author: McDonald, j.

text:
    Christopher MORRIS v. TEXTRON MARINE AND LAND SYSTEMS, INC.
    No. 2014 CA 0293.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 24, 2014.
    Alan G. Bouterie, Alan G. Bouterie, Jr., David M. Serio, Chalmette, LA, for Plaintiff/Appellant, Christopher Morris.
    James F. Scott, James B. Dill, Metairie, LA, for Defendant/Appellee, Textron Marine and Land Systems, Inc.
    Before PARRO, McDONALD, and CRAIN, JJ.
   McDonald, j.

This is an appeal from the grant of a summary judgment in a workers’ compensation case. The office of workers’ compensation (OWC) found that claimant failed to disclose two prior work-related accidents and an automobile accident, in violation of La. R.S. 23:1208, and granted the employer’s motion for summary judgment, dismissing the claim, with prejudice. After a thorough review, we affirm the judgment.

Christopher Morris, an employee of Textron Marine and Land Systems, Inc. (Textron), worked as a maintenance mechanic. He filed a disputed claim for compensation on June 27, 2012, asserting that he injured his shoulder on August 2, 2010, while pushing a drum across some grates to weigh it. He asserted that there was a bona fide dispute regarding benefits that had been terminated or reduced on June 27, 2011, and also regarding vocational rehabilitation.

Textron filed an answer, admitting that an incident occurred on August 2, 2010, while Mr. Morris worked for Textron, but averring that Mr. Morris was not disabled and was capable of returning to work without any restrictions and had done so; or in the alternative, averring that Mr. Morris was able to earn at least 90 percent of his pre-accident wages. Textron claimed credit for benefits received by Mr. Morris, and raised several defenses, including the defense that Mr. Morris had forfeited his right to benefits pursuant to La. R.S. 23:1208, and asked that the claim be dismissed, with prejudice.

Textron thereafter filed a reconventional demand, asserting that Mr. Morris had violated La. R.S. 23:1208 by making willful, false statements for the purpose of obtaining workers’ compensation benefits. Tex-tron asked for reimbursement of all benefits paid to and on behalf of Mr. Morris, because he had lied about being involved in previous workers’ compensation and motor vehicle accidents. Textron also prayed for reimbursement of attorney fees and costs and averred that Mr. |sMorris had forfeited the right to any and all workers’ compensation benefits.

Textron also filed a motion for summary judgment, based on forfeiture of benefits pursuant to La. R.S. 23:1208, and a motion to dismiss the claim with prejudice. Tex-tron averred that Mr. Morris had testified on October 30, 2012, that he had never been involved in a work-related accident prior to August 2, 2010, nor had he been involved in any motor vehicle accident, and that other than the present workers’ compensation claim, he had never filed a lawsuit, nor had he previously injured his shoulder or neck.

Textron maintained that it had learned through discovery that on July 3,1997, Mr. Morris was in an automobile accident and injured his back, neck, shoulders, and legs and suffered damages, including, but not limited to, medical expenses, pain and suffering, mental anguish, past, present, and future medicals, and permanent disfigurement; that Mr. Morris was in the course and scope of his employment at a plumbing company during that accident; and that he was paid workers’ compensation benefits and medical expenses. Textron also asserted that it had learned that Mr. Morris had been injured on September 23, 1996, while working for an employer, and that on January 12, 2012, Mr. Morris was in a motor vehicle accident.

The matter proceeded to a hearing, and thereafter, the office of workers’ compensation ruled in favor of Textron, granting the motion for summary judgment based on violation of La. R.S 23:1208, and dismissing Mr. Morris’s claim with prejudice. In its written reasons for judgment, the workers’ compensation judge found that Mr. Morris had failed to disclose his prior two work-related claims and one automobile accident in his deposition. The workers’ compensation judge noted that “Forgetting some events is quite possible due to the passage of time. Denying all prior work accidents and automobile-related injuries and settlement of claims for money is more than just forgetting.”

|4The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish those ends. La. C.C.P. art. 966(A)(2). An appellate court reviews an office of workers’ compensation decision to grant a motion for summary judgment in workers’ compensation cases de novo, using the same criteria that govern the office of workers’ compensation consideration of whether summary judgment is appropriate. Newman v. Richard Price Construction, 2002-0995 (La.App. 1 Cir. 8/8/03), 859 So.2d 136, 139.

Louisiana Revised ' Statute 23:1208 was intended to prevent and discourage fraud in relation to workers’ compensation claims. Section 1208 clearly applies to any willful false statements or representations made for the purpose of obtaining or defeating any benefit or payment. Such false representations made to anyone, including the employer, physicians, or insurers, result in forfeiture of those workers’ compensation benefits when the representations are made willfully for the purpose of obtaining benefits. Thus, the only requirements for forfeiture of benefits under Section 1208 are that (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment. Caye v. Slidell Travel Center, 2002-0208 (La.App. 1 Cir. 12/31/02), 837 So.2d 144, 147-48, writ denied, 2003-0338 (La.4/21/03), 841 So.2d 797.

A claim under La. R.S. 23:1208 is appropriate for resolution by way of summary judgment. Caye, 837 So.2d at 148. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion | /or summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2).

In support of the motion for summary judgment, Textron introduced Mr. Morris’s disputed claim for compensation, his deposition, his petition for damages from the 1997 accident, the workers’ compensation claim file for the 1997 accident, documentation confirming the 1996 accident, a petition of intervention regarding Mr. Morris’s 1997 accident, and a State Farm file regarding an accident involving plaintiff in 2012. This evidence supports Tex-tron’s motion for summary judgment by showing that Mr. Morris had violated La. R.S. 23:1208 by denying previous accidents, workers’ compensation claims, and lawsuits. At that point, the burden shifted to Mr. Morris to present evidence showing that there still existed a material fact in dispute precluding summary judgment. See La. C.C.P. art. 966(C)(2).

In opposition to the motion for summary judgment, Mr. Morris offered two pages from his deposition, which contained testimony that he had taken a Lortab the day of his deposition, and that the medication affected his memory. However, on the following page of his deposition when asked whether there was anything that would affect his understanding of what was being asked of him in the deposition, Mr. Morris answered in the negative.

In his opposition to the motion for summary judgment, Mr. Morris presented no medical evidence or affidavit to show that his failure to reveal his two previous workers’ compensation claims and an automobile accident was inadvertent or explainable. Thus, Mr. Morris failed to present admissible evidence to show that there existed a material fact in dispute precluding summary judgment.

RFor the foregoing reasons, the office of workers’ compensation judgment, granting summary judgment in favor of Textron and dismissing Mr. Morris’s claim, is affirmed. Costs are assessed against Christopher Morris.

AFFIRMED.

      . Louisiana Code of Civil Procedure article 966 was amended in 2013 and again in 2014. The amendments are not implicated in the issues presented in this appeal. See 2013 La. Acts, No. 391, § 1, effective August 1, 2013, and 2014 La. Acts, No. 187, § 1, effective August 1, 2014.


source: Caselaw Access Project

author: CRAIN, J.

license: Public Domain

text:
    Jerry GASPARD v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY.
    No. 2013 CA 0800.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 24, 2014.

      Sean D. Fagan, Locke Meredith, Baton, Rouge, Louisiana, for Plaintiff/Appellant, Jerry Gaspard.
    William C. Rowe, Jr., Derek M. Tanner, Baton Rouge, Louisiana, for Defendant/Appellee, Louisiana Farm Bureau Casualty Insurance Company.
    Before PARRO, McDONALD, and CRAIN, JJ.
   CRAIN, J.

| Jn this suit against an uninsured motorist (UM) insurer, the plaintiff appeals the judgment in his favor, seeking additional damages for injuries sustained in a rear-end collision, as well as penalties and attorney fees. The defendant insurer has answered the appeal, contending that the award of damages should be reduced. We affirm.

FACTS

On February 19, 2006, Jerry Gaspard was involved in an automobile accident on Airline Highway in Ascension Parish. While stopped at a traffic light, the Chevrolet Silverado pickup truck Gaspard was operating was rear-ended by a Nissan Frontier driven by Charles Pepple. As a result of the accident, Gaspard alleged that he suffered injury to his low back. There was no dispute that Pepple was at fault in causing the accident and his insurer paid its policy limits of $15,000.00. Gaspard filed the instant suit against Louisiana Farm Bureau Casualty Insurance Company (Farm Bureau), seeking additional recovery for the injuries he sustained under the UM policy that covered the vehicle he was operating. Gaspard also sought penalties and attorney fees based upon Farm Bureau’s alleged violation of Louisiana Revised Statutes 22:1892 and 22:1973.

The claims against Farm Bureau proceeded to a jury trial. After hearing and considering the evidence, the jury found that Gaspard suffered damages caused by the accident and awarded the following amounts:

laPast Medical Expenses $22,839.00

Future Medical Expenses $20,000.00

Past Physical Pain and Suffering $75,000.00

Future Physical Pain and Suffering $75,000.00

Past Mental and Emotional Anguish and Distress, Aggravation and Inconvenience $25,000.00

Future Mental and Emotional Anguish and Distress, Aggravation and Inconvenience $25,000.00 Physical Disability and Physical Limitations $25,000.00

Loss of Enjoyment of Life $25,000.00

Past Lost Income $0

Future Lost Income $0

TOTAL $292,839.00

The jury determined that Farm Bureau’s failure to timely pay the amount of Gas-pard’s claim was not arbitrary, capricious, or without probable cause and did not award penalties and attorney fees. A written judgment was rendered in accordance with the jury’s verdict, reflecting the award to Gaspard of $292,839.00, subject to a credit of $28,500.00, for a total _ of $264,339.00, plus judicial interest from the date of judicial demand. The trial court denied Gaspard’s motion for judgment notwithstanding the verdict or alternatively for new trial or additur.

