d 469, Harrison v. Louisiana State Univ. Med. Ctr., 623 So.2d 707 (La.App. 4 Cir.1993), Geason v. Harmony Constr., 95-367 (La.App. 5 Cir. 11/15/95); 665 So.2d 485.

Because this Consent Judgment falls within the confines of La.R.S. 23:1201(G), we increase the penalty award from $2,000.00 to $3,000.00.

Award of Penalty for Failure to Authorize EMG/Nerve Conduction Studies

The WCJ further found that Mr. Morvant was entitled to a penalty in the amount of $3,000.00 for Shop Rite’s failure to approve the EMG/nerve conduction studies of Mr. Morvant’s upper extremities. These tests were ordered by Dr. Cobb in 2009 and again in 2010. In assessing a penalty, the WCJ reasoned that these treatments were not new, were not treatments for future medical issues, and were adequately covered by the Consent Judgment. We agree and affirm the portion of the WCJ’s judgment awarding a $3,000.00 penalty.

Award of Penalties for Underpayment and Failure to Pay Legal Interest

In its judgment, the WCJ awarded a single $3,000.00 penalty for Shop Rite’s $1.00 underpayment of weekly compensation benefits and for its failure to pay legal interest on back due weekly compensation. We find that the trial court erred in not assessing two separate penalties, and we discuss each penalty in turn.

(1) Underpayment of $1.00

In the Consent Judgment, Shop Rite was ordered to pay the amount of $272.67 for one week of compensation. The record indicates that by check dated September 3, 2010, Shop Rite paid Mr. Morvant $6,271.67. Of this amount, $6,000.00 represented payment of penalties made due under the terms of the judgment. The remaining sum, Shop Rite admits, should have been in the amount of $272.67, $1.00 more than the check’s amount. Shop Rite, however, argues in brief that because the Consent Judgment gives the employer a credit for all benefits paid to date, Shop Rite had overpaid; thus, no deficiency actually occurred. | ^Moreover, in oral argument, Shop Rite’s counsel argued that it was “just $1.00,” and Shop Rite, a judicious employer who always paid “on time,” should not be penalized so harshly. Shop Rite’s contentions both fail.

Shop Rite directs our attention to the pertinent section of the Consent Judgment which reads, “that as a result of his accident, HERVEY MORVANT is entitled to temporary total disability in the amount of $272.67 per week beginning March 29, 2010 subject to a credit for all weekly compensation payments.” Shop Rite argues that it paid weekly benefits in advance. Thus, Shop Rite contends, on the day the check for sums due under the judgment was issued, an overpayment of more than $1.00 existed. Shop Rite considers this sum a “credit” which should have been applied against the $1.00 underpayment. We disagree.

As Mr. Morvant’s counsel correctly points out, if we accept Shop Rite’s argument, then we allow it to “rob Peter to pay Paul.” The record reflects that the $1.00 shortage was never paid. The Consent Judgment does not provide for overpayment “credit”; instead, it gives credit for payments made. Shop Rite is not allowed to “bank” past payments to make up for future indiscretions.

Moreover, counsel’s argument that because $1.00 is an insignificant amount, a penalty is not justified. Any violation of La.R.S. 23:1201(G), no matter how small the amount, warrants a penalty. In Richard v. Coastal Culvert & Supply, Inc., 11-232, p. 4 (La.App. 3 Cir. 10/5/11), 76 So.3d 131, 133, writ denied, 11-2459 (La.1/13/12), 77 So.3d 964, we awarded the claimant a $3,000.00 penalty where the employer shorted the claimant $.90, and we stated:

Here, while we recognize that the underpayment of ninety cents seems like an insubstantial amount, the penalty assessed in La.R.S. 23:1201(G) is mandatory, and the statute makes no distinction between small infractions versus large infractions where the employer fails to pay the full amount of a judgment. As indicated, in order to avoid a penalty under La.R.S. 23:1201(G), the employer must show that the underpayment is due to a condition beyond the employer’s control.

17Nothing indicates that Shop Rite’s underpayment was beyond its control. Thus, a $8,000.00 penalty as provided by La.R.S. 23:1201(G) is warranted and assessed against Shop Rite.

(2) Failure to Pay Legal Interest

In addition to the payment of one week of compensation, the Consent Judgment also required that Shop Rite increase Mr. Morvant’s weekly compensation rate from $214.08 to $272.67. The record indicates that Shop Rite made payment for back due weekly compensation benefits in the amount of $1,347.57. Shop Rite, however, failed to pay legal interest on the back due weekly benefits. This failure entitles Mr. Morvant to a $3,000.00 penalty, as provided by La.R.S. 23:1201(G).

Legal interest on workers’ compensation payments is mandated by statute. Indeed, La.R.S. 23:1201.3(A) states, in pertinent part:

Any compensation awarded and all payments thereof directed to be made by order of the workers’ compensation judge shall bear judicial interest from the date compensation was due until the date of satisfaction. The interest rate shall be fixed at the rate in effect on the date the claim for benefits was filed with the office of workers’ compensation administration.

Shop Rite does not dispute that it failed to pay legal interest, but it argues that Mr. Morvant “waived” his entitlement to legal interest because the consent judgment was silent on the issue. The first circuit, in Matthews v. VIP International, Inc., 99-1632, pp. 6-7 (La.App. 1 Cir. 6/23/00), 762 So.2d 1152, 1156, stated, “[bjecause La. R.S. 23:1201.3 uses mandatory language, an award of legal interest is not discretionary with the WCJ.” Moreover, “the interest attaches automatically until the judgment is satisfied, whether prayed for in the petition or mentioned in the judgment.” Id. Thus, silence in the Consent Judgment cannot be interpreted as a waiver of an award of interest.

|sShop Rite attempts to circumvent this jurisprudence by arguing that the consent judgment is not a “judgment” at all but rather an “approval” by the WCJ. Shop Rite’s argument is without merit. In contrast to Hunter v. Maximum Group Behavioral Services, Inc., 10-930 (La.App. 4 Cir. 3/16/11), 61 So.3d 735, cited by Shop Rite in support of its position, the parties here entered into a Consent Judgment, not a Settlement Agreement. The distinction is critical because a Consent Judgment, such as the one in this case, is, indeed, a final, non-appealable judgment. See Deshotel, 839 So.2d 1134; but see also Trahan v. Coca Cola Bottling Co. United, Inc., 04-100 (La.3/2/05), 894 So.2d 1096 (holding that settlement agreement was a compromise that constituted a confession of judgment and compromise was a final, non-appealable judgment). Thus, we assess a penalty of $3,000.00 against Shop Rite for its failure to pay legal interest on the back due weekly compensation benefits.

Attorney Fees

Shop Rite appeals the award of $3,500.00 in attorney fees to Mr. Morvant, and Mr. Morvant’s counsel requests additional attorney fees for work done on appeal.

“Awards of attorney fees in workers’ compensation cases are essentially penal in nature, and are intended to deter indifference and undesirable conduct by employers and insurers toward injured employees.” Smith v. Quarles Drilling Co., 04-179, p. 6 (La.10/29/04), 885 So.2d 562, 566. In Jones v. Universal Fabricators, 99-1370, pp. 10-11 (La.App. 3 Cir. 2/9/00), 758 So.2d 856, 862-68, writ denied, 00-742 (La.5/12/00), 762 So.2d 13, this court articulated the importance of compensating attorneys in workers’ compensation cases:

We emphasize that adequate [attorney] fees in workers’ compensation cases is the basis for an injured employee IflObtaining effective counsel. La.R.S. 23:1221, which authorizes [attorney] fees, encourages the retention of effective counsel by an employee who is injured, unemployed and unable to pay for capable representation.
It is evident that an employee in workers’ compensation eases by definition is placed in a disadvantageous position. The employee is injured, unemployed and often totally lacking in financial resources. In contrast, the employer has the financial means to obtain attorneys to prepare and argue its case. The primary purpose of workers’ compensation is to protect injured employees from impoverishment. If an employee is arbitrarily deprived of benefits, the attorney who litigates on his behalf and is successful at showing arbitrary and capricious conduct on the part of the employer, has aided not only his client but also the administration of the workers’ compensation system. This work is very important as it helps discourage others who might seek to further then-own economic fortune at the expense of persons injured in their employ.

Here, we find that Shop Rite egregiously denied payment for treatment that was contemplated by the Consent Judgment, causing Mr. Morvant to seek recourse from the WCJ. Thus, we affirm the WCJ’s grant of $3,500.00 in attorney fees. We also award an additional $3,000.00 to Mr. Morvant’s counsel for defending his client’s case in this appeal. We decline, however, to award additional attorney fees for Mr. Morvant’s own appeal in this matter. See Reeves v. Great Atl. & Pac. Tea Co., Inc., 370 So.2d 202 (La.App. 3 Cir.), writs denied, 371 So.2d 835 and 372 So.2d 568 (La.1979).

IV.

CONCLUSION

For the reasons articulated above, we amend and affirm the judgment of the trial court. Specifically, we increase the penalty for failure to authorize epidural steroid injections from $2,000.00 to $3,000.00, pursuant to La.R.S. 23:1201(G). We award two separate $3,000.00 penalties, pursuant to La.R.S. |in23:1201(G), for Shop Rite’s underpayment of $1.00 and for its failure to pay legal interest. Finally, we affirm the portions of the WCJ’s judgment awarding a $3,000.00 penalty for Shop Rite’s failure to authorize EMG/nerve conduction studies and awarding attorney fees in the amount of $3,500.00. We award an additional $3,000.00 in attorney fees to Mr. Morvant for his counsel’s work in defending Shop Rite’s appeal. Costs of this appeal are assessed against Shop Rite, Inc.

