author: COOKS, Judge.

text:
    Rhonda TIMBERLAKE v. CHRISTUS HEALTH CENTRAL LOUISIANA d/b/a Fara Insurance Companies.
    No. 13-166.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 30, 2013.

      Maria A. Losavio, Losavio Law Office, LLC, Alexandria, LA, for Plaintiff/Appellant, Rhonda Timberlake.
    ■ John C. Turnage, Meyer, Smith & Roberts, LLP, Shreveport, LA, for Defendants/Appellees, Christus Health Central Louisiana d/b/a Christus St. Frances Cabrini Hospital.

      Court composed of SYLVIA R. COOKS, MARC T. AMY, and PHYLLIS M. KEATY, Judges.
   COOKS, Judge.

|2Both the employer and worker assert various errors in the judgment rendered by the Office of Workers’ Compensation following a work accident involving the Claimant.

FACTS AND PROCEDURAL HISTORY

On March 30, 2010, the Claimant, Rhonda Timberlake, alleged she sustained a left wrist and forearm injury while in the course and scope of her employment as a registered nurse with Christus Health Central Louisiana d/b/a Christus St. Frances Cabrini Hospital (hereafter Cabrini). The alleged injury occurred when Claimant was repositioning an Intensive Care Unit (ICU) patient. A claim for workers’ compensation benefits was eventually filed. Cabrini is self-insured for purposes of this claim. F.A. Richard and Associates, Inc., (FARA) is the third-party administrator of Cabrini’s workers’ compensation claims.

After the injury, Claimant, upon referral by Cabrini, received care from Dr. Gordon Webb, an occupational medicine specialist. Restrictions were placed on Claimant, but she continued her employment with Cabrini. Claimant then chose Dr. William Crenshaw, an orthopedist, as her choice of physician. She was seen by Dr. Crenshaw on several occasions. During the course of her treatment with Dr. Crenshaw, Claimant underwent an MRI, EMG and nerve conduction studies. She had her arm placed in a cast and was advised to begin physical therapy. She was restricted from working on May of 2010 and began receiving temporary total disability (TTD) benefits until she returned back to work with other restrictions on June 15, 2010.

Dr. Crenshaw suggested that Claimant be evaluated by his partner, Dr. Mark Dodson, also an orthopedic specialist. Claimant agreed, and Dr. Dodson examined her on June 16, 2010. On the day following the examination by Dr. Dodson, Claimant called the adjuster for FARA, Joanna Cannatella, and requested to be | .^evaluated by another orthopedic hand specialist, Dr. Richard Morrow. Ms. Can-natella denied this, believing the change to Dr. Dodson was a prior change of orthopedic specialists. Claimant remained under Dr. Dodson’s care until she was granted the right to be treated by Dr. Richard Morrow.

According to Claimant, when she returned to work, Cabrini had to find things for her to do under her work limitations. She was moved around to various areas, many involving monitoring and administrative duties. Claimant earned approximately $26.00 per hour. It was subsequently alleged by Cabrini that Claimant missed periods of work due to unrelated illnesses or family events. Claimant disputed that, and claimed she missed work only for problems related to her arm injury.

In October of 2010, Claimant was released to return to her nursing duties in the ICU Unit. Claimant left her employment at Cabrini in November of 2010 because, according to her, she was not making near the money she was making prior to her injury. She stated this was largely due to Cabrini failing to offer Claimant sufficient shifts that would earn her close to her pre-accident wages. She also testified there were rising tensions in the ICU because she was still working there with restrictions and her co-workers were forced to compensate for her medical limitations.

In an effort to earn more money, Claimant accepted contract nursing jobs in California. Claimant stated this job also appealed to her because she was able to work with more ambulatory patients rather than bedbound ICU patients. She testified she earned $30.00 an hour during this employment. It was maintained this level of remuneration still did not reach 90% of her pre-accident wages.

Following the denial by Ms. Cannatella on June 17, 2010 of her request to be seen by Dr. Morrow, Claimant retained legal counsel. Several requests were made by Claimant to Cabrini to get pre-authorization to see Dr. Morrow, which 14were all denied. Dr. Morrow’s policy required written pre-authorization from the employer for an initial evaluation of Claimant since she was a workers’ compensation patient. No pre-authorization was given.

Counsel for Claimant filed a Motion for Authorization of Treatment with Dr. Morrow. On March 10, 2011, a hearing on that motion was held before the Office of Workers’ Compensation (OWC). The Workers’ Compensation Judge (WCJ) ruled in favor of Claimant and ordered Cabrini to allow Claimant to obtain medical treatment with Dr. Morrow. The issue of whether a penalty and attorney fees were warranted for Cabrini’s failure to timely authorize this change was deferred to the trial on the merits.

Claimant began treatment with Dr. Morrow in March of 2011. During this time, claimant was working periodically in California. On September 15, 2011, Dr. Morrow, concerned with Claimant’s lack of improvement, scheduled several diagnostic tests, an arthrogram, an Electromyogra-phy (EMG) and a nerve conduction study (NCS). After discussing the results with Claimant, Dr. Morrow recommended surgery on her wrist and took her completely off of work. Cabrini did not begin paying TTD benefits to Claimant until November 13, 2011, the date of the wrist surgery.

Trial on the merits was held on March 28, 2012, focusing primarily on indemnity, penalties and attorney fees allegedly owed. Average weekly wages were stipulated to be $1,549.83, which resulted in a maximum temporary total disability (TTD) rate of $577.00 per week. Claimant alleged for the month's of July, August and September 2010, she returned to work at Cabrini under restrictions and was unable to earn at least 90% of her pre-accident wages. Claimant also requests supplemental earnings benefits (SEB) from December 2010 through September 2011 when she was “forced” to leave Cabrini to work out of | Sstate resulting in less than 90% of her pre-accident wages. Claimant also requested penalties and attorney fees for Cabrini’s unreasonable failure to pay SEB.

Claimant also maintained she was entitled to TTD benefits from September 27, 2011 to November 13, 2011 (the date she began receiving TTD benefits). Claimant maintained Dr. Morrow removed her from work on September 27, 2011 and recommended surgery. Penalties and attorney fees were also requested for Cabrini’s nonpayment of TTD benefits during that time period.

The WCJ issued an oral ruling on May 21, 2012, finding Claimant “sustained a work accident on March 30, 2010 during the course and scope of her employment” with Cabrini. The WCJ further concluded Claimant was entitled to SEB benefits for July, 2010 in the amount of $1,569.70; for August, 2010 in the amount of $777.82; for September, 2010 in the amount of $1,155.77. The WCJ found these were the only months Claimant was entitled to SEB. The WCJ also assessed Cabrini with a $2,000.00 penalty for what the court termed “an unreasonable failure to pay SEB benefits to [Claimant] for July, August and September of 2010.” The WCJ awarded TTD benefits to Claimant from September 27, 2011 through November 13, 2011, and continuing. The WCJ found Cabrini “was unreasonable in its failure to pay TTD” during the above period and was assessed a $2,000.00 penalty. The WCJ denied Claimant’s request for a penalty and attorney fees for Cabrini’s refusal to allow her to change orthopedic surgeon from Dr. Crenshaw and/or Dr. Dodson to Dr. Morrow. Lastly, the WCJ awarded attorney fees to Claimant in the amount of $7,500.00.

Claimant filed a Motion for New Trial on the WCJ’s denial of penalties and attorney fees for Cabrini’s failure to timely authorize the change of physician to Dr. Morrow. The basis for the motion was that the WCJ referenced a statute that had been repealed. At a hearing on the motion, the WCJ acknowledged the, citing lsof an inappropriate statute, but affirmed his previous ruling denying penalties and attorney fees.

Cabrini appealed the WCJ’s judgment, asserting the following assignments of error:

1. The WCJ erred in awarding SEB to Claimant for July, August and September, 2010.
2. The WCJ erred in awarding TTD benefits from September 27, 2011 through November 13, 2011.
3. The WCJ erred in finding Cabrini was arbitrary and capricious and awarding penalties and attorney fees.

Claimant filed an answer to Cabrini’s appeal, and asserts the following assignments of error:

1. The WCJ erred in not awarding penalties and attorney fees for Cabrini’s failure to timely authorize the change in treating physician to Dr. Morrow.
2. The WCJ erred in failing to award SEB for the periods Claimant was working out of state under restrictions from work.
3. The WCJ erred in not awarding penalties and attorney fees for Cabrini’s failure to pay SEB for the periods Claimant was working out of state.
4.An increase in attorney fees is warranted for the efforts put forth prior to appeal and additional attorney fees are warranted for the work necessitated by the appeal.

ANALYSIS

“Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. In applying the manifest error standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.” Foster v. Rabalais Masonry, Inc., 01-1394, p. 2 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160, 1162, writ denied, 02-1164 (La.6/14/02), 818 So.2d 784 (citation omitted).

|7In Green v. National Oilwell Varco, 10-1041, pp. 3-4 (La.App. 3 Cir. 4/27/11), 63 So.3d 354, 358, we explained:

“The determination of coverage is a subjective one in that each case must be decided from all of its particular facts.” Jackson v. Am. Ins. Co., 404 So.2d 218, 220 (La.1981). This court has held that, in light of that standard of review, “great deference is accorded to the [workers’ compensation judge’s] factual findings and reasonable evaluations of credibility.” Cent. Lumber Co. v. Duhon, 03-620, p. 3 (La.App. 3 Cir. 11/12/03), 860 So.2d 591, 593, writ denied, 04-315 (La.4/2/04), 869 So.2d 880 (quoting Garner v. Sheats & Frazier, 95-39, p. 7 (La.App. 3 Cir. 7/5/95), 663 So.2d 57, 61).

CABRINPS APPEAL

I. SEB for July, August, September 2010.

Cabrini argues the WCJ erred in awarding SEB to Claimant for July,-August and September of 2010, In Allen v. City of Shreveport, 618 So.2d 886, 388 (La.1993) (footnote omitted), the Louisiana Supreme Court summarized the purpose of SEB as follows:

Supplemental earnings benefits were established in 1983 as a method of replacement of lost wages for partially disabled employees. The benefits are designed to replace lost earning capacity of workers who do not fall under the definition of total disability. When an injured employee is able to engage in a gainful occupation, but because of his work-related disability is unable to earn wages at the level he was earning prior to his injury, he is classified as partially disabled. And when the partial disability reaches the level that the employee is unable to earn wages equal to ninety percent or more of the wages he was earning at the time of the injury, he is entitled to supplemental earnings benefits, calculated according to a formula relating to his pre-injury wages and the wages he “is able to earn” in any employment or self-employment after the injury. La.Rev.Stat. 23:1221(3)(a).

