author: CLARK, Justice. VICTORY, J., GUIDRY, Justice,

text:
    Kirk E. PREST, et al. v. LOUISIANA CITIZENS PROPERTY INSURANCE CORPORATION, et al.
    No. 12-C-0513.
    Supreme Court of Louisiana.
    Dec. 4, 2012.

      Irwin Fritchie Urquhart & Moore, LLC, Gustave Alexander Fritchie, III, Kelly Gayle Juneau, for Applicant.
    Scandurro & Layrisson, LLC, Dewey Michael Scandurro, Timothy David Scan-durro, for Respondent.
   CLARK, Justice.

_JjWe granted this writ primarily to determine whether the award of mental anguish damages was justified under the facts of this matter. After our review, we find the trial court abused its discretion in awarding general damages, and reverse that portion of the damage award.

FACTS AND PROCEDURAL HISTORY

In October 2008, Kennedy, Lewis, Ren-ton & Associates, Inc. (“KLR”), an. insurance agency in southeastern Louisiana, secured a property insurance policy with Louisiana Citizens Property Insurance Corporation (“Citizens”) for Kirk Prest (“Mr. Prest”) on property located in Boothville, Louisiana, in Plaquemines Parish. The named insureds on the policy were Mr. Prest, individually, and Fin & Feather, L.L.C. The property insurance covered a small chalet and several boatsheds which were used to operate a hunting and fishing business. The boat sheds and chalet were run by two different companies, Fin & Feather, L.L.C. and Fin & Feather Chalets, L.L.C. (collectively referred to in this opinion, with Mr. Prest, as “Plaintiffs”). Mr. Prest and his wife, Denise, are owners of both companies.

Hurricane Ivan damaged Plaintiffs’ buildings in 2004. Plaintiffs subsequently made repairs and undertook new construction on the property insured by Citizens. Because they were penalized for being un-derinsured for their losses in [gHurricane Ivan, Plaintiffs wanted to ensure their property was properly covered by sufficient amounts of insurance in the future.

Four buildings on the property were covered by the insurance policy. In July 2005, Plaintiffs’ policy insured Building 1 for $100,000, Building 2 for $70,000, Building 3 for $80,000 and Building 4 for $100,000. The total amount of insurance coverage on the property was $350,000.

As each phase of reconstruction and expansion was completed, Plaintiffs requested increased coverage on their buildings. On July 7, 2005, Plaintiffs requested an increase in the coverage on Building 1 from $100,000 to $150,000 and on Building 3 from $80,000 to $125,000. In response, Lisa Murden (“Murden”), an insurance agent with KLR, sent a written request for the increased coverage to Citizens by certified mail. There was a mistake on the form sent requesting increased coverage, in that the words “renew policy” were typed in rather than “increasing coverage.” However, the comments immediately below correctly described the increased amounts of coverage.on the buildings requested by the policy holder.

According to Citizens’ guidelines, an increase in insurance coverage on an existing policy could only be obtained by a written request sent by U.S. mail. Coverage was considered bound by Citizens the day after the letter was postmarked. The only restriction on this guideline was Citizens would not consider coverage bound if the written request was sent by mail after a hurricane entered the Gulf of Mexico. For an increase in an existing insurance policy, Citizens did not require a payment to accompany the request. Instead, Citizens would bill the policy holder for the increased insurance coverage 30-60 days later. However, for a new policy or the renewal of a policy, Citizens required payment when the request was submitted;

IsSince KLR sent the July 2005 request for increased insurance coverage by certified mail, KLR received confirmation by mail indicating Citizens received and signed for the written request. From her prior dealings with Citizens, Murden knew Citizen’s receipt of the request alone would not immediately result in a policy change. She knew she would have to send multiple written communications to ensure Citizens made the policy changes requested, although the coverage would be considered bound the day after the first letter was postmarked. For this reason, KLR had a policy to follow up an initial request to Citizens within 30 days. No follow-up was conducted by KLR on the July 2005 request for increased coverage because KLR had insufficient staff to do so. The certified mail receipt confirmed to Murden that the increased coverage was bound as of July 8, 2005, the day after the request was postmarked, in accordance with Citizen’s normal guidelines.

On August 18, 2005, Plaintiffs completed further additions and renovations to the buildings on their property and requested a further insurance policy increase on Building 1 from the recently-requested, increased amount of $150,000 to $215,000 and from $70,000 to $100,000 on Building 2. A KLR form reflects this request with a stated effective date of August 22, 2005. Murden sent this request to Citizens by regular mail. KLR conducted no followup. Although she had not heard anything from Citizens, Murden told Plaintiffs they had insurance coverage in the amount of the two requested increases.

Hurricane Katrina hit southeast Louisiana on August 29, 2005, eleven days after the August 18, 2005 policy change request. The storm severely damaged or destroyed the boat sheds, and the chalet sustained severe damage. At that time, Plaintiffs believed they had a total of $540,000 in insurance coverage on their property, as follows: Building 1-$215,000; Building 2-$100,000; Building 3 — $125,000; and Building 4-$100,000. Murden believed they had coverage in those |4amounts, as well. Murden had not received any indication from Citizens that Plaintiffs did not have the insurance coverage in the amounts they requested.

After Hurricane Katrina, Murden sent several follow-up requests, on November 7, 2005, January 20, 2006, March 10, 2006 and May 8, 2006, regarding the two policy coverage increases requested by Plaintiffs in July and August 2005. Murden sent to Citizens all of KLR’s documentation with regard to the two increased coverage requests, including the file copies of the requests themselves, and the certified mail receipt showing Citizens received the first requested increase. During this time, Plaintiffs timely reported the damage to their insurer, which inspected the property and determined the losses were covered under the policy.

On May 6, 2006, Citizens sent a letter to Plaintiffs, advising them the policy had been reviewed and the requested increases in the policy limits would not be honored. Citizens claimed it first became aware of the two coverage increase requests on November 18, 2005, after Hurricane Katrina, so the policy limit increases for the losses sustained in that storm were denied. According to Citizens, Plaintiffs only had the original $350,000 worth of coverage on their property'. In addition, Citizens determined Plaintiffs were again subject to the underinsured penalty, so that Citizens paid only $217,423.04 on the claim.

Plaintiffs filed suit on August 28, 2006 against Citizens, seeking payment of the full policy amounts, including the amount of the requested coverage increases, attorney fees and penalties. In the alternative, and in the event adequate insurance was not found to be in place on the property at issue, Plaintiffs also sought recovery from KLR. Plaintiffs claimed KLR was negligent for its inaction in failing to procure the requested insurance coverage from Citizens or another insurer, and for its inaction in failing to notify Plaintiffs that their timely requests for coverage and coverage increases had been rejected or were not otherwise 1 .^completed. Plaintiffs claimed they reasonably relied upon the representations made by KLR which gave them the reasonable belief the properties were properly insured.

After engaging in pretrial discovery, Plaintiffs and Citizens entered into a settlement agreement on December 10, 2008. Without admitting liability, Citizens settled the claims against it for $322,576.96. This amount reflects the difference between the $217,423.04 Citizens initially paid Plaintiffs, and the $540,000 which Plaintiffs claimed as the correct limits of their property insurance policy. Thus, Plaintiffs ultimately received a total of $540,000 from Citizens. In addition to their agreement to dismiss their current claims against Citizens in the instant lawsuit, Plaintiffs also agreed to give up their rights to participate in four class action lawsuits filed against Citizens following Hurricane Katrina. Further, Plaintiffs compromised a possible claim for attorney fees and penalties against Citizens. Plaintiffs specifically reserved their right to pursue the negligence claims against KLR.

After trial on the merits against KLR, the trial court rendered judgment in favor of Plaintiffs, finding KLR was negligent in its handling of its clients’ requests for coverage increases. The judgment awarded to Mr. Prest, individually, the amount of $75,000 in general damages for the frustration, inconvenience and mental anguish caused by KLR’s negligence. The judgment awarded special damages to Plaintiffs in the amount of $137,386.44 for the attorney fees and costs which they expended in connection with their suit against Citizens, and for the delay in receiving the total amount of the insurance policy limits.

KLR appealed both the finding of liability and the award of damages. The appellate court agreed with' the trial court’s finding of negligence in part, holding | [¿here was manifest error in the trial court’s finding the insurance agency failed to exercise reasonable diligence with regard to the July 2005 request for increased coverage. The court of appeal reduced the special damages awarded for the delay in receiving the insurance policy limits to $37,205.95. Consequently, the court of appeal amended the trial court’s judgment to reduce the special damages from $137,386.44 to $100,180.40. The trial court’s judgment was affirmed as amended. Prest v. Louisiana Citizens Property Insurance Corp., 2011-0851 p. 8-9 (La.App. 4 Cir. 2/1/12); 85 So.3d 729, 735.

We granted KLR’s writ, primarily to determine the correctness of the trial court’s award of general damages. Prest v. Louisiana Citizens Property Insurance Corp., 2012-0513 (La.4/27/12); 85 So.3d 1280.

LAW AND DISCUSSION

KLR challenges both the remaining finding of negligence regarding the August 2005 request for increased insurance coverage, and the award of general and special damages. We will separately address each of these arguments.

Negligence

KLR contends it used reasonable diligence in obtaining both of the requested increases in insurance coverage. The testimony established Citizens required a request to increase policy limits to be in writing and such policy requests could only be communicated by U.S. mail. There was no requirement to send such requests by certified mail, either by Citizens or KLR. KLR sent the August 2005 request by regular mail, but did not have sufficient time to follow up on the request within 30 days, as was KLR policy. KLR argues it is not responsible for Citizens’ inexcusable three-year refusal to recognize that the requested increases in this case were in place prior to Hurricane Katrina, and maintains the fault lies with Citizens, not with KLR. KLR contends Citizens ultimately acknowledged the requests for increased coverage were valid and agreed to pay the increased policy limits. 1 ./Therefore, according to KLR, Plaintiffs have no valid claim to raise. Insofar as Plaintiffs might have had further claims against Citizens for attorney fees or penalties, KLR points out Plaintiffs compromised those claims with the party truly at fault in their settlement with Citizens.