AFFIRMED AS AMENDED.


source: Caselaw Access Project

author:
STEWART, J. GASKINS, J., HARRISON, J. (Ad Hoc).
     STEWART, J.,

license: Public Domain

text:
    Rhonda PITTMAN, Plaintiff-Appellee v. Lawrence E. METZ, Defendant-Appellee.
    No. 47,320-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 2012.
    Rehearing Granted Nov. 9, 2012.
    Opinion on Rehearing Jan. 25, 2013.

      Tracy L. Oakley, Ruston, LA, for Third Party-Appellant Safeway Ins. Co. of La.
    Daye, Bowie & Beresko, Shreveport, LA, by David P. Daye, for Third Party-Appellee Lawrence E. Metts and Sena Metts.
    David H. Nelson, Monroe, LA, for Third Party-Appellee American Quality Ins. Agency, Inc.
    Rhonda Putman, In Proper Person.
    Before STEWART, GASKINS and MOORE, JJ.
   STEWART, J.

The appellant, Safeway Insurance Company of Louisiana (hereafter referred to as “Safeway”), is appealing a judgment finding that Lawrence Metz (hereafter referred to as “Metz”) had coverage at the time of his May 5, 2009, accident. For the reasons discussed below, we affirm.

FACT AND PROCEDURAL HISTORY

Safeway issued a policy of automobile liability insurance to Metz with a policy period of November 16, 2008, through May 16, 2009. This policy only listed his 2008 Chevrolet Avalanche (hereafter referred to as “Avalanche”) as an insured vehicle. Metz made an initial payment, and the balance was financed over the life of the policy. The final payment was due on April 10, 2009, in the amount of $110.82. On April 7, 2009, Metz made the final payment, and added a second vehicle, a 2008 Chevrolet Uplander (hereafter referred to as “Uplander”), to this policy. Although the April 7, 2009, payment did not include the premium for adding the Uplander, both vehicles were listed on the same policy. On April 8, 2009, Safeway sent a bill to Metz for the additional premium owed for coverage on the Uplander. Metz denies ever receiving this bill.

On April 23, 2009, Safeway issued a notice of cancellation to Metz when the additional premium was not paid. The notice of cancellation stated that the policy was being cancelled for the nonpayment of the premium, and that the policy would cease on May 3, 2009. Safeway did cancel the policy on that date.

On May 5, 2009, a two-vehicle accident occurred in Bossier City, Louisiana involving vehicles operated by Rhonda Pittman (hereafter referred to as “Pittman”) and Metz. Metz was operating the Avalanche at the time of the accident.

Upon learning that his policy was can-celled, Metz paid $99.00 to reinstate coverage on the two vehicles on May 6, 2009. Later that day, he paid an additional $222.00 to renew the policy. On May 11, 2009, Metz cancelled the renewal.

Pittman subsequently filed suit for damages, in the amount of $4,175.00, against Metz in justice of the peace court on June 9, 2009. The justice of the peace rendered judgment in favor of Pittman. On June 26, 2009, Metz filed a motion for appeal in the district court and filed a third party demand against his insurer, Safeway.

On March 28, 2010, Safeway filed a motion for summary judgment, asserting that Metz’s coverage had been cancelled at the time of the accident. Metz filed an opposition to the motion for summary judgment, asserting: (1) the notice of cancellation was defective because it failed to give the requisite 10-day notice prior to the cancellation; (2) he never received the notice of cancellation; and (3) the affidavit submitted by the senior underwriter for Safeway was insufficient.

The motion for summary judgment was denied, and the matter proceeded to trial. After the trial took place, the district court determined that Safeway properly can-celled the policy. However, it also determined that the cancellation only applied to the Uplander, and that the Safeway policy provided coverage to the Avalanche at the time of the accident.

Safeway now appeals.

LAW AND DISCUSSION

Motion for Summary Judgment

Safeway asserts two assignments of error in this appeal. In its first assignment, it alleges that the trial court erred in not granting its motion for summary judgment in this matter. It filed a motion for summary judgment, asserting that the policy issued to Metz was cancelled prior to the May 5, 2009, accident. Safeway asserts that the notice of cancellation was issued on April 23, 2009, and mailed to Metz’s address. This notice stated that the policy was cancelled on May 3, 2009, for nonpayment of premium. Safeway argues that the district court should have ruled that the policy was cancelled, effective May 3, 2009, at 12:01 a.m. Therefore, there was no coverage for the May 5, 2009, accident.

Addressing Metz’s opposition to its motion for summary judgment, Safeway contended that: (1) Metz incorrectly counted the 10-day notice; (2) Metz’s denial of the receipt of the notice of cancellation was not sufficient to defeat the motion for summary judgment; and (3) the affidavit from its senior underwriter established the basis for the cancellation.

On appeal of a final judgment, review may be had of the denial of a motion for summary judgment by the trial judge, which is based solely upon the resolution of a legal question, as the case here. McGill v. Owen Const. Co., Inc., 434 So.2d 520 (La.App. 2 Cir.1983). Interpretation of an | insurance policy usually involves a legal question which can be resolved properly in the framework of a motion for summary judgment. Guthrie v. Louisiana Medical Mut. Ins. Co. 42,974 (La.App. 2 Cir. 2/13/08), 975 So.2d 804. When determining whether a policy affords coverage for an incident, the insured bears the burden of proving the incident falls within the policy’s terms. Beck v. Burgueno, 43,557 (La.App. 2 Cir. 9/17/08), 996 So.2d 404. Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Beck, supra; Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180.

In this appeal of a final judgment, Safeway is assigning as error the trial court’s denial of its motion for summary judgment. We note that this unusual circumstance is permissible, since review is appropriate when the assignment is based upon the resolution of a legal question. Safeway contends that summary judgment would have been appropriate because there is no genuine issue of material fact as to whether it properly cancelled Metz’s automobile insurance policy due to nonpayment of premium pursuant to La. R.S. 22:1266(D)(1). Safeway, as the insurer and movant for summary judgment, has the burden of proving that the May 5, 2009, accident was excluded from coverage due to nonpayment of premium. La. R.S. 22:1266(D)(1) states in pertinent part:

D. (1) No notice of cancellation of a policy to which Subsection B or C of this Section applies shall be effective unless mailed by certified mail or delivered by the insurer to the named insured at least thirty days prior to the effective date of cancellation; however, when cancellation is for nonpayment of premium at least ten days notice of cancellation accompanied by the reason shall be given.

Non-payment of premium is defined as “failure of the named insured to discharge when due any of his obligations in connection with the payment of premiums on a policy, or any installment of such premium, whether the premium is payable directly to the insurer or its agent or indirectly under any premium finance plan or extension of credit.” La. R.S. 22:1266(A)(6).

Safeway’s 10-day notice of cancellation was mailed on April 28, 2009, with the indicated date of cancellation on May 8, 2009, at 12:01 a.m. Counting the days from April 23, 2009, to May 3, 2009, the notice does provide the requisite 10-day notice.

Rhonda Marshall, who is a senior underwriter for Safeway, confirmed that she personally reviewed its records regarding the issuance and cancellation of the policy issued to Metz. Ms. Marshall noted that the April 7, 2009, payment of $110.32 was the last installment of the policy for the Avalanche. She further agreed that the policy for the Avalanche would have been in effect from November 16, 2008 to May 16, 2009. She explained that Safeway has a “mailing register” that generates the notices of cancellation. Ms. Marshall relayed that Metz’s name and correct address were included in the mailing register during this time period, and that a notice of cancellation was mailed to him.

The trial court made the following findings regarding the notice of cancellation:

Based upon the testimony of Ms. Marshall confirming the registry of the notice, as well as, the bulk mailing certificate, I find that there was sufficient notice of cancellation sent to Mr. Metz.

We agree with this determination. Nevertheless, the trial court did not err in denying Safeway’s motion for summary judgment, since the sufficiency of the notice of cancellation is not material to the issue of whether the policy provides coverage in this case. We further discuss this issue in the following assignment of error.

Policy Coverage

In the second assignment of error, Safeway contends that the trial court legally erred when it held that its cancellation of a policy that provided coverage for two vehicles cancelled coverage only as to one vehicle, the Uplander, and that the policy continued to provide coverage for the other vehicle listed on the policy, the Avalanche, at the time of the accident.

An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Louisiana Civil Code. Mayo v. State Farm Mut. Auto. Ins. Co., 2003-1801 (La.2/25/04), 869 So.2d 96. The extent of coverage under an insurance contract is dependent on the common intent of the insured and the insurer. Succession of Fannaly v. Lafayette Ins. Co., 2001-1355 (La.1/15/02), 805 So.2d 1134. Thus, when interpreting an insurance contract, courts must attempt to discern the common intent of the insured and the insurer. See La. C.C. art. 2045; Succession of Fannaly, supra.

In ascertaining the common intent of the insured and the insurer, courts begin their analysis with a review of the words in the insurance contract. Succession of Fannaly, supra. Words and phrases used in an insurance policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning. See La. C.C. art. 2047; Mayo, supra.

An insurance contract, however, should not be interpreted in an unreasonable or strained manner under the guise of contractual interpretation to enlarge or to restrict its provisions beyond what is reasonably contemplated by unambiguous terms to achieve an absurd conclusion. Mayo, supra; Carrier v. Reliance Ins. Co., 99-2573 (La.4/11/00), 759 So.2d 37. The rules of construction do not authorize a perversion of the words or the exercise of inventive powers to create an ambiguity where none exists or the making of a new contract when the terms express with sufficient clarity the parties’ intent. Succession of Fannaly, supra; Mayo, supra. Ambiguous policy provisions are generally construed against the insurer in favor of coverage. If the policy wording at issue is clear and unambiguously expresses that parties’ intent, the insurance contract must be enforced as written. Courts lack authority to alter the terms of insurance contracts under the guise of contractual interpretation when the pokey’s provisions are couched in unambiguous terms. Succession of Fannaly, supra; Mayo, supra. The determination of whether a contract is clear or ambiguous is a question of law. Cadwallader v. Allstate Ins. Co., 02-1637 (La.6/27/03), 848 So.2d 577.