The employee bears the initial burden of proving by a preponderance of the evidence that he or she is disabled due to a work-related injury that rendered him or her unable to earn ninety percent of the pre-injury wages. Banks v. Ind. Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. “In determining if an injured employee has made out a prima facie case of entitlement to supplemental earnings benefits, the trial court may and should take into account all | «those factors which might bear on an employee’s ability to earn a wage.” Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1007 (La.1989), quoting Gaspard v. St. Paul Fire & Marine Ins. Co., 483 So.2d 1037 (La.App. 3 Cir.1985); see also La.R.S. 23:1221(3)(a). Once the employee seeking SEB establishes a prima facie case, the burden shifts to the employer to show the employee is physically capable of work and that the work was offered or available .in the employee’s or employer’s community or reasonable geographic region. La.R.S. 23:1221(3)(c)(i).

The evidence established that Claimant had restrictions placed upon her immediately after the injury occurred, although she continued working in more sedentary duties. The WCJ found, even with her physical limitations, Claimant was able to earn at least 90% of her pre-accident wages during April, 2010, thus no SEB was due for that month. In May of 2010, she was removed from work, and began receiving TTD benefits. The WCJ found no SEB was due for May and June, which is not disputed by the parties.

Claimant returned to work with restrictions by July, 2010. Claimant testified she attempted “as best, she could” to schedule as many hours as possible, but was unable to earn 90% of her pre-accident wages. Cabrini argues Claimant was not prevented from earning 90% of her pre-accident wages during the period in question, but rather refused shifts offered to her by Cabrini that fell within her restrictions. Cabrini asserts she turned down these offered shifts for “unrelated personal reasons.” Cabrini specifically point to certain instances where Claimant asked not to be scheduled on some Fridays to attend her son’s band performance. Claimant maintained any time she missed was due to continued pain with her injured arm, and that she notified Cabrini well in advance if she could not work on a certain Friday.

The WCJ specifically noted he found Claimant’s testimony that she attempted to secure as many shifts as possible credible. Stephen Dubae, Cabrini’s |aICU Supervisor, testified he was largely unaware of what hours and shifts were offered to Claimant. The WCJ noted Claimant’s testimony “seemed to be corroborated” by Mr. Dubae. After a review of the record we find no error in the WCJ’s finding that Claimant established her entitlement to SEB for July, August and September of 2010.

We also find unpersuasive Cabrini’s argument that the lack of available shifts for Claimant was due to an alleged reduction in the number of patients in the facility. The law clearly sets forth that once the “employee seeking SEB establishes a prima facie, the burden shifts to the employer to show the employee is physically capable of work and that the work was offered or available in the employee’s or employer’s community or reasonable geographic region. La.R.S. 2S:1221(3)(c)(i). Cabrini failed to meet their burden at trial to establish that sufficient work was offered or available to allow Claimant to earn 90% of her pre-accident wages.

Cabrini also argues the WCJ erred in awarding penalties and attorney fees for its refusal to pay SEB for July, August and September of 2010. The determination of whether an employer should be cast with penalties and attorney fees is essentially a question of fact, and the WCJ’s finding must not be disturbed on appeal absent manifest error. Wiltz v. Baudin’s Sausage Kitchen, 99-930 (La.App. 3 Cir. 6/19/00), 763 So.2d 111, writ denied, 00-2172 (La.10/13/00), 771 So.2d 650. “To avoid penalties and attorneys fees for the nonpayment of benefits, the employer or insurer is under a continuing duty to investigate, to assemble, and to assess factual information before denying benefits.” George v. Guillory, 00-591, p. 13 (La.App. 3 Cir. 11/2/00), 776 So.2d 1200, 1209, overruled on other grounds by Smith v. Quarles Drilling Co., 04-179 (La.10/29/04), 885 So.2d 562.

We note Cabrini puts forth the same arguments for its belief that it should not be cast with penalties and attorney fees as it did in its assignment of error that |TnSEB was not warranted at all, i.e., Claimant’s inability to earn 90% of her pre-accident wages was due to her refusal of shifts for personal reasons and a shortage of patients at the hospital. These arguments were found lacking above and are similarly no defense to the WCJ’s imposition of penalties and attorney fees for Cabrini’s failure to pay SEB for the pertinent period.

II. TTD Benefits.

The WCJ awarded Claimant TTD benefits from September 27, 2011, the date Dr. Morrow recommended surgery, through November 13, 2011, the day before surgery was performed. Cabrini has justified its refusal to pay TTD benefits during this period on the fact that Karl Bilderback (an orthopedic surgeon selected by Cabrini to examine Claimant in light of Dr. Morrow’s surgery recommendation) determined Claimant was capable of working, albeit with restrictions, during the period in question. The WCJ examined in detail Dr. Bilderback’s conclusions concerning Claimant, but determined she was still entitled to TTD benefits for the period in question.

Following Dr. Morrow’s surgical recommendation, Cabrini requested that Claimant be examined by Dr. Bilderback. On October 28, 2011, Dr. Bilderback examined Claimant and concluded she had “clearly not reached Maximum Medical Improvement, as she is in need of further treatment.” The WCJ noted that Dr. Bilder-back did state he believed Claimant could return to work with restrictions. Specifically, Dr. Bilderback wrote:

I believe she could return to work at this point. However, she would have difficulty in lifting patients with draw sheets, as well as any fine motor activity with her left hand. These type of activities would be required in her job description. I believe she would have difficulty returning to work without some restrictions or accommodations.

Despite his belief that Claimant could only return to work while under restrictions, the WCJ noted neither Dr. Bilderback nor Cabrini presented any updated restrictions or accommodations after the arthrogram, EMG and NCS performed in | uSeptember of 2011. The WCJ gave the following oral reasons for finding TTD benefits should have been commenced during the period in question:

Pursuant to the [cases of Ebare v. Cubic Applications, Inc., 08-1095 (La.App. 3 Cir. 3/4/09), 5 So.3d 1028 and Pickett v. Stine Lumber Co., 93-1534 (La.App. 3 Cir. 6/1/94), 640 So.2d 769], toward the facts and the particular circumstances of [Claimant’s] case, she is in further need of further medical care, testing and treatment. Even Dr. Bilderback indicates she may need further nerve conduction — I mean, EMG studies, updated studies, and this was what Dr. Dodson had indicated in July 5th of 2010. Indicates she is not at Maximum Medical Improvement and needs to have the surgery. She’s going to have difficulty lifting patients. She has a problem with fine motor activity with her hand, and particularly, since it hasn’t been shown by the employer since this new development of medical information from Dr. Morrow,- as well as Dr. Bilderback with — that there’s any employment — [in Claimant’s], or the employer’s reasonable geographic area [that] meets this new criteria, [Claimant] is, in fact, entitled to TTD benefits September 27th of 2011 until she had her surgery, which I think [was on] November 14th of 2011.

We cannot say the WCJ manifestly erred in its award of TTD benefits for the period in question. This Court has held when a claimant, either at the time of trial or at the time of nonpayment of benefits, is still undergoing testing and treatment with an “indefinite recovery period, she is entitled to recover TTD’s.” See Warren v. Maddox Hauling, 02-733 (La.App. 3 Cir. 12/4/02), 832 So.2d 1082, writ denied, 03-4 (La.4/21/03), 841 So.2d 791; Foster v. Liberty Rice Mill, 96-438 (La.App. 3 Cir. 12/11/96), 690 So.2d 792.

' We likewise affirm the WCJ’s imposition of penalties and attorney fees for Cabrini’s failure to pay TTD benefits from September 27, 2011 through November 14, 2011. The WCJ did not manifestly err in finding Cabrini did not perform its continuing duty to investigate, assemble and assess the factual information before denying TTD benefits for the period in question.

CLAIMANT’S APPEAL

I. Penalties and Attorney Fees for Failure to Authorize Change of Physician.

A review of the record indicates Claimant initially sought treatment the day of the accident at Cabrini Hospital She then began treatment with Dr. William 112Crenshaw of Mid-State Orthopedic and Sports Medicine, who treated her over several visits, including ordering physical therapy and several diagnostic tests.

Dr. Crenshaw suggested to Claimant that she be evaluated by his partner, Dr. Mark Dodson. Claimant agreed, and Dr. Dodson examined her on June 16, 2010. According to Claimant, she did not agree to select Dr. Dodson as her choice of orthopedist, and only thought he was giving a second opinion to his partner, Dr. Cren-shaw. However, she was told by Mid-State that once Dr. Dodson had seen her, according to policy she was unable to return to Dr. Crenshaw for treatment.

On the day following .the June 16, 2010 examination by Dr. Dodson, Claimant called the adjuster for FARA, Joanna Can-natella, and requested to be evaluated by another orthopedic hand specialist, Dr. Morrow. Ms. Cannatella denied this, believing the change to Dr. Dodson was a prior change of orthopedic specialists. The WCJ noted that, even after voicing her disapproval, Claimant continued seeing Dr. Dodson.

Claimant notes that Dr. Dodson believed that an evaluation by Dr. Morrow was an “excellent idea,” and that Cabrini was aware of Dr. Dodson’s opinion. However, no authorization was given. Thus, they contend it was arbitrary and capricious to deny Claimant’s request to see Dr. Morrow.

Counsel for Claimant filed a Motion for Authorization of Treatment with Dr. Morrow. On March 10, 2011, a hearing on that motion was held before the OWC. The WCJ ruled in favor of Claimant and ordered Cabrini to allow Claimant to obtain medical treatment with Dr. Morrow. The issue of whether a penalty and attorney fees were warranted for Cabrini’s failure to timely authorize this change was deferred to the trial on the merits. At the trial on the merits, the WCJ declined to assess penalties and attorney fees.

11sLouisiana Revised Statutes 28:1121(B)(1) provides:

The employee shall have the right to select one treating physician in any field or specialty. The employee shall have a right to the type of summary proceeding provided for in R.S.23:1124(B), when denied his right to an initial physician of choice. After his initial choice the employee shall obtain prior consent from the employer or his workers’ compensation carrier for a change of treating physician within that same field or specialty. The employee, however, is not required to obtain approval for change to a treating physician in another field or specialty.

Claimant contends she never selected Dr. Dodson as her treating physician, but merely consented to a second opinion from him at Dr. Crenshaw’s request. Cabrini disputes this, arguing Claimant “is a registered nurse and she was aware Dr. Cren-shaw wanted her to see the hand specialist within his clinic.” Her agreement to see him, Cabrini argues, “became her choice.”

