author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Dax O. STRATTMAN.
    No. 08-KA-674.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 28, 2009.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Juliet Clark, Elizabeth Curren, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Anthony L. Glorioso, Attorney at Law, Metairie, Louisiana, for Defendant/Appellant.
    Dax O. Strattman, Homer, Louisiana, Defendant in Proper Person.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and CLARENCE E. McMANUS.
   CLARENCE E. McMANUS, Judge.

i statement of the case

Defendant, Dax. O. Strattman, was charged by the Jefferson Parish District Attorney’s office with one count of possession with intent to distribute cocaine and one count of possession with intent to distribute hydrocodone, both in violation of LSA-R.S. 40:967(A). On August 28, 2000, defendant pled guilty as charged to both counts. In accordance with the plea agreement, the trial court sentenced defendant to 15 years on each count to run concurrently with each other.

The State then filed a multiple bill of information alleging defendant to be a second felony offender. Defendant stipulated to his status as a second felony offender and was resentenced to an enhanced 15-year sentence pursuant to a plea agreement.

Thereafter, defendant filed a pro se motion to reconsider sentence. For reasons not apparent from the record, defendant’s motion was not heard until seven and one half years later. On June 5, 2008, the trial court denied defendant’s pro se motion to reconsider sentence.

Defendant timely appealed. After the appeal was lodged with this Court, defendant filed a motion to reopen and reurge his motion to reconsider sentence. 1¡¡After a hearing on December 1, 2008, the trial court granted the motion, vacated defendant’s original and enhanced sentences, and resentenced defendant to 10 years on counts one and two to run concurrently with each other. The State filed a supervisory writ with this Court from the trial court’s ruling. This Court found the trial court lacked jurisdiction to rule on defendant’s motion to reopen and reurge his motion to reconsider sentence and, thus, granted the writ and vacated the trial court’s December 1, 2008 ruling. Defendant then filed a pro se writ application with the Louisiana Supreme Court from this Court’s granting of the State’s writ application. As the date of this opinion, the Louisiana Supreme Court has not ruled on that writ application.

Defendant now appeals arguing the trial court improperly denied his motion to reconsider sentence. For the reasons which follow, we affirm the trial court’s denial of the motion to reconsider sentence and affirm defendant’s sentence.

DISCUSSION

Defendant argues two assignments of error on appeal. In his assignment of error number one he argues that his 15-year mandatory minimum multiple offender sentence is excessive. He also argues in a supplemental assignment of error that the trial court was unaware of the sentencing alternatives when it denied his motion to reconsider sentence.

First, defendant argues his 15-year mandatory minimum multiple offender sentence is excessive and that he is entitled to a downward deviation under State v. Dorthey, 623 So.2d 1276 (La.1993). He contends the trial court erred in denying his motion to reconsider sentence because it failed to consider all the mitigating factors, including the fact his convictions were for minor drug offenses, the penalties for his crime were legislatively reduced after his conviction, and that he was fully rehabilitated after his conviction. Defendant also maintains the trial | Judge denied the motion to reconsider sentence because he mistakenly believed he could not deviate from the mandatory minimum. The State responds that defendant is precluded from appealing his sentence because it was imposed in conformity with a plea agreement.

Under LSA-C.Cr.P. art. 881.2(A)(2), a defendant “cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” This Court has consistently recognized that this Article precludes a defendant from seeking review of an enhanced sentence to which the defendant agreed prior to pleading guilty. State v. Moore, 06-875, p. 15 (La. App. 5 Cir. 4/11/07), 958 So.2d 36, 46.

Defendant admits his sentence was the result of a plea bargain but maintains the plea bargain was invalid and, therefore, LSA-C.Cr.P. art. 881.2 does not apply. Defendant seems to claim both his guilty plea to the underlying charges and to the multiple bill were invalid because he was not advised of the charges against him and the trial court failed to determine whether he understood the charges against him as required by LSA-C.Cr.P. art. 556.1. Defendant relies on State v. Reynolds, 98-170 (La.App. 5 Cir. 7/28/98), 716 So.2d 485, writ granted and decision vacated by, 98-2281 (La.4/16/99), 733 So.2d 1191, in support of his argument that his guilty plea was invalid.

In Reynolds, this Court determined that the failure of the trial court to advise the defendant of the nature of the charge to which he pled in violation of LSA-C.Cr.P. art. 556.1 was a reversible error patent. This Court found there was no evidence in the record that defense counsel, the trial court, the State’s attorney, or anyone else discussed the nature of the crime with the defendant. As such, this Court vacated the defendant’s guilty plea. Without reaching. the merits, the Louisiana Supreme Court granted writs and set aside this Court’s opinion on the 15basis the defendant filed an affidavit indicating he wished to retain the benefits of his plea agreement. State v. Reynolds, 98-2281 (La.4/16/99), 733 So.2d 1191, 1192 (per curiam).

Since Reynolds, it has been established that violations of LSA-C.Cr.P. art. 556.1 that do not rise to the level of Boykin violations are subject to harmless error analysis. State v. Guzman, 99-1753, p. 12 (La.5/16/00), 769 So.2d 1158, 1165-66; State v. Forrest, 04-43, p. 4 (La.App. 5 Cir. 5/26/04), 876 So.2d 187, 190. Thus, a violation of Article 556.1 does not automatically render a guilty plea invalid.

LSA-C.Cr.P. art. 556.1(A)(1) provides that, prior to accepting a guilty plea, the court must personally inform the defendant of the nature of the charge to which the plea is offered, any mandatory minimum penalty and the maximum possible penalty. The test for the validity of a guilty plea does not depend on whether the trial court specifically informed the defendant of every element of the offense. Rather, the defendant must establish that he lacked awareness of the essential nature of the offense to which he was pleading. State v. Forrest, supra at 3-4, 876 So.2d at 189-190. To determine whether a violation of Article 556.1 is harmless, the proper inquiry is whether the defendant’s knowledge and comprehension of the full and correct information would have likely affected his willingness to plead guilty. Id. at 4, 876 So.2d at 190, citing State v. Guzman, supra at 11, 769 So.2d at 1165.

In Forrest, supra, the defendant pled guilty to armed robbery. He argued his guilty plea was invalid because he was not advised of the elements of the crime as required by Article 556.1. This Court concluded the record clearly reflected the defendant was aware of the nature of the charge and the consequences of pleading guilty to the charge. This Court noted the trial court informed the defendant he was pleading guilty to armed robbery, the trial court personally questioned | ^defendant regarding the waiver of his Boykin rights, and the prosecutor recited facts he would prove at trial. This Court also noted the defendant was represented by counsel and that he stated he had discussed the charge with his attorney and that he understood the nature of the charge. Id. at 5, 876 So.2d at 190. This Court further concluded the defendant had not shown any prejudice.

Also, in State v. Perrilloux, 01-509, pp. 4-8, (La.App. 5 Cir. 11/14/01), 802 So.2d 772, 775-77, the defendant argued the guilty plea colloquy did not adequately show he had an understanding of the offense for which he was charged. The trial court explained to the defendant that he was pleading guilty to possession of stolen things and the prosecutor told the trial court what it would prove at trial. This Court noted that defendant failed to ask any questions during the plea colloquy or give any indication that he did not understand the nature of the charge. This Court concluded the defendant was adequately aware of the nature of the charge.

In the present case, during the plea colloquy, the trial court informed defendant he was pleading guilty to two counts of LSA-R.S. 40:967(A) and the mandatory minimum and maximum sentences for each count. The trial court also personally questioned defendant regarding the waiver of his Boykin rights. At no time during the plea colloquy did defendant ask any questions or indicate to the trial court that he did not understand the nature of the charges. Additionally, defendant was represented by counsel and stated he was satisfied with the way defense counsel had handled his case.