After reviewing these general rules of contract interpretation, we now turn to review the Safeway policy at issue.

A paragraph under the “CONDITIONS” portion of the Safeway policy, reads:

4. Two or More Automobiles — Parts I, III, and IV. When two or more automobiles are insured hereunder, the terms of this policy shall apply separately to each, but an automobile and a trailer attached thereto shall be held to be one automobile with respect to the limits of liability under Part I of this policy, and separate automobiles under Part IV of this policy, including any deductible provisions applicable thereto.

In its oral reasons for judgment, the district court stated:

“I believe that the — the payments or premiums paid by Mr. Metz would have been applied separately to each vehicle. While it did, I do not believe there was any coverage at the time of the accident or during those dates to the Uplander, Chevrolet Uplander vehicle, this Court does find that there was coverage as pertained to the 2003 Avalanche that was involved in the vehicle or involved in the accident.”

The language in the Safeway policy states “when two or more automobiles are insured hereunder, the terms of this policy shall apply separately to each.” While interpreting Safeway’s insurance contract, jurisprudence requires that we attempt to discern the common intent of the insured and the insurer. After a careful review of the record, we find that Safeway intended for the terms of its policy to apply separately to Metz’s Avalanche and the Outlan-der. The wording in the policy clearly expresses that intent.

Further, record supports Metz’s assertion that he completed his payments for insurance coverage on the Avalanche through the remainder of the policy term. As stated in the previous assignment, Ms. Marshall testified that Metz’s April 7, 2009, payment of $110.32 completed payment for coverage for the Avalanche for the period between November 16, 2008, and May 16, 2009.

We note that the record is void of any evidence indicating that Metz’s April 7, 2009, payment of $110.32 was refunded, nor was there a pro-rata refunded for the days of noninsurance. This information, coupled with the language in the policy, support our finding that Safeway’s policy issuing coverage on the Avalanche was in effect at the time of the May 5, 2009, accident. The trial court was not manifestly erroneous in finding that there was coverage on the Avalanche at the time of the May 5,2009, accident.

CONCLUSION

For the foregoing reasons, we affirm the district court’s judgment. All costs of this proceeding are assigned to Safeway Insurance Company of Louisiana.

AFFIRMED.

GASKINS, J., dissents with reasons.

GASKINS, J.,

dissenting.

I respectfully dissent from the majority’s opinion. The majority finds that a provision in the insurance policy provides coverage to one vehicle, but not to the added vehicle, when a premium payment was made for the one vehicle, but the new total for both was not made.

The policy provisions pertinent to this issue are found in the part titled “conditions.”

1. Policy Period, Territory
.... If such premium is not paid when due the policy shall terminate as of that date and such date shall be the end of the policy period....
2. Premium.
.... If the named insured acquires ownership of an additional private passenger, ... he shall inform the Company in writing within 30 days following the date of its delivery of his election to make this policy applicable to such owned automobile. Any premium adjustment necessary shall be made as of the date of such change or acquisition in accordance with the manuals in use by the Company....
4. Two or More Automobiles-Parts I, III, and IV. When two or more automobiles are insured hereunder, the terms of this policy shall apply separately to each....

In the policy, the Parts specified in paragraph 4 above, are given the following headings:

Part I — Liability
Part III — Expenses For Medical Services
Part IV — Physical Damage

The policy can only be reasonably read that the terms of the policy apply separately to each automobile when addressing liability, medical services, and physical damages. This contested provision in paragraph 4 does not apply to the payment of premiums.

When Mr. Metz added the new vehicle, the amount of his premium payment changed. The new premium was due, and when unpaid, the policy was cancelled — all as outlined in the policy.

Not only does the language of the policy not allow a parsing of premium coverage, but it is logically untenable. While in this situation one can see that Metz had made a payment on his first vehicle, then did not pay for the added vehicle, still the insurance company should not be held to figure out the meaning of a partial payment. For instance, if Mr. Metz had liability and uninsured motorist on a vehicle, then added another without paying any extra premiums, should the insurance company decide the coverage was for the first vehicle only? The insured might desire, if the second car was in the accident, that the partial premium was applied to liability on both but not for the premium amount for uninsured motorist. Or in the situation before us, had the added car been in the accident, could it be argued that the premium should have covered both vehicles every day until the premium money ran out? While I am sympathetic to Mr. Metz, and to Ms. Pittman, the insurance company cannot be held to know what coverage a partial payment should apply.

Much has been made about the premium not being refunded after the policy was terminated, raising the question as to whether the insurer was applying those premium amounts to some sort of coverage. La. R.S. 22:887(D)(1) provides that any unearned premium must be paid as soon as practical following the cancellation. The policy was cancelled on May 3, 2009, and the accident occurred on May 5, 2009. Soon thereafter, Mr. Metz paid to reinstate his policy. Based on the law and jurisprudence, and looking at the close amount of time between the cancellation by the insurer and the time Mr. Metz reinstated his insurance, the law affords no benefit to Mr. Metz for failing to refund his unearned premiums before he reinstated his insurance.

I would reverse, and find that Mr. Metz’ insurance had lawfully been cancelled on the date of the accident.

APPLICATION FOR REHEARING

Rehearing granted.

STEWART and MOORE, JJ., would deny rehearing.

ON REHEARING

Before BROWN, STEWART, DREW, MOORE and HARRISON (Ad Hoc), JJ.

HARRISON, J. (Ad Hoc).

We granted rehearing to reconsider our earlier opinion in this case. Finding that there was no coverage on the insured’s vehicle at the time of the accident because the insurer properly can-celled its insured’s entire policy for nonpayment of a premium, we now reverse the trial court judgment finding that Lawrence E. Metz was covered under the policy issued by Safeway Insurance Company of Louisiana.

Although the facts of the matter were set forth in detail in the original opinion, we will briefly recap the details of greatest importance to our decision on rehearing. At the outset of the policy period beginning November 16, 2008, Metz’s policy with Safeway covered only his 2003 Chevrolet Avalanche. A final payment for the policy period in the amount of $110.28 was due on April 10, 2009, and Metz paid it on April 7, 2009. However, at that time, he also added a second vehicle, a 2008 Chevrolet Uplander, to the same policy. On April 8, 2009, Safeway sent Metz a bill for the additional premium for covering the Uplander. Metz denied receiving this bill. On April 23, 2009, Safeway issued a notice of cancellation to Metz for nonpayment of the premium. Metz also denied receiving this notice. The policy was can-celled on May 3, 2009. On May 5, 2009, there was a two-car accident involving the Avalanche. The following 12day, Metz paid to reinstate the policy; the reinstatement was effective on May 6, 2009.

In relevant part the Safeway policy reads as follows:

PART I — LIABILITY
... To pay on behalf of the insured ... all sums which the insured shall become legally obligated to pay as damages ...
PART II — UNINSURED/UNDERIN-SURED MOTORISTS COVERAGE
... To pay all sums which the insured or legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured/un-derinsured automobile....
PART III — EXPENSES FOR MEDICAL SERVICES
... To pay all reasonable expenses incurred as a result of injuries caused by a covered accident ...
PART IV — PHYSICAL DAMAGE
... to have repaired or to pay for loss caused other than by collision to the owned automobile or to a non-owned automobile but only for the amount of each such loss in excess of the deductible amount stated in the declarations as applicable hereto ...
CONDITIONS
(Unless otherwise noted, conditions apply to all Parts.)
1. Policy Period, Territory. ... If such premium is not paid when due the policy shall terminate as of that date and such date shall be the end of the policy period....
2. Premium. ... If the named insured acquires ownership of an additional private passenger ... automobile, he shall inform the Company in writing within 30 days following the date of its delivery of his election to make this policy applicable to such owned automobile. Any premium adjustment necessary shall be made as of the date of such change or acquisition in accordance with the manuals in use by the Company....
4. Two or More Automobiles — Parts I, III, and IV. When two or more automobiles are insured hereunder, the terms of this policy shall apply separately to each....

Based upon its wording and its placement in the policy, we find that the contested provision in paragraph 4 — upon which the trial court and the majority in the original opinion relied — does not apply to the payment of premiums. This paragraph, which states that the terms of the policy apply separately to each automobile when two or more automobiles are insured, specifically applies only to Parts I, III and IV; these are the parts of the policy addressing issues of liability, expenses for medical services, and physical damages. It appears that the primary relevance of a provision like paragraph 4 involves issues of “stacking” of coverages. See Jones v. Allstate Insurance Company, 429 So.2d 241 (La.App. 3rd Cir.1983); Easley v. Firemen’s Insurance Company of Newark, New Jersey, 372 So.2d 1067 (La.App. 3rd Cir.1979); Lane v. Fireman’s Fund Insurance Company, 344 So.2d 702 (La.App. 4th Cir.1977). Therefore, paragraph 4 has no bearing upon the issue of partial payment of premiums presented in the instant case.

We find nothing in the policy which obligates the insurance company to second-guess its insured’s desires as to how to apply a partial payment in a situation such as the instant one. Should the insurer apply all of the partial payment to one vehicle and none to the other for the full policy term? Or perhaps it should apply some of the partial payment to each vehicle but for a shorter period of time? The possible scenarios are numerous and varied. Different insureds will desire different applications according to a myriad of different factual situations.

The facts proven at trial demonstrate that Metz’s premium increased upon his addition of a second vehicle. Evidence was introduced that Metz was billed for the increased premium. Subsequently, the bill was not paid, and Safeway took appropriate action to cancel the policy as it was entitled to under the terms of the policy. Safeway presented evidence that the ensuing notice of cancellation was properly mailed to Metz. (In the original opinion, the majority likewise agreed that the insurer proved that sufficient notice of cancellation was given.) Consequently, at the time of the accident involving the Avalanche, Metz no longer had insurance coverage with Safeway on either vehicle.