The WCJ’s decision to award penalties and attorney’s fees is a question of fact which is reviewed under the manifest error standard of review. Pauley v. Wal-Mart Stores, Inc., 02-1354 (La.App. 3 Cir. 6/4/03), 847 So.2d 757, writ denied, 03-1884 (La.11/21/03), 860 So.2d 544. In the instant matter, the WCJ concluded whether to grant Claimant’s request for a change in physician was “a genuine issue, reasonably contested by the employer, given the factual issues about the actual choice of that physician.” Thus, the WCJ declined to award penalties and attorney fees. The law is clear that “an employer should not be penalized for bringing a close legal issue to court.” Burruss v. Centro Mgmt., Inc., 00-1274, p. 2 (La.App. 3 Cir. 2/28/01), 780 So.2d 630, 631. Mindful of the vast discretion vested in the trier of fact, we cannot say the WCJ erred in finding there was sufficient evidence for Cabrini to contest Claiman’s choice of physician request. Accordingly, we affirm the WCJ’s denial of penalties and attorney’s fees on this issue.

II. Claimant’s Request for SEB While Working Out of State.

114The WCJ noted that Claimant earned in excess of her pre-accident wages in October of 2010, when she was released to return to the ICU Unit. In the middle of November, Claimant resigned from her employment with Cabrini and began accepting contract nursing jobs in California. Claimant worked in California from December 2010 until September 27, 2011, when Dr. Morrow removed her from all work.

Claimant maintained she left her employment with Cabrini because she was not making near the money she was making prior to her injury and there were rising tensions in the ICU Unit due to her fellow employees having to compensate for her medical restrictions. Despite her pursuing and accepting work in California, Claimant maintained she was still unable to earn 90% of her pre-accident wages, and the WCJ erred in not awarding her SEB for this period.

The WCJ gave the following reasons for denying SEB to Claimant during her period of out-of-state employment:

Based on the time that she had worked during the month of November of 2010, she was well on her way, [to] earning greater than 90% of her pre-injury wages for the month of November of 2010. I do not accept [Claimant’s] testimony that she left Christus St. Frances Cabrini Hospital because she was making less money after her injury than she was making prior to her injury, since, clearly, up until October or November, after she had been released to return to the ICU Unit, does — as fact, working in the ICU Unit, it — was no medical evidence indicating that she was incapable of doing the work in the ICU Unit. [Stephen Dubae] testified that nothing in the ICU Unit, other than turning patients, required them to lift greater than 41 pounds, that they always had assistance in lifting patients. And the mere fact that someone feels tension in the air from coworkers and having to assist them is not a basis to leave an employment and place the employer in the responsibility of providing SEB benefits when there’s no medical corroboration that the worker cannot perform the work. I could find no jurisprudence along that line that I was cited on behalf of [Claimant]. So, [she] is not entitled to SEB from October [2010], all the way through September 27, 2011.

We find the record supports the WCJ’s reasoning that Claimant did not leave her employment with Cabrini because she was unable to earn close to her pre-accident wages. Claimant earned well in excess of her monthly pre-accident wages 115in October of 2010. The WCJ also noted she was on a similar track in November of 2010, until she voluntarily left her employment with Cabrini. Thus, the WCJ’s refusal to accept Claimant’s contention that she left her employment because she could not earn her pre-accident wages was reasonable. Likewise, we find the WCJ’s conclusion that Claimant was able, with occasional assistance, to perform her duties in the ICU was supported by the record.

As for Claimant’s argument that there was tension in the ICU that led to her departure, Claimant acknowledged she never went to her supervisor, Mr. Dubae, to voice any concerns over any tension. The WCJ concluded simply because there may be tension with coworkers is not enough by itself to make the employer responsible for payment of SEB, when the record establishes Claimant was able to perform her duties and was able to earn 90% of her pre-accident vrages. We find no error in this conclusion.

III. Increase in Attorney Fees for Work Performed on Appeal.

We have long held that a claimant who successfully defends the WCJ’s ruling should be entitled to additional fees for the work necessitated by the. appeal. Phillips v. Diocese of Lafayette, 03-1241 (La.App. 3 Cir. 3/24/04), 869 So.2d 313. We will award Claimant additional attorney fees in the amount of $3,000.00.

DECREE

For the foregoing reasons, the judgment of the Office of Worker’s Compensation is affirmed. The judgment is amended to award Claimant $3,000.00 in additional attorney fees for the work necessitated by Cabrini’s appeal. Costs of this appeal are assessed to defendant, Christus St. Frances Cabrini Hospital.

AFFIRMED AS AMENDED.

      . La.R.S. 21:1121(B) was amended by 2013 Acts 337, § 1, effective August 1, 2013. The amendments are retroactive, and address the hearing on the claimant’s choice of physician.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    Dr. Carlton L. WINBERY, Dr. Frederick L. Downing, Dr. James R. Heath, and Dr. Connie R. Douglas v. LOUISIANA COLLEGE, Leon Hyatt, Jr., Joe Aguillard, Kent Aguillard, Alan Shoemaker, Amy Russell, and Louisiana Inerrancy Fellowship.
    No. 13-339.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 6, 2013.

      Victor H. Sooter, Sooter & Associates, A Limited Liability Company, Alexandria, Louisiana, for Plaintiffs/Appellants/Cross-Appellees Dr. Carlton L. Winbery, Dr. Frederick L. Downing, Dr. James R. Heath, and Dr. Connie R. Douglas.
    Frederic Theodore Le Clercq, Joseph L. McReynolds, Kelly L. Covington, Deutsch, Kerrigan & Stiles, L.L.P., New Orleans, Louisiana, for Defendants/Appel-lees/Cross-Appellants Louisiana College, Leon Hyatt, Jr., Joe Aguillard, Kent Aguillard, Alan Shoemaker, and Amy Roussell.
    Court composed of JAMES T. GENOVESE, SHANNON J. GREMILLION, and JOHN E. CONERY, Judges.
   GENOVESE, Judge.

| ¡Plaintiffs, Dr. Carlton L. Winbery, Dr. Frederick L. Downing, Dr. James R. Heath, and Dr. Connie R. Douglas, appeal the dismissal of their lawsuit against Defendants, Louisiana College, Leon Hyatt, Jr., Joe Aguillard, Kent Aguillard, Alan Shoemaker, and Amy Roussell, pursuant to the trial court’s grant of Defendants’ declinatory exception of lack of subject matter jurisdiction. The trial court reasoned that to resolve Plaintiffs’ claims would require an unconstitutional entanglement in a religious dispute under the First Amendment’s Establishment Clause. Defendants filed a cross-appeal, challenging the trial court’s ruling that the ministerial exception of the First Amendment’s Free Exercise Clause did not also apply herein. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 1996, Plaintiffs, then faculty members at Louisiana College, filed suit against Leon Hyatt, Jr., the Louisiana Inerrancy Fellowship, and the Louisiana Conservative Resurgency, alleging defamation and intentional infliction of emotional distress. That lawsuit was ultimately settled.

In December 2005, Plaintiffs, now former professors of Louisiana College, filed another lawsuit alleging that efforts were made by Defendants herein to defame, preclude advancement, violate long-held academic freedom, violate Louisiana College’s Faculty Handbook provisions, and to breach the aforementioned settlement contract. Defendants filed a decli-natory exception of lack of subject matter jurisdiction seeking a dismissal of Plaintiffs’ claims on the basis that the lawsuit is barred by the United States Constitution and the Louisiana ^Constitution. Invoking what is known as the ministerial exception, Defendants argued that Plaintiffs’ suit was barred by the First Amendment’s Free Exercise Clause because the claims at issue concerned the employment relationship between a religious institution, or church, and one of its ministers. Defendants rely upon the Supreme Court’s holding in Hosannah-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission, — U.S. -, 132 S.Ct. 694, 181 L.Ed.2d 650 (2012), to support their contention that Louisiana College is a church and Plaintiffs are ministers. Additionally, Defendants contend that determining the validity of Plaintiffs’ claims would require a court to determine the truth or falsity of certain religious beliefs and Baptist ecclesiastical disagreements over inerrancy or literal truth of the Bible as scripture, thereby violating the constitutional protections against government entanglement with religion found in the First Amendment’s Establishment Clause.

Plaintiffs argue that Defendants were not entitled to the protection of the ministerial exception because Louisiana College is non-hierarchical religious college where Plaintiffs were not ministers, and the college was not a church. Plaintiffs rely upon Equal Employment Opportunity Commission v. Mississippi College, 626 F.2d 477 (5th Cir.1980), cert. denied, 458 U.S. 912, 101 S.Ct. 3143, 69 L.Ed.2d 994 (1981), asserting that it is analogous and instructive herein. According to Plaintiffs, the Supreme Court’s holding in Hosanna-Tabor, 132 S.Ct. 694, is not helpful to Defendants’ position relative to the applicability of the ministerial exception. Instead, Plaintiffs contend that it bolsters their assertion that the ministerial exception is not a jurisdictional bar, but rather an affirmative defense to be asserted at trial and that Defendants’ presentation of this matter as a declinatory exception of lack of subject matter jurisdiction is unsupported. Plaintiffs further Largue that their claims present neutral principles of law, not religious doctrine or practice; therefore, determinations of defamation, retaliation, and contractual matters would not entail an impermissible venture, or government entanglement, into ecclesiastical matters.

A hearing on Defendants’ declinatory exception was held on February 6, 2012, after which the trial court issued Reasons for Judgment on March 28, 2012, finding in favor of Defendants and dismissing Plaintiffs’ claims. In sustaining Defendants’ declinatory exception, the trial court held that it was not precluded from exercising jurisdiction over claims asserted pursuant to the ministerial exception of the Free Exercise Clause, but that it was precluded from exercising jurisdiction over Plaintiffs’ claims on the basis that resolving those claims would necessitate an unconstitutional entanglement in a religious dispute. Judgment dismissing Plaintiffs’ demands against Defendants was signed on May 4, 2012. Plaintiffs sought a new trial, which was denied on September 13, 2012. Both Plaintiffs and Defendants appeal.

ASSIGNMENTS OF ERROR

Plaintiffs/Appellants/Cross-Appellees

Plaintiffs appeal the trial court’s ruling that it did not possess subject matter jurisdiction over their claims pursuant to the Establishment Clause. Specifically, Plaintiffs assert that the trial court “erroneously granted the Peremptory Exception of Lack of Subject Matter Jurisdiction[,]” and “denied [their] Motion for New Trial.”

\ ¿Defendants/Appellees/Cross-Appellants

Defendants have cross-appealed that portion of the trial court’s ruling that held that the court did not possess subject matter jurisdiction over Plaintiffs’ claims under the Free Exercise Clause. Specifically, Defendants assert that the trial court erred in: (1) “finding that Louisiana College is not a ‘church’ or ‘religious group’ for purposes of the Free Exercise Clause[,]” and (2) “holding that the Free Exercise Clause did not bar the court from having jurisdiction over this action.”