Although the State did not provide a factual basis for the charges, a factual basis is not required to satisfy the requirement that a defendant be advised of the nature of the charge to which he is pleading. See State v. Johnson, 08-449, p. 4 (La.App. 5 Cir. 12/16/08), 3 So.3d 17, 19; State v. Estes, 42,093, 11 (La.App. 2 Cir. 5/9/07), 956 So.2d 779, 787, unit denied, 07-1442 (La.4/4/08), 978 So.2d 324, and State v. Whiddon, 99-1, pp. 3-4 (La. App. 3 Cir. 6/2/99), 741 So.2d 797, 800.

It is noted that neither the waiver of rights form nor the plea colloquy specifically advises defendant that he was pleading guilty to possession with intent to distribute cocaine and hydrocodone. Rather, the only reference to the nature of the charges to which defendant was pleading was to the statutory citations.

In Whiddon, supra at 4, 741 So.2d at 800, the Third Circuit explained that Article 556.1 is based on Rule 11 of the Federal Rules of Criminal Procedure. Citing federal jurisprudence, the Third Circuit explained that, in a case involving a simple charge, the requirement that a defendant be advised of the nature of the charge is usually satisfied with a reading of the indictment followed by an opportunity for the defendant to ask questions about it. In the present case, the transcript of the plea colloquy does not show the bill of information was read to defendant.

While it is arguable that the trial court failed to ascertain that defendant understood the nature of the underlying charges to which he was pleading in accordance with LSA-C.Cr.P. art. 556.1, defendant does not allege any misunderstanding as to the nature of the charges to which he pled or that he did not intend to plead guilty. Rather, defendant asserts the argument of non-compliance with LSA-C.Cr.P. art. 556.1, for the first time on appeal, solely in an apparent attempt to circumvent LSA-C.Cr.P. art. 881.2, which prohibits appellate review of a sentence imposed in conformity with a valid plea agreement. In fact, in his appellate brief, defendant never asks that his guilty plea be set aside but instead asks that his sentence be vacated as constitutionally excessive and the matter remanded for resentencing.

|sThe record does not show that defendant lacked awareness of the nature of the offenses to which he was pleading. Consistently throughout the plea colloquy, defendant indicated he understood he was pleading guilty to two offenses under LSA-R.S. 40:967(A) and that he understood the consequences of his plea. Defendant never asked any questions throughout the plea colloquy or expressed any confusion. He denied any force or coercion had been used against him in obtaining the guilty plea. Additionally, the record clearly reflects that defendant was properly Boykinized. Thus, it appears any error in the trial court’s failure to comply with Article 556.1 in ascertaining defendant’s understanding of the nature of the two underlying charges to which he was pleading guilty was harmless.

Defendant also argues his multiple offender adjudication was invalid because the trial court did not adequately explain the nature of the charges against him. In a multiple offender proceeding, a trial court must advise a defendant of his right to a hearing at which the State is required to prove the allegations of the multiple bill and of his right to remain silent. LSA-R.S. 15:529.1(D); State v. Perrilloux, supra at 9, 802 So.2d at 777. If the record reflects the defendant was advised of his rights by the trial court and/or his attorney, then the defendant intelligently waived his rights. Id.

At the multiple offender hearing, the trial court advised defendant that he was being charged under LSA-R.S. 15:529.1 as a second felony offender. The trial court then informed defendant of his right to a hearing and right to remain silent. The trial court asked him if he understood that he was giving up those rights, to which defendant affirmatively answered. Additionally, defendant executed a waiver of rights form that also showed defendant was stipulating to his status as a second felony offender and that he was waiving his right to a hearing and right to remain silent. The colloquy between the defendant and the trial court and the |flexecuted waiver of rights form show that defendant knowingly and voluntarily waived his rights prior to admitting the allegations contained in the multiple offender bill of information.

During the multiple offender plea colloquy, the trial court explained defendant’s sentencing range as a multiple offender was 15 to 60 years and that defendant would receive 15 years concurrent with any other sentence he was serving. The waiver of rights form executed by defendant shows he would receive a 15-year sentence in exchange for his stipulation of being a second felony offender. Thus, defendant received a sentence that was “imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” See LSA-C.Cr.P. art. 881.2(A)(2). As such, he is barred from challenging the excessiveness of his multiple offender sentence on appeal. See State v. Hines, 07-312, p. 6 (La.App. 5 Cir. 10/30/07), 970 So.2d 1134, 1138.

We find no merit to defendant’s assignments of error since he is barred from challenging his enhanced sentence, which was imposed pursuant to a valid plea bargain, on appeal. Therefore, we affirm defendant’s sentence.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990).

The trial court imposed an illegally lenient enhanced sentence, although no corrective action is required. LSA-R.S. 15:529.1(G) requires that all habitual offender sentences be served without the benefit of probation or suspension of sentence. Additionally, the underlying statute, LSA-R.S. 40:967(B), requires the restriction of parole for the first five years. The trial court failed to impose these restrictions when sentencing defendant as a multiple offender. Under LSA-R.S. 15:301.1 and State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, a statute’s requirement that a defendant be sentenced without benefit of parole, probation or suspension of sentence is self-activating. Therefore, no corrective action of this sentence is necessary.

Accordingly, we affirm the defendant’s sentence and the trial court’s judgment denying defendant’s motion to reconsider sentence.

AFFIRMED.


source: Caselaw Access Project

author: ROLAND L. BELSOME, Judge. MURRAY, J.,

license: Public Domain

text:
    NEAL AUCTION COMPANY, INC. v. LAFAYETTE INSURANCE COMPANY and Eustis Insurance, Inc.
    No. 2008-CA-0574.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 29, 2009.
    Rehearing Denied June 5, 2009.

      Kyle D. Schonekas, Patrick S. McGoey, Marc D. Winsberg, Schonekas Winsberg Evans & McGoey, L.L.C., New Orleans, LA, for Plaintiff/Appellee.
    Howard B. Kaplan, Bernard, Cassisa, Elliott & Davis, a PLC, Metairie, LA and Raymond A. Pelleteri Jr., Pelleteri & Wie-dorn, L.L.C., New Orleans, LA, For Defendant/Appellant, Lafayette Insurance Company.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

| t Defendant-Appellant Lafayette Insurance Company appeals the judgment in favor of Plaintiff-Appellee Neal Auction Company, Inc. For the reasons that follow, we affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

Neal Auction Company, Inc. (“Neal”), an entity that represents various consignors at auction,, sustained damages from Hurricane Katrina to its main office at 4038 Magazine Street in New Orleans. Neal had six auctions scheduled in 2005, including an auction on October 1st and 2nd, which had a submission deadline of August 29, 2005 and was ultimately can-celled due to Katrina. Neal’s building on Magazine Street sustained damages from Katrina to the roof and gutter, and a utility pole was pulled away from the building. After Katrina, Neal relocated to Baton Rouge temporarily, renting space and sustaining various other operating expenses. Neal eventually held its December auction on December 3rd and 4th with items originally secured for the October auction, in addition to other | ¡Items. The auction generated revenue to Neal in the amount of $370,000.00. Neal returned to the Magazine Street location on or about December 12, 2005.

On June 1, 2005, Lafayette Insurance Company (“Lafayette”) issued Neal a commercial insurance policy for business income loss and extra expense coverage for the Magazine Street location. The business income loss policy had limits of $500,000.00 and was in effect at the time of Hurricane Katrina. Lafayette received notice of the loss on September 15, 2005, and the claim was assigned that day to Crawford & Company for independent adjustment. Neal’s claim was initially handled over the telephone by Mac Allen, and then assigned to adjustor Timothy Meegan on September 16, 2005. Damages to the electrical pole adjacent to the Magazine Street office were repaired on October 4, 2005, and the two properties were inspected by Mr. Meegan six days later, on October 10, 2005.