Gaspard now appeals, contending that the general and special damages awarded by the jury are abusively low and should be increased. He further contends that the jury erred in failing to find that Farm Bureau was arbitrary and capricious and in failing to award penalties and attorney fees. Farm Bureau has answered the appeal seeking to have the general and special damages reduced.

^DISCUSSION

Standard of Review

It is well-settled that an appellate court may not disturb a jury’s factual findings in the absence of manifest error. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). On review the appellate court does not decide whether the jury was right or wrong; rather it must consider the entire record to determine whether a reasonable factual basis exists for the finding, and whether the finding is manifestly erroneous or clearly wrong. Stobart v. State, Through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La.1993). Reasonable evaluations of credibility and inferences of fact should not be disturbed, even if the appellate court feels that its own evaluations and inferences are as reasonable. Rosell, 549 So.2d at 844. Thus, where there are two permissible views of the evidence, the jury’s choice between them cannot be manifestly erroneous or clearly wrong. Id. In conducting its review the appellate court must be cautious not to reweigh the evidence or substitute its own factual finding just because it would have decided the case differently. Guillory v. Lee, 09-0075 (La.6/26/09), 16 So.3d 1104, 1117.

It is also well-settled that a jury is given great discretion in assessing quantum for both general and special damages. La. Civ.Code art. 2324.1; Guillory, 16 So.3d at 1116. An appellate court reviews the amount awarded by the jury under the abuse of discretion standard, meaning that it may disturb a damages award and resort to a review of prior similar awards only after an articulated analysis of the facts reveals an abuse of discretion. See Bouquet v. WalMart Stores, Inc., 08-0309 (La.4/4/08), 979 So.2d 456, 459.

Evidentiary Error

In presenting evidence as to Gaspard’s claim for penalties and attorney fees, Gas-pard’s attorney questioned Philip Duncan, Farm Bureau’s District Claims Manager, about Farm Bureau’s handling of Gas-pard’s claims. Specifically, | ..¡Gaspard’s attorney asked Duncan about the reserve amount that Farm Bureau established, which Duncan confirmed is the amount insurance companies are legally required to establish for the potential value of a claim. Farm Bureau objected to the relevance of the reserve amount. The trial court overruled the objection, finding that the reserve amount was relevant as to whether Farm Bureau at one time evaluated the claim at a higher amount than they were willing to pay Gaspard. Duncan then testified that the reserve for Gaspard’s claims was set in May 2007 at $500,000.00. Farm Bureau contends that the trial court erred in admitting the reserve amount, and that the error contaminated the jury and led to a much higher award than is reasonable.

Except as otherwise provided by law, all relevant evidence is admissible. La.Code Ev. art. 402. Relevant evidence is that having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. La.Code Ev. art. 401. Whether evidence is relevant is within the broad discretion of the trial court, and its ruling will not be disturbed on appeal in the absence of a clear abuse of that discretion. Gorman v. Miller, 12-0412 (La. App 1 Cir. 11/13/13), 136 So.3d 834, 840, writ denied, 13-2909 (La.3/21/14), 135 So.3d 620; Travis v. Spitale’s Bar, Inc., 12-1366 (La.App. 1 Cir. 8/14/13), 122 So.3d 1118, 1126, writs denied, 13-2409 (La.1/10/14), 130 So.3d 327 and 13-2447 (La.1/10/14), 130 So.3d 329.

After thorough review, we agree with Farm Bureau that the reserve amount it established upon initially evaluating Gaspard’s claims under the policy was not relevant to Gaspard’s claim for penalties and attorney fees. As will be discussed herein, an insurer who does not tender unconditionally a reasonable payment, a figure over which reasonable minds could not differ, will be subject to penalties and attorney fees. See La. R.S. 22:1973, 22:1892; McDill v. Utica Mut. Ins. Co., 475 So.2d 1085, 1092 (La.1985). The record does not establish that the reserve Ramount equates to the amount over which reasonable minds could not differ, nor is it relevant to establishing that amount. Cf. Molony v. USAA Property and Cas. Ins. Co., 97-1836 (La.App. 4 Cir. 3/4/98), 708 So.2d 1220, 1226 (stating that the court was satisfied that the reserve amount does not mean the amount over which reasonable minds could not differ, as required by McDill). Additionally, the reserve set by Farm Bureau has no bearing on Farm Bureau’s alleged failure to conduct a reasonable evaluation of Gaspard’s claims.

The erroneous introduction of evidence is subject to a harmless error analysis. See Thongsavanh v. Schexnayder, 09-1462 (La.App. 1 Cir. 5/7/10), 40 So.3d 989, 995, writ denied, 10-1295 (La.9/24/10), 45 So.3d 1074. Duncan explained that the reserve represented only the potential value of a claim, based upon the information available at the time. Duncan also explained that once set, the amount of the reserve is rarely reduced. Duncan testified that in this case, Farm Bureau had serious concerns as to whether the accident was the cause of Gaspard’s alleged damages. Moreover, after considering the entirety of the evidence, the jury awarded an amount significantly less than the reserve amount. For these reasons, we find that the error in admitting the reserve amount was harmless.

Damages

General damages are intended to compensate an injured plaintiff for mental or physical pain and suffering, inconvenience, loss of gratification or intellectual or physical enjoyment, or other losses of lifestyle. See Thongsavanh, 40 So.3d at 1001. They are inherently speculative in nature and cannot be fixed with mathematical certainty. Miller v. LAMMICO, 07-1352 (La.1/16/08), 973 So.2d 693, 711. Since the jury is in the best position to evaluate witness credibility and see the evidence firsthand, it is afforded much discretion in independently assessing the facts and rendering an award. Id.

|7On appeal, the role of the appellate court is to review the exercise of discretion by the jury, not to decide what it considers to be an appropriate award. Youn v. Maritime Overseas Corp., 623 So.2d- 1257, 1260 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award. Youn, 623 So.2d at 1261. Only after it is determined that there has been an abuse of discretion is a resort to prior awards appropriate, and then only to determine the highest or lowest point of an award within that discretion. Coco v. Winston Indus., Inc., 341 So.2d 332, 335 (La.1976); Aymami v. St. Tammany Parish Hosp. Service Dist. No. 1, 13-1034 (La.App. 1 Cir. 5/7/14), 145 So.3d 439, 448. In reviewing a general damages award a court does not review a particular item in isolation; rather, the entire general damages award is reviewed for abuse of discretion. Aymami, 145 So.3d at 448.

Special damages are those which have a “ready market value,” such that the amount of the damages theoretically may be determined with relative certainty, and include past and future medical expenses. See Menard v. Lafayette Ins. Co., 09-1869 (La.3/16/10), 31 So.3d 996, 1006; Kaiser v. Hardin, 06-2092 (La.4/11/07), 953 So.2d 802, 810 (per curiam). A tort victim is ordinarily entitled to recover past and future medical expenses incurred as a result of an injury if he proves, by a preponderance of the evidence, the existence of the injuries and a causal connection between the injuries and accident. Yohn v. Brandon, 01-1896 (La.App. 1 Cir. 9/27/02), 835 So.2d 580, 584, writ denied, 02-2592 (La.12/13/02), 831 So.2d 989. This burden of proof is met by establishing, through medical testimony, that it is more probable than not that the injuries were caused by the accident. Id.

|sThe record establishes that Gaspard was fifty years old when the accident occurred in 2006. He had a history of back and neck pain and had been -treating with his chiropractor, Dr. Gary Black, for thirty years. In 1998, Gaspard was referred to a physiatrist, Dr. Gray Barrow, for evaluation and treatment of low back pain, which resulted in a course of physical therapy. In 2004, Gaspard was referred to Dr. Jorg-es Isaza, an orthopedic surgeon. Dr. Isaza ordered a discogram, which was performed on the discs at L2-3, L3^4, L4-5, and L5-Sl. The discs at L2-3 and L5-S1 were described as normal. An internal fissure of the L4-5 disc was identified, but that disc was described as non-painful. The L3-4 disc had a tear and was identified as the source of Gaspard’s low back pain.

In October 2004, Dr. Isaza performed an intradiscal electrothermal therapy (IDET) procedure on the disc at L3-4, which involved inserting a probe into that disc that was then heated. The goal of the procedure was for scar tissue to form and seal the tear over the course of a few months, in hopes of relieving at least some pf the pain. The IDET procedure does not produce immediate pain relief, and approximately six months after the IDET procedure, Dr. Barrow administered sacroiliac joint injections, which provided only hours of relief for Gaspard’s low back pain. Gas-pard testified, however, that approximately eight months after the IDET procedure, he did not need chiropractic treatment for low back pain, although he continued to seek treatment for neck and upper back pain. He also continued to take and refill prescriptions for Lortab painkillers.

The accident occurred on February 19, 2006. Gaspard described the impact as “pretty solid” and stated he developed a headache and back pain. He did not immediately seek medical attention, but three days after the accident Gaspard returned to Dr. Black complaining of headache, as well as neck, low back, and hip pain. At that time Gaspard rated his low back pain as six out of ten. Dr. Black attributed the low back pain Gaspard experienced to the accident. Dr. Black’s |9notes from Gaspard’s next visit two days later indicate that Gaspard’s symptoms were improving, although it is unclear which symptoms had improved. Gaspard saw Dr. Black again on March 3, 2006, and on March 10, 2006, when he requested that he be released from Dr. Black’s care although Dr. Black did not feel that Gaspard had reached maximum medical improvement. Gaspard returned to Dr. Black on May 11, 2006, at which time Dr. Black documented complaints of middle back, upper back, and neck pain. On June 1, 2006, Gaspard again saw Dr. Black and complained only of low back pain.

Later in June 2006, Gaspard returned to Dr. Barrow because treatment with Dr. Black was not providing him relief. Gaspard related his involvement in the accident, and complained of low back pain rated as ten out of ten. Dr. Barrow believed that the pain generated from Gaspard’s spine and ordered another dis-cogram. That discogram revealed an annular tear in the L4-5 disc, which was not shown on the pre-accident discogram. Gaspard continued treating with Dr. Barrow until August 2009, reporting pain varying between seven and eight out of ten, with some temporary relief achieved by epidural steroid injections. Dr. Barrow opined that the accident produced the annular tear at L4-5 that caused Gaspard’s chronic pain.