STANDARD OF REVIEW

The issue of subject-matter jurisdiction presented ... on appeal involves a question of law. Questions of law are reviewed under the de novo standard of review. La. Mun. Ass’n v. State, 04-227 (La.1/19/05), 893 So.2d 809. Therefore, we must determine whether the court below was legally correct. City of New Orleans v. Bd. of Comm’r of Orleans Levee Dist., 93-690 (La.7/5/94), 640 So.2d 237.

Chavers v. Bright Truck Leasing, 06-1011, p. 10 (La.App. 3 Cir. 12/6/06), 945 So.2d 838, 844 n. 4, writ denied, 07-304 (La.4/5/07), 954 So.2d 141.

LAW AND DISCUSSION

“Jurisdiction over the subject matter is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted.” La.Code Civ.P. art. 2. The First Amendment to the United States Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” A similar provision is contained in Article-1, Section 8 of the Louisiana Constitution, which provides, “No law shall be enacted respecting an establishment of religion or prohibiting the free exercise thereof.”

| ^Plaintiffs’ appeal presents the issue of whether the trial court was correct in ruling that it was precluded from exercising its subject matter jurisdiction pursuant to the First Amendment’s Establishment Clause. Defendants’ appeal presents the issue of whether the trial court was correct in ruling that Defendants were not entitled to the protection afforded by the ministerial exception grounded in the First Amendment’s Free Exercise Clause.

Defendants’ Cross-Appeal — The Free Exercise Clause

The Free Exercise Clause of the United States Constitution restricts the government’s ability to intrude into ecclesiastical matters or to interfere with a church’s governance of its own affairs. “Matters touching the relationship between a church and its ministers, including the selection of a minister, determination of salary, and assignment of dutiés and location, are ‘matters of church administration and government and thus, purely of ecclesiastical cognizance.’ ” Mississippi College, 626 F.2d at 485 (quoting McClure v. Salvation Army, 460 F.2d 553, 559-60 (5th Cir.), cert. denied, 409 U.S. 896, 93 S.Ct. 132, 34 L.Ed.2d 153 (1972)). Thus, in order for Defendants to garner the protection of the ministerial exception, two findings are required: (1) that the institution in question is a church; and (2) that the plaintiffs are ministers of that church. Id.

In Hosanna-Tabor, 132 S.Ct. 694, a teacher filed a complaint with the Equal Employment Opportunity Commission (EEOC), alleging that she was fired in retaliation for threatening to file an Americans with Disabilities Act (ADA) lawsuit. In the United States Supreme Court’s first decision relative to’the application of the ministerial exception in an employment discrimination lawsuit, Chief Justice John Roberts wrote:

| (iUntil today, we have not had occasion to consider whether this freedom of a religious organization to select its ministers is implicated by a suit alleging discrimination in employment. The Courts of Appeals, in contrast, have had extensive experience with this issue. Since the passage of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and other employment discrimination laws, the Courts of Appeals have uniformly recognized the existence of a “ministerial exception,” grounded in the First Amendment,, that precludes application of such legislation to claims concerning the employment relationship between a religious institution and its ministers.
We agree that there is such a ministerial exception. The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions. .

Id. at 705-06 (footnote omitted).

In this case, the trial court rejected Defendants’ contention that Hosanna-Tabor, 132 S.Ct. 694, is controlling herein, explaining in its Reasons for Judgment:

[I]ts application to the instant case is limited. While Hosannar-Tabor does provide an excellent] analysis of the second prong of the ministerial exception, [i.e.,] the minister requirement, it does not provide any guidance on the first prong of the exception!,] i.e., the “church requirement.”
The plaintiff in Hosanna-Tabor, was a teacher at a Lutheran school. The school was directly affiliated with the Lutheran Church by the same name. Hosanna-Tabor s status as a “church” was established and was not at issue on appeal. The only issue before the Court was whether or not the plaintiff teacher could be considered a “minister” of that church.

|7The trial court, following the holding of Mississippi College, 626 F.2d 477, and determining from the evidence presented that “Louisiana College is structurally similar to Mississippi College!,]” held that Louisiana College is not a church, nor were Plaintiffs ministers; therefore, the ministerial exception does not apply in this case. We agree.

In Mississippi College, 626 F.2d 477, an employee filed a complaint with the EEOC, alleging gender discrimination. The EEOC investigated the charge and issued a subpoena. The college, relying upon McClure, 460 F.2d 553, resisted the subpoena, arguing that the employment relationship between a religious education institution and its faculty was exempt from Title VII of the Civil Rights Act of 1964. The Fifth Circuit distinguished this matter from McClure, 460 F.2d 553, and held that the relationship between a religious educational institution and its faculty was not exempt from coverage under Title VII, the college was not a church, and its faculty and^ staff did not function as ministers.

In our de novo review of the evidence in the record, we find the trial court’s reliance on Mississippi College, 626 F.2d 477, and its resultant holding to be correct. The trial court was correct in noting the clear similarities between Louisiana College and Mississippi College.

Both colleges are co-educational liberal arts institutions that have undergraduate curricula which require all students to take certain religious courses. Mississippi College was owned and operated by the Mississippi Baptist Convention, an organization composed of Mississippi’s Southern Baptist Churches. Louisiana College is governed by a Board of Trustees, elected by the Louisiana Baptist Convention, an organization composed of Louisiana’s Southern Baptist Churches. Noteworthy is the fact that three Plaintiffs herein, Dr. Winbery, |sDr. Downing, and Dr. Heath, are ordained Baptist ministers, and all four Plaintiffs, including Dr. Douglas, taught a required religious class. We find the holding in Mississippi College, 626 F.2d 477, to be instructive and the trial court’s adherence thereto to be correct. Of particular significance, to both the trial court and this court, is the Fifth Circuit’s explanation that:

The College is not a church. The College’s faculty and staff do not function as ministers. The faculty members are not intermediaries between a church and its congregation. They neither attend to the religious needs of the faithful nor instruct students in the whole' of the religious doctrine. That faculty members are expected to serve as exemplars of practicing Christians does not serve to make the terms and conditions of their employment matters of church administration and thus purely of ecclesiastical concern.

Id. at 485.

Finally, while Hosanna-Tabor, 132 S.Ct. 694, is significant for the Supreme Court’s recognition of the ministerial exception in an employment discrimination lawsuit, we find Defendants reliance upon it wholly unpersuasive. In Hosanna-Tabor, 132 S.Ct. 694, there was no question that the Evangelical Lutheran Church and School was a church. Instead, the court considered only whether or not Cheryl Perich, a called teacher, was a minister of said church. Additionally, Chief Justice Roberts opined: “Today we hold only that the ministerial exception bars such a suit. We express no view on whether the exception bars other types of suits, including actions by .employees alleging breach of contract or tortious conduct by their religious employees.” Id. at 710.

In further addressing Defendants’ cross-appeal, and more particularly, we note that Defendants have listed the following two assignments of error:

Ifll. The [trial court] erred in finding that Louisiana College is not a “church” or “religious group” for purposes of the Free Exercise Clause.
2. As a result, the [trial court] erred in holding that the Free Exercise Clause did not bar the court from having jurisdiction over this action.

The judgment appealed from granted Defendants’ Peremptory Exception of Lack of Subject Matter Jurisdiction. Defendants’ two assignments of error do not address the granting of their exception, but take issue with the trial court’s reasons for judgment. “Appeals are taken from the judgment, not the reasons for judgment.” Wooley v. Lucksinger, 09-571, 09-584, 09-585, 09-586, p. 77 (La.4/1/11), 61 So.3d 507, 572. “ ‘The written reasons for judgment are merely an explication of the trial court’s determinations. They do not alter, amend, or affect the final judgment being appealed....’ State in the Interest of Mason, 356 So.2d 530, 532 (La.App. 1 Cir.1977).” Id,..Appellate courts review judgments, not reasons for judgment. Defendants’ cross-appeal is actually an appeal of the trial court’s written reasons for judgment and not the judgment itself. Therefore, Defendants’ cross-appeal challenging the trial court’s ruling is without merit. We find no error in the trial court’s determination that the ministerial exception of the First Amendment’s Free Exercise Clause is inapplicable herein.

Plaintiffs’ Appeal — The Establishment Clause

The Establishment Clause of the United States Constitution restricts the government from making any law “respecting an establishment of religion.” Article 1, Section 8 of the Louisiana Constitution echoes this provision. “These constitutional provisions forbid governmental interference with religious freedom. ‘Civil courts are prohibited from interfering in the ecclesiastical matters of a religious group, that is, in matters concerning religious discipline, faith, rule, | mcustom or law.’ LeBlanc v. Davis, 432 So.2d 239, 241 (La.1983).” Ambush v. Mount Zion Baptist Church, Inc., 11-1028, p. 5 (La.App. 3 Cir. 2/22/12), 88 So.3d 1077, 1081.

In its Reasons for Judgment, the trial court opined:

Under the Establishment Clause, the consideration is whether the issues which the court will have to resolve will necessarily turn upon co.mpeting interpretations of religion, thus resulting in the court becoming “entangled” in an ecclesiastical dispute. Michael Hartwig v. Albertus Magnus College and Julia McNamara, 93 F.Supp.2d 200 (D.Conn. 2000). The “Entanglement Doctrine” provides that a court must decline jurisdiction over a lawsuit when the dispute is so intertwined with matters of religion that a proper resolution cannot be made without interpreting or choosing between competing religious principles or doctrines.

Plaintiffs argue that their claims, sounding in contract and tort, can be decided upon neutral principles of law and without excessive entanglements. Plaintiffs contend that the trial court erred in finding that their claims were outside the scope of judicial review under the First Amendment.

It is Defendants’ contention that this is not a secular dispute; rather, it is a dispute within Louisiana College’s Theology Department about Baptist faith. Defendants argue that this matter is so intertwined with matters of religion that a proper resolution cannot be made with interpreting or choosing between competing religious principles or doctrines.

Relative to the issue of defamation, the trial court reasoned that to determine whether the accusations that professors were teaching errant views, the court would have to “delve deeply into the Baptist theology.” The remaining issues also require an examination and interpretation of dogma.

The trial court was correct in holding that the dispute between Plaintiffs and Defendants centers on the nature of Baptist theology and church governance over Jiihow theology is taught at Louisiana College and would, thus, require the court to impermissibly entangle itself in deciding ecclesiastical matters. Defendants’ decli-natory exception of lack of subject matter jurisdiction was correctly sustained by the trial court.