In written reasons for judgment, the trial court set out the factual findings for its decision. The trial court found there was an undertaking by the insurance agency to procure the requested insurance. The trial court additionally found KLR failed to use reasonable diligence to obtain the requested increases and to notify Plaintiffs promptly of the absence of the increased coverage. Finally,-the 'trial court found Plaintiffs proved there were actions by the insurance agent which warranted their assumption the properties were insured in the desired amounts. The trial court faulted Murden’s failure to send the August 2005 request by certified mail, as she had the July 2005 request. In addition, the trial court noted the lack of any follow-up on either request.

The court of appeal agreed with the trial court’s finding of negligence in part, but distinguished between the manner in which the two requests were communicated to Citizens. The court of appeal found KLR acted with reasonable diligence in placing the July 2005 coverage increase request, but failed to do so for the August 2005 request. The court of appeal noted KLR received a confirmation receipt for the July 2005 request, proving ■ Citizens received the communication. “Once Citizens received the request, the duty to procure that coverage in a timely fashion rested with them.” Prest, 2011-0851, p. 4; 85 So.3d at 733. As for the August 2005 request, the court of appeal noted there was no evidence to support that KLR verified the receipt of the request nor was there any evidence to support that Citizens actually received the request. As to the August request, the court of appeal noted: “[ujnder these circumstances, we find that reasonable diligence on |sthe part of the agent warrants the verification that the request was received.” Prest, 2011-0851, p. 5; 85 So.3d at 734.

We review the factual findings of the trial court supporting its finding of negligence for manifest error. Christy v. McCalla, 2011-0366, p. 9 (La.12/6/11); 79 So.3d 293, 299.

An insurance agent has a duty to his client to procure insurance coverage, as explained in Karam v. St. Paul Fire & Marine Ins. Co., 281 So.2d 728, 730-731 (La.1973):

An insurance agent who undertakes to procure insurance for another owes an obligation to his client to use reasonable diligence in attempting to place the insurance requested and to notify the client promptly if he has failed to obtain the requested insurance. The client may recover from the agent the loss he sustains as a result of the agent’s failure to procure the desired coverage if the actions of the agent warranted an assumption by the client that he was properly insured in the amount of the desired coverage.

To recover for losses resulting from an insurance agent’s failure to procure insurance coverage, the plaintiff must establish: “(1) an undertaking or agreement by the insurance agent to procure insurance; (2) failure of the agent to use reasonable diligence to obtain insurance and to notify the client promptly of the absence of coverage; and (3) actions by the agent which warranted the client’s assumption that he was insured in the amount of the desired coverage.” Taylor v. Sider, 1999-2521, p. 3 (La.App. 4 Cir. 5/31/00); 765 So.2d 416, 418, writ denied, 2000-2004 (La.10/6/00); 771 So.2d 86; citing Opera Boats, Inc. v. Continental Underwriters, Ltd., 618 So.2d 1081, 1085-1086 (La.App. 1 Cir.1993).

Both parties agree KLR attempted to procure insurance for Plaintiffs with Citizens and that Murden, KLR’s employee, made assurances to Plaintiffs which warranted their assumption they were insured in the amount.of the requested increased coverage. The only dispute is whether. KLR was reasonably diligent in obtaining the insurance or in notifying Plaintiffs no coverage was obtained.

| aWe agree with the court of appeal’s analysis. Whether reasonable diligence was exercised in this case depends on the manner in which KLR made the two requests. See Wooley v. Lucksinger, 2009-0571, p. 51 (La.4/1/11); 61 So.3d 507, 555 (“when an appellate court finds that ... manifest error of material fact was made in the trial court, it is required, whenever the state of the record on appeal so allows, to redetermine the facts de novo from the entire record and render a judgment on the merits.”). KLR received a confirmation receipt in the mail which showed Citizens received the July 2005 request for increased coverage. Pursuant to Citizens’ policy, no matter how many follow-ups it took before. Citizens put the policy amendment into effect, KLR could, with confidence, assure its client that coverage was bound as of the day after the request had been postmarked. The fact that Citizens failed to immediately honor that request pursuant to its own policies, which surprised Murden, reflects Citizens’ failure to honor its contract with Plaintiffs, and not KLR’s failure to exercise reasonable diligence.

However, we find no manifest error in the decision of both lower courts that KLR failed to exercise reasonable diligence to request increased insurance coverage for their client in August 2005. Although Citizens had a policy such requests were to be written and communicated by U.S. mail only, we find, under these facts, KLR had the duty to'ensure such requests were actually received. Without obtaining an indication that the insurance company actually received a request for a policy change, KLR would not know whether a request regarding a policy was ever communicated, nor would it be possible, or reasonable, for KLR to inform its clients that coverage was obtained under those circumstances.

|inIn this case, testimony indicated the August 2005 request was, in all likelihood, lost, either in the mail or through a change in service providers who handled the processing of policy requests for the insurance company around the time of Plaintiffs’ damage claim. A post office box for the insurance company was located in the main post office in New Orleans; which flooded. In addition, Citizens had’ over 70,000 claims to process after Hurricane Katrina. The underwriting manager for Citizens testified a lot of mail was lost and requests were lost in the process.

Even without the catastrophic damage to the entire region, which affected all forms of communication and business, the fact remains that mail is occasionally lost. We find from the testimony that KLR could not prove the August 2005 policy request was mailed, much less that Citizens received the communication. Murden testified she placed the August 2005 policy increase request in the outgoing mail and assumed the request was mailed. Murden stated there was no other way for her to check on the binding of coverage; she was dependent on receiving confirmation from Citizens.

The underwriting manager from Citizens, Patricia Weidie (“Weidie”) testified she saw both requests in the Citizens’ claim file and both had been sent by certified mail. She later clarified she saw only copies of the requests, and not the originals. Her assertion both requests were sent by certified mail was denied by the sender, KLR. We note Weidie testified she had nothing to do with the investigation of the claim, or the negotiation of the settlement. Her only involvement in this matter was her recommendation the requested increases in policy limits be paid. No doubt, Weidie saw the documentation sent to Citizens by KLR after the hurricane.

In Under these circumstances, we find, as did the lower courts, that KLR failed to act with reasonable diligence in attempting to place the insurance requested in August 2005. KLR had no basis upon which it could reasonably assure its client that coverage had been placed.

Moreover, KLR had the additional duty to notify its client of the failure to obtain the requested insurance. Testimony established there was approximately a week between the time Plaintiffs requested the second coverage increase on August 18, 2005 and the date Hurricane Katrina entered the Gulf of Mexico. During that time, Plaintiffs could have obtained insurance from another insurance company to ensure they were insured in the amount of coverage they desired.

We find no manifest error in the determination of the lower courts that KLR failed to exercise reasonable diligence in attempting to procure insurance coveragé for its clients in August 2005, and was, therefore, negligent in this regard.

Double Recovery

KLR contends Plaintiffs have recovered almost double the value of the property at issue. At trial, KLR produced documents showing Plaintiffs received $440,000 in flood insurance proceeds. Combining the proceeds of the flood insurance with the full limits of the Citizens’ policy, KLR asserts Plaintiffs have recovered $980,000 in insurance proceeds on property valued at only $540,000. KLR argues Plaintiffs are not entitled to more money from KLR.

An insured may recover under all available coverage, provided that there is no double recovery. Cole v. Celotex Corp., 599 So.2d 1058, 1080 (La.1992). The record shows there was no prohibited double recovery in this case. Plaintiffs insured their property against the hazards of both wind and water damage. The appraisal documents entered in evidence show the buildings on the property were damaged or destroyed by wind before the flood waters arose. Thus, Plaintiffs sustained both wind and water damage to their property and are entitled to recover |12under both policies. In addition, we note the flood insurance proceeds were made payable to both Plaintiffs and the bank which held a mortgage on the property. Mr. Prest testified at trial the' proceeds of the flood insurance policy were used to pay down the mortgage on the property. Mr. Prest also testified the combined amount of recovery from the flood insurance and the Citizens policy was insufficient to rebuild the buildings and restore the property to its pre-Hurricane Katrina condition. Plaintiffs did not improperly obtain a double recovery for their losses.

Moreover, the claims which Plaintiffs bring against KLR are not based on their insurance contract, but rather are based on KLR’s negligence in failing to obtain requested insurance coverage or to inform Plaintiffs they were not actually covered by the amount of insurance they requested. As such, KLR’s argument appears contrary to the collateral source rule. Under the collateral source rule, “a tortfeasor may not benefit, and an injured plaintiffs tort recovery may not be reduced, because of monies received by the plaintiff from sources independent of the tortfeasor’s procuration or contribution.” Bozeman v. State, 2003-1016, p. 9 (La.7/2/04); 879 So.2d 692, 698, citing Louisiana Dept. of Transp. and Dev. v. Kansas City Southern Ry., 2002-2349, p. 6 (La.5/20/03); 846 So.2d 734, 739. As explained in Bozeman, “the payments received from the independent source are not deducted from the award the aggrieved party would otherwise receive from the wrongdoer, and, a tortfeasor’s liability to an injured plaintiff should be the same, regardless of whether or not the plaintiff had the foresight to obtain insurance.” Id.., citing Kansas City Southern Ry., 2002-2349, p. 6; 846 So.2d at 739-740. “As a result of the collateral source rule, the tortfeasor is not able to benefit from the victim’s foresight in purchasing insurance and other benefits.” Id.

Thus, the monies received by the Plaintiffs from Citizens in their settlement does not shield KLR from the payment of damages for its negligence, if the Plaintiffs suffered additional damages. Therefore, the cases cited by KLR | ^regarding this assignment of error are inapplicable to the present case. We affirm the lower courts’ findings in this regard.

General Damage Award

KLR asserts the trial court abused its discretion in awarding general damages for mental anguish, urging the evidence adduced at trial was insufficient to support such an award. The trial court awarded general damages to Mr. Prest individually, but not to the two limited liability companies also named as plaintiffs. The court of appeal affirmed this award, finding no abuse of discretion. The court of appeal found “[t]he record supports that [Mr.] Prest experienced more than the normal degree of worry and distress that would be associated with having one’s property damage claim settled.” Prest, 2011-0851, p. 7; 85 So.3d at 734-785.