Subsequent to the inspections, Lafayette prepared an initial report on October 20, 2005, and a final report on November 1, 2005. Lafayette issued payment to Neal for the physical property damage claim on December 13, 2005. The December 13, 2005 payment did not include the electrical pole repairs. Lafayette ultimately denied Neal’s claim for lost business income and extra expenses on June 1, 2006. After this denial, Neal filed suit against Lafayette on August 25, 2006. After deposing Neal on January 25, 2007, Lafayette tendered to Neal $96,507.83 for additional expenses and $1,300.00 for repairs to the electrical pole. The two checks were issued with correspondence from Lafayette dated June 19, 2007.

laAfter a jury trial in December 2007, the jury reached a verdict in favor of Neal. The trial court’s judgment on the jury verdict awarded Neal $253,699.00 in lost business income; $500,000.00 in damages; $5,000.00 in penalties pursuant to La. R.S. 22:1220; $376,849.50 in penalties pursuant to La. R.S. 22:658; and $87,811.10 in interest (on the damage award of $753.699.00), for a total of $1,223,359.60. Additionally, upon Neal’s Motion for Award of Attorneys’ Fees and to Tax Costs, the trial court awarded 35% in attorneys’ fees and $6,435.76 in costs. The trial court also denied Lafayette’s Motion for New Trial or JNOV. This appeal followed.

On appeal, Lafayette submits five assignments of error for review: first, that the trial court was clearly wrong in finding that Neal had any business income loss; second, that the trial court was clearly wrong in finding that Lafayette misrepresented policy conditions; third, that the trial court committed legal error in finding that Neal sustained $500,000.00 in damages; fourth, that the trial court committed legal error in awarding penalties under both La. R.S. 22:658 and La. R.S. 22:1220; and fifth, that the trial court committed legal error in awarding attorneys’ fees.

STANDARD OF REVIEW

A reviewing court may not disturb findings of fact absent manifest error or unless they are clearly wrong, and where there is conflicting testimony, reasonable inferences of fact should not be disturbed upon appellate review. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Likewise, where there are two permissible views of [4evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.

With respect to damage awards, it is well-settled in Louisiana that the factfin-der is vested with great, even vast discretion, such that appellate courts should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Because reasonable persons may disagree regarding the measure of general damages in a particular case, “[i]t 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 an appellate court should increase or reduce the award.” Id.; see Reck v. Stevens, 373 So.2d 498 (La.1979). When damages are not susceptible of precise measurement, the factfinder shall be afforded great discretion for the reasonable assessment of these damages. La. C.C. art.1999; Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). Conversely, issues of law, such as interpretation of a statute, are reviewed under the de novo standard of review. See Holly & Smith Architects, Inc. v. St Helena Congregate Facility Inc., 2006-0582, p. 9 (La.11/29/06), 943 So.2d 1037, 1045.

DISCUSSION

Business Income Loss

Lafayette argues that Neal’s certified public accountant (“CPA”), Ralph Li-tolff, improperly calculated Neal’s revenue for purposes of determining whether Neal sustained business income loss. Specifically, Lafayette argues that items intended for the October 2005 auction were combined with items in a December 2005 auction, generating revenue to Neal in the amount of $370,000.00; however, |Rthis amount was deliberately excluded by Mr. Litolff from the business income calculation. Lafayette submits that Neal should not be permitted to exclude this revenue to obtain a double recovery or windfall. Accordingly, Lafayette does not dispute that the business income loss coverage exists under the policy; rather, Lafayette argues that Neal did not sustain any business income loss as a result of Hurricane Katrina. Upon a careful review of the record, we find that Neal set forth sufficient evidence to demonstrate that, pursuant to the applicable policy language, Neal sustained business income loss as a result of Hurricane Katrina.

POLICY LANGUAGE

The language of the portion of the policy entitled “BUSINESS INCOME COVERAGE FORM”, or form CP 00 30, reads in part as follows (emphasis added):

A. COVERAGE

Coverage is provided as described below for one or more of the following options

for which a Limit of Insurance is shown in the Declarations:
(i) Business Income including “Rental Value”.
(ii) Business Income other than “Rental Value”.
(iii) “Rental Value”.
We will pay for the actual loss of Business Income you sustain due to the necessary suspension of your “operations” during the “period of restoration”. The suspension must be caused by direct physical loss of or damage to property at the premises described in the Declarations, including personal property in the open (or in a vehicle) within 100 feet, caused by or resulting from any Covered Cause of Loss.
1. Business Income
Business Income means the:
a. Net Income (Net Profit or Loss before income taxes) that would have been earned or incurred; and
I fib. Continuing normal operating expenses incurred, including payroll.

The policy provision regarding “Extended Business Income” reads as follows:

We will pay for the actual loss of Business Income you incur during the period that:

(1) Begins on the date property (except “finished stock”) is actually repaired, rebuilt or replaced and “operations” are resumed; and
(2) Ends on the earlier of:
(a) The date you could restore your “operations” with reasonable speed, to the condition that would have existed if no direct physical loss or damage occurred; or
(b) 30 consecutive days after the date determined in (1) above.
Loss of Business Income must be caused by direct physical loss or damage at the described premises caused by or resulting from any Covered Cause of Loss.
The “Period of Restoration” is defined in the Lafayette policy as follows (emphasis added):
“Period of Restoration” means the period of time that:
a. Begins with the date of direct physical loss or damage caused by or resulting from any Covered Cause of Loss at the described premises; and
b. Ends on the date when the property at the described premises should be repaired, rebuilt or replaced with reasonable speed and similar quality.

Ralph Litolff, a Certified Public Accountant and expert for Neal, issued a report with calculations regarding business income loss and total estimated loss. |7Mr. Litolff testified that pursuant to the policy’s specifications for the period of restoration, he began his calculations on the date of the direct physical loss to the insured premises, August 29, 2005 (the date Hurricane Katrina struck), and ended his calculations on November 30, 2005, the date on which electricity was restored to the premises, for a total of 91 days of suspended operations. Based upon a review of the first six months of 2005, which included three auction months and three non-auction months, Mr. Litolff concluded that Neal averaged $2,788.00 per day in net income. Accordingly, taking into account a period of restoration of 91 days, Mr. Litolff calculated that Neal sustained a total of $253,699.00 of lost business income.

Neal argues that the testimony at trial established that the electrical service to Neal’s business was restored and repaired by the end of November 2005, but that no evidence suggests that the period of restoration was later than November 30, 2005. Accordingly, because the period of restoration ended at the latest on November 30, 2005, and the policy language provided for an additional thirty days of loss of business income after November 30, 2005, Neal submits that Lafayette cannot argue that income applicable to the extended business income coverage also reduces its exposure under the business income coverage provision of the policy.

With respect to Mr. Litolff s omission of the December auction from his business income loss calculation despite the fact that his report noted Neal returned |sto the Magazine Street location on December 12, 2005, Mr. Litolff testified that it was his understanding from Neal that power was restored to the premises by the end of November, and thus when the period of restoration ended pursuant to the policy language. Moreover, Mr. Litolff testified that he did not calculate continuing expenses for the month of December as money that Neal was owed by Lafayette. With regard to his determination that Neal experienced a more profitable year in 2005 than in 2004 and yet still suffered a business income loss from Katrina, Mr. Litolff explained as follows:

Q You have any, in your opinion, from the financial record is it clear that Neal Auction Company in 2005 was doing better than it was in 2004 before Hurricane Katrina?
A Yes.
Q How much better?
A Based on the number I have in my mind because it was my period that I used to calculate losses through the same 6 months. '04, to the same 6 months, '05, revenues were up approximately 30 percent and another model you could look at, you could say October in '04, this is a rough number, I’m just looking at this now. In '04 the October and December auction together generated approximately 5.2 million dollars. If it were 30 percent higher you think [sic] it would be a million 5 higher under the trending analysis not to say no one can predict what is going to happen but that would have put you over, well over 6 million dollars that you would have earned on the same pace based on the '04 numbers, and the total of top line reference now is for October, or keep in mind the auction did not occur, and December was 3.7 million.
Q So even if you would have followed [Defense counsel’s] advice and throw[n] in the money from the December auction [to the business income loss calculation] and you compare[d] October through December of '05 to October through December of '04, did Neal Auction Company lose money?
A Yes, approximately it look [sic ] to be about what a typical auction generate^].