DECREE

Accordingly, the judgment of the trial court sustaining Defendants’ declinatory exception of lack of subject matter jurisdiction is hereby affirmed. The ruling of the trial court declaring that the ministerial exception of the First Amendment’s Free Exercise Clause is inapplicable is also affirmed. Costs of this appeal are to be divided by the parties.

AFFIRMED.

      . Since the filing of the current lawsuit, Plaintiffs have either retired or resigned from Louisiana College.

      . Plaintiffs’ claims against the Louisiana Iner-rancy Fellowship were not dismissed pursuant to this judgment.

      . " ‘Called’ teachers are regarded as having been called to their vocation by God through a congregation. To be eligible to receive a call from a congregation, a teacher must satisfy certain academic requirements.” Hosanna-Tabor, 132 S.Ct. at 699.


text:
    Paris MADISON v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, Richard Stalder, Ronnie Futrell, T.W. Thompson, et al.
    No. 13-389.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 6, 2013.

      Frank E. Barber, Attorney at Law, New Iberia, Louisiana, for Plaintiff/Appellant, Paris Madison.
    Linda Law Clark, DeCuir, Clark & Adams, L.L.P., Baton Rouge, Louisiana, for Defendants/Appellants, State of Louisiana — Military Department, Office of Risk Management on behalf of the National Guard, and James Welch.
    Laurel I. White, Louisiana Department of Justice, Litigation Division, Alexandria, Louisiana, for Defendants/Appellants, State of Louisiana, through the Department of Public Safety and Corrections, Richard Stalder, T.W. Thompson, Ronnie Futrell and William Black.
    Court composed of JAMES T. GENOVESE, SHANNON J. GREMILLION, and JOHN E. CONERY, Judges.
   GENOVESE, Judge.

|, Plaintiff, Paris Madison, appeals the judgment of the trial court dismissing his tort claims against the Defendants, the State of Louisiana, Military Department (Military Department), the National Guard, and James Welch (now deceased) based on prescription. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Mr. Madison was an inmate housed at the Work Training Facility North (referred to as Dabadie), a prison operated by the Louisiana Department of Corrections (DOC). Dabadie is adjacent to Camp Beauregard, a National Guard Base operated by the Military Department which utilizes inmate labor from Dabadie. On March 8, 2000, Mr. Madison was performing laundry duty at Camp Beauregard, which entailed transporting baskets of laundry on the bed of a truck. The truck, being driven by Mr. Welch, hit a hole in the road causing Mr. Madison to fall from the vehicle and allegedly sustain injury.

After pursuing the mandatory administrative remedy procedure . for inmates against the DOC, Mr. Madison filed a Petition for Judicial Review in the Nineteenth Judicial District Court (JDC) on July 7, 2000. In his Petition for Judicial Review, Mr. Madison named Mr. Welch, whom he erroneously believed to be a DOC employee, and the Commanding General, U.S. National Guard Base. Only the DOC was served with the Petition for Judicial Review.

On April 17, 2001, Mr. Madison converted his action in the Nineteenth JDC into a tort claim against DOC and Mr. Welch, incorrectly identified as a DOC employee, and the National Guard. Service was requested to be made on DOC, Mr. Welch, and the National Guard.

| ¿The lawsuit in the Nineteenth JDC in East Baton Rouge Parish was transferred to the Ninth JDC in Rapides Parish by an August 16, 2004 order of the trial court. Once in the Ninth JDC, on April 11, 2005, Mr. Madison amended his pleadings to add the Military Department as a Defendant and to assert its liability for the negligent actions of Mr. Welch.

On August 28, 2012, a Motion to Dismiss and/or Motion for Summary Judgment was filed on behalf of the Military Department, the National Guard, and Mr. Welch asserting alternative grounds. The trial court granted the motion, dismissing Mr. Madison’s claims based on prescription, and signed a judgment in accordance therewith on October 9, 2012. Subsequently, Mr. Madison filed a motion for new trial, which was denied by the trial court. The trial court issued Written Reasons for Denial of Motion for New Trial and Written Reasons for Ruling on Motion for Summary Judgment on December 14, 2012. Mr. Madison appeals the October 9, 2012 judgment of the trial court.

ASSIGNMENTS OF ERROR

On Appeal, Mr. Madison presents the following assignments of error for our review:

I. The trial [court] erred in dismissing the STATE OF LOUISIANA — MILITARY DEPARTMENT because the plaintiff, after receiving reasonable knowledge of the involvement of the STATE OF LOUISIANA — MILITARY DEPARTMENT as a potential defendant filed suit within a year.
II. STATE OF LOUISIANA — MILITARY DEPARTMENT answered without raising any service of process deficiencies and therefore cannot be dismissed based on service of process deficiencies.
III. The trial [court] erred in dismissing the National Guard and James Welch, which defendants both answered the lawsuit and waived any claim to service or process deficiencies.

laLAW AND DISCUSSION

At the outset, we note that the parties dispute the appropriate standard of review to be applied in this cáse. Mr. Madison argues that the appropriate standard of review is de novo since the pleadings, included a motion for summary judgment. On the other hand, the Military Department, the National Guard, and Mr. Welch argue that because the trial court granted the motion based on prescription, an abuse of discretion and manifest error standard is appropriate.

In this case, the motion before the trial court was titled a Motion to Dismiss and/or Motion for Summary Judgment, and evidence was introduced in support of the motion. It is evident from the record that after considering the alternative grounds asserted in the motion, the trial court’s dismissal was based upon prescription.

In Leger v. Sonnier Exterminating Co., 05-1291, p. 4 (La.App. 3 Cir. 4/5/06), 926 So.2d 158, 161, writ denied, 06-1033 (La.6/23/06), 930 So.2d 982, this court set forth the appellate standard of review applicable to a peremptory exception of prescription as follows:
Ordinarily, when an appeal involves a ruling on a peremptory exception with contested issues of fact and “[w]hen evidence is introduced and evaluated in the trial court on a peremptory exception, the appellate court must review the entire record to determine whether the trial court manifestly erred with its factual conclusions.” Egle v. Egle, 01-927, p. 4 (La.App. 3 Cir. 2/6/02), 817 So.2d 136, 139 (quoting Parker v. Buteau, 99-519, p. 3 (La.App. 3 Cir. 10/13/99), 746 So.2d 127, 129). However, in a case in which there are no contested issues of fact and the only issue is the application of the law to the undisputed facts, as in the case at bar, the appellate court must decide whether the lower court’s decision is legally correct or incorrect. Sieferman v. State Farm Mut. Auto. Ins. Co., 01-439 (La.App. 3 Cir. 10/3/01), 796 So.2d 833 (citing Huddleston v. Farmers-Merchants Bank & Trust Co., 00-640 (La.App. 3 Cir. 11/2/00), 772 So.2d 356).

State ex rel. Jackson v. Jackson, 12-999, p. 4 (La.App. 3 Cir. 2/6/13), 110, So.3d 597, 599-600.

|4Mr. Madison first argues that a dismissal of the Military Department was erroneous because suit was filed against this entity “within one year after receiving reasonable knowledge of the involvement” of this entity. We disagree.

Louisiana Civil Code Article 2315 states that “[d]elictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained.” In the instant case, Mr. Madison claims he was injured when he fell from the vehicle transporting laundry on March 8, 2000. Accordingly, it was incumbent upon him to institute an action against the Military Department by March 8, 2001, which he failed to do.

The initial step taken by Mr. Madison was seeking redress through the Commissioner’s Court. This action, taken on March 21, 2000, was in the course of the administrative remedy procedure for inmates. La.R.S. 15:1171-72. This was an administrative proceeding only involving the DOC. The Military Department was not a party to this action.

The second step taken by Mr. Madison was the filing of a Petition for Judicial Review in the Nineteenth JDC on July 7, 2000. That petition also did not include the Military Department as a party.

The next step to be taken by Mr. Madison was converting the action in the Nineteenth JDC into a tort action on April 17, 2001. As of this date, the Military Department had still not been named as a party to any claims being asserted by Mr. Madison.

On April 11, 2005, Mr. Madison amended his petition to name, for the first time, the Military Department as a Defendant. Thus, the record clearly reflects that the Military Department was not brought into this action until April 11, 2005, long after the one year prescriptive period had expired.

| BMr. Madison contends that the Military Department knew of this action and, thus, was not “surprised by being ‘added’ as a defendant in 2005.” Further, he argues that “[tjhis failure to make a technical distinction between the party defendants herein should not be used as a vessel to now make some technical objection to the failure to name a party at some later date.” However, the Military Department is a completely different and separate entity, unrelated to the DOC, which was the sole party to the administrative proceeding. The Military Department is also a completely different and separate entity from the National Guard, which was named as a Defendant when the conversion to a tort suit occurred. While knowledge of the distinction and association between these entities may have been somewhat difficult to ascertain, Mr. Madison failed to name the Military Department as a defendant until 2005.

Therefore, Mr. Madison argues, in the alternative, that his claim against the Military Department is timely under the theory that it “relates backs to the' original filing and cures the prescription problem[,]” citing La.Code Civ.P. art. 1153. Mr. Madison fails to identify the “original pleading.” However, for the 2005 amendment to relate back and defeat the exception of prescription, the appeal of the administrative proceedings would have had to have been considered the “original pleading[,]” since the tort action in April 2001 was filed after the prescriptive period had run. We find no merit to this contention.

The Louisiana Supreme Court decision in Ray v. Alexandria Mall, 434 So.2d 1083 (La.1983), is the seminal ease relative to the application of La.Code Civ.P. |nart. 1153 and the relation back theory. In Ray, 434 So.2d at 1086-87, the supreme court stated:

In keeping with these precepts, we establish the following criteria for determining whether art. 1153 allows an amendment which changes the identity of the party or parties sued to relate back to the date of filing of the original petition:
(1) The amended claim must arise out of the same transaction or occurrence set forth in the original pleading;
(2) The purported substitute defendant' must have received notice of the institution of the action such that he will not be prejudiced in maintaining a defense on the merits;
(3) The purported substitute defendant must know or should have known that but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him;
(4) The purported substitute defendant must not be a wholly new or unrelated defendant, since this would be tantamount to assertion of a new cause of action which would have otherwise prescribed.