Our review of the record discloses Mr. Prest has not alleged or proved that he suffered any bodily harm or property damage as a result of the insurance agent’s negligence. Instead, Mr. Prest seeks to recover general damages only on the basis that KLR’s ordinary negligence caused him mental anguish. An award of damages is reviewed for an abuse of the trial court’s discretion. See La. C.C. art. 2324.1; Bellard v. Am. Cent. Ins. Co., 2007-1335, p. 29 (La.4/18/08); 980 So.2d 654, 674.

In Moresi v. State Through Dept. of Wildlife and Fisheries, 567 So.2d 1081, 1095 (La.1990), this court noted “[u]nder the general rule followed by the great majority of jurisdictions, if the defendant’s conduct is merely negligent and causes | i4only mental disturbance, without accompanying physical injury, illness or other physical consequences, the defendant is not liable for such emotional disturbance.” However, we also stated there have been deviations from this general rule in Louisiana jurisprudence. Id. at 1096. Although the factual situations of these deviations from the general rule vary, each has “in common the especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious.” Id.

Our review of the record convinces us KLR’s conduct was not such as to lead to the especial likelihood of genuine and serious mental distress. KLR’s conduct was merely negligent. Although there were obviously better methods for ensuring its clients’ requests for policy changes were communicated to their insurer, we cannot say KLR’s practice of depositing its clients’ insurance coverage requests into the regular mail and then informing clients their requests would be acted upon, was anything other than ordinary negligence. We find KLR’s actions did not rise to the level of the “special circumstances” necessary for an award of general damages.

The record shows Mr. Prest did not even discuss this aspect of damages when he testified. Instead, his wife, Denise Prest, testified her husband suffered a number of sleepless nights and was on edge towards her and her child. She indicated Mr. Prest resorted to alcohol as self-medication to relieve his stress, and eventually visited a general practitioner who prescribed “minor things.” Mr. Prest never sought professional help or participated in counseling or therapy. Moreover, Mrs. Prest did not separate the stress her husband felt based on Citizens’ actions in refusing to pay the requested policy limits from KLR’s negligence, or from his general distress over the damage to his property and the devastation suffered by the entire region. While we do not doubt Mr. Prest experienced disappointment, inconvenience and stress in trying to recover what he believed were his proper | ^insurance policy limits, the record does not establish he suffered more than the level of distress people in southern Louisiana experienced in the aftermath of Hurricane Katrina.

The record shows KLR made several attempts after Hurricane Katrina to follow-up on the two policy limit increase requests. In addition, KLR sent to Citizens its file showing policy limit increases had been twice requested by the client, that KLR had in its possession forms showing such requests were made, and that KLR was in possession of a confirmation receipt showing Citizens received the first request. This documentation was considered by Citizens in its decision to ultimately settle this claim for the requested policy limits.

Although we acknowledge general damage awards are possible for claims of mental anguish without physical injury, we find the evidence presented here was insufficient to show Mr. Prest was entitled to receive a- general damage award. The trial court abused its discretion in awarding general damages to Mr. Prest. Consequently, we reverse this aspect of the trial court’s judgment.

Special Damage Award

KLR asserts Plaintiffs did not specifically plead loss of use of the insurance proceeds or claim attorney fees against KLR, precluding an award of special damages for these items. Additionally, KLR argues there is no statutory basis for an award of attorney fees against an insurance agent and claims the award of attorney fees is essentially a bad faith award against KLR when Citizens was actually at fault.

“Special damages are those which either must be specially pled or have a ‘ready market value,’ i.e. the amount of damages supposedly can be determined with relative certainty.” Wainwright v. Fontenot, 2000-0492, p. 5 (La.10/17/00); 774 So.2d 70, 74. La. C.C.P. art. 1154 provides for the expansion of the pleadings to conform to the evidence presented:

11fiWhen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleading. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be, made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be sub-served thereby, and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense on the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

In the Petition for Damages, the Plaintiffs sought from Citizens “... the full amount of their damages, including damages for breach of contract, damages for tortious acts [identified in the petition], and for penalties under the Insurance Code.” Plaintiffs’ claims against KLR were alternatively pleaded, in the event adequate insurance was not found to be in place on their property. The Petition for Damages prayed for judgment in Plaintiffs’ favor, against all of the named defendants,

jointly and severally, for all damages that are reasonable in the premises, for legal interest thereon from the date of the breaches of contract for the contractual and quasi-contractual claims, and from the date of judicial demand for all other claims, for statutory penalties and reasonable attorney fees to the extent provided by law, for all costs of these proceedings, and for such other legal, general and equitable relief as is appropriate under the circumstances.

In addition to these statements, Plaintiffs provided a specific breakdown of the damages-they sought against KLR. Before trial, Plaintiffs provided KLR with documents outlining the attorney fees expended in its litigation against Citizens. Plaintiffs made clear they were not seeking attorney fees for the portion of the litigation against KLR, but only the amounts they were forced to expend in the two and a half years they spent litigating their claim against Citizens. Plaintiffs also |17provided KLR with calculations of interest on the difference between what Citizens initially paid under the policy and the increased policy limits requested by Plaintiffs. In addition to the pre-trial discovery, Plaintiffs included a comprehensive break-down of the damages they sought in their post-trial brief, and formally moved for an amendment of the pleadings to conform to the evidence at trial, including the consideration of special damages. Under these circumstances, we find the pleadings were properly expanded to conform to the evidence presented. KLR’s procedural objection in this regard has no merit.

KLR’s negligence entitled Plaintiffs to recover “the loss[es they] sustained] as a result of the agent’s failure to procure the desired coverage.” Karam, 281 So.2d at 780. Plaintiffs claim they suffered damages due to the long delay in receiving the full amount of their insurance proceeds. These damages included the loss of use of their money for almost three years and the fact they were forced to litigate their claims against Citizens.

KLR argues Plaintiffs sustained no losses because Citizens ultimately settled with Plaintiffs for the full amount of the contested insurance policy proceeds. The record shows, contrary to KLR’s argument, Citizens never acknowledged its liability to Plaintiffs. The fact that Citizens ultimately settled the lawsuit against it for the increased coverage limits does not mean the requested insurance coverage was, somehow retroactively, procured. Nor does the ■ settlement negate the fact that Plaintiffs suffered additional damages, beyond the policy limits of their insurance coverage. Plaintiffs were still obliged to file suit and participate in contentious litigation in order, to recover policy limits they believed they already had, but did not, due to KLR’s negligence either in failing to ensure coverage was actually bound, or in failing to alert Plaintiffs they were not covered in the requested amounts.

|1sIn this case, “... the injured party’s patrimony was diminished to the extent that he was forced to recover against outside sources and the diminution of patrimony was additional damage suffered by him.” Bozeman, 2003-1016, p. 10; 879 So.2d at 699, citing Bryant v. New Orleans Public Serv. Inc., 406 So.2d 767, 768 (La.App. 4 Cir.1981). Consequently, the interest on the amount of insurance proceeds in dispute and the attorney fees expended in litigating the case against the insurance company (and not the attorneys fees expended in the litigation against KLR) were the proper measure of damages sustained by Plaintiffs for the negligence of KLR.

To the extent KLR argues the lack of a statutory basis for the award of attorney fees as special damages, we find this particular argument was not raised in the court of appeal and KLR has, therefore, waived it. Dean v. Southmark Constr., 2003-1051 p. 6 (La.7/6/04); 879 So.2d 112, 116. Even if we were to address this argument, we would find it mer-itless. Plaintiffs do not need a contractual or statutory basis for the attorney fees claimed as special damages. The attorney fees they seek are not for the present litigation against KLR, but are recompense for the litigation made necessary against Citizens.

We find no abuse of discretion in the trial court’s award of special damages, as amended by the court of appeal.

CONCLUSION

For the foregoing reasons, we affirm the determination of KLR’s negligence, finding KLR failed to exercise reasonable diligence in attempting to procure increased insurance policy coverage in August 2005. We find the trial court abused its discretion in awarding general damages in this case and reverse that award. We affirm the trial court’s award of special damages, as amended by the court of appeal.

Jjg AFFIRMED IN PART; REVERSED IN PART

VICTORY, Justice, concurs in part and dissents in part and assigns reasons.

GUIDRY, Justice, concurs in part and dissents in part, and assigns reasons.

VICTORY, J.,

concurs in part and dissents in part.

hi concur in the portion of the majority opinion holding that the trial court abused its discretion in awarding general damages in this ease. However, I dissent from the portion of the majority opinion awarding special damages for loss of use of the insurance proceeds and attorney fees. Under La. C.C.P. art. 861, items of special damages must be specifically pled; here they were not. Further, attorney fees may not be awarded in the absence of a statutory or contractual basis. State, Dept. of Transp. & Development v. Wagner, 10-0050 (La.5/28/10), 38 So.3d 240; Huddleston v. Bossier Bank & Trust, 475 So.2d 1082, 1085 (La.1985); General Motors Acceptance Corp. v. Meyers, 385 So.2d 245 (La.1980). There was no statutory or contractual basis for an award of attorney fees in this case. Finally, loss of use of the insurance proceeds and the need to expend attorney fees to file suit for the proceeds was not the fault of Kennedy, Lewis, Ren-ton & Associates, Inc. (“KLR”), but was instead the fault of Citizens for failure to pay the proceeds. KLR sent follow-up requests on November 7, 2005, January 6, 2006, March 10, 2006, and May 8, 2006 regarding the policy coverage increase requested in August, 2005. At the time Citizens denied coverage for the increased limits on May 6, 2006, KLR had already provided them with all of KLR’s documentation regarding the increased coverage [¿request. In spite of this documentation, Citizens still took the position that it did not become aware of the request until November 18, 2005. Thus, the three-year delay in paying the claim was the fault of Citizens, not KLR. Accordingly, I respectfully concur in part and dissent in part.

GUIDRY, Justice,

concurs in part and dissents in part, and assigns reasons.