Approximately four months after the accident, Gaspard returned for a consultation with Dr. Isaza, where Gaspard related that after finally feeling relief from the IDET procedure, he had been involved in the accident, and was experiencing low back pain that he rated as ten out of ten. Dr. Isaza reviewed the post-accident disco-gram results, describing them as showing the annular tear at L4-5, which was not evidenced by the pre-accident discogram. An MRI revealed some dehydration of the disc at L3-4, and a pars defect at L5, which limited Gaspard’s surgical options. Dr. Isaza recommended conservative care, including medications and pain management, and advised that Gaspard should not continue | inhis employment, which involved extensive driving. A second opinion by another orthopedic surgeon confirmed that surgery was not a viable option.

At trial, Gaspard described his continued pain, which was relieved only by lying down. Gaspard testified that he “sucked it up” and continued his job duties until August 2006, when he took five months sick leave, and ultimately took disability retirement. Gaspard had worked at his job for nearly thirty years and had intended to retire at either age 65 or during the year of the trial, when he would have achieved “the Rule of 90,” meaning that the sum of his age and years of service would have been 90. However, his employment required extensive driving, which he was unable to continue due to pain and the narcotic pain medication he was taking. Louis Lipinski, an expert in the field of vocational rehabilitation, confirmed that the medical records he reviewed indicated that Gaspard was unable to work at all.

In 2010, Gaspard suffered a psychiatric episode and was involuntarily admitted to a psychiatric hospital. He was diagnosed with bipolar disorder and began taking lithium and antidepressants. At trial, Gaspard argued that his bipolar disorder was triggered by the accident and clarified that he was not claiming that it was caused by the accident. His treating psychiatrist opined that the symptoms that led to the diagnosis were -attributable to the severe stress that resulted from the accident, including the loss of his job. The psychiatrist’s opinion was based on the history given to him by Gaspard, which did not include prior psychiatric treatment, a history of violent behavior with his ex-wife, or that he had been prescribed antidepressants.

Gaspard testified that the accident has dramatically affected his life, which he described as “existing not living.” At the time of the accident, Gaspard and his |nwife, Wanda, had been married approximately two years. Wanda confirmed that Gaspard suffered continued pain that prohibited them from engaging in activities they had previously enjoyed, such as playing golf. Gaspard’s step-son added that after the accident, Gaspard could do nothing physical and was in bed sixty percent of the time, leaving all of the work around the house to others.

Gaspard argues that the evidence presented establishes that his life has been profoundly and irreversibly affected by the injuries he sustained in the accident. He points to the pain level he now endures, his need to take narcotic pain medication, and the fact that he is now forced to rely on disability retirement income to support his family, in support of his argument that the general damages awarded are abusively low.

Farm Bureau counters that the general damages award is abusively high considering the undisputed testimony of Dr. Joe Morgan, who performed an independent medical exam on Gaspard at Farm Bureau’s request, and that there was no significant change in Gaspard’s lumbar spine after the accident. Farm Bureau contends that Gaspard’s spine was structurally and morphologically the same after the accident and without being able to identify a disc bulge, disc herniation, or new disc tear, the award should be substantially reduced.

In reviewing the competing arguments regarding the amount the jury awarded in general damages, we are mindful that the award can be disturbed only if the record clearly reveals that the jury abused its discretion. See Wainwright v. Fontenot, 00-0492 (La.10/17/00), 774 So.2d 70, 74. After thorough review, we conclude that the jury could have reasonably concluded that the amounts it awarded for the particular injuries Gaspard suffered were reasonable. Although Dr. Morgan testified that there was no significant change in Gaspard’s lumbar spine after the accident, both Doctors Isaza and Barrow identified the source of Gaspard’s post-accident low back pain as the L4-5 disc, and testified that the pain |12was, more probably than not, caused by the accident. The jury’s decision to credit the medical testimony presented by Gaspard cannot be manifestly erroneous. See Rosell, 549 So.2d at 845. Further, we cannot find that the jury abused its vast discretion in assessing the amount of general damages in this case.

With regard to special damages, the jury awarded Gaspard past and future medical bills and declined to award any amount for past and future lost wages. Gaspard contends that the jury’s award for past medical expenses is abusively low and should be increased to include amounts for psychiatric treatment and bipolar medications, as well as all expenses associated with treatment of his low back since the time of the accident.

As set forth previously, Gaspard’s treating psychiatrist opined that his bipolar disorder manifested due to stress resulting from the accident. However, that opinion was based on the history Gaspard related and Farm Bureau established that the history Gaspard related was incomplete. Gaspard admitted to psychiatric treatment prior to the accident, and to previously taking antidepressants. He explained that this information was not disclosed to his psychiatrist because it had occurred a long time ago and he did not remember. His psychiatrist also acknowledged that it was possible that Gaspard had previously been diagnosed with bipolar disorder based on a statement allegedly made by Gaspard at the time of his involuntary hospitalization to the effect that he simply needed a pill for his bipolar disorder. The psychiatrist explained, however, that the term “bipolar disorder” is loosely used by some people and Gaspard may have simply thought he was bipolar. Considering this equivocal testimony, the jury was within its discretion to reject amounts for psychiatric treatment in its award of past medical expenses.

Gaspard additionally argues that the jury’s past medical expenses should have included all amounts claimed for treatment of low back pain. However, as |1sFarm Bureau points out, it was well established that Gaspard had a long history of low back pain for which he was being treated until just prior to the accident. When medical expenses have been incurred for the treatment of multiple conditions and a jury finds that some, though not all, of those conditions were caused by the accident in question, the jury’s great discretion permits it to award something less than the full amount of the medical expenses claimed. Travis, 122 So.3d at 1129.

Although Gaspard testified that the pre-accident IDET procedure on the L3-4 disc had resulted in a reduction in his low back pain, it was not established that his back issues had resolved, such that the jury could not have reasonably concluded that some post-accident back treatments were not related to the accident. Although testimony by Doctors Isaza and Barrow provided a reasonable basis for the jury to find that the accident caused Gaspard to suffer damages, upon the evidence presented we cannot conclude that the jury was manifestly erroneous in its obvious determination that not all of the medical expenses claimed were attributable to the accident. We further find no error in the jury’s decision to award Gaspard an amount less than the total medical expenses claimed. Cf. Travis, 122 So.3d at 1129-30.

Through its answer to the appeal, Farm Bureau challenges the jury’s award of future medical expenses. Recovery of future medical expenses is dependent upon the tort victim establishing the probability of future medical expenses with supporting medical testimony and estimations of their probable cost. Menard v. Lafayette Ins. Co., 09-1869 (La.3/16/10), 31 So.3d 996, 1006. Future medical expenses must be established with some degree of certainty. Id. Farm Bureau argues that the evidence offered by Gaspard does not rise to the level necessary to prove future medical expenses.

114Pr. Isaza testified that he anticipated Gaspard would need continued pain medication for discogenic pain, muscle spasms, and inflammation. He further testified that to prevent addiction, Gaspard would require future pain management. Dr. Barrow also speculated that Gaspard may need future treatment such as activity modification, medication management, physical therapy, and possible procedures for flare-ups such as injections. Gaspard also contends that he will need future psychiatric treatment.

The record evidence sufficiently establishes that, as a result of the accident, future medical expenses will be medically necessary. When the record establishes that future medical expenses will be necessary and inevitable, the court should not reject an award of future medical expenses on the basis that the record does not provide the exact value of the necessary expenses, if the court can examine the record and determine from evidence of past medical expenses and other evidence a minimum amount that reasonable minds could not disagree will be required. Stiles v. K Mart Corp., 597 So.2d 1012, 1012 (La.1992). We find that the evidence of past medical expenses reasonably supports the jury’s conclusion that a minimum amount of future medical expenses on which reasonable minds could not disagree was $20,000.00.

The jury made no award for past or future lost wages. Gaspard contends that this was clearly wrong.

At the time of the accident, Gaspard was a Field Services Director for Louisiana Farm Bureau Federation (a separate company from Farm Bureau). He acted as a liaison between national and state offices and parish affiliates, which required that he drive extensively, up to three thousand miles per month. Dr. Barrow testified that the extensive driving was a factor that predisposed Gaspard to back pain and further explained that sitting for prolonged periods of time is one of the worst things that a person -with discogenic low back pain can do. In fact, based | lson Gaspard’s history and medical records, Dr. Barrow stated that he probably would have disabled Gaspard in March 2005 if he had been asked to do so. After the accident, Dr. Isaza thought that Gaspard definitely could not return to working at his job due to his pain level and the narcotic medication he was taking to control that pain, and recommended that he consider disability.

In addition to the back problems that Gaspard experienced, the jury heard testimony regarding Gaspard’s bipolar diagnosis and lithium treatment, which was suggested to be the cause of tremors he began experiencing. However, Gaspard’s psychiatrist testified that a bipolar diagnosis would not have kept Gaspard from continuing his job. It was further established that in 2010, Gaspard was diagnosed by an ophthalmologist, Dr. Aravinda Rao, with age-related macular degeneration. Dr. Rao testified that patients with macular degeneration can have fluctuating vision over the course of time, and that Gaspard’s vision acuity had shown improvement by 2012. Dr. Rao confirmed that even when she saw him at his worst, Gaspard could have qualified for a Louisiana driver’s license with use of a bioptic telescopic lens. In fact, in 2012, Gaspard related to Dr. Rao that he had passed the driver’s license exam.