Accordingly, we reverse the district court judgment insofar as it held that Metz had coverage on the Avalanche under the Safeway policy and awarded damages in favor of Metz and his wife and against Safeway. In all other respects, the judgment is affirmed. Costs of this appeal are assessed against Lawrence and Sena Metts/Metz.

REVERSED IN PART AND AFFIRMED IN PART.

STEWART, J., dissents with written reasons.

MOORE, J., dissents for reasons assigned by STEWART, J.

STEWART, J.,

dissenting.

The majority determined that Metz did not have valid insurance at the time of the May 5, 2009, accident. More specifically, the majority determined that contested provision in paragraph 4 does not apply to the payment of premiums. For the following reasons, I respectfully dissent from the majority’s opinion.

The language in the Safeway policy states “when two or more automobiles are insured hereunder, the terms of this policy shall apply separately to each.” Arguably, this policy provision may be viewed as ambiguous. Jurisprudence suggests that we construe ambiguous policy provisions against the insurer in favor of coverage. Further, while interpreting Safeway’s insurance contract, jurisprudence requires that we attempt to discern the common intent of the insured and the insurer. After a careful review of the record, I come to the conclusion that Safeway intended for the terms of its policy to apply separately to Metz’s Avalanche and the Outlan-der. The wording in the policy clearly expresses that intent.

Further, the record supports Metz’s assertion that he completed his payments for insurance coverage on the Avalanche through the remainder of the policy term. As stated in the original opinion, Ms. Rhonda Marshall, a senior underwriter for Safeway, testified that Metz’s April 7, 2009, payment of $110.32 completed payment for coverage for the Avalanche for the period between November 16, 2008, and May 16, 2009.

The majority identified the $110.82 payment as a “partial payment.” I disagree. On April 8, 2009, Safeway sent Metz a bill for the additional premium, intended for the Uplander. Metz denied receiving this bill, and consequently failed to pay it. However, as stated in the previous paragraph, Metz did complete his payments for insurance coverage on the Avalanche through the remained of the policy term, on the day before Safeway allegedly mailed the bill for the additional premium to cover the Uplander.

We note that the record is void of any evidence indicating that Metz’s April 7, 2009, payment of $110.32 was refunded, nor was there a pro-rata refunded for the days of noninsurance. We cannot ignore this important fact. This information, coupled with the language in the policy, support our finding that Safeway’s policy issuing coverage on the Avalanche was in effect at the time of the May 5, 2009, accident.

For these reasons, I cannot agree with the majority in their determination that the trial court was manifestly erroneous in finding that there was coverage on the Avalanche at the time of the May 5, 2009, accident. Therefore, I respectfully dissent.

      . Rhonda Pittman is referred to as Rhonda "Putman” in the briefs.

      . Retired Judge John R. Harrison, assigned as judge ad hoc, participated in the decision following the retirement of Judge Gay Gas-kins, who sat on the original panel.

      . In the appellate record, the defendant’s last name is also spelled "Metts.” To be consistent with this court’s original opinion, we will spell it "Metz” in this opinion on rehearing.

      . Although Safeway urged reversal of the trial court’s denial of its motion for summary judgment, given the fuller development of the facts at trial, we consider the matter on the merits.

      . Although Metz testified that he paid $110.32, the documentary evidence suggests that the amount was $110.28.


author: WILLIAMS, J. PER CURIAM.

text:
    Gloria Annette SIMMONS, Plaintiff-Appellant v. Gaylon D. SIMMONS, Defendant-Appellee.
    No. 47,416-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 2012.
    Opinion on Grant of Rehearing Jan. 17, 2013.
    See also, 882 So.2d 714.

      Alfred R. Beresko, Shreveport LA, for Appellant.
    James L. Fortson, Jr., Shreveport, LA, for Appellee.
    Before WILLIAMS, MOORE and LOLLEY, JJ.
   WILLIAMS, J.

The plaintiff, Gloria Annette Simmons (now “Annette Turner”), appeals a judgment partitioning the community property of her former marriage to the defendant, Gaylon Simmons. The trial court awarded each party the net value of $823,879.34. For the following reasons, we amend and affirm as amended.

FACTS

In November 1958, Annette Turner and Gaylon Simmons were married. In February 2000, Turner filed a petition for divorce seeking use and occupancy of the former matrimonial domicile located in Jackson Parish, Louisiana. In March 2000, the district court entered a consent judgment allowing Turner the continued use of the matrimonial home, pending further orders of the court. Turner and Simmons were divorced by judgment rendered in September 2000.

After the divorce, the parties entered into several agreements regarding the partial partition of their community estate. In a February 2001 consent judgment, the parties divided $1,000,000 from a money fund and agreed that each party would pay one-half of their joint litigation expenses in connection with the Riddle v. Simmons case, which was pending at the time in the Second Judicial District Court. In the January 2004 judgment, the trial court ordered Turner to pay $160,333.48 as her share of attorney fees incurred in the Riddle litigation. This court affirmed the judgment on appeal. Simmons v. Simmons, 38,871 (La.App.2d Cir.9/22/04), 882 So.2d 714. Later, in an agreement of partial partition filed with the trial court in March 2002, the parties divided the amount of five million dollars ($5,000,000) in cash and securities from an investment account.

In September 2006, the trial court appointed W. Deryl Medlin, an attorney, as expert and special master to assist the court in the partition of community property, including the classification and allocation of the parties’ assets and liabilities. In February 2010, the parties filed their detailed descriptive lists of community property and debts. Attorney Medlin considered their lists and other financial information that they submitted concerning the community property in preparing his initial report, which was filed in March 2011. After receiving additional information, Medlin filed a supplemental and superseding report on May 13, 2011, the date of the partition hearing. At the hearing, Medlin was cross examined by counsel for both parties about the recommendations in his report.

Subsequently, the trial court rendered judgment adopting the special master’s “Final Detailed Descriptive List” as the definitive statement of all community assets and liabilities and allowable reimbursement claims. The court awarded Turner 5/12ths of the community’s one-fourth ownership interest in a tract of land referred to as the Timoz property, the movable property in her possession and an equalizing payment of $11,496.33. The court awarded Simmons $103,400 in rental payments for Turner’s occupancy of the marital home, reimbursement of $154,484.75 in legal fees for the Riddle v. Simmons litigation and the remainder of the community property. The court also ordered him to pay the community debt of $1,592,847.71. Turner appeals the judgment.

DISCUSSION

In two assignments of error, Turner contends the trial court erred in granting Simmons a “credit” for his payment of certain legal fees. First, Turner argues that she is entitled to reimbursement of one-half of the attorney fees that Simmons paid to the law firm of Hargrove, Pesnell & Wyatt (“Hargrove”), which represented Louisiana Energy and Development Corp. (“LEDC”), a co-defendant in the Riddle v. Simmons litigation, because such fees were not an obligation of the community.

The trial court has broad discretion in partitioning community property in a divorce proceeding. Howard v. Howard, 43,178 (La.App.2d Cir.4/30/08), 981 So.2d 802. A trial court’s factual findings and credibility determinations made in the course of valuing and allocating assets and liabilities in the partition of community property may not be set aside absent manifest error. Nesbitt v. Nesbitt, 44,413 (La.App.2d Cir.6/24/09), 15 So.3d 1229.

In the present case, pursuant to a February 2001 consent judgment, each party agreed to pay one-half of the Riddle v. Simmons litigation expenses. Turner did not pay her share of the attorney fees owed in that case and Simmons filed a rule for contempt based on her failure to comply with the 2001 judgment. At the contempt hearing in December 2003, Simmons testified that at the time of the sale of the community’s interest in LEDC, the community had agreed to defend LEDC, which was represented by Hargrove. In the January 2004 judgment, the trial court ordered Turner to pay $160,333.48 as her share of litigation expenses. This amount included one-half of the $72,976.41 owed to Hargrove in attorney fees. This court affirmed the judgment in Simmons, supra. Thus, the evidence submitted demonstrates Turner’s liability to pay one-half of the attorney fees owed to Hargrove and she is not entitled to reimbursement for any such sums paid. The assignment of error lacks merit.

Turner further argues that the reimbursement of $154,484.75 to Simmons for payment of attorney fees should be reduced because he failed to give Turner full credit for her share of the amounts paid. In her appellate brief, Turner complains that Simmons applied only a 50% credit toward her payment of legal fees owed to the law firm of Gordon, Arata and that he improperly subtracted the amount of tax owed upon withdrawal of other funds from an IRA.

An obligation incurred by a spouse during the existence of a community property regime for the common interest of the spouses is a community obligation. LSA-C.C. art. 2860. Except for separate obligations delineated in Article 2863, all obligations incurred by a spouse during the existence of the community property regime are presumed to be community obligations. LSA-C.C. art. 2361; Skannal v. Bamburg, 44,820 (La.App.2d Cir.1/27/10), 33 So.3d 227.

In the present case, the April 2005 judgment required that community funds of $50,000 be applied to the unpaid attorney fees incurred in the Riddle litigation. Turner acknowledges that Simmons withdrew that amount and credited her with payment of $25,000 as her 50% share of the attorney fees owed by the community. Based upon this record, Turner has not shown any error in crediting her with 50% of that $50,000 payment.

In addition, the trial court’s 2005 judgment authorized Simmons to withdraw and expend funds from the IRA at A.G. Edwards for payment of litigation costs. Because the funds were withdrawn to pay a community debt, each party owed one-half of the taxes due upon withdrawal of the funds. Turner was not charged the entire tax liability, because the tax owed was deducted from the gross amount withdrawn before disbursement of the funds, so that each party paid one-half of the tax. Thus, Turner’s argument lacks merit. However, we note an error in the computation of the reimbursement amount. The January 2004 judgment ordered Turner to pay $160,333.48, not $163,333.48 as stated in Exhibit 10. Using the correct amount, adding interest and subtracting Turner’s payments, results in a balance of $105,457, plus interest of $44,292 (6% annual interest for seven years). Accordingly, the reimbursement to Simmons shall be reduced to the amount of $149,749.