Credibility determinations, including the evaluation of expert testimony, are factual findings. See Rosell v. ESCO, 549 So.2d at 844. Where the testimony |flconflicts, the factfinder’s reasonable evaluation of credibility and reasonable inferences of fact may not be disturbed by a reviewing court, even if the reviewing court feels its own inferences and evaluations and are more reasonable than those of the jury. See Rosell, supra; Hargroder v. Unkel, 39,009, p. 4 (La.App. 2 Cir. 10/29/04), 888 So.2d 953, 957. The factfinder in the instant case heard and evaluated the testimony of each expert CPA and found Mr. Litolffs calculations that Neal lost $2,788.00 per day in net income for a period of 91 days to be most accurate and credible. Upon a careful review of the record, we cannot say that the jury’s factual findings that Neal sustained a business income loss of $253,699.00 in net income were manifestly erroneous or clearly wrong. This assignment of error lacks merit.

Misrepresentation of Policy Conditions

In its second assignment of error, Lafayette argues that the trial court was clearly wrong in finding that Lafayette misrepresented policy conditions. Lafayette submits that the policy terms as stated in the denial letter are correct and that Lafayette never misrepresented the terms of the policy. Lafayette argues it was not provided with essential facts until Neal’s deposition in January 2007, after which payment was issued to Neal.

In this case, Lafayette initially denied Neal’s claims for extra expenses, finding that the loss of power was excluded by the Off-Premise Exclusion in the policy. Lafayette submits that it was unaware at this time that the pole had been | inrepaired prior to Meegan’s inspection, and moreover, that Neal did not provide any information indicating same to Lafayette, even after the June 1, 2006 denial letter. After Neal’s deposition revealed evidence of the light pole repairs, Lafayette submits that same was sent to Lafayette’s CPA, Mr. Balfour, who issued a supplemental report on May 18, 2007, which stated that the expenses for the pole repair and other extra expenses should be paid. Lafayette further submits that it ultimately issued payment for the extra expenses on June 19, 2007.

Conversely, Neal maintains that Lafayette made multiple policy misrepresentations. On March 6, 2006 claim representative Roberta Sniffin made an internal note in Lafayette’s computer records stating that “[Lafayette has] an exposure here” with respect to business income coverage. On June 1, 2006, however, Lafayette denied Neal’s claim for business income loss. Citing, inter alia, the Exclusions provisions of the policy regarding Off-Premises Services and Water, the denial letter stated that the “windstorm damage to the covered location ludid not render the building unusuable and would not have prevented you from continuing operations at that location.” The denial letter further stated that “[t]he Business Income loss that resulted from off-premises power and flooding would be excluded.” Neal submits that Lafayette was well aware at this time that the Magazine Street location did not flood, and thus it was a misrepresentation for Lafayette to state that the flood exclusion applied. Finally, Neal argues that Lafayette’s acceptance and reliance upon Mr. Balfour’s methodology of using the tax return information as another basis to deny the claim even though the policy did not condition business income coverage upon an insured’s tax returns revealing more or less net income than the previous year, or contain the words “tax return”. Thus, Neal argues it was a misrepresentation of the policy for Lafayette to rely on terms not in the policy as a basis to deny the business income loss claim. After a careful review of the record in its entirety, we cannot say that the jury’s factual finding that Lafayette misrepresented policy conditions is manifestly erroneous or clearly wrong. This assignment of error lacks merit.

Damages

While a claimant may recover penalties under only one of two bad faith insurance statutes, discussed in the following assignment of error infra, La. R.S. 22:1220 (currently § 22:1973) provides that any insurer-who breaches the duties of good faith and fair dealing “shall be liable for any damages sustained as a result of the breach.” La. R.S. 22:1220 (emphasis added). Misrepresenting policy provisions is one of the acts listed in the statute that constitutes a breach of the [^insurer’s duties. Id. Because we find, as the jury did, that that Lafayette misrepresented policy conditions, Lafayette is liable for damages attributable to its breach of good faith and fair dealing to Neal.

At trial, Neal offered the testimony of Michelle Leckert, the chief financial officer for Neal Auction Company, who testified that Neal lost a significant estate auction, the estate of Martha Ann Samuel. Ms. Leckert testified that Lafayette’s delay in payment, and thus the resulting delay in Neal’s recovery, caused Ms. Samuel’s heirs to choose another auction company to handle the estate, even though Ms. Samuel was an established customer of Neal Auction. Ms. Leckert testified that the estate sold for eight million dollars.

Additionally, the Lafayette policy provided for payment of continuing normal operating expenses. The record evidences that Mr. Litolff testified that, pursuant to his calculations, Neal sustained continuing expenses in the amount of $400,496.00, less a coinsurance penalty of $215,884.00, for a total of $184,612.00. The report did not include, however, the $1,300.00 tendered by Lafayette in 2007 for the electrical pole damages. Therefore, this amount must be | ^subtracted, for a total of $183,312.00 in remaining business interruption loss and additional expenses.

Additionally, the jury could have determined that Michelle Leckert’s testimony regarding the lost estate auction was credible. Pursuant to Mr. Litolffs report, Neal typically earned 31.85% in gross profits of a total auction, or approximately $2.5 million dollars. If Neal had earned net income from the auction, based on Mr. Litolffs calculations of 8.99% of income on gross profits, Neal could have earned approximately $229,000.00 from the Samuel auction.

In this case, the jury awarded Neal $500,000.00 in damages. Based on the foregoing, the record supports an award of the remainder of business interruption loss due, $183,312.00, in addition to the $229,000.00 from the lost estate auction. The record therefore demonstrates that Neal sustained damages in the amount of $412,312.00. Despite the aforementioned factfinder’s vast discretion with respect to damage awards, we find that the damage award under these facts and circumstances is beyond that which a reasonable trier of fact could assess for the particular injury to Neal in this case. See Youn, supra. Accordingly, we find that the record evidences that the $500,000.00 damage award must be reduced to $412,312.00.

Statutory Penalties — Legal Error

In this case, the trial court awarded 50% penalties in the amount of $376,849.50 (applying the amended version of La. R.S. 22:658) and $5,000.00 (pursuant to La. R.S. 22:1220). Lafayette submits that both awards should be reversed, or in the alternative, that the penalties under La. R.S. 22:658 should be | Ureduced to 25% of the actual damages. The amended version of La. R.S. 22:658, effective August 15, 2006, allows for 50% of damages as an available penalty, in addition to costs and attorney’s fees. Accordingly, the amended version of La. R.S. 22:658 is only applicable to claims arising on or after the effective date. Sher v. Lafayette Ins. Co., 07-2441 (La.4/08/08), 988 So.2d 186; Best v. State Farm Fire & Cas. Co., 2007-0573 (La.App. 4 Cir. 10/10/07), 969 So.2d 671.

Lafayette further argues, and Neal concedes in its brief, that Lafayette can be held liable for penalties under only one of the two bad faith insurance statutes. Calogero v. Safeway Ins. Co., 1999-1625 (La.1/19/00), 753 So.2d 170, 174. When an insurer fails to comply with both § 22:658 and § 22:1220, recovery is permitted under the statute that provides the greater penalty. Id. Therefore, once Neal establishes bad faith claims handling, Neal is permitted to recover under either § 22:658 or § 22:1220.

La. R.S. 22:658

We find that the trial court committed legal error in applying the amended version of La. R.S. 22:658. Because the trial court committed legal error, we review the trial court’s determinations regarding the applicability of the bad faith statutes de novo. See Holly & Smith Architects, supra. Therefore, we must conduct an independent review of the record to determine what, if any, damages and penalties are due Neal.