LI concur in the majority’s finding that the trial court abused its discretion in awarding general damages for mental anguish. However, I dissent from the majority’s decision affirming the award of special damages for the loss of use of the insurance proceeds and attorney fees, where such special damages were not pleaded and there was no statutory or contractual basis for the award of attorney fees.

I further dissent from the majority’s conclusion there was no manifest error in the trial court’s factual determination that the defendant insurance agency had failed to exercise reasonable diligence in attempting to procure additional insurance coverage for the plaintiffs in August 2005. The majority opinion finds the defendant insurance agency was negligent in failing to follow up on the August 18, 2005 request prior to the August 29th landfall of Hurricane Katrina. However, the record evidence, including the testimony of the underwriting manager for Louisiana Citizens Property Insurance Corporation, demonstrates the increased coverage limits were ultimately deemed by the insurance company to have been timely and properly secured and, therefore, the defendant insurance agency cannot be held responsible for the insurance company’s failure to process in a timely fashion the requests for increased coverage.

      . Suit was also filed against Insurance Underwriters, Ltd. All claims against this defendant were dismissed with prejudice in a judgment granting the insurer’s motion for summary judgment on April 3, 2008.

      . Plaintiffs argue the error on the July 2005 form could have led Citizens to overlook the request because it was not accompanied by payment. Testimony at trial contradicted that argument. Murden testified the body of the written request would have informed Citizens of the proper nature of the communication, and not the single-line characterization of the request. The underwriting manager for Citizens who testified was not questioned about this error or its possible effect on the request.

      . KLR used certified mail for the July 2005 request. As a result, KLR received a confirmation receipt in the mail. We do not intend to limit the type of communications used between insurance agencies and insurance companies to certified mail. However, we note that an email confirmation or other type of delivery notification would suffice.

      . See City of New Orleans v. Grand Lodge of Independent Order of Odd Fellows, 241 So.2d 7, 10 (La.App. 4 Cir.1970) (corporations are incapable of suffering emotionally).

      . See Vol. 2, p. 288 ("Plaintiff's Pre-Trial Brief”); Vol. 3, p. 474-475 ("Plaintiff’s Post-Trial Brief”). Mr. Prest does not urge, and the facts of the present case do not come within the general rule of recovery for the independent tort of negligent infliction of, or the intentional infliction of, emotional distress. In order to recover for intentional infliction of emotional distress, a plaintiff must establish "(1) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered by the plaintiff was severe; and (3) that the defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct.” White v. Monsanto Co., 585 So.2d 1205, 1209 (La.1991).

      . Vol. 1, p. 17, ¶ 13.

      . Vol. 1, p. 18.

      . Vol. 3, p. 516.

      .KLR’s argument regarding special damages also includes an aspect of prohibited double recovery.


source: Caselaw Access Project

license: Public Domain

text:
    Ernest ROMERO v. FLOWERS BAKING COMPANY OF LAFAYETTE, LLC.
    Supreme Court of Louisiana.
    No. 2013-C-1755.
    Nov. 1, 2013.
   In re Romero, Ernest; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Vermilion, Office of Workers’ Compensation, District 4, No. 11-02789; to the Court of Appeal, Third Circuit, No. 12-1466.

Denied.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Jorge ESTEVA and Miguelina Rodriguez-Monegro.
    No. 2013-KK-1832.
    Supreme Court of Louisiana.
    Nov. 1, 2013.
   In re Esteva, Jorge et al.; Rodriguez-Monegro, Miguelina; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. K, No. 12-4031; to the Court of Appeal, Fifth Circuit, No. 13-K-501.

Denied.

WEIMER and HUGHES, JJ„ would grant.


text:
    Jerry Art EVANS, et al. v. PHILLIPS 66 COMPANY, et al.
    No. 2013-CC-1948.
    Supreme Court of Louisiana.
    Nov. 8, 2013.
   In re Coastal Chemical Co., L.L.C.;— Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Catahou-la, 7th Judicial District Court Div. B, No. 26,939; to the Court of Appeal, Third Circuit, No. CW 13-00107.

VICTORY, J., would grant.


text:
    Melissa DORE, et al. v. MITSUI SUMITOMO INS., USA, INC., et al.
    No. 2013-C-1953.
    Supreme Court of Louisiana.
    Nov. 8, 2013.
   In re Credeur, Cody; Credeur, Cory; Dore, Melissa; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. D, No. 08-C-1875-D; to the Court of Appeal, Third Circuit, No. 12-875.

Denied.

HUGHES, J., would grant.


text:
    STATE of Louisiana in the Interest of A.N.
    No. 2013-CK-2287.
    Supreme Court of Louisiana.
    Nov. 8, 2013.
   In re A.N.; — Other; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Orleans Parish Juvenile Court, No. 2011-250-02-DQ-C; to the Court of Appeal, Fourth Circuit, No. 2012-CA-1144.

Denied.

HUGHES, J., would grant.


text:
    Douglas Montgomery HILL and Donna B. Hill v. STATE of Louisiana, through the DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS and/or Louisiana State Police and John Doe, Individually and as an Employee of Louisiana State Police.
    No. 2013-C-1935.
    Supreme Court of Louisiana.
    Nov. 8, 2013.
   In re Louisiana Department of Public Safety and Corrections; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 512,296; the Court of Appeal, First Circuit, No. 2011 CA 1639.

Denied.


text:
    STATE of Louisiana v. Eric ROSS.
    No. 2013-K-0175.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re State of Louisiana; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. H, No. 493-086; to the Court of Appeal, Fourth Circuit, No. 2011-KA-1668.

Granted.


text:
    Majdi KHAMMASH, Maha Khammash, and Sarris, Sarrara and Danniah Khammash v. John E. CLARK, M.D., John E. Clark M.D., Ltd., Louisiana Spine and Sports Medicine, L.L.C., Gloria Wall, Heather B. Landry and Capitol City Physical Therapy Group.
    No. 2013-C-1564.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Khammash, Majdi; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 521,746; to the Court of Appeal, First Circuit, No. 2012 CA 0763.

Granted.


text:
    Majdi KHAMMASH, Maha Khammash, and Sarris, Sarrara and Danniah Khammash v. John E. CLARK, M.D., John E. Clark M.D., Ltd., Louisiana Spine and Sports Medicine, L.L.C., Gloria Wall, Heather B. Landry and Capitol City Physical Therapy Group.
    No. 2013-C-1736.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Barrow, Dr. Gray; Louisiana Patient’s Compensation Fund; Louisiana Patient’s Compensation Fund Oversight Board; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 521,746; to the Court of Appeal, First Circuit, No. 2012 CA 0763.


text:
    STATE of Louisiana v. Morris DAVENPORT, Jr.
    No. 2013-KK-1859.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Sabine, 11th Judicial District Court Div. O, No. ll-CR-070042; to the Court of Appeal, Third Circuit, No. 13-39.

Granted.


text:
    Julie GILYOT Agent for Melba Degruy v. BOH BROS. CONSTRUCTION CO., LLC, and F.H. Paschen, S.N. Nielsen & Associates.
    No. 2013-OC-2064.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Boh Bros. Construction Co., LLC; New Hampshire Insurance Company;— Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. L, No. 2011-10027; to the Court of Appeal, Fourth Circuit, No. 2013-CA-1016.

Granted. The judgment of the court of appeal is reversed, and relator’s motion to dismiss the appeal is granted. See La. Code Civ. P. arts. 968 and 2083(C).


text:
    STATE ex rel. Jim Van NGUYEN v. STATE of Louisiana.
    No. 2013-KH-1256.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Nguyen, Jim Van; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Vermilion, 15th Judicial District Court Div. J, No. 39344; to the Court of Appeal, Third Circuit, No. KH 12-00806.

Writ granted in part; otherwise denied. If it has not done so already, the district court is ordered to supply relator with a copy of the transcript of the hearing on his application for post-conviction relief, see State ex rel. Simmons v. State, 93-0275 (La.12/16/94), 647 So.2d 1094, and to furnish proof of compliance to this Court. In all other respects, relator’s application is denied.


text:
    In re Frederick A. STOLZLE, Jr.
    No. 2013-B-1176.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Disciplinary Counsel; — Other; Applying For Rehearing of this court’s action dated October 15, 2013 Office of Disciplinary Board, No. ll-DB-115.

Not considered; not timely filed. Judgment is definitive. See La Code Civ. P. art. 2167; Supreme Court Rule XIX, § 26(E).

WEIMER, J., would grant.


text:
    In re Appeal of the Decision of the DISCIPLINARY BOARD NO. 13-PDB-053.
    No. 2013-OB-2223.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Brown, Conner Ray; — Plaintiff; Applying For Appeal of the Decision of the Disciplinary Board Office of Disciplinary Board, No. 13-PDB-053.

Leave to appeal denied.


text:
    In re Appeal of Decision of DISCIPLINARY BOARD NO. 13-PDB-035.
    No. 2013-OB-2342.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Ponce, Yilver; — Other; Applying For Office of Disciplinary Board, No. 13-PDB-035.

Leave to appeal denied


text:
    STATE ex rel. Charles H. PARKER, Jr. v. STATE of Louisiana.
    No. 2013-KH-0718.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Parker Jr., Charles H.; — Plaintiff; Applying For Reconsideration of court’s action dated September 13, 2013, Parish of Franklin, 5th Judicial District Court Div. A, No. 26,203; to the Court of Appeal, Second Circuit, No. 48,236-KH.

Reconsideration denied.


text:
    STATE ex rel. Edmond D. SPENCER v. STATE of Louisiana.
    No. 2013-KH-797.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Spencer, Edmond D.; — Plaintiff; Applying for Reconsideration of this Court’s action dated September 27, 2013; Parish of West Feliciana, 20th Judicial District Court Div. B, No. 12-WCR-312; to the Court of Appeal, First Circuit, No. 2013 CW 0268.

Reconsideration denied.


text:
    Dione W. DAVID v. Richard G. DAVID.
    No. 2013-C-1541.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re David, Richard G.; — Defendant; Applying For Reconsideration of this court’s action dated October 4, 2013., Parish of Iberia, 16th Judicial District Court Div. G, No. 113919; to the Court of Appeal, Third Circuit, No. 12-1051.