Claim for Rental Value

Turner contends the trial court erred in awarding Simmons reimbursement for rental value during her occupancy of the former marital home. Turner argues that she is not liable for rental payments because rent was not ordered by the court at the time occupancy was awarded and was not agreed upon by the parties.

If the court awards use and occupancy of the family residence to a spouse, then the court “shall at that time determine whether or not to award rental for the use and occupancy and, if so, the amount of the rent. The parties may agree to defer the rental issue for decision in the partition proceedings.” LSA-R.S. 9:374(C). Under Section 374(C), the assessment of rent requires an agreement between spouses or a court order for rent contemporaneous with the award of occupancy. McCarroll v. McCarroll, 96-2700 (La.10/21/97), 701 So.2d 1280. Although the trial court may order rental payments on the family home, such an order must be made at the time of the award of use and occupancy. The trial court does not have, at the time of partition, blanket discretion to order retroactive rental payments. Chance v. Chance, 29,591 (La.App.2d Cir.5/7/97), 694 So.2d 613; McConathy v. McConathy, 25,542 (La.App.2d Cir.2/23/94), 632 So.2d 1200.

In the present case, Simmons filed a rule in January 2001, seeking occupancy of the family home or, in the alternative, the rental value. In the September 2006 judgment, the trial court awarded Turner exclusive use and occupancy of the former marital home and the surrounding three acres, but did not order her to pay rent. Despite having raised the issue of rental, Simmons did not appeal this judgment. In August 2007, the previous award of use and occupancy to Turner was vacated and again the judgment was silent as to rent. At the partition hearing, the trial court ordered the reimbursement of $103,400 for rental value to Simmons.

The language of Section 374(C) expressly provides that if the court awards use and occupancy, then at the same time the court shall determine whether or not to award rental for such occupancy, unless the parties at the time agreed to defer the rental issue to the partition proceedings. In addition, our supreme court has stated that public policy weighs heavily against the retroactive award of rent under Section 374, particularly when, as here, the community is not partitioned for many years. McCarroll, supra.

The record demonstrates that the trial court did not order Turner to pay rent at the time she was awarded use and occupancy of the marital home. Nor is there evidence that the parties agreed to defer the rental issue for a decision at the partition hearing. Considering the statutory language and the jurisprudence, we conclude that under the circumstances of this case, the trial court erred in ordering retroactive rental payments at the time of the partition and that part of the judgment shall be reversed. As a result, the total reimbursement claims of Simmons will be reduced by $103,400, in addition to the reduced reimbursement noted above. Accordingly, the amended net community estate per spouse will be $877,947.21, requiring an equalizing payment to Turner of $65,564.20.

Allocation of Property Interest

Turner contends the trial court erred in awarding her 5/12ths of the community’s undivided one-fourth interest in the Timoz property. Turner argues that a more reasonable option would be to award her the full ownership of the 11 acres of land in Jackson Parish, along with 50% of the stock of Walnut Creek Farms, Inc., and award Simmons the community’s 25% property interest.

In a proceeding to partition community property, the court shall allocate to the respective spouses all of the community assets and liabilities so that each party receives property of an equal net value. In making this allocation, the court may divide a particular asset equally or unequally or may allocate it in its entirety to one spouse. The court shall consider the nature and source of the asset or liability, the economic condition of each spouse and any other circumstances the court deems relevant. LSA-R.S. 9:2801.

In this case, both parties acknowledge the difficult task faced by the court’s expert in dividing the remaining community estate, which primarily consisted of land and significant debt. Although Turner suggests in her brief an alternative allocation of the community assets, there has been no showing that the trial court’s partition of the community estate was not equitable. The record shows that in addition to the 5/12ths interest in the community’s one-fourth interest in the Timoz property, Turner received three million dollars ($8,000,000) in cash and securities through previous distributions of community property. Additionally, the court allocated to Turner all of the producing mineral interests without any further obligation to pay the remaining community debt.

Based upon our review of the entire record, we conclude the trial court did not abuse its discretion in dividing the community’s one-fourth interest in the Timoz property between the parties. Thus, the assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the trial court’s judgment of partition is amended to increase the equalizing payment to Annette Turner to the amount of $65,564.20, to be paid from the funds held in the registry of the district court. The judgment is otherwise affirmed. Costs of this appeal are assessed one-half to the appellant, Annette Turner, and one-half to the appellee, Gaylon Simmons.

AMENDED AND AFFIRMED AS AMENDED.

Per Curiam on Rehearing

Before WILLIAMS, CARAWAY, MOORE, LOLLEY and SEXTON (Pro Tempore), JJ.

PER CURIAM.

The record shows that the funds previously deposited in the court registry have been disbursed to the parties. As a result, there are no such funds remaining with which to pay the equalizing sum ordered in this court’s October 2012 opinion.

Consequently, rehearing is granted for the purpose of amending this court’s judgment to order Gaylon Simmons to pay the balance of the equalizing payment due to Annette Turner pursuant to this court’s original judgment. In all other respects, the application for rehearing is denied.

DECREE

IT IS ORDERED that Annette Turner shall receive an equalizing payment in the amount of $65,564.20, to be paid by Gaylon Simmons, with a credit for the amount of funds already disbursed from the court registry.

AMENDED AND AFFIRMED AS AMENDED.


author: SEXTON, Judge Pro Tem. PER CURIAM.

text:
    Beverly FARMER, individually as the Provisional Tutrix of Virginia Martin, et al., Plaintiffs/Third Appellants v. WILLIS-KNIGHTON MEDICAL CENTER, Defendant/Second Appellant.
    No. 47,530-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 14, 2012.
    Opinion on Rehearing Jan. 10, 2013.

      Susan E. Hamm, Shreveport, LA, for Plaintiffs/Third Appellants.
    Watson, Blanche, Wilson & Posner by Chris J. LeBlanc, Baton Rouge, LA, T. Luke Thaxton, for Defendant/Second Appellant, Willis Knighton Medical Center.
    Walter F. Clawson, Shreveport, LA, for Intervener-Appellants, Louisiana Patient’s Compensation Fund & The Louisiana Patient’s Compensation Fund Oversight Board.
    Before DREW, MOORE & SEXTON (Pro Tempore), JJ.
   SEXTON, Judge Pro Tem.

In this medical malpractice case, the jury found that Defendant, Willis-Knigh-ton Medical Center (“WK”), breached the standard of care in its treatment of Virginia Martin and awarded survival damages of $250,000, but no wrongful death damages or funeral expenses, following Ms. Martin’s death. WK appeals and Inter-vener, the Louisiana Patient’s Compensation Fund Oversight Board, joins in the appeal with WK. Plaintiffs, Ms. Martin’s 13 adult children, seek an affirmance of the award of survival damages and request damages for wrongful death and funeral expenses. For the reasons stated herein, we affirm the jury’s verdict on liability and award of survival damages. We amend the judgment to award $60,000 to each of Ms. Martin’s children for the wrongful death of their mother and $6,833.72 for funeral expenses.

FACTS AND TESTIMONY

The 13 adult children of Virginia Martin brought this medical malpractice action against WK for the treatment, and resulting death, of Ms. Martin in the emergency room of WK North on February 12, 2001. The critical factual issue concerns whether or not undiluted potassium (KCL) was administered IV push by Registered Nurse Debra Hansen to Ms. Martin; causing acute cardiac arrhythmia and death.

Ms. Martin presented to the WK emergency room shortly before 7:00 p.m. with complaints of abdominal pain, epigastric pain, vomiting and diarrhea. Her daughter, Betty Farmer, and Ms. Farmer’s boyfriend, Dr. Thomas Johnson, were present in the treating room while Ms. Martin was treated in the ER. Ms. Martin was 69 years old and, by all accounts, was in good health prior to the ER visit. The record establishes that Ms. Martin had undergone a previous knee surgery and had been treated in November of the previous year for bronchitis and related muscle tenderness. She had no history of heart problems or complaints and the record contains no evidence of any other serious health-related issues.

The ER physician treating Ms. Martin was Dr. John Reeves. Dr. Reeves’ impression of Ms. Martin was that she was suffering from a simple gastroenteritis. Dr. Reeves ordered lab studies and a chest x-ray. The x-ray was done with a portable machine in the treatment room and the results were normal. An IV was started in Ms. Martin’s left arm and she received Toradol for pain and Phenergan for nausea shortly after 7:00 p.m. Initially, she responded well to the treatment. Ms. Martin’s blood pressure dipped, so Dr. Reeves ordered IV fluids (normal saline) for dehydration.

After confirming via Mini-hycel blood work that her creatinine level was normal, Dr. Reeves ordered a CT scan, with contrast, of her abdomen to rule out an aortic aneurysm. According to the medical records, Ms. Martin left the ER treatment room for CT at 9 p.m. The CT scan was completed and the results indicated no aortic aneurysm and no other abnormalities of the abdomen that could have been the cause of Ms. Martin’s gastric distress.

While Ms. Martin was in the CT scan, the remaining lab results were reported to the ER department revealing that her potassium level was low (2.9). The CBC indicated that Ms. Martin’s white blood cell count was slightly low, which, according to Dr. Reeves’ testimony, meant that she had a mild virus.

Nurse Hansen’s notes indicate that Ms. Martin returned from the CT scan to the ER treatment room at 9:35 p.m. At 9:40 p.m., Dr. Reeves visited Ms. Martin and ordered Demerol for pain and Phenergan for nausea, both to be administered IV push. Also at 9:40 p.m., Nurse Hansen’s notes indicate that Ms. Martin’s “IV infiltrated” and the cardiac monitor and oxygen were reapplied. The next entry, at 9:44 p.m., states that Ms. Martin’s face was mottled, she had a decrease in consciousness and Dr. Reeves was summoned. Nurse Hansen charted that, at 9:47 p.m., a Code was called and resuscitative efforts were started and attempted for 30 minutes, but failed. The only notation in the nurses notes on the ER chart regarding the administration of potassium to Ms. Martin is under the “Medications and IV s” section of the chart where Nurse Hansen wrote that Ms. Martin received 40 meq of KCL in 1000 units of saline (diluted potassium) at the rate of 150cc/hr “(sent from pharm[acy])” at 9:45 p.m.