A plaintiff seeking damages for lost wages bears the burden of proving lost earnings. Graham v. Offshore Spe cialty Fabricators, Inc., 09-0117 (La.App. 1 Cir. 1/8/10), 37 So.3d 1002, 1015. Such damages must be proven with reasonable certainty and are reviewed for manifest error. Boudreaux v. State, Dept. of Transp. & Dev., 04-0985 (La.App. 1 Cir. 6/10/05), 906 So.2d 695, 705, writs denied, 05-2164 (La.2/10/06), 924 So.2d 174 and 05-2242 (La.2/17/06), 924 So.2d 1018. While there was no real dispute that Gas-pard is now unable to work, we are unable to conclude that the jury clearly erred in finding that Gaspard failed to prove his claim for lost wages with reasonable certainty. The jury could have reasonably 11Rconcluded that Gaspard’s inability to work was attributable to factors other than the accident, including his pre-accident back problems.

Penalties and Attorney Fees

Finally, Gaspard asserts that the trial court erred in presenting the jury with a verdict form that was legally incorrect with regard to his claim for penalties and attorney fees under Louisiana Revised Statutes 22:1973 and 22:1892, and that the jury erred in failing to find that Farm Bureau owed penalties and attorney fees.

In reviewing a jury verdict form, an appellate court employs a manifest error standard of review. The verdict form may not be set aside unless the form is “so inadequate that the jury is precluded from reaching a verdict based on correct law and facts.” See Townes v. Liberty Mut. Ins. Co., 09-2110 (La.App. 1 Cir. 5/7/10), 41 So.3d 520, 527. Jury interrogatories must fairly and reasonably point out the issues to guide the jury in reaching an appropriate verdict. If the verdict form does not adequately set forth the issues to be decided by the jury, such interrogatories may constitute reversible error. Id.

Louisiana Revised Statute 22:1892A(1) requires insurers to pay the amount of any claim due any insured within thirty days after receipt of satisfactory proofs of loss. Subsection B(l) provides, in pertinent part:

Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor ... when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty> ⅛ addition to the amount of the loss, of fifty percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater[.]

Louisiana Revised Statute 22:1973 imposes an obligation of good faith and fair dealing on an insurer, including the affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant. An insurer may be subject to penalties not to exceed two times the damages sustained or five thousand dollars, whichever is greater, if the insurer fails | i7to pay a claim due an insured within sixty days of receiving satisfactory proof of loss when such failure is arbitrary, capricious, or without probable cause. See La. R.S. 22:1973B(5) and C.

The conduct prohibited by Section 22:1892A(1) is virtually identical to the conduct prohibited by Section 22:1973B(5): the failure to timely pay a claim after receiving satisfactory proof of loss when that failure to pay is arbitrary, capricious, or without probable cause. Reed v. State Farm Mutual Automobile Insurance Company, 03-107 (La.10/21/03), 857 So.2d 1012, 1020. The primary difference is the time periods allowed for payment. Reed, 857 So.2d at 1020. Both statutes are penal in nature and must be strictly construed. Reed, 857 So.2d at 1020.

Relative to this claim, the verdict form asked the jury whether Farm Bureau’s failure to pay the amount of Gas-pard’s claim within the relevant time frames was “arbitrary, capricious and without probable cause, that is based on random choice or personal whim.” Gas-pard contends that this introduced an additional element to the statutory criteria in that it required the jury to find the existence of “random choice” or “personal whim” in order to conclude that Farm Bureau’s failure to timely pay violated the statutes. We disagree. The supreme court has explained that in this context, the terms “arbitrary” and “capricious” are virtually indistinguishable from each other, with “arbitrary” meaning “an act ‘based on random choice or personal whim, rather than any reason or system’ ” and “capricious” meaning “action [that is] ‘given to sudden and unaccountable changes of behavior.’ ” Reed, 857 So.2d at 1020 n. 7 (quoting THE NEW OXFORD AMERICAN DICTIONARY 80 (Elizabeth J. Jewell & Frank Abate eds., 2001)). The trial court’s jury interrogatory simply expresses this explanation of the meaning of the legal terminology. Thus, we cannot find that the verdict form was confusing or misleading such that it precluded the jury from reaching a decision based on the correct law and facts.

118With regard to the merits of the penalties and attorney fees argument, Gas-pard contends that Farm Bureau never conducted a good faith investigation, that it ignored medical records and testimony, and that its failure to tender was without probable cause. Farm Bureau disputes these claims, arguing that it acted in good faith when it opened a file and attempted to obtain a medical authorization and subrogation agreement from Gas-pard. It argues that Gaspard’s failure to sign the medical authorization thwarted its investigation and, once medical records were received, Farm Bureau had legitimate questions as to the causation of Gaspard’s injuries.

An insurer’s conduct depends on the facts known to the insurer at the time of its action, and penalties should not be assessed when the insurer has a reasonable basis to defend the claim and acts in good-faith reliance on that defense. Louisiana Bag Company, Inc.v. Audubon Indemnity Company, 08-0453 (La.12/2/08), 999 So.2d 1104, 1114. Especially when there is a reasonable and legitimate question as to the extent and causation of a claim, bad faith should not be inferred from an insurer’s failure to pay within the statutory time limits when such reasonable doubts exist. Reed, 857 So.2d at 1021. In those instances where there are substantial, reasonable, and legitimate questions as to the extent of an insurer’s liability or an insured’s loss, failure to pay within the statutory time period is not arbitrary, capricious, or without probable cause. Louisiana Bag Company, Inc., 999 So.2d at 1114. Because the question is essentially a factual issue, the tidal court’s finding should not be disturbed on appeal absent manifest error. Louisiana Bag Company, Inc., 999 So.2d at 1120; Reed, 857 So.2d at 1021.

When Gaspard notified Farm Bureau of the accident, he indicated that he was experiencing headaches and backache, and he had visited the chiropractor, and that his neck joint and middle back joints were out of line. Farm Bureau sent Gas-pard a medical authorization form and sub-rogation agreement; Gaspard | ^completed and returned only the subrogation agreement. Medical records were forwarded to Farm Bureau in January 2007. Wage loss documentation was forwarded in March 2007. Farm Bureau paid its medical payment limits, then, on the anniversary date of the accident, made a tender of $8,500.00. Farm Bureau received documentation that Gaspard was unable to continue working. Philip Duncan, Farm Bureau’s District Claims Manager, testified that although Farm Bureau received medical records regarding Gaspard’s injuries and disability, it had no verification of a causal connection between the injury Gaspard sustained in the accident and his disability. Farm Bureau further noted inconsistencies within its file’, which caused it to question whether Gaspard’s injuries were caused by the accident.

Although the jury concluded that Farm Bureau did not make a timely tender after receiving satisfactory proof of loss, based on the evidence presented, it determined that Farm Bureau was not arbitrary or capricious in doing so. After considering the entire record, we cannot conclude that the jury was manifestly erroneous in this determination. Based on the record, the jury could have reasonably concluded that Farm Bureau had a reasonable and legitimate question as to the extent of its liability and Gaspard’s loss.

CONCLUSION

For the reasons set forth herein, the judgment of the trial court is affirmed. Costs of this appeal are assessed equally to Jerry Gaspard and Louisiana Farm Bureau Casualty Insurance Company.

JUDGMENT AFFIRMED; ANSWER TO APPEAL DENIED.

      . The petition named Southern Farm Bureau Casualty Insurance Company as the defendant. The defendant’s answer clarified that the correct name was Louisiana Farm Bureau Casualty Insurance Company.

      . Gaspard was operating a company vehicle provided for his personal use by his employer, Farm Bureau Federation, which, although a stock holder of the insurer, Farm Bureau, is a distinct company.

      . Gaspard testified that he was later diagnosed with a mood disorder; however, expert psychiatric testimony established that bipolar disorder falls under die umbrella of a mood disorder and results in the same treatment.


author: WHIPPLE, C.J. McCLENDON, J.,

text:
    GIBSON & ASSOCIATES, INC. v. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 2013 CA 2069.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 24, 2014.

      Russel W. Wray, St. Francisville, LA, Lani B. Durio, Baton Rouge, LA, for Plaintiff/Appellee, Gibson & Associates, Inc.
    Darhlene M. Major, Geoffrey C. Rodriguez, Baton Rouge, LA, for Defendant/Appellant, State of Louisiana, Department of Transportation and Development.
    Before WHIPPLE, C.J., McClendon, and Higginbotham, jj.
   WHIPPLE, C.J.

12In this appeal, the Louisiana Department of Transportation and Development (the DOTD) appeals a judgment of the trial court, finding that Gibson and Associates, Inc. (Gibson) was entitled to attorney’s fees, and a subsequent judgment ordering the DOTD to pay Gibson $106,215.00 in attorney’s fees. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The underlying lawsuit in this matter results from a bid dispute for a DOTD construction project involving the repair and replacement of bridge joints on Interstates 10 and 110 in East Baton Rouge and Iberville Parishes. The project was initially awarded to TOPCOR Services, Inc. (TOPCOR). However, TOPCOR did not timely submit proof of its status as a disadvantaged business enterprise, thus resulting in its disqualification. Although Gibson was the next lowest bidder the DOTD did not accept Gibson’s bid. Instead, the DOTD readvertised the project. After readvertising the project, Lamplighter Construction L.L.C. (Lamplighter) was the apparent lowest bidder.

However, the DOTD was later notified that Lamplighter should be disqualified because Lamplighter and TOPCOR were affiliated entities and controlled by the same individuals. The DOTD then researched any connections between these two companies and determined that a principal officer or owner of Lamplighter was also a principal officer or owner of TOP-COR, and, thus, Lamplighter was deemed an ineligible bidder.

Lamplighter then protested the DOTD’s determination. Following a review of documentation submitted by Lamplighter, the DOTD determined that Lamplighter should be reinstated as the low bidder and awarded the contract. In response, Gibson filed a protest of the DOTD’s decision to reinstate Lamplighter |aas the low bidder. The DOTD rejected Gibson’s protest and proceeded to award the contract to Lamplighter.