Reconsideration denied


text:
    STATE ex rel. Terrance N. KENNEDY v. STATE of Louisiana.
    No. 2012-KH-2018.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Kennedy, Terrance N.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. F, No. 467431; to the Court of Appeal, First Circuit, No. 2012 KW 0899.

Denied.


text:
    STATE ex rel. Anthony Mark MANDIGO v. STATE of Louisiana.
    No. 2012-KH-2545.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Mandigo, Anthony Mark; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 5, No. 266,965; to the Court of Appeal, Second Circuit, No. 47,-735-KW.

Denied.


text:
    STATE ex rel. Cedrick MORGAN v. STATE of Louisiana.
    No. 2013-KH-0415.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Morgan, Cedrick; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. H, No. 07-04-0479; to the Court of Appeal, First Circuit, No. 2012 KW 1401.

Denied.


text:
    STATE ex rel. Derrick TOMLINSON v. STATE of Louisiana.
    No. 2013-KH-0678.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Tomlinson, Derrick; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, No. 03^4031; to the Court of Appeal, Fifth Circuit, No. 13-KH-86.

Denied.


text:
    STATE of Louisiana v. Linda SENEGAL.
    No. 2013-K-0837.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Senegal, Linda; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Landry, Opelousas City Court, No. ll-C-792; to the Court of Appeal, Third Circuit, No. KW 13-00116.

Denied.


text:
    STATE of Louisiana v. Larenzo LOMAX.
    No. 2013-K-0889.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Lomax, Larenzo; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. H, No. 515218; to the Court of Appeal, First Circuit, No. 2012 KA 1390.

Denied.


text:
    STATE of Louisiana v. Timothy RANDAZZO.
    No. 2013-KO-0927.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Randazzo, Timothy; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Ascension, 23rd Judicial District Court Div. B, No. 25911; to the Court of Appeal, First Circuit, No. 2012 KA 1388.

Denied.


text:
    STATE ex rel. Russell T. NORTH v. STATE of Louisiana.
    No. 2013-KH-0990.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re North, Russell T.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. B, No. 28,106; to the Court of Appeal, First Circuit, No. 2012 KA 1532.

Denied.


text:
    STATE of Louisiana v. Steven WILLIAMS.
    No. 2013-KO-1011.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Williams, Steven; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. H, No. 501-377; to the Court of Appeal, Fourth Circuit, No. 2012-KA-0835.

Denied.


text:
    STATE of Louisiana v. Brent AUTHORLEE.
    No. 2013-KO-1028.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Authorlee, Brent; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Iberia, 16th Judicial District Court Div. H, No. 08-599; to the Court of Appeal, Third Circuit, No. 12-1179.

Denied.


text:
    STATE of Louisiana v. Joshua R. PARKER.
    No. 2013-KO-1051.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Parker, Joshua R.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. 3, No. 280,490; to the Court of Appeal, Second Circuit, No. 47,-952-KA.

Denied.


text:
    STATE of Louisiana v. Aljerwon P. MORAN.
    No. 2013-KO-1052.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Moran, Aljerwon P.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. F, No. ll-F-0405; to the Court of Appeal, Second Circuit, No. 47,804-KA.

Denied.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Richard A. SEATON, Jr.
    No. 2013-K-1056.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Seaton, Richard; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. 4, No. 293338; to the Court of Appeal, Second Circuit, No. 47,741-KA.

Denied.


text:
    STATE of Louisiana v. Randall C. THOMPSON.
    No. 2013-K-1067.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Thompson, Randall C.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. G, No. 18414-08; to the Court of Appeal, Third Circuit, No. 12-1097.

Denied.


text:
    STATE of Louisiana v. Harvey G. LOVE.
    No. 2013-KO-1078.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Love, Harvey G.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Beauregard, 36th Judicial District Court Div. A, No. CR-2009-900; to the Court of Appeal, Third Circuit, No. 12-1076.

Denied.


text:
    STATE ex rel. Houston JACKSON v. STATE of Louisiana.
    No. 2013-KH-1120.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Jackson, Houston; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. 8, No. 98-4959; to the Court of Appeal, Fifth Circuit, No. 13-KH-221.

Denied.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Michael D. BALL.
    No. 2013-KO-1139.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Ball, Michael D.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. M, No. 11-396; to the Court of Appeal, Fifth Circuit, No. 12-KA-710.

Denied.


text:
    STATE of Louisiana v. Lawrence E. BURTON.
    No. 2013-KO-1177.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Burton, Lawrence E.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. E, No. 478^488; to the Court of Appeal, Fourth Circuit, No. 2012-KA-1321.

Denied.


text:
    STATE ex rel. James WHARTON v. STATE of Louisiana.
    No. 2013-KH-1258.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Wharton, James; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 07-05-0450; to the Court of Appeal, First Circuit, No. 2013 KW 0215.

Denied.


text:
    WILLIS-KNIGHTON HEALTH SYSTEM, et al. v. NORTHWEST LOUISIANA COUNCIL OF GOVERNMENTS, et al. Willis-Knighton Medical Center v. Timothy A. Larkin, Larkin Development North, LLC, Larkin Development at Railsback, LLC, the City of Shreveport, Louisiana, Cedric Glover, and Ron Norwood.
    No. 2013-C-1325.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Wells, Karen; Finish 3132 Coalition, LLC; Willis-Knighton Health System, et al.; Willis-Knighton Medical Center; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. C, No. 564141 C/W 562337; to the Court of Appeal, Second Circuit, No. 48,141-CA, 48,-142-CA.

Denied.

VICTORY and HUGHES, JJ„ would grant.


text:
    STATE ex rel. Patrick LEVIER v. STATE of Louisiana.
    No. 2013-KH-1331.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Levier, Patrick; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. A, No. 112212; to the Court of Appeal, Third Circuit, No. KH 12-00456.

Denied.


text:
    STATE ex rel. Andrew D. WETZEL v. STATE of Louisiana.
    No. 2013-KH-1341.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Wetzel, Andrew D.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. H, Nos. 437719, 439156, 440180, 446758, 448399; to the Court of Appeal, First Circuit, No. 2013 KW 0308.

Denied.


text:
    STATE ex rel. James H. WHITE v. STATE of Louisiana.
    No. 2013-KH-1342.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re White, James H.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 05-05-0149; to the Court of Appeal, First Circuit, No. 2013 KW 0362.

Denied.


text:
    STATE ex rel. Eugene FRAZIER, Jr. v. STATE of Louisiana.
    No. 2013-KH-1349.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Frazier Jr., Eugene; — Plaintiff; Applying For Supervisory and/or Remedíal Writs, Parish of Vernon, 30th Judicial District Court Div. C, No. 43853; to the Court of Appeal, Third Circuit, No. KH 12-00757.

Denied. La.C.Cr.P. art. 930.6; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3; State ex rel, Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172. See also State v. Cotton, 09-2397 (La.10/15/10), 45 So.3d 1030.


text:
    STATE ex rel. John H. JONES v. STATE of Louisiana.
    No. 2013-KH-1350.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Jones, John H.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of W. Baton Rouge, 18th Judicial District Court Div. B, No. 052166; to the Court of Appeal, First Circuit, No. 2013 KW 0363.

Denied.


text:
    STATE ex rel. Derrick CHAIRS v. STATE of Louisiana.
    No. 2013-KH-1351.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Chairs, Derrick; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, No. 98-3724; to the Court of Appeal, Fifth Circuit, No. 2013-KH-410.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172. See also State v. Cotton, 09-2397 (La.10/15/10), 45 So.3d 1030.

GUIDRY, J., recused.


text:
    STATE ex rel. Theodore MATHIS v. STATE of Louisiana.
    No. 2013-KH-1352.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Mathis, Theodore; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. S, No. 97-6378; to the Court of Appeal, Fifth Circuit, No. 13-KH-373.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Milton WILLIAMS v. STATE of Louisiana.
    No. 2013-KH-1353.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Williams, Milton; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 367-071; to the Court of Appeal, Fourth Circuit, No. 2013-K-0558.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Andy MAGEE v. STATE of Louisiana.
    No. 2013-KH-1355.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Magee, Andy; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. I, No. 01-CR9-081002; to the Court of Appeal, First Circuit, No. 2013 CW 0277.

Denied.


text:
    STATE ex rel. Michael WILLIAMS v. STATE of Louisiana.
    No. 2013-KH-1356.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Michael, Williams; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. K, No. 09-F-2897; to the Court of Appeal, Second Circuit, No. 48,-446-KH.

Denied. State ex rel. Bernard v. Cr. D.C, 94-2247, p. 1 (La 4/28/95), 653 So.2d 1174, 1175.


text:
    STATE ex rel. Brandon Scott LAVERGNE v. STATE of Louisiana.
    No. 2013-KH-1357.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Lavergne, Brandon Scott; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. E, No. 138234; to the Court of Appeal, Third Circuit, No. KH 13-00315.

Denied.


text:
    STATE ex rel. Robert Lee JORDAN v. STATE of Louisiana.
    No. 2013-KH-1358.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Jordan, Robert Lee; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Desoto, 42nd Judicial District Court Div. A, No. 07-CR-016550; to the Court of Appeal, Second Circuit, No. 48468-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE of Louisiana v. Reginald WASHINGTON.
    No. 2013-KK-1516.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Washington, Reginald; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. K, No. 515-059; to the Court of Appeal, Fourth Circuit, No. 2013-K-0573.

Denied.

JOHNSON, C.J., would grant.

KNOLL, J., would grant.

WEIMER, J., would grant.


text:
    JEFFERSON PARISH FIREFIGHTERS ASSOCIATION OF LOUISIANA LOCAL 1374 and its President Robert Burkett v. The PARISH OF JEFFERSON and the Jefferson Parish East Bank Consolidated Fire Department.
    No. 2013-C-1612.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Jefferson Parish Firefighters Association of Louisiana Local 1374, et al.;— Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. G, No. 630-010; to the Court of Appeal, Fifth Circuit, No. 13-CA-40.