Dr. Reeves’ dictation documents the events of Ms. Martin’s death as follows:

40 mEq of KCL was added to the patient’s bag of normal saline. Nurse had drawn up a small dose of Demerol and Phenergan to give her TV to help assist in her abdominal pain when she had a sudden drop in blood pressure, became apneic and heart rate markedly slowed, then became asystolic. I was in the ER when this occurred and several nurses were present when I was called to the room. Patient was intubated and resus-citative procedures begun.... Patient went from normal sinus rhythm before her arrest to bradycardia and asystole and finally developed a prolonged stage of PEA. (Emphasis added.)

Dr. Reeves continued in his dictation by noting the normal chest x-ray, the unremarkable abdominal films for obstruction and clear lungs and breathing indicating no pneumothorax. Dr. Reeves testified at trial that, during her initial treatment, he had ruled out all of the more serious potential causes of Ms. Martin’s symptoms. He further opined that, prior to the unexplained cardiac arrest, he believed Ms. Martin was responding to treatment, was stable and was going to be released the following day.

Ms. Martin’s cause of death was listed as a) acute cardiac arrhythmia, b) arterio-sclerotic heart disease. Dr. Reeves ordered an autopsy, due to the “unknown reason for the cardiac arrest,” but the coroner would not perform an autopsy because the body had not been stored properly.

As previously stated, the events surrounding Ms. Martin’s unforeseen death are the center of this dispute. Ms. Farmer and Dr. Johnson were in the ER treatment room and each testified to a similar version of events. Ms. Farmer testified that, when her mother returned from CT, Nurse Hansen entered the room and stated, “here is what your mother needs ... potassium.” Nurse Hansen was holding three syringes of equal size. She administered the medications directly into Ms. Martin’s IV port and Ms. Martin began screaming that her arm was burning and went into seizure-like convulsions. Ms. Martin began foaming at the mouth. Ms. Farmer testified that she was screaming at the nurse to help her mother, but Nurse Hansen was more concerned with the IV site. Ms. Farmer described the events in her testimony:

When my mom’s face started getting red and frothing out of the mouth and I was wiping her face, she was-I was telling [Nurse Hansen] I needed help because my mom wasn’t breathing. And she stayed at the bottom of the seat. She wouldn’t get up and come help me. She was too busy trying to get the IV out of her arm and put it in the other arm.
And I asked her what she was doing and she said “I’m changing her IV. I said, well, my mom needs help, she’s not breathing. And she stayed down there. She never got up. She stayed down there and was putting the IV in the other arm. And I had to tell [Dr. Johnson] to go get Dr. Reeves to come in the room to help and he ran in there[ — ]

At that point, Ms. Martin coded and Ms. Farmer and Dr. Johnson were forced to leave the treatment room. They were soon asked to wait in the “Family Room,” at which point Ms. Farmer knew that her mother had died.

Dr. Johnson’s deposition was read to the jury at trial. His testimony echoes that of Ms. Farmer. He described his friendship with Ms. Martin and stated that he was by her side the entire time she was in the ER (other than when she was in the CT scan). Dr. Johnson described the events after Ms. Martin returned from the CT scan as follows:

There was — Virginia was still feeling poorly, and they brought in some more medication for her to take.
There were three syringes on a tray and the nurse injected the syringes in there, and then Virginia started writhing in pain, and her face flushed or got really red, like beet red, and then her arm was hurting her a lot.
I was really holding her down restraining her very physically, and her eyes started rolling back in her head, and during that time I was yelling at [Nurse Hansen] to get somebody, and Beverly was, too, and then Beverly was — I started to kind of lose it, and so Beverly asked me to get her a cloth for her face, and she kept — Beverly kept saying, “she is not breathing, she is not breathing,” and I could see she wasn’t breathing, and I asked [Nurse Hansen], “Please help us. Get somebody.” And she was doing whatever she was doing. She was still in the room.
I got the rag, and then after that I ran out of the room and yelled in the hallway, “We have an emergency.” ... I think I was yelling for Dr. Reeves[ — ]

Dr. Johnson further testified that Nurse Hansen told him and Ms. Farmer that the syringes contained Demerol, Phenergan and potassium. Dr. Johnson testified that he observed Nurse Hansen administer all three medications directly into the IV site (IV push). He testified that, within 60 seconds of the push of medications, Ms. Martin’s eyes were rolling back, she was frothing at the mouth and convulsing and, within 90 seconds of the medication, Ms. Martin was no longer breathing. During this time, according to Dr. Johnson, Nurse Hansen was “over on the right arm trying to set up another IV.”

Plaintiffs maintain that the IV push of potassium caused the IV infiltration, the burning on Ms. Martin’s arm and the cardiac arrest. There are photographs in the record of Ms. Martin’s left arm taken at the funeral home that show an area of dark bruising at the IV site.

Dr. Walter Simmons was qualified as an expert in emergency room medicine and testified on behalf of Plaintiffs. Dr. Simmons thoroughly described the mechanism of the heart and the effect thereon of undiluted potassium. He stated that potassium is very caustic and would cause significant pain and burning in the vein, like putting acid in the vein. He further explained that potassium disrupts the electrical activity that controls a normal heart rhythm and that the heart basically cannot function when an imbalance of potassium inside and outside the cells exists. Dr. Simmons termed IV push of undiluted potassium a “never event” because it is fatal. Dr. Simmons stated unequivocally that the reaction of Ms. Martin as witnessed and described by Ms. Farmer and Dr. Johnson is consistent with IV push of undiluted potassium. He emphasized that “[t]here’s generally an inciting event that causes the arrhythmia. It doesn’t just spontaneously happen.” In Dr. Simmons’ expert opinion:

... [t]he patient came in with a fairly benign nonlife-threatening complaint to the emergency department of gastroenteritis. She was admitted to the hospital. At that time, she received medications, which in my opinion, included undiluted potassium and I think it caused her to have an acute arrhythmia and in turn was fatal.

In addition, Dr. Simmons noted, as recognized by Dr. Reeves, that Ms. Martin was initially responding well to treatment. Specifically, her blood pressure was stabilizing with the IV fluids and she was noted to be alert and responsive until she returned to the ER from CT.

Finally, Dr. Simmons brought to light the inaccuracies of both Nurse Hansen’s medical charting of Ms. Martin’s treatment in the ER and the pharmacy records purportedly showing the medications ordered by Dr. Reeves, and which left the pharmacy for Ms. Martin’s treatment. There are discrepancies between what medications were filled and what medications were actually given to the patient. Dr. Simmons opined that the records were “very sloppy work” and agreed that the records “were not an accurate representation of the medication history” of Ms. Martin. Specifically, the pharmacy record contains two entries indicating that potassium was filled for Ms. Martin. The first entry states that, at 8:32 p.m., 40 mEq (20mls) was mixed in 1000 ml bag of saline. The second entry states that, at 9:59 p.m., 40 mEq (20mls) was mixed in a 250 ml bag of saline for Ms. Martin. Dr. Simmons noted that, when compared with the medical records, it is impossible to reconcile the times with the administration of the first bag of diluted potassium and impossible to determine what happened to the second dose of potassium — it is not accounted for in the charting of treatment for Ms. Martin. As previously mentioned, in Dr. Simmons’ expert opinion, the medical records are simply inaccurate.

Dr. Simmons also opined that the hospital’s lack of written policy regarding the handling of undiluted potassium was well below the standard of care. In this regard, he noted the testimony of WK Pharmacy Director, Tessa Albritton. Ms. Al-britton testified that, in February 2000, there had been a directive that all potassium be removed from all patient care areas because of its lethal nature if administered undiluted to patients. In order to comply, the Pharmacy and Therapeutic Committee directed that potassium be removed from the Pyxis machines on the floors and sent a memo to the staff regarding the nature and proper administration of potassium. Dr. Simmons opined that the lack of a written policy regarding the handling of potassium was below the standard of care for the hospital.

Ms. Albritton also testified that, if undiluted potassium is dispensed, the pharmacist takes it to the floor and injects it into the saline IV bag. She testified that that did not happen in this case — that all potassium ordered for Ms. Martin was diluted in saline prior to leaving the pharmacy. Significantly, however, this testimony established that pharmacists do provide undiluted potassium in syringes for adding to patients’ IV bags on the floor. He also agreed that Ms. Albritton’s affidavit (given in response to the Medical Review Panel inquiry) states that the only way a nurse can get undiluted potassium is from the pharmacy.

Plaintiffs also presented the expert testimony of Registered Nurse JoAnne Gongo-ra. Nurse Gongora reviewed the charting done by Nurse Hansen and noted that there were times changed, written over, some actions were initialed while others were not, and that there is a section of the charting that is more of a narrative statement and appears to have been completed after the treatment was given. Nurse Gongora opined that the charting was not the standard method of charting. She agreed with Dr. Simmons that the medical records contained timing inaccuracies and the pharmacy record was inconsistent with the patient’s chart regarding medications. Nurse Gongora also agreed that there was a dose of potassium that was dispensed from the pharmacy that was not accounted for in the patient’s chart.

In summary, Plaintiffs suggest that Nurse Hansen was able to obtain a syringe of undiluted potassium from the pharmacy which, according to Dr. Reeves’ dictation, was to be added to Ms. Martin’s IV bag that was already hung. She entered the room with syringes of Demerol, Phenergan and potassium and, through inadvertence or inattentiveness, administered the potassium IV push instead of adding to the bag of saline, causing Ms. Martin’s heart to become arrhythmic and eventually resulting in her death.