Prior to the amendments to § 22:658, the penalties available were 25 percent of the damages sustained, and there was no provision for attorney’s fees or costs. Both the Louisiana Supreme Court and this Court have affirmatively held that the changes do not apply retroactively. Sher, supra; Best, supra. Moreover, pursuant to the Supreme Court’s decision in Sher, Louisiana law unambiguously prohibits the continuing-breach rationale, or the argument that an insurer is liable for the continued refusal to pay that extends beyond August 15, 2006. Dickerson v. Lexington Ins. Co., 556 F.3d 290, 307 (5th Cir.1/21/09). Thus, “[a] cause of action and, therefore, an insured’s right to recover, comes into existence when and if the insurer fails to pay thirty days after receiving satisfactory proof of loss.” Lambert v. State Farm Fire and Casualty Co., 568 F.Supp.2d 698, 706-07 (E.D.La.5/20/08). A satisfactory proof of loss is that which is sufficient to fully apprise the insurer of the insured’s claim. Talton v. USAA Cas. Ins. Co., 2006-1513, p. 15 (La.App. 4 Cir. 3/19/08) 981 So.2d 696, 707 (citing McDill v. Utica Mut. Ins. Co., 475 So.2d 1085, 1089 (La. 1985)).

In this case, Lafayette received notice of the loss on September 15, 2005. Lafayette’s adjuster inspected the property on October 10, 2005, and Lafayette 11fiissued payment on December 13, 2005 for physical damage to the premises. Neal’s claim for lost business income and extra expenses was denied on June 1, 2006. Because the record evidences that Neal provided Lafayette with satisfactory proof of loss prior to August 15, 2006, we find that Neal’s cause of action arose before the effective date of the amendments to La. R.S. 22:658. Although Neal filed its petition after the statute was amended, pursuant to Sher, this is insufficient to trigger the amended version of the statute. The trial court thus committed legal error in applying the amended version of La. R.S. 22:658 to the instant case.

La. R.S. 22:1220

La. R.S. 22:1220 provides as follows (emphasis added):

A. An insurer, including but not limited to a foreign line and surplus line insurer, owes to his insured a duty of good faith and fair dealing. The insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant, or both. Any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach.
B. Any one of the following acts, if knowingly committed or performed by an insurer, constitutes a breach of the insurer’s duties imposed in Subsection A:
(1) Misrepresenting pertinent facts or insurance policy provisions relating to any coverages at issue.
(2) Failing to pay a settlement within thirty days after an agreement is reduced to writing.
(3) Denying coverage or attempting to settle a claim on the basis of an application which the insurer knows was altered without notice to, or knowledge or consent of, the insured.
117(4) Misleading a claimant as to the applicable prescriptive period.
(5) Failing to pay the amount of any claim due any person insured by the contract within sixty days after receipt of satisfactory proof of loss from the claimant when such failure is arbitrary, capricious, or without probable cause.
(6) Failing to pay claims pursuant to R.S. 22:1893 when such failure is arbitrary, capricious, or without probable cause.
C. In addition to any general or special damages to which a claimant is entitled for breach of the imposed duty, the claimant may be awarded penalties assessed against the insurer in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater.
Such penalties, if awarded, shall not be used by the insurer in computing either past or prospective loss experience for the purpose of setting rates or making rate filings.
D. The provisions of this Section shall not be applicable to claims made under health and accident insurance policies.
E. Repealed by Acts 1997, No. 949, § 2.
F. The Insurance Guaranty Association Fund, as provided in R.S. 22:1375 et seq., shall not be liable for any special damages awarded under the provisions of this Section.

In this case, the jury was not manifestly erroneous in determining that Lafayette misrepresented policy provisions. The statute provides for a penalty of $5,000.00 or an amount not to exceed two times the damages sustained, “whichever is greater.” In this case, Neal’s total damages amounted to $666,011.00. Because the amended version of La. R.S. 22:658 is inapplicable to the instant case, La. R.S. 22:1220 provides the greater penalty, and Neal may recover pursuant to the mandates of that statute. Calogero, supra. Accordingly, we |isfmd that an award of double the damages under La. R.S. 22:1220, or $1,332,022.00, is appropriate under these particular facts and circumstances.

Attorneys’ Fees

Because we find that the amended version of La. R.S. 22:658 is inapplicable to the facts and circumstances of the case sub judice, Neal is not entitled to recover attorneys’ fees or costs. See, e.g., Sher, supra.

CONCLUSION

The trial court’s February 22, 2008 judgment is hereby reversed. The portion of the January 22, 2008 judgment on the jury verdict awarding $253,699.00 for business income loss is affirmed; the remainder of the judgment is reversed. Accordingly, for the reasons stated herein, Neal is awarded a total of $666,011.00 in damages, with interest on the damage award from the date of judicial demand, and $1,332,022.00 in penalties pursuant to La. R.S. 22:1220, with interest on the penalties assessed from the date of judgment.

AFFIRMED IN PART AND REVERSED IN PART.

MURRAY, J., Concurs in Part and Dissents in Part With Reasons.

GORBATY, J., Concurs in Part and Dissents in Part for the Reasons Assigned by J. MURRAY.

MURRAY, J.,

Concurs in Part and Dissents in Part With Reasons.

hFor the reasons that follow, I concur in the majority’s affirmation of the trial court’s award of $253,699 in damages for Neal’s business income loss covered under the Lafayette policy. I also concur in the affirmation of the trial court’s conclusion that Lafayette breached its statutory duties of good faith and fair dealing in handling Neal’s claim. I find, however, that the record does not support the jury’s conclusion that this breach caused additional damages to Neal; I therefore dissent from the majority’s re-assessment and award of such damages. I also dissent from the majority’s determination of the penalties assessed to Lafayette for its breach.

Regarding the business income loss, two experts testified. Mr. Litcolff, who was retained by the plaintiff, opined that Neal incurred a business income loss of $438,311, which included $253,699 in net income, plus $400,496 in continuing normal operating expenses, less a $216,000 co-insurance penalty. The defendant’s expert, Mr. Balfour, opined that Neal had suffered no business income loss.

| ¡,As the majority notes, the Lafayette policy states that it “will pay for the actual loss of Business Income” sustained by the insured “due to the necessary suspension of [the insured’s] ‘operations’ during the ‘period of restoration’.” The “period of restoration” is defined in the policy as beginning on the date of the loss-causing event and ending on the date when the property “should be repaired, rebuilt or replaced.” The record shows that a key difference, which accounted for the disparity between the opinions of the two experts, was that Mr. Litcolffs method for determining income loss excluded any 2005 income Neal received after the period of restoration; whereas, Mr. Balfour’s method did not.

Mr. Balfour first calculated Neal’s annual income in 2005, including the income from the December 2005 auction Neal held while still operating out of its temporary location in Jackson, Mississippi. Then, because Neal’s annual income in 2005 was more than it had been in 2004 or the preceding years, Mr. Balfour opined that Neal had not suffered any business income loss as a result of the disruption of its business operations at the Magazine Street location covered by the Lafayette policy. Mr. Balfour further testified that because there was no business income loss, there was no reason for him to calculate the period of restoration.

Conversely, Mr. Litcolff first determined that there were 91 days in the period of restoration, which began on September 1, 2005 and ended on November 30, 2005 (the date all parties agreed that Neal’s Magazine Street location was fit for occupation, although Neal did not actually return to that location until about two weeks later). Mr. Litcolff then calculated Neal’s average daily net income during the first six months of 2005, and multiplied that per diem figure by 91 to account for the 91 days in the period of restoration, arriving at a net income loss of $253,699. He then calculated the normal operating expenses for the period of restoration, added that figure to the net income loss, and subtracted the cojmsurance3 penalty, to come up with a total business income loss of $438, 311. Because Mr. Litcolffs method did not require him to consider income earned or expenses incurred after the period of restoration, he did not take into account the profit Neal earned from the December 2005 auction.