Denied.

VICTORY and KNOLL, JJ., would grant.


text:
    Debra Gail Theriot Aucoin FLEMMING v. James Bailey FLEMMING.
    No. 2013-C-1624.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Flemming, James Bailey; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Iberia, 16th Judicial District Court Div. G, No. 90,176; to the Court of Appeal, Third Circuit, No. 13-22.

Denied.

VICTORY, WEIMER and HUGHES, JJ., would grant.


text:
    Donald FREEMAN v. INTERMOOR, INC. and/or Acteon U.S. Holding, Ltd.
    No. 2013-C-1992.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Freeman, Donald; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of St. Mary, 16th Judicial District Court Div. A, No. 123,743; to the Court of Appeal, First Circuit, No. 2012 CA 1581.

Denied.


text:
    Jessyca LEWIS v. Jibri COLEMAN, Keldrick Verson Robinson, Progressive Insurance, Permanent General Assurance Corporation & Safeway Insurance.
    No. 2013-C-1993.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Safeway Insurance Company of Louisiana; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of East Carroll, 6th Judicial District Court Div. B, No. 21,756; to the Court of Appeal, Second Circuit, No. 48,173-CA.

Denied.


text:
    Samuel R. BREAUX, II v. COZY COTTAGES, L.L.C.
    No. 2013-CC-2012.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Anderson, Jr., Lawrence; Seal, Smith, Zuber & Barnette, et al.; Watts, Charles K; — Third Party(s); Applying For Supervisory and/or Remedial Writs, Parish of Cameron, 38th Judicial District Court Div. O, No. 10-18336; to the Court of Appeal, Third Circuit, No. CW 13-00710.

Denied.


text:
    Paul ENGLISH v. Micah A. McMURRAY, Sgt., Michael G. Harrel, Investigating Captain, Larry Grow, Major, Jim Roger, Warden, Bobbi Jo Breland, Classification, Sharon Holloway, Master Sgt., Mr. McCloud, Disciplinary Board Chairman, Jeffery E. Travis, Employees of Rayburn Correctional Center.
    No. 2013-CP-2014.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re English, Paul; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. E, No. 97108.

Denied.

HUGHES, J., would grant.


text:
    David MARTIN v. A-1 HOME APPLIANCE CENTER, INC., the Hanover Insurance Company, Victory Express, LLC, Johnson Delivery Service and Progressive Security Insurance Company.
    No. 2013-C-2024.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Martin, David; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. F, No. 647-903; to the Court of Appeal, Fifth Circuit, No. 12-CA-784.

Denied.


text:
    Arthur Williams ROSS, et al. v. ENERVEST OPERATING, L.L.C., et al.
    No. 2013-C-2034.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Holley, James Boyd; Holley, Susan Duncan; Ross, Arthur Williams et al.; Ross, Nicole A.; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Morehouse, 4th Judicial District Court Div. K, No. 2009-671; to the Court of Appeal, Second Circuit, No. 48,229-CA.

Denied.

VICTORY, J., recused.


text:
    STATE of Louisiana v. Corey JUNIOR.
    No. 2013-KK-2040.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Junior, Corey; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 513-480; to the Court of Appeal, Fourth Circuit, No. 2013-K-0512.

Denied.

WEIMER, J., would grant.


text:
    Mary Pamme DRONET, as Executrix of the Estate of Mary Hazel Dronet v. Jose A. VASQUEZ, et al.
    No. 2013-CC-2042.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Tier Reit, Inc. f/k/a Behringer Harvard Reit I, Inc.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. B, No. 2012-3134; to the Court of Appeal, Third Circuit, No. CW13-00547.

Denied.


text:
    STATE of Louisiana v. DeWayne A. COTTON.
    No. 2013-KK-2046.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Cotton, DeWayne A.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. A, Nos. 171933, 171934, 171935; to the Court of Appeal, Third Circuit, No. KW 13-00586.

Denied.


text:
    STATE of Louisiana v. Danny YOUNG and Alexis Washington.
    No. 2013-KK-2057.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Young, Danny; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, No. 13-950; to the Court of Appeal, Fifth Circuit, No. 13-K-536.

Denied.


text:
    Parrish Ladd CLINE, et al. v. Robert Thomas CLINE, et al.
    No. 2013-CC-2058.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Cline, Parrish Ladd; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Acadia, 15th Judicial District Court Div. B, No. 2011-10946; to the Court of Appeal, Third Circuit, No. CW 13-00669.

Denied.

HUGHES, J., would grant.


text:
    Eva ROY v. TOWN OF MANSURA.
    No. 2013-CC-2079.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Town of Mansura; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. B, No. 2012-7825-B; to the Court of Appeal, Third Circuit, No. CW 13-00575.

Denied.

VICTORY, J., would grant.


text:
    Thomas R. PITTENGER v. Chad A. DUDLEY, Steven A. Debosier, James H. Peltier, Jr. and Dudley Debosier.
    No. 2013-C-2082.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re Debosier, Steven A.; Dudley De-bosier, A Professional Law Corporation; Dudley, Chad A. et al.; Peltier Jr., James H.; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. C, No. 2012-10000; to the Court of Appeal, Fourth Circuit, No. 2013-C-0592.


text:
    STATE of Louisiana v. Cardale GREEN.
    No. 2013-KK-2278.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 04-11-0542; to the Court of Appeal, First Circuit, No. 2013 KW 1286.

Denied.

KNOLL and CLARK, JJ., would grant.


author: GENOVESE, Judge.

text:
    Barbara RICHARD v. CALCASIEU PARISH SCHOOL BOARD.
    No. 11-469.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 28, 2011.
    Christopher M. Trahan, Lake Charles, Louisiana, for Defendant/Appellant, Calca-sieu Parish School Board.
    Mark Zimmerman, Lake Charles, Louisiana, for Plaintiff/Appellee, Barbara Richard.
    Court composed of JOHN D. SAUNDERS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

|TWe revisit this case pursuant to the application for rehearing by the employer, Calcasieu Parish School Board (School Board), relative to the workers’ compensation claim of the employee, Barbara Richard. We grant this rehearing solely on the issue of whether the workers’ compensation judge (WCJ) erred in restoring Ms. Richard’s workers’ compensation benefits to temporary total disability (TTD) status. In our original opinion, we affirmed the decision of the WCJ reinstating TTD benefits to Ms. Richard. Pertinent hereto is the decision of this court by another panel rendered the same day as the instant case entitled James Sharp v. Landscape Man agement Services, 11-340 (La.App. 3 Cir. 10/5/11), 74 So.3d 1239.

In the instant case, we affirmed the WCJ’s reinstatement of TTD benefits in favor of Ms. Richard and his award of $7,000.00 in attorney fees, plus we awarded $3,500.00 in attorney fees for work done on appeal. However, the sole issue before us on this rehearing is whether Ms. Richard is entitled to TTD benefits or supplemental earnings benefits (SEB).

The law pertaining to SEB was recently set forth by our supreme court in Poissenot v. St. Bernard Parish Sheriff’s Office, 09-2793, pp. 4-6 (La.1/9/11), 56 So.3d 170, 174-75 (footnote omitted):

“The purpose of [SEBs] is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident.” Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556. An employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. La. R.S. 23:1221(3)(a). Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Banks, supra at 556. “In determining if an injured employee has made out a prima facie case of entitlement to [SEBs], the trial court may and should take into account all those factors which might bear on an employee’s ability to earn a wage.” Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1009 (La.1989) (quoting Gaspard v. St. Paul Fire and Marine Ins. Co., 483 So.2d 1037, 1039 (La.App. 3 Cir.1985)). It is only when the employee overcomes this initial step that the burden shifts to the employer to prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employee’s community or reasonable geographic location. La. R.S. 23:1221(3)(c)(i); Banks, supra at 556; Daigle, supra at 1009.
The analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that workers’ compensation is to be liberally construed in favor of coverage. Daigle, supra at 1007. Further, factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Smith v. Louisiana Dept. of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129, 132; Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733, 737-38. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Freeman, supra at 737-38; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). “In determining whether a [WCJ’s] finding that an employee has met his initial burden of proving entitlement to SEBs is manifestly erroneous, a reviewing court must examine all evidence that bears upon the employee’s inability to earn 90% or more of his pre-injury wages.” Seal v. Gaylord Container Corp., 97-0688 (La.12/2/97), 704 So.2d 1161, 1166.

As set forth in Poissenot, as quoted in Sharp, and La.R.S. 23:1221(1), Ms. Richard bears the burden of establishing by clear and convincing evidence, unaided by any presumption of disability, that she is physically unable to engage in any employment as a result of a work-related injury in order to be awarded TTD benefits. The record clearly indicates that the most current functional capacity evaluation (FCE) performed on Ms. Richard was completed on October 17, 2009. The FCE indicated that she was capable of performing a sedentary level job. Therefore, it was not error for the School Board to convert Ms. Richard’s benefits to SEB, and the WCJ erred in reinstating Ms. Richard’s TTD benefits.

However, once it was determined that SEB were the appropriate benefits payable to Ms. Richard, then the burden shifted to the School Board to establish by |sa preponderance of the evidence that a particular job was available to her and that she was physically able to perform that particular job. Given the restrictions placed on Ms. Richard by Dr. Bernauer as set forth in the record, the jobs presented to Ms. Richard were not jobs that were actually physically available to her. Therefore, the SEB are to be paid based on a zero earning capacity.

DISPOSITION

The WCJ erred in restoring Ms. Richard to TTD benefits status. Our original judgment and that of the WCJ restoring Ms. Richard to TTD benefits status are reversed, and judgment is now rendered awarding Ms. Richard SEB at a zero earning capacity rate as of May 1, 2010. All other aspects of our original judgment are affirmed.

REHEARING GRANTED; AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.


author: PAINTER, Judge.

text:
    Barbara Escude LEMOINE v. Jon Oliver DOWNS.
    No. 12-845.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 2012.

      Rodney M. Rabalais, Marksville, LA, for Defendant-Appellant, Jon Oliver Downs.
    Jerold Edward Knoll, Laura B. Knoll, Marksville, LA, for Plaintiff-Appellee, Barbara Escude Lemoine.