Thereafter, Gibson filed a petition for a temporary restraining order (TRO), preliminary injunction, permanent injunction, declaratory judgment, and mandamus. Through its petition, Gibson sought to enjoin the DOTD from awarding and executing the construction contract to any bidder other than Gibson. It further sought a declaratory judgment, declaring: (1) that the bid submitted by Lamplighter was irregular pursuant to Standard Specification § 102.08(g); (2) that pursuant to LSA-R.S. 48:250, et seq., Lamplighter’s bid must be rejected; (8) that any contract entered into by the DOTD with Lamplighter is null and void; and (4) that Gibson is the low responsible bidder to bid according to the contract, plans, and specifications and, as such, is entitled to be awarded the project. Gibson also sought a writ of mandamus ordering the DOTD to accept Gibson’s bid and execute the contract with Gibson for construction of the project. Finally, Gibson sought costs and attorney’s fees.

The trial court granted Gibson’s TRO, prohibiting the DOTD from awarding the contract to any bidder other than Gibson or, if the contract had been awarded, from implementing or executing the terms and conditions of any such contract, and a hearing on Gibson’s request for a preliminary injunction was set for June 15, 2010. Prior to the hearing on the preliminary injunction, the DOTD filed exceptions of nonjoinder of an indispensable party, ie., Lamplighter, and improper use of summary proceedings. The DOTD also filed an answer and reconventional demand, seeking dissolution of the TRO and damages and attorney’s fees for its wrongful issuance, pursuant to LSA-C.C.P. art. 3608.

Following a hearing, the trial court denied the exceptions filed by the DOTD, extended the TRO, and took the matter of the preliminary injunction under advisement.

^Thereafter, the trial court issued written reasons for judgment, finding that TOPCOR Services and Lamplighter have a principal officer and/or owner in common and, thus, that Lamplighter was ineligible to bid. Accordingly, the trial court rendered judgment: (1) issuing a preliminary injunction prohibiting the DOTD from awarding the construction contract to any bidder other than Gibson or, in the event the contract had been awarded, from performing or executing the terms thereof; and (2) issuing a writ of mandamus directing the DOTD to award the contract to Gibson as the low responsible bidder and to execute a contract with Gibson in accordance with the bid proposal and the contract plans and specifications. The DOTD appealed this judgment and Lamplighter filed an answer to the appeal, adopting the assignments of error set forth by the DOTD.

On May 18, 2011, this court rendered an opinion, amending and affirming in part and reversing in part the judgment of the trial court. Specifically, this court found that the DOTD directly violated a prohibitory law, ie., the Public Bid Law, when it reinstated Lamplighter’s bid, and, thus, the trial court did not err in issuing a preliminary injunction. However, this court further found that the trial court erred in issuing a writ of mandamus directing the DOTD to award the contract to Gibson, as the DOTD had some discretion in deciding whether to award the bid to Gibson after Lamplighter was disqualified. Gibson & Associates, Inc. v. State, Dept. of Transp. & Development, 2010-1696 (La.App. 1st Cir.5/18/11), 68 So.3d 1128, 1139-41.

While the DOTD’s first appeal was pending with this court, Gibson filed a motion for summary judgment with the trial court, requesting that the trial court grant summary judgment setting forth that: (1) the bid submitted by Lamplighter is irregular and thus rejected under Louisiana Standard Specifications for Roads and Bridges § 102.08(g); (2) any contract entered into by the DOTD with Lamplighter is illegal, null, and void ab initio; (3) a permanent injunction be issued prohibiting |5the DOTD from awarding the contract to anyone but Gibson; (4) the DOTD violated public bid law by failing and refusing to reject Lamplighter’s bid as irregular under Louisiana Standard Specifications for Roads and Bridges § 102.08(g); and (5) Gibson is entitled to an award of attorney’s fees under LSA-R.S. 38:2220.4 et seq.

Sometime after this court rendered its opinion and Gibson filed its motion for summary judgment, the DOTD awarded the contract in question to Gibson, thereby mooting Gibson’s request for a permanent injunction. (R. 486) Nevertheless, Gibson’s request for attorney’s fees, as requested in the motion for summary judgment, remained outstanding.

On April 30, 2012, the trial court issued a written ruling, finding that Gibson is entitled to reasonable attorney’s fees, pursuant to LSA-R.S. 38:2220.4. The trial court then set a status conference to determine the amount of attorney’s fees and expenses due Gibson. On June 28, 2013, the trial court issued a written ruling, ordering the DOTD to pay Gibson reasonable attorney’s fees in the amount of $106,215.00. On September 18, 2013, the trial court signed a final “Judgment on Plaintiffs Motion for Summary Judgment and Award of Attorney Fees Pursuant to LSA-R.S. 38:2220.4,” again ordering the DOTD to pay Gibson attorney’s fees in the amount $106,215.00.

The DOTD now appeals the June 28, 2013 ruling and September 18, 2013 judgment of the trial court. Gibson has answered the appeal, seeking an increase in attorney’s fees in connection with defending the appeal.

| «DISCUSSION

In this appeal, the DOTD does not dispute the trial court’s finding that there was a violation of the Public Bid Law. Rather, the DOTD’s argument pertains only to whether an award of attorney’s fees under LSA-R.S. 38:2220.4 was authorized. Specifically, the DOTD contends that the trial court erred in awarding attorney’s fees because LSA-R.S. 38:2220.4 only authorizes attorney’s fees when a civil action is brought pursuant to LSA-R.S. 38:2220.2 and 2220.3, which it contends was not done in the instant matter.

Louisiana Revised Statute 38:2220.2 provides, in pertinent part, that any person or business entity with direct knowledge of an alleged violation by a public entity of the public bid law, LSA-R.S. 38:2212, et seq., may institute a civil action in a district court against the public entity to seek a declaration that such violation has occurred.

Louisiana Revised Statute 38:2220.3 then sets forth procedures that must be instituted prior to the initiation of the civil action. Specifically, LSA-R.S. 38:2220.3 provides that the complainant shall inform the attorney general of the alleged violation, and if the attorney general does not initiate a civil action within thirty days, the complainant may then initiate the civil action.

It is undisputed that the complainant herein, Gibson, did not notify the attorney general prior to filing suit. However, this did not constitute error on Gibson’s behalf as Gibson did not bring a civil action pursuant to LSA-R.S. 38:2220.2. Rather, all parties herein acknowledge that Gibson sought injunctive 17relief pursuant to LSA-R.S. 38:2220.

Accordingly, the question we must resolve is whether attorney’s fees can be awarded pursuant to LSA-R.S. 38:2220.4 when a cause of action is not brought under LSA-R.S. 38:2200.2 and the procedural requirements of LSA-R.S. 38:2200.3 are not satisfied.

At the outset, we note that the DOTD did not file any procedural objections, ie., an objection of prematurity, to Gibson’s requests for attorney’s fees, thereby waiving any procedural objections to the same. See LSA-C.C.P. art. 926. However, to the extent that this issue was not waived and was preserved for review, we address the statutory interpretation arguments presented herein.

Louisiana Revised Statute 38:2220.4 states:

Order; recovery to plaintiff; protection from disciplinary action
A. The court shall enter an order declaring whether a violation of R.S. 38:2211 et seq. has occurred. The declaration shall have the force and effect of a final judgment or decree.
B. (1) The court shall also award to the principal plaintiff as determined by the court, if successful in his action, reasonable attorney fees. The court shall also award to any prevailing defendant costs and reasonable attorney fees. However, if the court finds fraud |son behalf of a defendant, the award to the plaintiff shall be twice the amount of reasonable attorney fees.
(2) When the public entity has depended upon the written opinion of the attorney general that the action taken by the public entity would be in compliance with law, the public entity shall not be liable for the costs and attorney fees of the adverse party.
C. A person providing information to the attorney general or bringing a civil action under the provisions of R.S. 38:2220.2 and 2220.3 shall not be subject solely for such reason to dismissal, suspension, or any other form of disciplinary action by an employer, unless the civil action is found by the court to be frivolous. [Emphasis added.]

The DOTD’s interpretation of LSA-R.S. 38:2220.4 relies heavily on the fact that LSA-R.S. 38:2220.1 through LSA-R.S. 38:2220.4 were enacted by the same legislative act, specifically Acts 1999, No. 1050 § 1. Accordingly, the DOTD contends that when the act is read in its entirety, it is “clear that the Legislature’s purpose was to establish a distinct cause of action,” and, thus, LSA-R.S. 38:2220.4 authorizes an award of attorney’s fees to the prevailing party only when the cause of action brought is that embodied in LSA-R.S. 38:2220.2, and not when the cause of action brought is for an injunction created “decades earlier under a different Act.” Gibson counters that the trial court properly applied LSA-R.S. 38:2220.4, based upon the plain language of the statute and consistent with the DOTD’s longstanding pri- or interpretation of the statute. We agree.

The starting point in the interpretation of any statute is the language of the statute itself. J. Reed Constructors, Inc. v. Roofing Supply Group, L.L.C., 2012-2136 (La.App. 1st Cir.11/1/13), 135 So.3d 752, 756. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written, and its letter shall not be disregarded in search of the intent of the legislature or under the pretext of pursuing its spirit. Conerly v. State of Louisiana ex rel. the Louisiana State Penitentiary and the Department of Corrections, 2002-1852 (La.App. 1st Cir.6/27/03), 858 So.2d 636, 642, writ denied, 2003-2121 (La.11/14/03), 858 So.2d 432. The legislature is presumed to enact. each statute with deliberation and full knowledge of all existing laws on the same subject. Thus, legislative language will be interpreted on the assumption the legislature was aware of existing statutes, well established rules of statutory construction and with knowledge of the effects of their acts and a purpose in view. Dillard v. Louisiana State Uniform Const. Code Council 2010-1977 (La.App. 1st Cir.6/7/11), 68 So.3d 623, 627, writ denied, 2011-1463 (La.9/30/11), 71 So.3d 297.