In the instant case, the Ray factors are not met. First, the original action was an administrative proceeding involving only Mr. Madison, a prisoner, who sought redress against the DOC. The second action, asserted in the district court, initially sought only a judicial review of the administrative proceeding. Once converted, that action then included a tort claim, and, although it mentions the same accident involving Mr. Madison, it then sought compensation from various parties for the personal injuries he allegedly sustained. The nature of the action was different, the remedy sought was different, and the parties were different. The Military Department did not have notice of the institution of the'administrative proceedings, and it did not have notice of the tort claim until Mr. Madison named it as an additional defendant in 2005. Additionally, Mr. Madison did not simply “misname” a party such that the Military Department should have known that an action would have been brought against it. To the contrary, the Military | ^Department is a “wholly new or unrelated defendant” from the DOC, and Mr. Madison’s tort claim is a “new cause of action” from that asserted in the administrative proceedings against the DOC. Given the facts, and based upon Ray and the subsequent jurisprudence applying La.Code Civ.P. art. 1153, we find that Mr. Madison’s claims against the Military Department do not relate back to the filing of the original pleading such that it cures the running of the prescriptive period.

In his second assignment of error, Mr. Madison argues that the Military Department waived its right to challenge any service of process deficiencies by answering the lawsuit. We find this argument to be misplaced.

The trial court’s dismissal of the Military Department was not on the grounds of service of process deficiencies. Rather, the trial court was clear that it was dismissing the Military Department because Mr. Madison’s claims against it “had prescribed before proper service was made.” Louisiana Code of Civil Procedure Article 927 identifies prescription as a peremptory exception which “may be pleaded at any stage of the proceeding in the trial court prior to a submission of the case for a decision and may be filed with the declina-tory exception or with the dilatory exception, or both.” La.Code Civ.P. art. 928. Therefore, the exceptions of prescription were timely raised.

Additionally, Mr. Madison’s reliance on Taylor v. LSU Medical Center, 38,944 (La.App. 2 Cir. 10/14/04), 892 So.2d 581, writ denied, 05-480 (La.5/20/05), 902 So.2d 1049, and its discussion of La.R.S. 13:5107 are not dispositive of the issues before this court. Louisiana Revised Statutes 13:5107 addresses time constraints for a defendant to raise issues relative to service. However, in this case, the trial court’s dismissal was not grounded upon any procedural deficiencies in the service itself; rather, the dismissal was grounded upon Mr. Madison’s failure to|stimely serve the Military Department within the one year prescriptive period. As correctly expressed by the trial court, the Military Department was not properly, served until after the prescriptive period had run.

Mr. Madison’s final assignment of error asserts error by the trial court in dismissing the National Guard and Mr. Welch, again on the grounds that any claim of services of process deficiencies were waived by the filing of answers. However, as with the Military Department, the dismissal of the National Guard and Mr. Welch was not based upon deficient service of process; rather, the grounds for the dismissal of these Defendants was based upon Mr. Madison’s failure to timely file suit within the one year prescriptive period. An exception of prescription is not waived by the filing of an answer. La.Code Civ.P. art. 928.

Mr. Madison argues that Mr. Welch was named within the one year prescriptive period since he was named in the administrative proceeding. Although Mr. Welch was included and listed as an employee of the DOC, this designation was erroneous. Mr. Welch was improperly named as he was not an employee of DOC, he was not a party to that proceeding, and he was not served in that proceeding. Also, when Mr. Welch was named in Mr. Madison’s Petition for Judicial Review filed in the Nineteenth JDC, he was still erroneously identified as a DOC employee and service upon him was not perfected. Although Mr. Welch was named in the tort suit in 2001 (after the prescriptive period had run), he was still incorrectly identified as a DOC employee and service upon him was requested through DOC. It was not until April 2005 that Mr. Madison named, correctly identified, and served Mr. Welch. Given that the one year prescriptive period ran as of March 8, 2001, the claims against Mr. Welch were untimely. La.Civ.Code art. 3492.

|flThe National Guard was also first brought into these proceedings in April 2001. Thus, for the reasons set forth above, the claims against this entity were likewise untimely. Id.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court dismissing the claims asserted by Paris Madison against the State of Louisiana, Military Department, the National Guard, and James Welch based on prescription. All costs of these proceedings are assessed to Paris Madison.

AFFIRMED.

      . Also named as defendants were Richard Stalder, Ronnie Futrell, T.W. Thompson, and William Black; however, those claims are not relevant to the present proceedings.

      . Louisiana Code of Civil Procedure Article 1153 provides that "[w]hen the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.”


author: PETERS, J.

text:
    Clarence M. LELAND, et al. v. LAFAYETTE INSURANCE COMPANY.
    No. 13-476.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 6, 2013.
    Donald C. Brown, Woodley, Williams Law Firm, L.L.C., Lake Charles, LA, Howard B. Kaplan, Bernard, Cassisa & Elliott & Davis APLC, Metairie, LA, for Defendant/Appellant, Lafayette Insurance Company.
    Hunter W. Lundy, Lundy, Lundy, Soi-leau & South LLP, Lake Charles, LA, for Plaintiffs/Appellees, Clarence M. Leland, Myna G. Leland.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PETERS, J.

|,The defendant in this litigation, Lafayette Insurance Company (Lafayette Insurance), appeals a trial court judgment rejecting its request that it has satisfied a judgment rendered in favor of the plaintiffs, Clarence M. Leland and Myna Leland (the Lelands); ordering it to pay the Lelands the sum of $36,853.36 or suffer an interest penalty; and allowing the Lelands to remove certain exhibits from the eviden-tiary record. For the following reasons, we affirm the trial court judgment in part, reverse it in part, and render judgment on that part which we reverse.

DISCUSSION OF THE RECORD

This litigation began as a September 2007 suit by the Lelands, husband and wife, against Lafayette Insurance wherein they sought to recover the damages they sustained to their property when Hurricane Rita struck the Louisiana coast in 2005. Lafayette Insurance had issued the Lelands a property damage policy covering their Lake Charles, Louisiana property. This litigation involved a dispute over the amount and timeliness of the payments by the insurer. In the suit, the Lelands asserted that Lafayette Insurance breached its duty of good faith and fair dealing in handling their claim and sought an award of statutory penalties and attorney fees in addition to an award for property damage.

On November 12, 2010, the jury returned a verdict in favor of the plaintiffs for $1,287,972.00. This judgment included an award of $144,800.00 for the damages sustained to the property; $88,000.00 as special damages; $90,000.00 as general damages; $645,600.00 as penalties; and $319,572.00 as attorney fees. On November 22, 2010, the trial court executed a written judgment conforming to the jury verdict. Counsel for both parties to this litigation approved the form of the judgment. Thereafter, Lafayette Insurance perfected an appeal to this court.

1 gThis court reduced the penalty and attorney fee awards to $356,000.00 and $226,226.67 respectively, and affirmed the remainder of the judgment. Leland v. Lafayette Ins. Co., 11-475 (La.App. 3 Cir. 11/9/11), 77 So.3d 1078, unit denied, 11-2714 (La.2/17/12), 82 So.3d 285. On February 27, 2012, Lafayette Insurance tendered a check to the Lelands in the amount of $1,039,621.14 as payment of the judgment. The Lelands accepted the check in full satisfaction of the judgment.

This phase of the litigation relates to the interpretation of language in the jury verdict and subsequent judgment which addresses three checks totaling $36,853.86, which were tendered to the Lelands by Lafayette Insurance as payment pursuant to its policy before suit was filed. These checks included one for $20,567.73 issued on January 25, 2006; one for $15,780.33 issued on February 7, 2007; and one for $505.80 issued on June 15, 2007. Attached to each check was a form entitled “Proof of Loss and Statement as to Full Cost of Repaii' or Replaeement[,]” which included the following language:

You are hereby requested and authorized to make payment to C.M. Leland & Myna G. Leland in consideration of which the company is discharged and released from further claim as a result of the loss herein referred to.

Being concerned that execution of the proof of loss statement would be tantamount to releasing their claim against Lafayette Insurance, the Lelands did not cash the three check's.

At trial, the Lelands introduced the three checks into evidence, and it was undisputed that these checks represented the only amounts tendered to the Lelands by Lafayette Insurance prior to judgment. The interrogatory propounded to the jury which related to the amount due under the policy asked the jury to determine “[w]hat additional amount is owed under the insurance policy in excess of the \%amount paid by Lafayette Insurance Company?” (Emphasis added.) The jury responded to this interrogatory by entering the number $144,800.00.

This litigation arises because the amount tendered in full settlement of the judgment on February 27, 2012, did not include the amount represented by the previously tendered checks, and the Lelands specifically reserved their right to pursue collection of the three checks. In correspondence to counsel for Lafayette Insurance dated February 23, 2012, the Lelands’ counsel stated the following:

The present correspondence follows our telephone conversation this afternoon regarding the Leland matter.
First, I understand that the payment in the amount agreed upon in your discussions with Jackey, $1,039,621.14, is being forwarded to our office this afternoon as an unconditional payment in satisfaction of the amounts specifically awarded in the judgment as amended by the Third Circuit. As discussed, we agree this payment will satisfy in full the referenced judgments along with interest and costs, subject to the proviso below.
Second, the referenced payment is accepted in satisfaction of the amounts specifically awarded subject to our reservation and continuing right to pursue collection of the checks previously tendered to the Lelands but not negotiated. Those checks, filed in the record of this action, are in the amounts $15780.33, $20567.73, $505.80, totaling $37,153.86.
Please review and then sign a copy of this letter to confirm our agreed upon understanding. I will, as promised, review this issue and perhaps set a conference with the District Court.

Counsel for Lafayette Insurance signed a copy of the letter as requested.

In an attempt to resolve this remaining issue, counsel for both litigants participated in a telephone conference with the trial court on March 13, 2012. The next day, counsel for the Lelands forwarded a number of exhibits to the trial court for consideration of the remaining issue. In the cover letter to the trial court, the Lelands’ counsel stated in part that:

14We acknowledge that Lafayette has now satisfied the judgment. However, the checks are distinct negotiable instruments entirely separate from the judgment. We maintain that [the Lelands] are entitled to withdraw those checks and act upon the obligation represented by those instruments, negotiate the checks and collect the amounts payable pursuant to the checks.

The Lelands’ counsel concluded the letter by requesting that his clients “be granted leave to withdraw the checks and negotiate the same or that Lafayette otherwise satisfy the amounts due as represented by those checks in the amount of $37,848.06.”

By a letter to the trial court dated April 3, 2012, counsel for Lafayette Insurance responded to the March 14, 2012 correspondence and asserted that Lafayette Insurance'had satisfied the November 22, 2010 judgment. Counsel further argued that the Lelands’ remedy, if they were dissatisfied with the judgment, would have been to file a post-trial motion to appropriately amend the judgment. Additionally, counsel for Lafayette Insurance pointed out that the Lelands neither appealed that portion of the judgment nor answered their appeal.