WK argues that Ms. Martin’s IV site infiltrated during the CT scan; and, therefore, she could not have been given any medication or potassium via her IV line as suggested by Ms. Farmer. WK notes Nurse Hansen’s charting that, at 9:44, the IV had infiltrated. Testimony established that the contrast used during a CT scan can be caustic to the vein and cause infiltration. According to WK, if any medication would have been pushed into the infiltrated IV port, the medication would have entered the surrounding tissue rather than the vein; it would not have gone directly to the heart as suggested by Plaintiffs. Recall, however, that the CT scan was completed successfully and there is no notation that Ms. Martin complained of pain or burning of the IV site when the contrast was administered and no notation from CT that the IV had infiltrated.

WK also argues that undiluted potassium was not available in the ER at the time Ms. Martin died. It relies on the testimony of Ms. Albritton as described above. In addition, it was this point that led the medical review panel to conclude that there was no breach of the standard of care. After reviewing the case, the review panel requested evidence regarding the availability of undiluted potassium to the ER nursing staff. WK provided the panel with the affidavit of Ms. Albritton, referenced earlier. This affidavit stated, in pertinent part:

On February 12, 2001, undiluted potassium was not available to the nurses in the emergency room at Willis-Knigh-ton Medical Center North. The only way a nurse could obtain undiluted potassium was through the pharmacy.

Ms. Albritton also stated that the pharmacy mixed two doses of 40 mEqs of potassium in saline for Ms. Martin in the pharmacy and that potassium was not available to the nurses in the Pyxis machine.

Based on this affidavit and the pharmacy records, and without the benefit of the evidence presented at trial, the medical review panel found that there was “no evidence that undiluted potassium was available in the emergency department at the time in question.” Two members of the medical review panel, Drs. Todd Tho-ma and Jared Schaan, testified at trial. Each of the doctors corroborated the opinion of Plaintiffs' expert Dr. Simmons regarding the caustic and fatal effects of giving undiluted potassium IV push. The doctors also agreed that the reaction of Ms. Martin as described by Ms. Farmer and Dr. Johnson would be consistent with the patient having received IV push potassium. Drs. Thoma and Schaan explained that they did not make a decision in this matter at the first meeting of the panel because they needed information on whether undiluted potassium was available to the nurse in the ER. The panel requested information on this “pivotal” question and, as stated, were provided the affidavit of Ms. Albritton. When questioned about the inaccuracies in the pharmacy records, both doctors acknowledged that the second dispensation of 40 mEqs of potassium as reflected in the record does not appear anywhere else in the medical records, i.e., it is not documented as having been given or destroyed.

Again, in her trial testimony, Ms. Albrit-ton reluctantly agreed that undiluted potassium was obtainable from the pharmacy and could have left the pharmacy in a syringe. She maintained, however, that the pharmacy record did not contain an entry that undiluted potassium had been given to Nurse Hansen for Ms. Martin in this case.

Dr. Reeves testified that he did not time his orders for medication in the records. He further testified that, according to the medical record, a 1000 ml bag of saline with 40 mEqs of KCL was hung at 8:45 p.m. However, his dictation indicates that he did not order potassium for Ms. Martin until after she returned to her ER treatment room from CT, which was 9:35 p.m. He acknowledged the inaccuracies of time in the record.

Dr. Reeves further testified from the medical record that the IV infiltrated at 9:45 p.m.; therefore, no medications could have been administered IV push as Plaintiffs suggest. When asked about his orders to add potassium to the IV bag already in place, he testified that he was unaware that potassium was no longer available to the nurses in the ER at the time. Dr. Reeves stated that, since potassium was not available, Nurse Hansen would have replaced the normal saline bag with the KCL mixed bag from the pharmacy and discarded the unused normal saline bag.

Nurse Hansen also testified on behalf of WK. She defended her method of charting, including the instances where she crossed out and wrote over words. She stated that she had trouble with military time and had to correct the times in several places on the chart. Nurse Hansen testified that her notes and times were accurate. She related that she hung a bag of normal saline at 8:00 p.m. and then replaced that bag with the bag of mixed saline and potassium at 8:45 p.m. Nurse Hansen stated that she discarded the unused portion of the bag of normal saline. According to Nurse Hansen, Dr. Reeves ordered the potassium she hung at 8:45 p.m. (no order in the medical records) and she did not give any other potassium at any time to Ms. Martin. Nurse Hansen testified that Dr. Reeves’ dictation is incorrect when it indicates that he did not order potassium until after Ms. Martin returned from CT.

Nurse Hansen then testified that Dr. Reeves ordered Demerol and Phenergan at 9:40 p.m., which she retrieved from the Pyxis machine. She had a third syringe of normal saline to flush the IV line. Nurse Hansen explained that she noticed the IV had infiltrated at 9:40 p.m.; and, therefore, the Demerol and Phenergan could not be administered IV push. She suggested that the contrast from the CT scan infiltrated the IV. According to Nurse Hansen, four minutes later, she charted that Ms. Martin’s face became mottled and her condition began rapidly deteriorating.

Nurse Hansen adamantly denied that she gave Ms. Martin undiluted potassium IV push. She stated that Ms. Farmer and Dr. Johnson were lying when they testified that she entered the room and told them that she had what Ms. Martin needed— potassium.

In summary, WK seeks a reversal of the jury’s verdict on liability and its award of survival damages. WK relies on the medical records and maintains that undiluted potassium was not available to Nurse Hansen on the day Ms. Martin died. It emphasizes the testimony that establishes that there can be multiple causes of cardiac arrhythmia and argues that the jury erred in finding that WK breached the standard of care in its treatment of Ms. Martin. Plaintiffs also appealed seeking additional damages for wrongful death and funeral expenses.

DISCUSSION

Breach of the Standard of Care

Appellate review of the trial court’s findings in a medical malpractice action is limited. Prine v. Bailey, 45,815 (La.App.2d Cir.12/15/10), 56 So.3d 330. If the record, when read in its entirety, supports the fact finder’s conclusions and those conclusions are reasonable, an appellate court cannot reverse or modify the trial court’s judgment based on those factual conclusions. An appellate court can only reverse a fact finder’s determinations when: (1) it finds from the record that a reasonable factual basis does not exist for the findings of the trial court, and (2) it further determines that the record establishes that the findings are manifestly erroneous. Id., citing Lovelace v. Giddens, 31,493 (La.App.2d Cir.2/24/99), 740 So.2d 652, writ denied, 99-2660 (La.11/24/99), 750 So.2d 987. When expert opinions contradict concerning compliance with the applicable standard of care, the trial court’s conclusions will be granted great deference. It is within the province of the fact finder to evaluate the credibility of such experts and their testimony. Turner v. Stassi, 33,022 (La.App.2d Cir.5/10/00), 759 So.2d 299; King v. State ex rel. Dept. of Health and Hosp., 31,651 (La.App.2d Cir.2/24/99), 728 So.2d 1027, writ denied, 99-0895 (La.5/07/99), 741 So.2d 656; Pinnick v. Louisiana State Univ. Med. Center, 30,263 (La.App.2d Cir.2/25/98), 707 So.2d 1050.

Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). Further, when findings are based on determinations regarding credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings. Id. Only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in that which is said. Orea v. Scallan, 32,622 (La.App.2d Cir.1/26/00), 750 So.2d 483.

A medical malpractice claimant must establish, by a preponderance of the evidence: (1) the defendant’s standard of care, (2) the defendant’s breach of that standard of care, and (8) a causal connection between the breach and the claimant’s injuries. La. R.S. 9:2794(A); Pfiffner v. Correa, 94-0924, 94-0963, 94-0992 (La.10/17/94), 643 So.2d 1228; Bamburg v. St. Francis Med. Center, 45,024 (La.App.2d Cir.1/27/10), 30 So.3d 1071, writ denied, 10-0458 (La.4/30/10), 34 So.3d 294.

Malpractice claims against a hospital are subject to the general rules of proof applicable to any negligence action. Moore v. Willis-Knighton Med. Center, 31,203 (La.App.2d Cir.10/28/98), 720 So.2d 425. A plaintiff must prove that the defendant had a duty to protect against the risk involved, that the defendant breached its duty and that the plaintiffs injury was caused by the defendant’s conduct. Smith v. State, through Dept. of Health and Human Res., 523 So.2d 815 (La.1988); Moore, supra.

Hospitals are held to a national standard of care. The locality rule does not apply to hospitals. Henderson v. Homer Memorial Hosp., 40,585 (La.App.2d Cir.1/27/06), 920 So.2d 988, writ denied, 06-0491 (La.5/5/06), 927 So.2d 316. Hospitals are bound to exercise the requisite amount of care toward a patient that the particular patient’s condition may require. Id. The mere fact that an injury occurs or an accident happens raises no presumption or inference of negligence on the part of the hospital. Galloway v. Baton Rouge Gen. Hosp., 602 So.2d 1003 (La.1992).

It is well settled that a hospital is liable for its employee’s negligence, including doctors and nurses, under the re-spondeat superior doctrine. Benefield v. Sibley, 43,317 (La.App.2d Cir.7/9/08), 988 So.2d 279, writs denied, 08-2162, 08-2210, 08-2247 (La.11/21/08), 996 So.2d 1107, 1108. Nurses who perform medical services are subject to the same standards of care and liability as are physicians. Id. The nurse’s duty is to exercise the degree of skill ordinarily employed, under similar circumstances, by members of the nursing or health care profession in good standing in the same community or locality, along with his or her best judgment, in the application of his or her skill to the case. Little v. Pou, 42,872 (La.App.2d Cir.1/30/08), 975 So.2d 666, writ denied, 08-0806 (La.6/6/08), 983 So.2d 920.

In the case sub judice, it is undisputed that the administration of undiluted potassium IV push falls below the standard of care. As previously stated, the jury in this case found by a preponderance of the evidence that Nurse Hansen breached the standard of care in her treatment of Ms. Martin by injecting undiluted potassium directly into the IV port, which caused the cardiac arrhythmia that resulted in Ms. Martin’s death. Our review of the record, as described above, reveals a reasonable basis for this conclusion.