The business income loss determined by the jury exactly matches the figure given by Mr. Litcolff as Neal’s net income loss. Considering the policy language, I cannot say the jury was manifestly erroneous in choosing to adopt this figure. In this instance it seems that the policy language, particularly the provision defining the “period of restoration,” may not be precisely tailored to a business such as Neal’s (in which income is generated only when an auction is held, approximately six times per year); however, Lafayette wrote the policy and is responsible for its contents. I therefore concur in the majority’s affirmation of the $253,699 award for business income loss.

I also concur in the majority’s affirmation of the trial court’s conclusion that Lafayette violated La. R.S. 22:1220, which imposes upon insurers twin duties of good faith and fair dealing in the handling of claims and prescribes penalties for an insurer’s breach of either duty. As quoted in the majority opinion, Part B of the statute lists six specific acts, and provides that an insurer’s knowing commission of any one of the six constitutes a breach of the statute. In the instant case, the jury was presented with two interrogatories regarding Lafayette’s commission of the acts enumerated in 22:1220. The jury answered “yes” to both interrogatory # 7 (Did Lafayette Insurance Company misrepresent any pertinent facts or insurance policy provisions relating to any coverages at issue?”) and interrogatory # 9 (Do you find by a preponderance of the evidence that Lafayette Insurance Company was arbitrary, capricious or without probable cause in failing to pay any amount owed for business income loss or extra expense at 4038 Magazine Street within 6014days of satisfactory proof of loss?). On appeal, Lafayette argues that the jury was clearly wrong in finding Lafayette guilty of misrepresentation under the statute because at the time it initially denied Neal’s claim, Lafayette was not aware that there had been an onsite cause for Neal’s power loss, which was covered under the policy.

The majority rejects Lafayette’s argument. Although I do not agree that with the majority’s assertion that Lafayette “made multiple policy misrepresentations”, I conclude that whether or not Lafayette violated this prong of 22:1220 B is irrelevant because Lafayette clearly committed one of the other enumerated acts — that is, it knowingly and without apparent reason did not remit Neal’s “extra expenses” until more than sixty days after Neal’s February, 2007 deposition, at which time, by Lafayette’s own admission, it learned there had been an onsite cause for the loss of power, thus triggering coverage. Significantly, Lafayette does not assign as error on appeal the jury’s affirmative response to interrogatory # 9, other than to argue generally that Lafayette did not behave arbitrarily or capriciously in denying benefits; however, Lafayette’s failure to provide any explanation for its four-month delay in paying Neal’s extra expenses equates to arbitrary and capricious behavior. For this reason, I concur in the majority’s conclusion that Lafayette violated La. R.S. 22:1220, thereby entitling Neal to recover statutory penalties as well as any damages caused by Lafayette’s breach.

The jury was presented with three follow-up interrogatories to be answered in the event they determined that Lafayette’s had committed a breach of duty under La. R.S. 22:1220. Interrogatory # 10 stated: “If you answered “YES” to Questions |s3, 7, or 9, do you find by a preponderance of the evidence that Neal Auction Company-suffered actual damages as a result of Lafayette Insurance Company’s actions?” The jury responded affirmatively to interrogatory # 10. Interrogatory # 11 stated: “If you answered “YES” to Question 10, then what amount of damages do you find Neal Auction Company suffered as a result of Lafayette Insurance Company acting in an arbitrary or capricious manner or without probable cause?” The jury’s response to this interrogatory was “$500,000.” The final interrogatory, # 12, stated: “What amount of penalty, if any, you award [sic] to Neal Auction Company for Lafayette’s breach of its duties as an insurer?” The jury’s response was “$5,000.”

The majority concludes that the jury’s assessment of $500,000 in damages as a result of Lafayette’s breach of its duties under La. R.S. 22:1220 is beyond the amount that a reasonable fact finder could assess given the evidence, and then reduces the amount to $412,312. I agree that the jury’s finding of $500,000 in damages is clearly wrong. However, I find that it was manifestly erroneous for the jury to assess any amount because the record contains no evidence showing that Neal incurred any damages specifically as a result of Lafayette’s breach of its obligations of good faith and/or fair dealing under La. R.S. 22:1220.

Part A of the statute provides that an insurer’s breach of its duties of good faith and fair dealing shall cause the insurer to be liable for “any damages sustained as a result of the breach.” La. R.S. 22:1220 (currently § 22:1973) (emphasis added). Part B provides that the insurer’s knowing commission of any one of six specified acts constitutes a breach. Part C provides: “In addition to any general or special damages to which a claimant is entitled for breach of the imposed duty, the claimant may be awarded penalties assessed against the insurer |fiin an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater.”

Essentially, La. R.S. 22:1220 punishes the bad-faith insurer by requiring it to pay additional damages, over and above the amount due under the insurance policy, when the insured can show that such damages have been incurred as a result of the insurer’s bad-faith actions, as well as subjecting the insurer to the possible imposition of penalties. For example, in Clark v. McNabb, 04-0005, pp. 13-14 (La.App. 3 Cir. 5/19/04), 878 So.2d 677, 685-686, the Third Circuit held that an automobile insurer’s arbitrary and capricious failure to complete its investigation by obtaining the salvage value of the insured’s totaled vehicle entitled the insured to general damages for anxiety, mental anguish and the cost of storing the vehicle in his garage for the duration of the litigation, even though these damages were not provided for by the policy.

Thus, to recover damages under La. R.S. 22:1220 and/or to trigger a penalty award of double the amount of damages, the insured must first prove that actual damages resulted from the breach of the insurer’s obligations of good faith and/or fair dealing; if no such damages are proved, the maximum penalty that may be awarded under the statute is $5,000. See Hall v. State Farm Mut. Auto. Ins. Co., 94-867, p. 7-8 (La.App. 3 Cir. 5/31/95), 658 So.2d 204, 206; In the Matter of Hanover Corp. v. State Farm Mut. Auto. Ins. Co, 67 F.3d 70, 76 (5 Cir. 10/4/95); Mercier v. Allstate Ins. Co., 06-9861(E.D.La.1/17/07), 2007 WL 210786. In the instant case, all of evidence presented by Neal, at trial related to its business loss |7under the policy; there was no evidence relating to damages specifically caused by Lafayette’s misrepresentation and/or its failure to pay the claim timely.

On appeal, Neal contends that the evidence of damages sustained as a result of Lafayette’s breach of its duties of under the statute consisted primarily of two elements, namely: Mr. Liteolffs expert testimony as to the amount of Neal’s continuing normal operating expenses; and the testimony of Michelle Leekert, Neal’s Director of Administration and Finance, that Neal lost the Martha Ann Samuel estate auction because Neal was not yet able to operate out of its Magazine Street location. The majority accepts appellant’s argument, finding that the maximum amount of damages a reasonable fact finder could have awarded for Lafayette’s breach is $412, 312. I disagree.

The figure used by the majority, $412,312, represents the sum of two specific items of evidence: (1) Mr. Liteolffs testimony that Neal had incurred $400,496 in continuing normal operating expenses during the period of restoration, less the $215,884 co-insurance penalty Mr. Litcolff stated was applicable under the policy and the $1300 Lafayette had already paid to repair the damaged electrical pole on the Magazine Street premises; and (2) the $229,000 the majority estimated as being the profit Neal would have earned had it handled the auction of the Samuel estate. However, neither of these items are evidence of damages suffered by Neal as a result of Lafayette’s breach.

The first item was taken by the majority from Mr. Liteolffs testimony regarding Lafayette’s business income loss. As noted above, the Lafayette policy provides that the insurer will pay for “the actual loss of Business Income” the insured sustains due to the suspension of business operations during the period of restoration; it then defines “business income” as “net income” that would have been earned and “continuing normal operating expenses incurred.” The jury Rdetermined that Neal’s loss of business income was $253,699. As stated previously, the majority finds no manifest error in this determination; nor do I.