The trial court responded in a letter dated May 22, 2012, wherein it stated the following concerning the issue of the previously tendered checks:

After reviewing my case file, notes, judgment, and appeal documents, I am of the belief that the $37,848.06 which was remitted to the Leland’s[sic] before this lawsuit started are monies due and payable to the Leland’s[sic]. [Counsel for Lafayette Insurance] in his memo suggests that the judgment made no provision for the payment of those monies, and that may be correct. However, the judgment was not for monies already or previously paid by Lafayette Insurance Company. The judgment was for what was owed the Leland’s[sic] at the time of the trial. With that being said, I am of the belief that those monies are still due and owing, as is shown by the checks which are in the record of this matter. Accordingly, my opinion should be that the checks should be released to the Leland’s[sic], for their pursuit for collection.

(Emphasis in the original.)

LThe trial court advised further:

As I indicated to you gentlemen when we spoke in March regarding this matter, that if my suggestions or ‘revelations’ in this matter were not in agreement to the parties, that I would give you the opportunity to make a record for appeal purposes.... [L]et me know if a hearing date would need to be set so that whoever is dissatisfied by my beliefs in this matter may schedule a hearing date.

Obviously not being satisfied with the trial court’s analysis, Lafayette Insurance file a motion on August 24, 2012, requesting that the trial court issue- an order recognizing that the November 22, 2010 judgment had been satisfied in full. The trial court heard the motion on January 7, 2013, and after considering the exhibits and argument of counsel, rendered judgment rejecting Lafayette Insurance’s request for relief; allowing the Lelands to remove the original checks from the evi-dentiary record; and ordering Lafayette Insurance to satisfy the indebtedness represented by the three checks within fifteen days of their removal or suffer an interest penalty from that day forward until paid. The trial court executed a written judgment to this effect on January 28, 2013, and thereafter Lafayette Insurance perfected this appeal.

In its appeal, Lafayette Insurance asserts as its sole assignment of error that “[t]he trial court committed legal error issuing a new judgment which substantively amended a final judgment and required Lafayette to pay additional amounts not contained in the original judgment.”

OPINION

Lafayette Insurance’s assignment of error sets forth a question of law which we review de novo. “A de novo review means the court will render judgment after its consideration of the legislative provision at issue, the law and the record, without deference to the legal conclusions of the tribunals below.” City of Bossier City v. Vernon, 12-78, p. 3 (La.10/16/12), 100 So.3d 301, 303.

| ^Louisiana Code of Civil Procedure Article 1916(A) provides in pertinent part that after a jury trial, the trial court shall either “prepare and sign a judgment in accordance with the verdict of the jury” or “order counsel for a party in the case to prepare and submit a judgment to the court for signature.” Additionally, La. Code Civ.P. art. 1951 provides the following:

A final judgment may be amended by the trial court at any time, with or without notice on its own motion or on motion of any party:
(1) To alter the phraseology of the judgment, but not the substance; or
(2) To correct errors of calculation.

However:

Article 1951 contemplates the correction of a “clerical error” in a final judgment, but does not authorize substantive amendments. Thus, the judgment may be amended by the court where the amendment takes nothing from or adds nothing to the original judgment. Villaume v. Villaume, 368 So.2d 448 (La.1978). The proper recourse for an error of substance within a judgment is a timely application for new trial or a timely appeal. LaBove v. Theriot, 597 So.2d 1007, 1010 (La.1992); Hebert v. Hebert, 351 So.2d 1199 (La.1977).

Bourgeois v. Kost, 02-2785, p. 5 (La.5/20/03), 846 So.2d 692, 695.

Lafayette Insurance asserts that the trial court’s action constituted a substantive change in the November 22, 2010 judgment, which in effect amounted to the issuance of a new judgment increasing the jury’s award. The Lelands, on the other hand, argue that the trial court’s action did not reach the classification of an amendment, substantive or otherwise. Instead, they suggest that the January 28, 2013 judgment simply ordered Lafayette Insurance to pay checks it had initially tendered pursuant to its policy, the payment of which was contemplated by the jury in its response to the interrogatories propounded to it.

We agree with the Lelands that the jury verdict clearly concluded 'that they were entitled to the amount previously tendered to them, in addition to the |7$144,800.00 award. The checks representing the $36,853.86 were a part of the evidence submitted to the jury, and the jury obviously took the amount into consideration when it awarded an amount “in excess of the amount paid.” To interpret the language of the interrogatory in any other way would simply render that part of the jury verdict meaningless.

We also note that the three pre-judgment checks were discussed extensively in the prior appeal to this court, and this court noted that “[ultimately, a jury found in favor of the plaintiffs, concluding that the plaintiffs sustained losses in excess of the amount paid under the defendant’s policy in the amount of $144,000.00.” Leland, 77 So.3d at 1082 (emphasis added).

The Lelands specifically reserved their rights to- pursue the collection of the amounts evidenced by the three checks at issue in their counsel’s February 23, 2012 letter to Lafayette Insurance’s counsel, and Lafayette Insurance’s counsel signed a copy of this letter recognizing that this reservation of rights was a part of the settlement agreement. Thus, when the Lelands acknowledged the full payment of the amounts set forth in the November 22, 2010 judgment as amended by this court, that acknowledgment must be recognized as being subject to their reservation of rights. Lafayette Insurance has produced nothing to this court to show that this reservation of rights is not still in full force and effect.

At the January 7, 2013 hearing, counsel for the Lelands stated the following concerning their position:

We do not dispute that Lafayette has satisfied the judgment, but these three checks are something outside the judgment. . They were not a part of the judgment.
It is our position that these three checks are legal tenders. They are an obligation of Lafayette’s, and we are requesting that those three checks be .released from the record then we will pursue those obligations.
lalf Lafayette chooses not to pay them then we will pursue that.

In its oral reasons for judgment, the trial court stated the following:

I believe that the verdict sheet, which is part of the judgment, clearly reflects that the amounts rewarded by the jury were amounts in excess of what had already been tendered to Mr. Leland.
Now, in fairness to Lafayette it was made perfectly clear during the trial, as I recall, that the checks had not been negotiated for several reasons, and we all know what those are in those types of situations there.
I believe [counsel for the Lelands] is correct that if, in fact, that was not part of the judgment then it wouldn’t have even been mentioned in there.
I suggest that while Lafayette has satisfied the judgment in this matter, the judgment while it referenced the amounts previously tendered, it did not include the amounts previously tendered.

We interpret the statement that “it did not include the amounts previously tendered[,]” to mean that the settlement payment did not include those amounts. We concluded this because the trial court then proceeded to state the following concerning the relief to be awarded:

Accordingly, the Motion to Obtain Satisfaction of Judgment filed by defendant is denied at this time.
In that vein, however, in fairness as it may be to Lafayette Insurance Company I’m adding to that order, however, that those checks be removed.
I see no reason why they should not be recovered from the record by the end of this week. And I want them negotiated within 15 days after their removal.

We agree with the trial court’s determination that the jury verdict represented a factual finding that the amount owed the Lelands included both the $144,800.00 award and the $36,853.86 previously tendered, but not yet collected. The trial court’s determination in that regard was not the issuance of a new judgment, but a correct interpretation of the jury verdict and the resulting judgment, and that determination is now a final judgment. However, given the statement by 13counsel for the Lelands that she and her clients do not dispute that the judgment has been satisfied, and that the collection of the checks is a separate matter “outside the judgment,” we find that the trial court erred in not granting Lafayette Insurance relief by recognizing that the November 22, 2010 judgment had been fully satisfied.

We also find that the trial court erred in ordering Lafayette Insurance to pay the three outstanding checks within fifteen days or suffer an interest penalty. The Lelands did not file any pleadings seeking this relief, and, therefore, that issue was not before the trial court.

Finally, we find no error in the trial court allowing the Lelands to remove the original checks from the evidentiary record.

DISPOSITION

We reverse that portion of the trial court judgment rejecting the request of Lafayette Insurance Company to have the November 22, 2010 judgment declared as satisfied by the payment of February 27, 2012, and render judgment declaring the judgment satisfied in full; reverse that portion of the trial court judgment ordering Lafayette Insurance Company to pay the three checks or suffer an interest penalty; and affirm that portion of the trial court judgment allowing Clarence M. Leland and Myna Leland to remove the original checks from the evidentiary, record. We assess one half of the costs of this appeal to Lafayette Insurance Company and one half to Clarence M. Leland and Myna Leland.

AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

      . As previously stated, the sum of the three checks is $36,853.86 and not $37,153.86. However, the addition error does not affect the analysis herein.


author: PICKETT, Judge.

text:
    Amanda POUSSON v. BLUE CROSS/BLUE SHIELD OF LOUISIANA.
    No. 13-481.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 6, 2013.
    Rudie Ray Soileau, Jr., Lundy, Lundy, Soileau & South, Lake Charles, LA, for Plaintiff-Appellant Amanda Pousson.
    Charles Andrew O’Brien, III, Attorney at Law, Baton Rouge, LA, for Defendant-Appellee Blue Cross/Blue Shield of Louisiana.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PICKETT, Judge.

|, Amanda Pousson appeals a judgment of the trial court dismissing her claims against Blue Cross/Blue Shield of Louisiana (BCBS) for penalties and attorney fees pursuant to La.R.S. 22:1821 on a motion for summary judgment.

STATEMENT OF THE CASE

When Ms. Pousson discovered she was pregnant, her physician prescribed Cri-none. Crinone is generally prescribed as a fertility drug, but Ms. Pousson’s physician prescribed it as a hormone regulator for the early stages of pregnancy. When Ms. Pousson had the prescription filled, she was forced to pay $505.65 for the prescription herself. Her insurer, BCBS, or their pharmacy benefits manager, Express Scripts, Inc. (ESI), summarily denied the claim at the point of purchase because fertility drugs are not covered by Ms. Pousson’s policy. When Ms. Pousson encountered the same situation in March, she contacted BCBS, explained that she was pregnant, and the claim was paid. Ms. Pousson attempted to file the proper appeal forms with BCBS or ESI to have the first prescription claim paid, but her attempts were fruitless.

Ms. Pousson filed a suit pro se in Lake Charles City Court on May 18, 2012, against BCBS seeking payment of the claim plus penalties and attorney fees pursuant to La.R.S. 22:1821. BCBS originally filed an answer denying it owed Ms. Pous-son reimbursement. In a supplemental petition, BCBS admitted that either it or ESI erred in failing to reimburse Ms. Pousson. On October 5, 2012, BCBS issued a check to her attorney for $686.22, which included the cost of the prescription less a $20 co-insurance payment, court costs of $153.72, and $45.74, the costs it claimed was due under the provisions of La.R.S. 22:1853(C). Ms. Pousson, now represented by her attorney, persisted in her claim for penalties and |2attorney fees pursuant to La.R.S. 22:1821. Competing motions for summary judgment were filed. The trial court heard arguments on March 14, 2018. The trial court granted BCBS’s motion for summary judgment and dismissed Ms. Pousson’s claims. She now appeals.