Paragraph A of LSA-R.S. 38:2220.4 refers only to an “order” declaring whether a violation of LSA-R.S. 38:2211, et seq. has occurred. The statute does not state that this order must be entered pursuant to LSA-R.S. 38:2220.2 and 2220.3. We cannot read into the statute language that is absent from it. Ebinger v. Venus Const. Corp., 2010-2516 (La.7/1/11), 65 So.3d 1279, 1285. Here, Gibson filed a motion for summary judgment, seeking a declaration that the DOTD violated the public bid law. On July 16, 2012, the trial court signed a judgment, stating in pertinent part, “State of Louisiana, Department of Transportation and Development violated the Public Bid Law (both Title 38 and Title 48) by failing and refusing to reject Lamplighter Construction, LLC’s bid as irregular under Louisiana Standard for Roads and Bridges § 102.08(g).” Accordingly, the record reflects the “order” requirement of LSA-R.S. 38:2220.4(A) is satisfied herein.

Moreover, paragraph B(Z) of LSA-R.S. 38:2220.4 provides, in part, “The court shall also award to the principal plaintiff as determined by the court, if successful in his action, reasonable attorney fees.” [Emphasis added.] There is no language limiting the “action” to an action brought under LSA-R.S. 38:2220.2 and 38:2220.3. This language can be compared to paragraph C of LSA-R.S. 38:2220.4, which specifically references actions brought under LSA-R.S. 38:2220.2 and 2220.3. There is no dispute that Gibson was successful in his “action” and, thus, the requirements of LSA-R.S. 38:2220.4(B)(1) are met.

[ ^Accordingly, and contrary to the DOTD’s contention, to the extent that this issue was preserved for review, we find that a plain reading of LSA-R.S. 38:2220.4 reflects that compliance with the provisions of LSA-R.S. 38:2220.2 and 2220.3 is not an absolute prerequisite to an award of attorney’s fees under the statute. Moreover, we find that Gibson satisfied the requirements of LSA-R.S. 38:2220.4 and, thus, Gibson is entitled to an award of attorney’s fees under the statute.

Indeed, this interpretation of LSA-RS. 38:2220.4 is the same interpretation the DOTD has urged as proper in prior cases before this court, when such interpretation was favorable to the DOTD as the party seeking an award of attorney’s fees.

In Diamond B. Const. Co., Inc. v. Department of Transp. and Development, 2002-0573 (La.App. 1st Cir.2/14/03), 845 So.2d 429, the unsuccessful bidder filed a petition requesting a temporary restraining order and preliminary injunction to prohibit the DOTD from issuing any bids, or work order, or performing any work on the project. The trial court denied the application for preliminary injunction. Following several appeals, the DOTD sought and was awarded attorney’s fees under the provisions of LSA-R.S. 38:2220.4. The contractor appealed the award of attorney’s fees, raising as an assignment of error the same argument that the DOTD now makes, namely, that LSA-R.S. 38:2220.4 is only applicable to a civil action brought for declaratory judgment by a “whistle-blower,” and then only if the procedural requisites are strictly adhered to. Diamond B., 845 So.2d at 433. Ultimately, the award of attorney’s fees was reversed due to res judicata, a non-issue in the present matter. Diamond B., 845 So.2d at 437.

In M.P.G. Const., Inc. v. Department of Trans. and Development State of La., 2003-0164 (La.App. 1st Cir.4/2/04), 878 So.2d 624, writ denied, 2004-0975 (La.6/4/04), 876 So.2d 85, the unsuccessful bidder brought an action against the DOTD, seeking to enjoin the award of the disputed contract. Similar to the present matter, the underlying action was for an injunction, not a suit for declaratory judgment lubrought pursuant to LSA-R.S. 38:2220.2. The DOTD and the successful bidder reconvened for damages against the unsuccessful bidder, seeking damages for delay of the contract. The trial court granted summary judgment and dismissed the DOTD and the successful bidder’s claims for damages, attorney’s fees, and costs. The DOTD and the successful bidder appealed, contending in one of the assignments of error that the trial court erred in its determination that the unsuccessful bidder was not legally liable for attorney’s fees and costs, pursuant to LSA-R.S. 38:2220.4. M.P.G., 878 So.2d at 630. This court remanded the case to the trial court as it was unclear from the record whether the trial court made a determination as to whether there was a violation of public bid law, a condition which is clearly satisfied in the present matter. M.P.G., 878 So.2d at 631.

In sum, we are unable to agree with the position that the DOTD now takes. Not only is the DOTD’s current position contrary to its position taken in prior cases before this court, but its current position is not supported by the clear language of LSA-R.S. 38:2220.4. Accordingly, we find no error in the trial court’s conclusion that LSA-R.S. 38:2220.4 is applicable herein. Furthermore, we find no error in the award of attorney’s fees herein to Gibson.

| T ¡ANSWER TO APPEAL

Also before us is Gibson’s answer to the appeal, seeking an increase in attorney’s fees in connection with defending the appeal. Generally, an increase in attorney fees should be awarded when a party who was awarded attorney’s fees in the trial court is forced to and successfully defends an appeal. Oliver v. Transport Service Co., 2001-0681 (La.App. 1st Cir.5/10/02), 825 So.2d 1203, 1208, writ denied, 2002-2007 (La.10/25/02), 827 So.2d 1157. The appeal filed herein by the DOTD necessitated additional work for Gibson’s attorney, including research, drafting an appellee brief, and presentation of oral argument. Under these circumstances, we conclude that Gibson is entitled to an additional award of attorney’s fees in the amount of $1,500.00 for answering and defending the appeal.

CONCLUSION

For the above and foregoing reasons, the June 28, 2013 ruling and September 18, 2013 judgment of the trial court are hereby affirmed. The answer to the appeal is granted and judgment is hereby rendered in favor of Gibson & Associates, Inc. and against the Louisiana Department of Transportation and Development, in the additional amount of $1,500.00 for attorney’s fees incurred in defending the appeal. All costs of this appeal in the amount of $3,280.00 are assessed to the State of Louisiana, Department of Transportation and Development.

JUDGMENTS AFFIRMED; ANSWER TO APPEAL AND REQUEST FOR ATTORNEY’S FEES GRANTED.

McCLENDON, J. dissents and assigns reasons.

McCLENDON, J.,

dissenting.

| jThe appropriate starting point in statutory interpretation is a consideration of the language of the statute itself. Hunter v. Morton’s Seafood Restaurant & Catering, 08-1667 (La.3/17/09), 6 So.3d 152, 155. When a statute is clear and unambiguous and its application does not lead to absurd consequences, the statute is applied as written. LSA-R.S. 1:4; LSA-C.C. art. 9. Those who enact statutory provisions are presumed to act deliberately and with full knowledge of existing laws on the same subject, with awareness of court cases and well-established principles of statutory construction, and with knowledge of the effect of their acts and a purpose in view. Id. It is also a well-settled rule of statutory construction that all laws dealing with the same subject matter must be construed in pari materia. LSA-C.C. art. 13; Reed v. Washington Parish Police Jury, 518 So.2d 1044, 1047 (La.1988).

^Louisiana Revised Statutes 38:2220.1 provides:

It is the intent of the legislature in enacting R.S. 38:2220.1 through 2220.4 to authorize private citizens and other entities to institute a civil action against public entities to deter the construction of public works or the purchase of materials and supplies in violation of the provisions of R.S. 38:2211 et seq. The provisions of these Sections shall not be construed to eliminate or reduce any causes of action or other forms of relief provided by existing law, including but not limited to suits authorized by R.S. 38:2220.

Additionally, Louisiana Revised Statutes 38:2220.2A provides:

Any person, association, corporation, or other business entity with direct knowledge of an alleged violation by a public entity of the provisions of R.S. 38:2212 et seq., may institute a civil action in district court against the public entity to seek a declaration that such violation has occurred. The procedure for the civil action shall comply with the provisions of this Section and R.S. 38:2220.3. (Emphasis added.)

Louisiana Revised Statutes 38:2220.3 provides, in pertinent part:

A. Prior to initiation of the civil action, the complainant shall inform the attorney general of the alleged violation and all direct information he possesses regarding the alleged violation. The information shall be sent to the attorney general by certified mail, return receipt requested, within fifteen days from the date of discovery of the alleged violation by the complainant.
B. The attorney general may conduct an investigation or take other actions as deemed appropriate, including after investigation the institution of a civil action authorized in R.S. 38:2220.2.
C. If the attorney general does not initiate a civil action within thirty days from the date of receipt of information concerning the alleged violation, the complainant may initiate the civil action. The attorney general may thereafter intervene in the action as provided by law. At issue in this matter is LSA-R.S.

38:2220.4, which provides:

A. The court shall enter an order declaring whether a violation of R.S. 38:2211 et seq. has occurred. The declaration shall have the force and effect of a final judgment or decree.
B. (1) The court shall also award to the principal plaintiff as determined by the court, if successful in his action, reasonable attorney fees. The court shall also award to any prevailing defendant costs and reasonable attorney fees. However, if the court finds fraud on behalf of a defendant, the award to the plaintiff shall be twice the amount of reasonable attorney fees.
(2) When the public entity has depended upon the written opinion of the attorney general that the action taken by the public entity would be in compliance with law, the public entity shall not be liable for the costs and attorney fees of the adverse party.
|oC. A person providing information to the attorney general or bringing a civil action under the provisions of R.S. 38:2220.2 and 2220.3 shall not be subject solely for such reason to dismissal, suspension, or any other form of disciplinary action by an employer, unless the civil action is found by the court to be frivolous.

In enacting these statutes, the legislature set forth, in clear and unambiguous terms, a specific procedure to be followed when seeking an order declaring a violation of the public bid laws. However, the majority determined that there is no language limiting the “action” to an action brought under LSA-R.S. 38:2220.2 and 38:2220.3 and that compliance with the provisions of LSA-R.S. 38:2220.2 and 38:2220.3 are not a prerequisite to an award of attorney fees under LSA-R.S. 38:2220.4.1 disagree.