First, the jury heard repeated testimony concerning the inaccuracy of the medical records and the inconsistencies between the pharmacy records and the medical records. Second, Ms. Albritton’s testimony was subject to differing interpretations regarding the availability of undiluted potassium to nurses from the pharmacy. In addition, there was no written policy dictating the handling of undiluted potassium; rather the staff was informed via internal memo in February 2000 that undiluted potassium would no longer be available in patient care areas. Ms. Albritton, however reluctantly, testified that undiluted potassium was available from the pharmacy. Moreover, Dr. Reeves testified that he was unaware that undiluted potassium was not supposed to be available to ER nurses and he ordered that the potassium be added to the bag of normal saline that had already been hung. Third, all witnesses, albeit some reluctantly, testified that there was a 40 mEq dose of potassium dispensed in the pharmacy, but not accounted for in the medical chart as being given to the patient or discarded. Finally, all expert witnesses, including Drs. Thoma and Schaan, agreed that Ms. Martin’s sudden cardiac arrhythmia and the reactions as described by Ms. Farmer and Dr. Johnson were consistent with the patient having received undiluted potassium IV push. Collectively, this evidence could reasonably lead a fact finder to conclude that undiluted potassium was available to Nurse Hansen from the pharmacy and was administered IV push to Ms.- Martin.

Furthermore, the jury clearly made a credibility determination in accepting as true the testimony of Ms. Farmer and Dr. Johnson regarding Nurse Hansen’s actions and the reaction of Ms. Martin almost immediately after medication was injected in the IV port. In doing so, the jury rejected the testimony of Nurse Hansen. The jury is afforded great deference in making such credibility determinations and we find no abuse of that discretion in the present case. We also are bound to give great deference to the jury’s decision to credit Dr. Simmons’ expert testimony over any contradictory testimony of other expert witnesses. Turner, supra; Pinnick, supra. Accordingly, we will not disturb the jury’s verdict on liability.

Survival Damages

In the determination of general damages, the discretion vested in the trier of fact is “great” and even vast, so that an appellate court should rarely disturb an award of general damages. La. C.C. art. 2824.1. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award. Benefield, supra; Hargroder v. Unkel, 39,009 (La. App.2d Cir.10/29/04), 888 So.2d 958, writs denied, 04-2908, 04-2909 (La.2/4/05), 893 So.2d 874.

In addition, only after an abuse of discretion is disclosed by an articulated analysis of the facts is an examination of prior awards in similar cases proper; an abusively low award is raised to the lowest amount the trier of fact could have reasonably awarded, while an abusively high award is reduced to the highest amount the trier of fact could have reasonably awarded. The proper procedure for examining whether an award is excessive is to determine whether the amount can be supported under the interpretation of the evidence most favorable to the plaintiff, which reasonably could have been made by the trier of fact. Benefield, supra; Hargroder, supra.

Survival damages may be awarded for the pre-death mental and physical pain and suffering of the deceased. In determining survival damages, the fact finder should consider the severity and duration of any pain or any pre-impact fear experienced by the deceased, and any other damages sustained by the deceased up to the moment of death. Simmons v. Christus Schumpert Med. Center, 45,908 (La.App.2d Cir.6/15/11), 71 So.3d 407, writs denied, 11-1592, 11-1591 (La.10/7/11), 71 So.3d 317, 318. Survival damages are properly awarded if there is even a scintilla of evidence of pain or suffering on the part of the decedent, and fright, fear or mental anguish during an ordeal leading to the death is compensable. Id. The question of whether the decedent actually consciously suffered is a factual issue, governed by the manifest error-clearly wrong standard. Id.

Ms. Martin experienced a horrific event which started with intense burning and pain in her arm and erratic heartbeat. She began frothing at the mouth and having seizure-like convulsions. Ms. Farmer testified that her mother was looking at her with a pleading look on her face as if she was begging for help. She slowly lost consciousness and suffered a complete cardiac failure. While the award of $250,000 in survival damages is toward the top of the range in this type of case, we cannot say that the award is an abuse of the jury’s great discretion in fashioning such awards.

Wrongful Death Damages and Funeral Expenses

Plaintiffs argue that it was error for the jury to award survival damages without awarding damages for wrongful death and for failing to award funeral expenses. This argument has merit.

In a wrongful death action involving allegations of medical malpractice, a plaintiff may establish a compensable claim through evidence which demonstrates that a defendant’s medical malpractice resulted in the loss of a chance of survival of a patient who thereafter expired. Smith v. State through Dept. of Health & Human Res., supra. The elements of damages for a wrongful death action are loss of love and affection, loss of services, loss of support, medical expenses and funeral expenses. Smith v. Louisiana Farm Bureau Cas. & Ins. Co., 45,013 (La. App.2d Cir.4/23/10), 35 So.3d 463, writ denied, 10-1205 (La.9/17/10), 45 So.3d 1052.

The testimony established that each of Ms. Martin’s 13 adult children enjoyed a close and loving relationship with their mother. Each child testified to frequent activities and talks with their mother; and, according to the testimony, Ms. Martin spent an inordinate amount of love and energy helping and supporting her children in different ways. By all accounts, Ms. Martin was the common thread and consummate matriarch for this family. Based on this record, we find that an award of $60,000 to each of Ms. Martin’s 13 children is appropriate.

Finally, based on the documentary evidence introduced by Plaintiffs from Well-man Funeral Home, we award funeral expenses in the amount of $6,833.72.

DECREE

For the foregoing reasons, the judgment in favor of Plaintiffs, Beverly Farmer, Individually and as the Provisional Tutrix of Ms. Martin, Paul Sepulvado, Jerry Sepul-vado, Billy Sepulvado, John Sepulvado, Marvin Sepulvado, Raymond Irvin, Joseph Sepulvado, Janet Cassidy, Patricia Steadman, Wanda Sepulvado, Margie Eades and Martha Wall, and against Defendant Willis-Knighton Medical Center, is affirmed. The award of survival damages in the amount of $250,000 is affirmed. The portion of the judgment denying damages for wrongful death is amended to award each of Virginia Martin’s 13 children $60,000 and to award $6,833.72 in funeral expenses. Costs of appeal are assessed to Defendant Willis-Knighton Medical Center.

AMENDED AND, AS AMENDED, AFFIRMED.

PER CURIAM ON REHEARING

Before WILLIAMS, DREW, MOORE, PITMAN & SEXTON (Pro Tempore), JJ.

PER CURIAM.

| j Inasmuch as the awards made in our original opinion exceed the statutory cap of $500,000 imposed by La. R.S. 40:1299.42 B(l) of the Louisiana Medical Malpractice Act, we grant the application for rehearing filed by the Patient’s Compensation Fund for the limited purpose of amending our decree to impose that statutory cap.

Accordingly, we amend our decree to limit the awards against Willis-Knighton Medical Center to the total of One Hundred Thousand Dollars ($100,000), plus legal interest from the date of the filing of the Patient’s Compensation Fund Claim on February 1, 2002, until paid. We further amend our decree to cast the Patient’s Compensation Fund in judgment for Four Hundred Thousand Dollars ($400,000), plus legal interest from the date of the filing of the Patient’s Compensation Fund Claim on February 1, 2002, until paid.

AMENDED AND, AS AMENDED, AFFIRMED.

      . Plaintiffs include Beverly Farmer, Individually and as the Provisional Tutrix of Ms. Martin, Paul Sepulvado, Jerry Sepulvado, Billy Sepulvado, John Sepulvado, Marvin Sepulva-do, Raymond Irvin, Joseph Sepulvado, Janet Cassidy, Patricia Steadman, Wanda Sepulva-do, Margie Eades and Martha Wall.

      . Nurse Hansen worked full time as a nurse in Coushatta, Louisiana, and did sporadic relief work in Shreveport for WK.

      . The medical records are in military time; for clarity and ease of reading, references to time in this opinion have been converted to standard time.

      . Dr. Johnson is a chiropractor and he and Ms. Farmer were in a relationship at the time of Ms. Martin’s death. The record reveals that Dr. Johnson shared a close friendship with Ms. Martin prior to her death. He testified that the effects of Ms. Martin's passing on Ms. Farmer were tremendous and put a strain on the relationship. The two were no longer in a relationship by the time discovery was taken.

      . A CT scan with contrast requires IV administration of iodine, which makes the aorta show up well and highlights abnormalities such as an aneurysm.

      . The earlier Mini-hycel did not include a potassium level.

      . Interestingly, this entry is timed after the Code had been called for Ms. Martin.

      . Pyxis machines are located in patient care areas and contain medications that nurses can quickly obtain by entering the patient’s identifying information. Medications dispensed from the Pyxis is automatically documented in the pharmacy records by computer.

      . In light of our holding herein, we pretermit any discussion of WK’s assignment of error challenging the denial of its Motion for JNOV and, alternatively, New Trial and/or Remitti-tur.

      . In so doing, we find that it is appropriate to allow the $250,000 survival action award to stand in its entirety, but reduce the awards for the derivative claims. See Emily Townsend Black Grey, The Medical Malpractice Damages Cap: What Is Included?, 60 La. L.Rev. 547 (2000); Newsom v. Lake Charles Memorial Hospital, 2006-1468 (La.App. 3d Cir.4/4/07), 954 So.2d 380, writ denied, 2007-0903 (La.6/15/07), 958 So.2d 1198; Todd v. Sauls, 94-10 (La.App. 3d Cir. 12/21/94), 647 So.2d 1366, writs denied, 95-0206, 95-0219 (La.3/24/95), 651 So.2d 289. Consequently, the wrongful death award of $60,000 to each of the 13 children is reduced to $19,063.74 per child, and the award for funeral expenses is reduced from $6,833.72 to $2,171.27.