      Court composed of SYLVIA R. COOKS, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

| defendant, Jon Oliver Downs, appeals the judgment of the trial court awarding Plaintiff, Barbara Escude Lemoine, reimbursement of expenditures made on and rent received for property owned by Downs.

DISCUSSION

Barbara married John Lemoine in 1974. On April 1,1995, John donated thirty acres including the family home and improvements to Barbara’s grandson, Downs, who was approximately twelve years old at the time. In 1997, John executed a withdrawal of donation relying on Down’s lack of capacity to contract. On July 12, 1999, John and Barbara entered an Act of Donation and Declaration of Community Assets which purported to convert his separate property so that Barbara would become owner of an undivided one-half interest in John’s separate property. John died on April 24, 2009, leaving his entire estate to Barbara. A judgment of possession was signed on May 18, 2009, putting Barbara in possession as the sole legatee.

When Barbara attempted to sell the thirty acres, she was informed by representatives of the buyer that she could not sell without Downs’ signature. Downs refused to file a quitclaim deed, and in September 2009, Barbara filed a petition for declaratory judgment seeking to be declared owner of the property and for damages. Downs reconvened asserting his title to the property on October 14, 2009. The trial court declared Barbara to be the owner of the property. Downs appealed to this court. This court reversed the judgment of the trial court, found the act of donation to be valid, and declared Downs to be the owner of the donated property. Lemoine v. Downs, 10-1073 (La.App. 3 Cir. 3/9/11), 58 So.3d 659, writ denied, 11-0923 (La.6/24/11), 64 So.3d 219.

|2In July 2010, Barbara amended her suit to claim reimbursement for improvements she made to the property, for expenditures made in connection with the property, and for rents collected from the donated property. Downs opposed the claim, reconvened for the return of any rent collected by Barbara, and filed an exception of prescription as to part of Barbara’s claim.

The trial court found in favor of Barbara, awarding her $25,062.60 in reimbursement of expenses between 1983 and 1989, $5,069.28 for expenses between 2009 and 2010, and $5,518.15 for rent collected during 2009 and 2010, which was then in the possession of Barbara. Downs appeals. For the following reasons, we reverse in part and affirm in part.

DISCUSSION

Unjust Enrichment

Barbara seeks to recover the amounts she expended on the property under a theory of unjust enrichment.

Louisiana Civil Code Article 2298 provides that:

A person who has been enriched without cause at the expense of another person is bound to compensate that person. The term “without cause” is used in this context to exclude cases in which the enrichment results from a valid juridical act or the law. The remedy declared here is subsidiary and shall not be available if the law provides another remedy for the impoverishment or declares a contrary rule.
The amount of compensation due is measured by the extent to which one has been enriched or the other has been impoverished, whichever is less.
The extent of the enrichment or impoverishment is measured as of the time the suit is brought or, according to the circumstances, as of the time the judgment is rendered.

\%1983 through 1989

Downs first asserts that the trial court erred in allowing a recovery under a theory of unjust enrichment and for improvements made between 1988 and 1989 to what was then John’s separate property. We agree.

The Lemoines married in 1974, and the donation of John’s separate property to Downs was executed in 1995. The improvement expenses claimed were incurred as much as ten years before the donation. Barbara’s right of action for reimbursement of the expenses incurred improving her husband’s separate property was against her husband’s separate estate. Between 1984 and 1990, La.Civ.Code art. 2867.1 stated that:

Buildings, other constructions permanently attached to the ground, and plantings made on the land of a spouse with the separate assets of the other spouse belong to the owner of the ground. Upon alienation of the land, legal separation, or termination of the marriage, the spouse whose assets were used is entitled to reimbursement of the amount or value that the assets had at the time they were used.

The article has twice been changed since that time and now reads:

If separate property of a spouse has been used during the existence of the community property regime for the acquisition, use, improvement, or benefit of the other spouse’s separate property, the spouse whose property was used is entitled to reimbursement for the amount or value that the property had at the time it was used.
Buildings, other constructions permanently attached to the ground, and plantings made on the land of a spouse with the separate property of the other spouse belong to the owner of the ground. The spouse whose property was used is entitled to reimbursement for the amount or value that the property had at the time it was used.

The comments to the article make clear that this remedy is one intended for the reimbursement to be made from the patrimony of the spouse whose separate property was improved. Therefore, Barbara’s claim for these expenses was against the separate estate of John, although, at the time of his death, the donated property no longer made up part of that estate. When John died, Barbara accepted his |4succession, and the estate devolved upon her. At that point, the debt against his separate estate was extinguished by confusion. “When the qualities of obligee and obligor are united in the same person, the obligation is extinguished by confusion.” La. Civ.Code art. 1903.

Because the law provided another remedy, Barbara is not entitled to recover from Downs under a theory of unjust enrichment, in spite of the fact that her original remedy was extinguished by confusion.

April 9, 2009 through October 1⅛, 2009

On April 29, 2009, shortly after John’s death but before she attempted to sell the property, Barbara contracted with Dufour Tree Service to trim or cut a tree on the donated property. She was billed and paid $1,350.00 for the work done. No one disputes the necessity of the work. The trial court awarded reimbursement of that amount. Downs now asserts that Barbara is not entitled to reimbursement for the expense because she was not in good faith at the time the expense was incurred. Downs cites this court’s opinion in the earlier appeal of this matter in support of his argument. However, La. Civ.Code art. 529 indicates that even a bad faith possessor may make a claim for expenses:

The possessor, whether in good or in bad faith, may retain possession of the thing until he is reimbursed for expenses and improvements which he is entitled to claim.

While she has not retained the property, she is entitled to the expenses incurred for the benefit of the property. Accordingly, we find no error in the trial court’s award of reimbursement of this amount.

After October 1⅛, 2009

On October 14, 2009, Downs reconvened in Barbara’s suit to be declared owner of the property. At that point, Barbara was in bad faith with regard to the fruits of the property. La.Civ.Code art. 487 provides that:

[sFor purposes of accession, a possessor is in good faith when he possesses by virtue of an act translative of ownership and does not know of any defects in his ownership. He ceases to be in good faith when these defects are made known to him or an action is instituted against him by the owner for the recovery of the thing.

Between December 2009 and November 2010, Barbara incurred $3,719.78 in expenses connected with the donated property. Further, she rented the property from April 19, 2009, to August 10, 2010, at a rate of $500.00 per month. The amount received in rental was testified to by Barbara as being the amount contained in a bank account she opened for that purpose: $5,518.15. However, she also testified that the rent was $500.00 per month and that the house was rented for 16 months. Therefore, the amount of rent received would have been $8,000.00. At the hearing on this matter, evidence was offered that a fair amount for the effort involved in renting the property would have been fifteen percent of the rental amount.

The trial court awarded Barbara payment of both the expenses she incurred in the amount of $3,719.78 and the rents she claimed in the amount of $5,518.15. Downs asserts that Barbara is entitled to nothing but fifteen percent of the $8,000.00 which he claims represents the amount of rent collected at $500.00 per month for 16 months.

Louisiana Civil Code article 486 provides, in pertinent part, that:

A possessor in bad faith is bound to restore to the owner the fruits he has gathered, or their value, subject to his claim for reimbursement of expenses.

Accordingly, while Downs is entitled to restoration of the fruits, in this case rent, Barbara is entitled to reimbursement of expenses in the amount of $3,719.78 plus 15 percent of the rental amount for her efforts in renting the property.

|fiCONCLUSION

For these reasons, the judgment of the trial court awarding reimbursement of expenses incurred before the donation of the property in 1995 is reversed. The award of $5,069.78 for expenses between 2009 and 2010 is affirmed. The award of rent to Barbara is reversed, and judgment is rendered awarding rent in the amount of $8000.00 to Downs, minus a credit of fifteen percent representing the amount due to Barbara for her efforts in renting the property. Costs of this appeal are assessed fifty percent to Appellee, Barbara Escude Lemoine, and fifty percent to Appellant, Jon Oliver Downs.

REVERSED IN PART; AFFIRMED IN PART; AND RENDERED.


author: PICKETT, Judge.

text:
    CHRISTUS HEALTH CENTRAL LOUISIANA d/b/a Christus St. Frances Cabrini Hospital (Eric J. Manuel) v. WESTAFF (USA), INC., et al.
    No. WCW 11-1493.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2012.
    Rehearing Withdrawn June 20, 2012.
    Joseph Payne Williams, Richard Bray Williams, Williams Family Law Firm, LLC, Natchitoches, LA, Thomas Allen Filo, Cox, Cox, Filo, Camel & Wilson, Lake Charles, LA, for Applicant, Christus Health Central Louisiana.
    Jeffrey John Warrens, Johnson, Stiltner & Rahman, Dennis Paul Juge, Juge, Na-politano, Guilbeau, Ruli, Frieman & Whiteley, Baton Rouge, LA, for Respondent, LWCC, Westaff, Inc.
    Court composed of ELIZABETH A. PICKETT, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   PICKETT, Judge.

[TIn these three consolidated writ applications, the relator, Christus Health Central Louisiana d/b/a Christus St. Frances Cabrini Hospital (Christus Health) seeks supervisory writs, from the judgment of the Office of Workers’ Compensation (OWC) granting a motion to compel discovery.

STATEMENT OF THE CASE

All three cases are attempts by Christus Health to increase the amount of payments for medical services and treatments rendered to injured workers as outpatients. Christus Health has sought recovery from the employers, Westaff (USA), Inc., Crossroads, Inc., and Bamburg Steel Buildings, Inc., and their insurer, the Louisiana Workers’ Compensation Corporation (collectively, LWCC). Christus Health claims that LWCC failed to pay the correct amount in medical benefits for the injured workers, pursuant to the pertinent provisions of the Louisiana Workers’ Compensation Act (LWCA) and the Louisiana Workers’ Compensation Fee Reimbursement Schedule (Reimbursement Schedule).