ASSIGNMENTS OF ERROR

Ms. Pousson asserts three assignments of error:

1. The trial court erred in applying La. R.S. 22:1851 et seq., to this action based on an insurer’s wrongful denial of a valid prescription claim.

2. The trial court erred in failing to find that the actions of BCBS violated La. R.S. 22:1821.

8. The trial court erred in allowing BCBS to shield itself from the wrongful actions of its pharmacy benefits contractor by failing to recognize the contractor as the agent of BCBS.

DISCUSSION

Clearly ESI acted as the agent for BCBS in this case, so the third assignment of error misstates the finding of the trial court. When ESI denied the claim originally, it did so because it construed the coverage afforded by BCBS to exclude fertility drugs like Crinone. When ESI denied payment for the refill, Ms. Pousson appealed to BCBS, who instructed ESI to pay the claim because Ms. Pousson was pregnant, which meant she did not need to take Crinone as a fertility drug. The issue before this court is whether BCBS is liable under the penalty provisions of La. R.S. 22:1853(0 or La.R.S. 22:1821 for the continued failure of BCBS or ESI to reimburse Ms. Pousson for the initial prescription when BCBS discovered it was a covered drug under the policy issued by BCBS.

The trial court granted summary judgment, finding that La.R.S. 22:1853(0, and not La.R.S. 22:1821, applied to the facts of this case. We review questions of |HIaw simply to determine whether the trial court decision is legally correct. Ducote v. City of Alexandria, 95-1269 (La.App. 3 Cir. 7/17/96), 677 So.2d 1118.

The trial court applied La.R.S. 22:1853, which states in pertinent part:

A. (3) Any other nonelectronic claim for payment for prescription drugs, other products and supplies, and pharmacist services, whether submitted for payment by an insured or enrollee or submitted by a pharmacist or pharmacy rendering covered services that are not otherwise payable to the pharmacist or pharmacy under contract with the health insurance issuer, shall be paid not more than thirty days from the date upon which a correctly completed uniform claim form is furnished to the health insurance issuer, unless just and reasonable grounds exist such as would put a reasonable and prudent businessman on his guard.
C. Health insurance issuers shall establish appropriate procedures approved by the department to assure that any claimant who is not paid within the time frames specified in this Section receives a late payment adjustment equal to one percent of the amount due. For any period greater than twenty-five days following the time frames specified in this Section, the health insurance issuer shall pay an additional late payment adjustment equal to one percent of the unpaid balance due for each month or partial month that such claim remains unpaid.

The trial court found that when BCBS remitted payment to Ms. Pousson, it satisfied its obligations under this statute, including penalties. Ms. Pousson argues the trial court erred, pointing to the legislative intent of the statute enshrined in La.R.S. 22:1851, wherein the drafters indicate the purpose of this statute is prompt and correct payment to pharmacists and pharmacies. We agree. That statute governs the relationship between pharmacists and insurers, not insurance companies and their customers.

We find that the appropriate statute for this circumstance is La.R.S. 22:1821(A), which states:

All claims arising under the terms of health and accident contracts issued in this state, except as provided in Subsection B of 14this Section, shall be paid not more than thirty days from the date upon which written notice and proof of claim, in the form required by the terms of the policy, are furnished to the insurer unless just and reasonable grounds, such as would put a reasonable and prudent businessman on his guard, exist. The insurer shall make payment at least every thirty days to the assured during that part of the period of his disability covered by the policy or contract of insurance during which the insured is entitled to such payments. Failure to comply with the provisions of this Section shall subject the insurer to a penalty payable to the insured of double the amount of the health and accident benefits due under the terms of the policy or contract during the period of delay, together with attorney fees to be determined by the court. Any court of competent jurisdiction in the parish where the insured lives or has his domicile, excepting a justice of the peace court, shall have jurisdiction to try such cases.

Therefore, penalties, including attorney fees, are due unless BCBS can show that its failure to pay Ms. Pousson’s claim is just and reasonable. The trial court improperly granted summary judgment in favor of BCBS and dismissed Ms. Pous-son’s claims. We reverse the judgment of the trial court dismissing Ms. Pousson’s claims for penalties and attorney fees and remand to the trial court for further proceedings consistent with this opinion.

CONCLUSION

The judgment of the trial court is reversed, and the case is remanded to the trial court. All costs of this appeal are assessed to Blue Cross/Blue Shield of Louisiana.

REVERSED AND REMANDED.


author: PAINTER, Judge.

text:
    Gregory COUTEE v. SAFEWAY INSURANCE COMPANY OF LOUISIANA, et al.
    No. 13-494.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 6, 2013.

      Sherman Stanford, Opelousas, LA, for Plaintiff-Appellant Gregory Coutee.
    Hollie K. Yandle, Dawn L. Morris, Lafayette, LA, for Defendant-Appellee Safeway Insurance Company of Louisiana.
    Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and J. David Painter, Judges.
   PAINTER, Judge.

11Plaintiff, Gregory Coutee, appeals a trial court judgment dismissing his claims against Quamecia Anderson, the driver of the vehicle involved in a collision with the vehicle in which Coutee was a passenger. Finding no error in its decision to dismiss the claim, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

The trial court, in written reasons for judgment, outlined the undisputed underlying facts as follows:

The court is presented with a fact situation which involves a collision between two backing vehicles. A vehicle driven by Mr. Closton Melvin drove in a forward direction on a street in front of the residence of Ms. Quamecia Anderson, while Ms. Anderson was in her vehicle preparing to back out of her garage onto her driveway and then onto the street. After passing in front of the Anderson residence, the Melvin vehicle stopped at or very near the stop sign at the next intersection. Allegedly having passed up his intended stopping point, Mr. Melvin proceeded to back his vehicle along the same lane he had just traveled. Meanwhile, having seen the Melvin vehicle proceed in a forward direction and stop at or near the next stop sign, Ms. Anderson proceeded to back onto the roadway. The rear of the Melvin vehicle struck the rear quarter of the Anderson vehicle on the passenger side. Damages are claimed by Ms. Anderson against Mr. Melvin and his insurer and damages are claimed by Mr. Coutee, a passenger in the Melvin vehicle, against Ms. Anderson and her insurer.

Coutee filed suit to recover damages for injuries incurred in the accident, claiming that the incident was the sole fault of Anderson. Anderson filed suit against Melvin. Both Melvin and Anderson were insured by Safeway, and both Coutee and Anderson named Safeway as a defendant. The suits were consolidated and tried by the court. After hearing the evidence, the court found Melvin to be one hundred percent at fault in the accident, dismissed Coutee’s suit, and awarded damages to Anderson. Coutee appeals the dismissal of his suit.

I ¡DISCUSSION

Coutee argues that the trial court incorrectly applied the law regarding backing out of a driveway to this ease and that Anderson should have been found one hundred percent at fault in the accident.

Both backing vehicles involved had statutorily imposed duties of care. La.R.S. 32:124 states, with regard to vehicles backing out of a driveway, that:

The driver of a vehicle about to enter or cross a highway from a private road, driveway, alley or building, shall stop such vehicle immediately prior to driving onto a sidewalk or onto the sidewalk area extending across any alleyway or driveway, and shall yield the right of way to any pedestrian as may be necessary to avoid collision, and shall yield the right of way to all approaching vehicles so close as to constitute an immediate hazard.

La.R.S. 32:281 places limitations on backing while on public roads as follows:

A The driver of a vehicle shall not back the same unless such movement can be made with reasonable safety and without interfering with other traffic.
B. The driver of a vehicle shall not back the same upon any shoulder or roadway of any controlled-access highway except as a result of an emergency caused by an accident or breakdown of a motor vehicle.

Melvin, driver of the vehicle which was backing up from near a stop sign on a public street, did not testify at trial. Cou-tee, his passenger, testified that they had passed a friend’s house and were backing up to talk to their friend, who was in the yard of his house. He did not testify as to Melvin’s level of attention or as to his observations of Anderson’s actions.

Anderson testified that she was in her vehicle in the driveway of her house. While attempting to back into the street, she twice looked both ways and saw a vehicle at the stop sign. When she backed up, the vehicle that had been at the stop sign backed into her vehicle.

^Lincoln Bellard, who was standing in his front yard across the street from Anderson’s house, witnessed the accident. He testified that he saw Anderson look both ways as she backed down her driveway when Melvin suddenly began backing up and hit her vehicle. He stated that Melvin “put it so fast in back he ... he ... I doubt if he look[ed] where he was going?”

The trial court found, in its written reasons for judgment, that:

The question becomes whether a reasonable and prudent driver in Ms. Anderson’s position would presume that the Melvin vehicle, stopped at a stop sign, would proceed forward, left, or right and that her backing would not interfere with the travel of the Melvin vehicle. It is the finding of this court that the answer to the question posed would be in the affirmative. It is reasonable to assume that a driver in the Melvin vehicle’s position would continue forward. A driver cannot be called upon to foresee any possible action by another vehicle and to await movement until all possible scenarios have been exhausted.... The court in the present case finds that, as in [Berry v. Fidelity and Cas. Co. of N.Y., 223 So.2d 485 (La.App. 1 Cir.1969),] Ms. Anderson did not act in an imprudent or unreasonable manner.

The trial court’s determination of whether Melvin’s or Anderson’s conduct caused Coutee’s injuries is factual and thus, subject to the manifest error standard of appellate review.

Consequently, a court of appeal may not set aside a jury’s finding unless it is manifestly erroneous or clearly wrong.
In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and meet the following two-part test: (1) find that a reasonable factual basis does not exist for the finding; and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous.

Lewis v. Proline Systems, Inc., 13-88, p. 2 (La.App. 3 Cir. 6/19/13), 117 So.3d 289, 292 (quoting Greer v. State ex rel. Dep’t of Transp. & Dev., 06-417, pp. 2-3 (La.App. 3 Cir. 10/4/06), 941 So.2d 141, 145, writ denied, 06-2650 (La.1/8/07), 948 So.2d 128) (citations omitted).

| ¿The trial court herein, using a duty-risk analysis, determined that Anderson did not breach her statutorily imposed duty and that Melvin did breach his statutorily imposed duty. The testimony adduced at trial establishes a reasonable factual basis for this conclusion. Having reviewed the record in its entirety, we find that the conclusion is not manifestly erroneous.

CONCLUSION

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

AFFIRMED.