The majority relies on the cases of Diamond B Const. Co., Inc. v. Department of Transp. and Development, 02-0573 (La.App. 1, Cir.2/14/03), 845 So.2d 429, and M.P.G. Const. Inc. v. Department of Transp. and Development State of La., 03-0164 (La.App. 1 Cir.4/2/04), 878 So.2d 624, to support its conclusion that LSA-R.S. 38:2220.4 stands alone. However, I find these cases inapplicable and distinguishable, as neither addresses the issue presented herein. The failure to follow the procedure set forth in LSA-R.S. 38:2220.2 and 38:2220.3 was not raised by the parties in either case and was not considered by the lower court.

In contrast, the case of Tectrans, Inc. v. New Orleans Aviation Board, 695 F.Supp.2d 313 (E.D.La.2/17/10), aff'd, 464 Fed.Appx. 199 (5th Cir.2010), specifically addresses the issue. In Tectrans, the unsuccessful bidder on a contract to provide taxi services at the airport filed suit against the city aviation board, seeking a declaration that the board violated Louisiana’s public bid law, open meetings law, and public records law. The unsuccessful bidder also sought attorney fees and costs. With regard to the request via summary judgment for a declaration that the board violated the public bid law, the court cited LSA-R.S. 38:2220.2 and 38:2220.3, and stated:

14However, there is no allegation that, prior to filing suit, Tectrans informed the Louisiana Attorney General of the alleged violation and directed all information it possessed regarding the alleged violation to the Louisiana Attorney General. Because Tectrans did not allege that it complied with this prerequisite to bringing a civil action for declaratory relief, the claim must be dismissed, and Tectrans cannot recover attorneys’ fees and costs for its pursuit of this claim.

Likewise, in this matter, Gibson failed to allege any facts showing that it complied with the procedural requirements of LSA-R.S. 38:2220.2 and 38:2220.3, nor did Gibson present any evidence that it complied with these provisions. Significantly, in Tectrans, the court did award attorney fees for violations of the open meetings law- and the public records law, finding that under the statutory provisions for open meetings and public records requests, attorney fees and costs are mandated when a person seeking enforcement of either “prevails.”

Like the public records law or open meetings law, the legislature could have provided for an award of attorney fees to the prevailing party without other procedural requirements, but did not do so. Rather, the legislature in LSA-R.S. 38:2220.1 through 38:2220.4 chose to implement a special procedure requiring notice to the attorney general, prior to suit by a private citizen.

Therefore, based on the plain language of the subject statutes, and because there is no allegation or evidence in the record that Gibson informed the attorney general of the alleged violation, prior to filing suit, I find that his claim for attorney fees and costs must be dismissed. Accordingly, I respectfully dissent.

      . A judgment to this effect was signed on July 16, 2012.

      . The DOTD filed two separate motions and orders of suspensive appeal, one of the June 28, 2013 ruling of the trial court and the other of the September 18, 2013 judgment of the trial court. While the September 18, 2013 judgment of the trial court simply restates and accomplishes the same result as the June 28, 2013 ruling, it is a formal, final partial judgment on this issue, whereas the June 28, 2013 ruling may be considered more akin to written reasons for judgment. Because both rulings accomplish the same result, the two motions for appeal have been treated as a single appeal by the parties and the court.

      .Moreover, the DOTD does not challenge the amount awarded to Gibson for attorney's fees.

      . Louisiana Revised Statute 38:2220 provides:
      A. Any purchase of materials or supplies, or any contract entered into for the construction of public works, contrary to the provisions of this Part shall be null and void.
      B. The district attorney in whose district a violation of this Part occurs, the attorney general, or any interested party may bring suit in the district court through summary proceeding to enjoin the award of a contract or to seek other appropriate injunctive relief to prevent the award of a contract which would be in violation of this Part, or through ordinary proceeding to seek appropriate remedy to nullify a contract entered into in violation of this Part.
      C. Where a judgment of nullity is rendered in any action brought by a district attorney or by the attorney general pursuant to Subsection B of this Section the district court may award a civil penalty not in excess of fifty thousand dollars against each offending member of the governing authority of the public entity who authorized the violation.

      . Louisiana Code of Civil Procedure article 926(B) provides that all objections which may be raised through the dilatory exception are waived unless pleaded therein. These objections include:
      (1) Prematurity;
      (2) Want of amicable demand;
      (3) Unauthorized use of summaiy proceeding;
      (4) Conformity of the petition with any of the requirements of Article 891;
      (5) Vagueness or ambiguity of the petition;
      (6) Lack of procedural capacity;
      (7) Improper cumulation of actions, including improper joinder of parties;
      (8) Discussion.

      . The prior LSA-R.S. 38:2219, establishing injunctive relief for violations of Public Bid Law, was enacted by Acts 1964, No. 258, § 1 and was later redesignated as LSA-R.S. 38:2220.

      . To the extent that our opinion conflicts with Tectrans, Inc. v. New Orleans Aviation Board. 09-3461 (E.D.La.2/17/10), 695 F.Supp.2d 313, aff'd, 10-30247 (5th Cir.12/10/10), 464 Fed.Appx. 199, as cited by the DOTD, we decline to follow the same. Additionally, we find Tectrans to be distinguishable from the present matter. In particular, there was no finding that a violation of public bid law had occurred, nor was' any "order” entered in Tectrans. declaring that a violation had occurred. Thus, the statutory requirements for the relief granted herein were not met in Tectrans.

      In particular, in Tectrans, the unsuccessful bidder on a contract to provide taxi services at the airport filed suit against the city aviation board, seeking a declaration that the board violated Louisiana's public bid law, open meetings law, and public records law. The unsuccessful bidder also sought attorney’s fees and costs. The aviation board later issued a letter rejecting all proposals and announcing that no contract would be awarded. Thus, the request for preliminary injunction was rendered moot, but the unsuccessful bidder still sought a declaration by way of summary judgment that the board violated Louisiana's public bid law, open meetings law, and public records law. Tectrans, 695 F.Supp.2d at 317. In regard to the request for a declaration that there was a violation of public bid law, the court never reached that issue. Instead, the court noted that there was no allegation that the attorney general was notified prior to filing suit and, thus, concluded that because there was no allegation that the plaintiff complied with this prerequisite to bringing a civil action for declaratory relief, the plaintiff could not recover attorney’s fees and costs for pursuit of its claim. Tectrans, 695 F.Supp.2d at 320.

      . Louisiana Revised Statutes 1:4 provides:
      When the wording of a Section is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit.
      Louisiana Civil Code Article 9 provides:
      When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.

      . Louisiana Civil Code Article 13 provides:
      Laws on the same subject matter must be interpreted in reference to each other.


author: HIGGINBOTHAM, J. WHIPPLE, C.J.,

text:
    Gasper W. DIPAOLA v. THE MUNICIPAL POLICE EMPLOYEES’ RETIREMENT SYSTEM.
    No. 2014 CA 0037.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 25, 2014.
    Rehearing Denied Nov. 10, 2014.

      Robert E. Tarcza, James E. Thompson, III, New Orleans, LA, for Plaintiff-Appel-lee, Gasper W. Dipaola.
    James C. Percy, Christopher D. Martin, David P. Borghardt, Baton Rouge, LA, for Defendant-Appellant, Municipal Police Employees’ Retirement System.
    Denise Nelson Akers, Baton Rouge, LA, for Defendant-Appellee, Employees’ Retirement System of the City of Baton Rouge and Parish of East Baton Rouge.

      Before WHIPPLE, C.J., McClendon, and Higginbotham, JJ.
   HIGGINBOTHAM, J.

| zThis is an appeal from a trial court judgment awarding attorney fees. For the following reasons, we reverse.

BACKGROUND

Plaintiff, Gasper W. Dipaola, brought this action for attorney fees pursuant to a reservation of rights contained in the terms of a confidential settlement agreement that resolved a prior lawsuit between him and defendant, Municipal Police Employees’ Retirement System (MPERS), and third-party defendant, Employees’ Retirement System of the City of Baton Rouge and the Parish of East Baton Rouge (CPERS). The original lawsuit involved a dispute concerning a miscalculation of Mr. Dipaola’s years of service credits from his employment in the East Baton Rouge Parish Attorney’s Office that resulted in an overpayment of retirement benefits.

It is undisputed that the miscalculation error occurred when CPERS and MPERS entered into a merger agreement, whereby certain member accounts and assets were transferred from one system to the other. Pursuant to the merger agreement, Mr. Dipaola’s original account with CPERS was transferred to MPERS. Several years after the merger of the retirement systems took place and Mr. Dipaola had retired, it was discovered that some membership data errors had |3occurred in the data transmission at the time of the merger, including the overstatement of creditable service for Mr. Dipaola. According to MPERS, the miscalculation of creditable service caused MPERS to overpay Mr. Dipaola’s retirement benefits. As a result, MPERS informed Mr. Dipaola of the error and that his monthly retirement benefit was being- reduced to the correct sum. MPERS also requested that Mr. Dipaola refund the overpayments.

In response to MPERS’ actions, Mr. Dipaola filed suit against MPERS, alleging that MPERS had breached its fiduciary duty by wrongfully, negligently, and arbitrarily reducing Mr. Dipaola’s retirement benefits and wrongfully demanding that he return the alleged overpaid amounts. MPERS reconvened against Mr. Dipaola and filed a third-party demand against CPERS, who reconvened against MPERS. Mr. Dipaola also filed a third-party demand against CPERS. Although the actual settlement agreement is not of record, it is undisputed that pursuant to a pre-trial settlement agreement entered into between CPERS and Mr. Dipaola, all of Mr. Dipaola’s claims against MPERS and CPERS were resolved, except his right to seek attorney fees. After the parties settled, Mr. Dipaola filed a motion for attorney fees, relying on the express language of La. R.S. 11:264.7.