Assuming the jury based its finding upon Mr. Liteolffs testimony regarding net income, thereby rejecting or refusing to credit his other testimony regarding the continuing normal operating expenses incurred by Neal, that decision by the fact finder cannot be considered manifestly erroneous, for the same reasons that we find no manifest error in the jury’s determination of the amount of Neal’s business loss. More importantly, however, the jury’s failure to credit that particular evidence does not convert it from being evidence of business income loss under the policy (which it clearly was) into evidence of damages suffered by Neal as a result of Lafayette’s arbitrary and capricious failure to pay the claim timely. Therefore, the majority’s inclusion of this business income loss evidence in its calculation of the highest possible amount that a reasonable fact finder could have awarded as damages under La. R.S. 22:1220 is not appropriate and is not supported by the record.

The other item used by the majority, Neal’s loss of the Samuel estate auction because of its inability to get the Magazine Street location up and running quickly enough, was never actually placed into evidence. Neal’s representative, Ms. Lec-kert, first testified that two heirs of Ms. Samuel, whom Ms. Leckert described as a “friend” of Neal who had purchased most of her estate from Neal’s auctions, came to Neal in early December, 2005, right after Neal had concluded the Mississippi auction. Ms. Leckert stated that she met with the heirs, who “wanted to have an auction as soon as possible,” and she “explained that things would be back to normal [at the Magazine Street location] very soon,” and Neal would be able to accommodate them; however, the heirs ultimately chose to use another local auction house. The plaintiffs counsel then asked Ms. Lec-kert why she was | gunable to convince the heirs to use Neal, and the transcript reflects that the question was objected to by Lafayette’s counsel and that the trial court sustained the objection. Ms. Leckert then testified, without any corroborating evidence, that the Samuel estate sold for $8,000,000, making it the largest estate sale ever held in New Orleans. Ms. Lec-kert was then asked what amount Neal would have made from that auction, and once again, the question was objected to and the objection was sustained. Ms. Lec-kert then responded to a question asking what Neal’s average percentage would be for an auction of that size; her response was it would depend on the particular contract, but Neal typically got at least the buyer’s premium, which ranged from 17.5% to 20%. Her response was then interrupted by another objection, which was again sustained by the trial court judge, who reiterated “Sustained ... It’s speculation.... I said it’s sustained.”

Combining this truncated testimony with figures taken from Mr. Litcolff s expert report as to Neal’s typical earnings from prior auctions, the majority concludes that Neal suffered an additional $229,000 in damages from the loss of the Samuel estate, which loss it attributes to Lafayette’s breach of its statutory duties of good faith and fair dealing. However, I cannot agree that this figure is supported by the record. First, the transcript clearly reflects that the reason the Samuel hems decided not to use Neal was never properly placed into evidence. Secondly, Ms. Leckert’s speculation as to the reason, even if she had been allow to testify, would have been unreliable and inadmissible hearsay, as she clearly had no personal knowledge of the reason and there was no showing that Ms. Samuel’s heirs were unavailable or otherwise unable to testify.

Because I find that the record does not support either amount used by the majority to determine what a reasonable fact finder could have awarded in ^damages for Lafayette’s breach of La. R.S. 22:1220, I dissent from the majority’s reduction of the damage award under that statute. On the basis of the record, I would simply reverse the trial court’s award of damages under La. R.S. 22:1220 as being manifestly erroneous or clearly wrong.

The final issue addressed by the majority is statutory penalties. I agree that the trial court committed legal error by awarding penalties under both La. R.S. 22:1220 and under the amended version of La. R.S. 22:658. As the majority notes, Lafayette can legally be held liable for penalties under only one of these two bad-faith insurer statutes, whichever one provides the greater penalty. I also agree with the majority that the amended version of La. R.S. 22:658 is not applicable in this case because Neal’s claim arose before the effective date of the amendment. I dissent, however, from the majority’s assessment of a $1,322,022 penalty to Lafayette for its breach of La. R.S. 22:1220.

The majority calculates this amount by doubling the sum of the contractual damages awarded to Neal for its business income loss covered by the policy ($253,699) and the amount determined by the majority to be damages caused by Lafayette’s breach of its duties under La. R.S. 22:1220 ($412,312). However, the inclusion of the damages due under the policy in the determination of the penalty is incorrect. The jurisprudence indicates that the amount of penalties awardable under La. R.S. 22:1220 is based upon the damages sustained by the insurer’s breach of the duties of good faith and fair dealing imposed by the statute, not upon the total damages awarded. See: Hollier v. State Farm Mut Auto. Ins. Co., 01-0592, p. 5 (La.App. 3 Cir. 10/31/01), 799 So.2d 793, 797, writ denied 01-3163 (La.2/22/02), 810 So.2d 1135; Theriot v. Midland Risk Ins. Co., 95-227, p. 5 (La.App. 3 Cir. 11/2/95), 664 So.2d 547, 550, reversed on other grounds, 95-2895 (La.5/20/97),-11 694 So.2d 184; Hall v. State Farm Mut. Auto. Ins. Co., supra, 658 So.2d at 208.

However, because I find that the record does not contain proof of any damages sustained by Neal as a result of Lafayette’s breach of La. R.S. 22:1220, the appropriate penalty under that statute would be $5,000. Nevertheless, as Lafayette also violated La. R.S. 22:658 by failing to pay Neal’s claim within thirty days of receiving satisfactory proof of loss, the correct penalty is the larger of those that would be imposed by the two statutes. Calogero v. Safeway Ins. Co., 99-1625 (La.1/19/00), 753 So.2d 170, 174. Under the version of La. R.S. 22:658 applicable to this case (prior to the statute’s amendment, which went into effect August 15, 2006), the penalty assessed would be twenty-five percent (25%) of the damages sustained by Neal, without any provision for attorney’s fees or costs. Thus, I would reverse the award of penalties made by the trial court and award instead 25% of $253,699, or $63,424.75, in total penalties against Lafayette.

In conclusion, I would affirm the trial court’s award of $253,699 in damages due Neal under the Lafayette policy; reverse the trial court’s award of $500,000 in damages and $5,000 in penalties pursuant to La. R.S. 22:1220; reduce the trial court’s award of $376, 849.50 in penalties pursuant to La. R.S. 22:658 to $63,424.75; and reverse the trial court’s award of attorney’s fees and costs. Therefore, I would award plaintiff a total of $317,123.75, plus the applicable judicial interest.

Accordingly, for the reasons stated, I respectfully concur in part and dissent in part.

      . Hurricane Katrina struck the Louisiana gulf coast on August 29, 2005.

      . Neal maintained another office location at 3923 Carondelet Street in New Orleans.

      . Neal transferred all the auction items to the Mississippi Museum of Art in Jackson, Mississippi, prior to starting repairs to its building.

      . The auction resulted in $3.7 million in sales, which generated $370,000.00 in revenue to Neal. Neal typically receives approximately ten percent from its consigners at auctions.

      . The Carondelet Street location had a policy for property damage only, and thus did not maintain a business income loss policy.

      . Roberta Sniffin became the claim representative on January 15, 2006.

      . The interest award was calculated from the date of judicial demand (August 25, 2006) through the date of the jury verdict (December 5, 2007).

      . Neal reported the following as their income from 2002 to 2005:
      2002 — $10,219.00
      2003 — $17,504.00
      2004 $ 1,598.00
      2005 — $90,022.00

      . The policy further provides that:
      Period of restoration does not include any increased period required due to the enforcement of any ordinance or law that:
      (1)Regulates the construction, use or repair, or requires the tearing down of any property; or
      (2)Requires any insured or others to test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to, or assess the effects of "pollutants”.
      The expiration date of this policy will not cut short the "period of restoration”.

      . Mr. Litolff testified that he calculated net income for the six month period in the amount of $504,000.00 over a review period of 181 days, or approximately $2,788.00 per day. Notably, Mr. Litolff testified that he also took into account the first six months of 2004 in making his determinations.