In the course of conducting discovery, LWCC submitted interrogatories and requests for production of documents aimed at collecting information regarding Chris-tus Health’s actual costs for the medical services rendered and the contractual amounts that Christus Health has agreed to accept as payment for these services and treatments from other insurance companies or other payors. Christus Health objected | gto this discovery, claiming that the information sought was irrelevant and could not lead to the discovery of any relevant evidence. Moreover, Christus Health asserted that the discovery was overly burdensome and was meant to be oppressively costly and time consuming on the part of the relator. Furthermore, Christus Health claimed that much of the information sought was proprietary or otherwise confidential or privileged information. LWCC filed motions to compel the discovery, and the OWC judge conducted one hearing as to all three cases, with the consent of all parties, since the issues were identical in all three cases. The trial court granted the motions to compel. Christus Health seeks reversal of these rulings.

SUPERVISORY RELIEF

This court has stated, The exercise of supervisory jurisdiction by appellate courts is within their plenary power. La. Const, art. 5, § 10. Appellate courts generally will not exercise such jurisdiction unless an error in the trial court’s ruling will cause the petitioner irreparable injury or an ordinary appeal does not afford an adequate remedy. Stevens v. Patterson Menhaden Corp., 191 So.2d 692 (La.App. 1 Cir.1966), writ denied, 250 La. 5, 193 So.2d 524 (1967). Borrel’s, Inc. v. City of Marksville, 05-48, p. 1 (La.App. 3 Cir. 6/1/05), 904 So.2d 938, 939.

DISCUSSION

Trial courts in Louisiana are vested with broad discretion in regulating pretrial discovery, and an appellate court will not disturb a trial court’s rulings on discovery issues absent a clear showing of abuse. Moak v. Ill. Cent. RR. Co., 93-0788 (La.1/14/94), 631 So.2d 401.

13As discussed above, Christus Health claims 'that LWCC underpaid for medical benefits associated with injured workers. In each of the cases before us, LWCC contracted with a third party to review the bills presented to LWCC for payment from health care providers who did not have a contractual arrangement with LWCC for the payment of services, including Christus Health. LWCC then paid for the outpatient services rendered at a lower rate than the Reimbursement Schedule.

The LWCA provides in La.R.S. 23:1203(B):

The obligation of the employer to furnish such care, services, treatment, drugs, and supplies, whether in state or out of state, is limited to the reimbursement determined to be the mean of the usual and customary charges for such care, services, treatment, drugs, and supplies, as determined under the reimbursement schedule annually published pursuant to R.S. 23:1034.2 or the actual charge made for the service, whichever is less. Any out-of-state provider is also to be subject to the procedures established under the office of workers’ compensation administration utilization review rules.

Pursuant to the above mandate by the legislature, La. Admin. Code tit. 40, § 2507, entitled “Outpatient Reimbursement”, provides:

Outpatient hospital and ambulatory surgery services will be reimbursed at covered charges less a ten percent (10%) discount. The formula for calculating payment amount is:
(BILLED CHARGES) - (NONCOV-ERED CHARGES) = COVERED CHARGES x .90 = PAYMENT AMOUNT
If a patient is admitted as an outpatient, however; is in the hospital overnight, this will be considered outpatient services. When patient is in hospital by midnight census of' day two, this becomes an inpatient admission, thus services are paid at per diem rate.
In addition, all procedures which can safely be performed as outpatient procedures shall be reimbursed as such. (Reference the utilization Review Rules, Chapter 27).
For a hospital admission to be subject to inpatient reimbursement, it must be medically necessary and not solely for the convenience of the payor.

LWCC argues that it may present evidence to evaluate the reasonableness of the charges billed by Christus Health. The materials sought in the motion to compel discovery would allow the WCJ to compare the amount of reimbursement that the |4medical provider has been willing to accept in full payment for the same or similar services from other payors. Chris-tus Health contends that the materials are irrelevant, whereas LWCC contends that the jurisprudence demands that the WCJ conduct such an analysis.

LWCC relies heavily on the first circuit’s opinion in Johnson Bros. Corporation v. Thibodaux Regional Medical Center, 00-1673 (La.App. 1 Cir. 9/28/01), 809 So.2d 430. After the insurer paid an additional amount that had been demanded by the medical provider, the insured/employer filed a claim against the medical provider seeking to recoup the additional money. The medical provider had computed its charges based strictly on its charges that it deemed appropriate. However, the employer argued that those charges were improperly inflated.

In Johnson Bros., the medical benefits at issue included medical “hardware” that had been used to repair the employee’s fractured legs. Moreover, because of the extensive injuries to the employee, the WCJ found, and the appellate court agreed, that the medical provider’s charges in that instance fell under the “outliers” provisions of the reimbursement schedule, La. Admin. Code tit. 40, § 2519. Thus, due to the extensive nature of the injuries involved, these charges were permitted to exceed the usual and customary charges that would apply in an ordinary hospitalization. The first circuit went on to find that the WCJ erred by not determining whether the “outlier” charges were reasonable, pursuant to La.R.S. 23:1291.

In this case, LWCC seeks to obtain through discovery the actual costs of services and the amount Christus Health is willing to accept as full payment from other insurers in order to determine if the Reimbursement Schedule rates are reasonable. The legislature empowered the OWC to come up with a fee schedule, which is based on “the mean of the usual and customary charges.” La.R.S. 23:1203(B). We find that the Reimbursement Schedule, for the purposes of the OWC, sets forth reasonable rates for services. Thus, the materials sought in discovery are | ^irrelevant. We also find that disclosure of contractually negotiated rates is unduly burdensome. Exercising our supervisory authority, we reverse the WCJ and deny the motion to compel discovery.

LWCC argues that the amount of reimbursement that the relator is willing to accept from other payors is relevant to these cases, citing Agilus Health v. Accor Lodging North America, 10-800 (La.11/30/10), 52 So.3d 68. The court in Agilus was facing a case where the health care provider had entered into a contract with the insurer involved in that case wherein the provider had contractually agreed to accept a lower payment than that which would have been recoverable under the Reimbursement Schedule. The supreme court concluded that a provider is free to contract for a lower fee than would otherwise be recoverable under the fee schedule, and that if the provider does so contract, the provider is bound to accept the lower of the two possible charges. In this case, Christus Health was not contracted with LWCC to provide services at a lower rate than the rates in the Reimbursement Schedule. Therefore, Agilus Health is distinguishable.

DISPOSITION

The application for supervisory writs filed by Christus Health is granted. The motion to compel discovery is denied.

WRIT GRANTED AND MADE PEREMPTORY.

      . For instance, Interrogatory number 7 reads, "Please set forth your true out-of-pocket costs for providing the services and items associated with the medical charges at issue in the present proceeding.” Interrogatory number 8 reads, "Please specify any and all data and methodologies utilized in arriving at the calculation of your true out-of-pocket costs as set forth within your response to the previous interrogatory.” Interrogatory number 10 reads, "Please state whether you have at anytime entered into a contractual fee arrangement with any entity in relation to the payment amount/recoverable charges associated with the services sued upon herein. If your response is in the affirmative, please state the effective dates of any such contractual fee arrangement, the parties to the contractual fee arrangement and the specific dollar amounts agreed upon within the contractual fee arrangement in relation to the medical services sued upon herein.” And, Interrogatory number 11 reads, "Please state whether you have ever accepted Medicare payment for the services sued upon herein. If your response is in the affirmative, please state the amount of said payment.” Amended interrogatories seeking more in-depth information regarding the amount of payments accepted for the services at issue from other payors, including Medicaid, were also submitted. Additionally, the respondents sought documents verifying the foregoing information in requests for production.


text:
    CHRISTUS HEALTH CENTRAL LOUISIANA d/b/a Christus St. Frances Cabrini Hospital (Christopher Byrd) v. CROSSROADS, INC.
    No. WCW 11-1494.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2012.
    Rehearing Withdrawn June 20, 2012.
    Joseph Payne Williams, R. Bray Williams, Williams Family Law Firm, LLC, Natchitoches, LA, Thomas Allen Filo, Cox, Cox, Filo, Camel & Wilson, LLC, Lake Charles, LA, for Applicant, Christus Health Central Louisiana.
    Jeffrey John Warrens, Johnson, Stiltner & Rahman, Baton Rouge, LA, Dennis Paul Juge, Juge, Napolitano, Guilbeau, Ruli, Frieman & Whiteley, Metairie, LA, for Respondents, LWCC, Crossroads, Inc.
    Court composed of ELIZABETH A. PICKETT, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   PICKETT, Judge.

| ,For the reasons assigned in Christus Health Central Louisiana v. Westaff (USA), Inc., 11-1493 (La.App. 3 Cir. 3/7/12), 125 So.3d 1120, the application for supervisory writs filed by Christus Health is granted. The WCJ’s decision granting the motion to compel discovery is reversed and the motion to compel is denied.

WRIT GRANTED AND MADE PEREMPTORY.


text:
    CHRISTUS HEALTH CENTRAL LOUISIANA d/b/a Christus St. Frances Cabrini Hospital (John Taylor) v. BAMBURG STEEL BUILDINGS, INC.
    No. WCW 11-1497.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2012.
    Rehearing Withdrawn June 20, 2012.
    Joseph Payne Williams, R. Bray Williams, Williams Family Law Firm, LLC, Natchitoches, LA, Thomas Allen Filo, Cox, Cox, Filo, Camel & Wilson, LLC, Lake Charles, LA, for Applicant, Christus Health Central Louisiana.
    Jeffrey John Warrens, Johnson, Stiltner & Rahman, Baton Rouge, LA, Dennis Paul Juge, Juge, Napolitano, Guilbeau, Ruli, Frieman & Whiteley, Metairie, LA, for Respondents, LWCC, Bamburg Steel Buildings, Inc.
    Court composed of ELIZABETH A. PICKETT, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   PICKETT, Judge.

|,For the reasons assigned in Christus Health Central Louisiana v. Westaff (USA), Inc., 11-1493 (La.App. 3 Cir. 3/7/12), 125 So.3d 1120, the application for supervisory writs filed by Christus Health is granted. The WCJ’s decision granting the motion to compel discovery is reversed and the motion to compel is denied.

WRIT GRANTED AND MADE PEREMPTORY.