Following a hearing on the motion, the trial court ordered MPERS to pay a total of $57,667.47 for attorney fees to Mr. Dipaola. MPERS appealed, insisting that the trial court erred in granting attorney fees to Mr. Dipaola since there was no evidence that MPERS was at fault, Mr. Dipaola was not a prevailing party, and the statutory authority did not apply. CPERS filed an answer to MPERS’ appeal and aligned itself with MPERS, arguing that MPERS did not breach any fiduciary duty to Mr. Dipaola, who was not a prevailing party. Additionally, CPERS sought reversal of the attorney fees award, because the trial court failed to consider that the evidence revealed that CPERS was the only party at fault' and the statutory L authority relied on by Mr. Dipaola did not apply to CPERS. Mr. Dipaola also answered MPERS’ appeal, seeking an increase in attorney fees for defending this appeal and requesting that a multiplier be applied to the trial court’s award of attorney fees.

LAW AND ANALYSIS

The trial court is vested with considerable discretion in making an award of attorney fees, and the award will not be disturbed in the absence of á clear abuse of discretion. St. Tammany Parish Hosp. Service Dist. No. 2 v. Schneider, 2000-0247 (La.App. 1st Cir.5/11/01), 808 So.2d 576, 587. Under Louisiana law, attorney fees are not allowed except where authorized by statute or by contract. Pipeline Technology VI, LLC v. Ristroph, 2007-1210 (La.App. 1st Cir.5/2/08), 991 So.2d 1, 3, writ denied, 2008-1676 (La.10/24/08), 992 So.2d 1037, cert. denied, 556 U.S. 1106, 129 S.Ct. 1595, 173 L.Ed.2d 678 (2009). Thus, unless Mr. Dipaola can show a pertinent statute or contract providing for an award of attorney fees, such fees are not appropriate. It is undisputed that the parties’ settlement agreement reserves “any and all claims [Mr. Dipaola] has to attorney fees” in the lawsuit involving Mr. Dipaola, CPERS, and MPERS. Mr. Dipaola asserts that La. R.S. 11:264.7 is his statutory authority to be awarded attorney fees.

Title 11 of the Louisiana Revised Statutes contains provisions pertaining to “Consolidated Public Retirement Systems,” which apply to MPERS, but not CPERS. See La. R.S. 11:262. The special provisions governing MPERS are found at La. R.S. 11:2211 through 11:2235, while general provisions applicable to public retirement systems, such as MPERS, are found at La. R.S. 11:141 et seq.

For his attorney fees’ claim, Mr. Dipaola relies on a general provision in La. R.S. 11:264.7, which provides, in pertinent part, as follows:

Is A. A member ... who can demonstrate a personal interest in a retirement system may bring a civil action to enforce the provisions of this Subpart. In any enforcement proceeding the plaintiff may seek ...:
(5) A judgment awarding civil damages.
C. If a person who brings an enforcement proceeding prevails, he shall be awarded reasonable attorney fees and other costs of litigation. If such person prevails in part, the court may award him reasonable attorney fees or an appropriate portion thereof.

In order for this particular statute to authorize an attorney fees award in this case, it must be shown that Mr. Dipaola brought a civil action to enforce the provisions of the referenced Subpart entitled “Fiduciary and Investment Responsibilities,” and that he prevailed in the civil action, at least in part. There is no case law interpreting the applicability of this particular statute.

The referenced Subpart includes La. R.S. 11:261 through 11:269, governing the fiduciary responsibilities and investments of those who exercise discretionary authority or discretionary control with respect to the asset management of public retirement systems, plans, and funds. See La. R.S. 11:261 and La. R.S. 11:264. In this case, Mr. Dipaola’s petition alleges that MPERS and two of its employees negligently and arbitrarily reduced his retirement benefits and demanded that he return the overpaid amounts, but there is no allegation that MPERS, or any individual associated with MPERS, breached any fiduciary duty related to the investment or management of MPERS’ funds and/or assets.

Our review of the general law applicable to all state retirement systems, including MPERS, reveals that MPERS was actually under a statutory mandate to adjust Mr. Dipaola’s overpaid benefits once the miscalculation error was discovered and MPERS had specific statutory authority to recover the benefit overpay-ments from Mr. Dipaola. See La. R.S. 11:192, providing: “Whenever any state ... or municipal retirement system ... pays any sum of money or benefits to a | r,retiree, ... which is not due them, the board of trustees shall adjust the amount payable to the correct amount, and the board is hereby authorized to recover any overpayment by reducing the corrected benefit such that the overpayment will be repaid within a reasonable number of months.” (Emphasis added.) See also La. R.S. 11:2281, specifically applicable to MPERS, providing: “Should any change or error in the records result in any member ... receiving from the retirement system more or less than he would have been entitled to receive had the records been correct, the board of trustees shall correct such error, and as far as practicable, shall adjust the payment in such a manner that the actuarial equivalent of the benefit to which such member ... was correctly entitled shall be paid.” (Emphasis added). Thus, according to the directive in the statutes, MPERS’ actions in reducing/adjusting Mr. Dipaola’s retirement benefits were mandatory. The referenced statutes require MPERS to adjust any overpaid benefits to the correct amount and grant MPERS the power to recoup any benefit overpayment errors. See La. Atty. Gen. Op. No. 10-0072 (2010).

Further, the record is void of any evidence offered at the hearing on Mr. Dipaola’s motion for attorney fees tending to prove that MPERS wrongfully reduced Mr. Dipaola’s benefits or establishing fault on the part of MPERS. The only evidence touching on liability was an affidavit by the Retirement Administrator for CPERS, which clearly revealed that the miscalculation error was made by CPERS, not MPERS. Since there was no evidence offered to support Mr. Dipaola’s underlying claim against MPERS, the trial' court erred when it opined pthat Mr. Dipaola would have prevailed on the underlying merits against MPERS. Thus, we conclude that the trial court abused its discretion in ordering MPERS to pay attorney fees to Mr. Dipaola. Accordingly, Mr. Dipaola’s claim for attorney fees under the cited statute is without merit, and the judgment must be reversed.

CONCLUSION

For the stated reasons, we reverse the trial court’s judgment awarding attorney fees to Mr. Dipaola, and we consequently deny the relief sought in Mr. Dipaola’s answer to the appeal. Additionally, we deny the motion to seal the appellate briefs and appellate court record. All costs of this appeal are assessed equally between Gasper W. Dipaola, Municipal Police Employees’ Retirement System, and Employees’ Retirement System of the City of Baton Rouge and the Parish of East Baton Rouge.

MOTION TO SEAL BRIEFS AND RECORD DENIED; TRIAL COURT JUDGMENT REVERSED.

WHIPPLE, C.J. concurs for reasons assigned.

McCLENDON, j. concurs for reasons assigned by Chief Judge WHIPPLE.

WHIPPLE, C.J.,

concurring.

Iil concur in the result. See Vicknair v. Firefighters’ Pension and Relief Fund in City of New Orleans, 2005-1327 (La.App. 4th Cir.7/12/06), 936 So.2d 848.

      . We issued an interim order in this case, maintaining sealed portions of the record pursuant to a trial court order regarding the contents of the parties' confidential settlement agreement. See Dipaola v. Municipal Police Employees' Retirement System, 2014-0037 (La.App. 1st Cir. 7/8/14) (unpublished). MPERS filed an unopposed motion ’in this court requesting that the appellate record and briefs be filed under seal as well, due to numerous references to the parties’ settlement agreement and MPERS desire to follow the trial court's order sealing portions of the record. After the parties were ordered to show cause as to why the record and briefs filed in this matter should be placed under seal, no party provided legal authority for the record and briefs to be filed under seal. The Louisiana Supreme Court has recognized that individuals involved in civil litigation may be compelled to produce documents of a confidential nature. Copeland v. Copeland, 2007-0177 (La. 10/16/07), 966 So.2d 1040, 1046. Further, Louisiana has no specific statute providing authority to a court to seal its record of a civil case from public inspection. See In re Kemp, 45,028 (La.App. 2d Cir.3/3/10), 32 So.3d 1050, 1054, writ denied, 2010-0755 (La.6/25/10), 38 So.3d 338; Keko v. Lobrano, 497 So.2d 353, 354 (La.App. 4th Cir.), writ denied, 497 So.2d 1003 (La.1986). Thus, we conclude that there is no valid reason to extend the trial court's order sealing this record or the briefs filed in this matter. Without making any ruling as to the sound discretion of the trial court’s original order sealing portions of the trial court record, we hereby deny the motion to seal the appellate briefs filed in this matter, and we further deny the request to maintain the trial court's order to seal portions of the record.

      . Mr. Dipaola also alleged claims against the City of Baton Rouge and Parish of East Baton Rouge (City/Parish); however, those claims are not relevant to this appeal concerning attorney fees.

      . The general administration and responsibility for the proper operation of MPERS is vested in a board of trustees pursuant to La. R.S. 11:2225.

      . While an Attorney General opinion is merely advisory and not binding authority, we recognize its persuasive authority, particularly where there is no jurisprudence on point.
        See Conachen v. East Baton Rouge Parish School Bd., 2009-0100 (La.App. 1st Cir. 12/23/09), 30 So.3d 820, 824 n. 4; Trahan v. Lafayette Parish School Bd., 2007-1170 (La.App. 3rd Cir.3/5/08), 978 So.2d 1105, 1109, writ denied, 2008-0651 (La.5/9/08), 980 So.2d 696.

      . The settlement agreement was not offered into evidence for the purpose of proving liability at the trial court hearing on the motion for attorney fees. We nevertheless note that pre-trial settlement agreements are generally inadmissible to prove liability. Sumrall v. Bickham, 2003-1252 (La.App. 1st Cir.9/8/04), 887 So.2d 73, 78, writ denied, 2004-2506 (La.1/7/05), 891 So.2d 696; Wells v. Allstate Ins. Co., 510 So.2d 763, 766 (La.App. 1st Cir.), writ denied, 514 So.2d 463 (La.1987).