      .Although Neal had completed electrical pole repairs in October, Entergy had to inspect the premises and repairs prior to restoring electrical service. Michelle Leckert, the director of administration and finance for Neal, testified that because the transformer was actually attached to Neal’s building, a special city inspection was required by Enter-gy before power could be restored to the facility. She further testified that due to the scarcity of city inspectors, the inspection to get power restored was delayed extensively, despite numerous telephone calls and attempts to contact city council members. Only after the city inspector visited the premises could Neal obtain a permit to have power restored to the building.

      . Neal concedes in its brief that it accepts Lafayette's contention that it did not learn of the electrical damage until January of 2007; however, Neal submits that Lafayette failed to reimburse Neal for those expenses within either 30 or 60 days of learning of those expenses, as payment was not issued until June 2007.

      . The "Off-Premises Services” exclusion provides as follows:
      [We will not pay for loss or damage caused directly or indirectly by] [t]he failure of power or other utility service supplied to the described premises, however caused, if the failure occurs away from the described premises.
      But if a loss or damage by a Covered Cause of Loss results, we will pay for that resulting loss or damage.

      . When asked at trial what she meant by the note in the computer, Ms. Sniffin testified:
      A I was looked at [sic] the commercial policy and the commercial policy don’t [sic ] always have business income, it’s an endorsement that you endorse and when I was reviewing all the Katrina claims when I received them on the master review, this was a CP policy that had an endorsement. So what I’m saying here is that there is a business income endorsement attached to this commercial policy, so it needs to be looked at.
      Q All right. And so what you’re telling me now is that when you said we have exposure here, you were just saying in another way that we have coverage?
      A Yes, because I acknowledged it in the note so that when someone pick [sic ] it up they can see that quickly without going through 400 pages of this which is at the bottom of the file.

      . See supra n. 13.

      . The "Water" exclusion provides as follows:
      (1) Flood, surface water, waves, tides, tidal waves, overflow of any body of water, or their spray, all whether driven by wind or not;
      (2) Mudslide or mudflow;
      (3) Water that backs up from a sewer or drain; or
      (4) Water under the ground surface pressing on, or flowing or seeping through:

        (a) Foundations, walls, floors or paved surfaces;
      (b) Basements, whether paved or not; or
      (c) Doors, windows or other openings. But if loss or damage by fire, explosion or sprinkler leakage results, we will pay for that resulting loss or damage.

      . The statute further provides that "[i]n addition to any general or special damages to which a claimant is entitled for breach of the imposed duty, the claimant may be awarded penalties assessed against the insurer ...” La. R.S. 22:1220.

      . Lafayette submits that Ms. Leckert's statements regarding the Samuel estate were made over their objection because it was not asserted prior to trial; that the testimony was hearsay; that no other documents or evidence were offered by Neal in support; that no person from the estate of Samuel testified that Neal lost the estate due to nonpayment of the claim.

      . The coinsurance penalty is referenced in the "Additional Conditions" portion of the policy. The coinsurance condition provides that the insurer will not pay the full amount of any loss if the value of the covered property is greater than the limit of insurance for the property.

      . In making his calculations, Mr. Litolff concluded that Neal sustained a loss of $253,699.00 in loss of net business income and $400,496.00 in continuing expenses, for a total of $654,195.00. From $654,195.00, Mr. Litolff deducted $215,884.00 for the coinsurance penalty. Accordingly, Mr. Litolff calculated that, including the business income loss of $253,699.00, Neal sustained a total business interruption loss of $438,311.00. Mr. Litolff’s report further stated that his calculations did not consider the extra expenses incurred in the amount of $96,508.00 because such expenses were reimbursed by Lafayette. Additionally, although Mr. Litolff testified that he also calculated interest in his report, this amount must be discounted, as the judgment provides for judicial interest on the damage award.

      .As previously stated herein, this amount does not include the $253,699.00 already awarded for Neal's business income loss.

      . The Louisiana Legislature amended La. R.S. 22:658 in June 2006. See 2006 La. Acts No. 813 § 1. The changes went into effect on August 15, 2006.

      . La. R.S. 22:658, as previously enacted, provided in pertinent part (emphasis added):
      Failure to make [the payments described in § 658] within thirty days after receipt of such satisfactory written proofs and demand therefore or failure to make a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim, as provided in Paragraphs (A)(1) and (4) [of § 658], respectively, or failure to make such payment within thirty days after written agreement or settlement as provided in Paragraph (A)(2) [of § 658], when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of loss, of twenty-five percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, or to any of said employees, or in the event a partial payment or tender has been made, twenty-five percent of the difference between the amount paid or tendered and the amount found to be due.
      The statute as amended provides, in pertinent part (emphasis added):
      Failure to make [the payments described in § 658] within thirty days after receipt of such satisfactory written proofs and demand therefore or failure to malee a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim, as provided in Paragraphs (A)(1) and (4) [of § 658], respectively, or failure to make such payment within thirty days after written agreement or settlement as provided in Paragraph (A)(2) [of § 658], when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of 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, payable to the insured, or to any of said employees, or in the event a partial payment or tender has been made, fifty percent of the difference between the amount paid or tendered and the amount found to be due as well as reasonable attorney fees and costs. Such penalties, if awarded, shall not be used by the insurer in computing either past or prospective loss experience for the purpose of setting rates or making rate filings.

      . Because the duty is a continuing one, had plaintiff not first made satisfactory proof of loss prior to the amendment of R.S. 22:658, his petition for damages served after the amendment became effective could have served as satisfactory proof, thereby triggering the time period set forth in the statute and could have subjected Lafayette to the penalties contained in the amendment because the claim would have first arisen after the amendment.

        Sher, supra, 988 So.2d at 199 (emphasis added).

      . Neal’s total damages are comprised of $253,699.00 for business income loss and $412,312.00 for continuing and other expenses, in addition to the lost estate auction.

      . The January 22, 2008 judgment on the jury verdict lists August 25, 2006 as the date of judicial demand.

      . This figure excludes the $96,507.83 in “extra expenses” (the cost of temporarily relocating Neal's business to Jackson, MS) that Lafayette had already paid.

      . Notably, the “period of restoration” as defined in the policy does not end when the business operations actually resume at the covered location, but rather when the premises should be fit for them to resume.

      . I note that neither interrogatory included La. R.S. 1220 B's language requiring that the insurer’s commission of one of the aforementioned acts be knowing. With regard to the misrepresentation, I believe the absence of the word "knowingly" was a legal error that may have tainted the interrogatory (i.e., affected the jury's answer to the question).

      . Lafayette paid Neal’s relocation expenses and property damage in June, 2007.

      . The jury answered “no” to question 3.

      . As the Louisiana Supreme Court has noted, the insurer's liability for damages incurred by its breach of La. R.S. 22:1220 is mandatory; whereas the imposition of penalties under that statute is discretionary: "[W]here an insurer is found to have acted arbitrarily, capriciously, or without probable cause, the insurer shall be liable for damages as a result of the breach, and may be liable for penalties not to exceed two times the damages or five thousand dollars, whichever is greater. La. R.S. 22:1220, subd. A and C.” Calogero v. Safeway Ins. Co. of Louisiana, 99-1625, p. 5 (La. 1/19/00), 753 So.2d 170, 173 (emphasis in the original).

      . The jury obviously did not understand the penalty provision of the statute; therefore, it erroneously found that Neal had incurred $500,000 in damages as a result of Lafayette’s breach of duty, yet found the applicable penalty to be $5,000.

      . Appellant admits that the total amount of damages testified to in this regard falls below the amount ($500,000) found by the jury.

      . In addition, the majority mischaracterizes Ms. Leckert's testimony; the assertion that she testified “that Lafayette's delay in payment of Neal’s claim caused Ms. Samuel's heirs to choose another auction company” is simply not supported by the record.