author: WILLIAMS, J.

text:
    Lane MONTGOMERY, Plaintiff-Appellee v. Jean Lawson KEDGY, et al., Defendants-Appellants.
    No. 44,601-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 26, 2009.
    Writ Denied Nov. 25, 2009.

      S.P. Davis, Christina M. Wimbley, for 1st Appellant, City of Shreveport.
    H. Lynwood Lawrence, Jr., Bossier City, for 2nd Appellant, Kedgy Jean Larson and Lawrence M. Larson.
    Michael S. Hubley, Zelda W. Tucker, Shreveport, for Appellee, State Farm Mutual Automobile Insurance Company.
    Before WILLIAMS, DREW and MOORE, JJ.
   WILLIAMS, J.

LThe City of Shreveport appeals a judgment in favor of Kedgy Jean Larson for injuries sustained in an auto accident. The trial court found that Larson’s injuries were caused by the December 2001 accident and awarded damages of $230,626.32. Larson also appeals, alleging that the trial court’s damage award was inadequate. For the following reasons, we amend and affirm as amended.

FACTS

In December 2001, an accident occurred in Caddo Parish when Kedgy Larson’s automobile was struck by the vehicle driven by Lane Montgomery while in the course and scope of his employment as a Shreveport police officer. In June 2002, the plaintiff, Montgomery, filed a petition for damages against Kedgy Jean Larson (incorrectly identified as Jean Lawson Ked-gy) and her insurer, State Farm Mutual Auto Insurance Company (“State Farm”). Subsequently, Larson and her husband, Lawrence Larson, filed a counter claim against Montgomery, the City and State Farm, alleging that Montgomery was solely at fault in causing the accident. State Farm filed a claim against Montgomery and the City to recover $6,461.98 paid to Larson for medical expenses.

The case was bifurcated and after a bench trial on the liability issue, the trial court rendered judgment in favor of Larson, finding that Montgomery was 100% at fault in causing the accident and that the City was liable for damages. The City did not seek appellate review and the liability determination is final. State Farm filed a motion for summary judgment against the City seeking reimbursement of the payment of medical |2costs. After a trial on the issue of quantum, the court found that the medical evidence proved that Larson’s injuries were caused by the December 2001 accident. The trial court rendered judgment awarding Larson special damages of $80,626.32 and general damages of $150,000. The court granted summary judgment in favor of State Farm. The City appeals the judgment, alleging that the evidence showed Larson sustained only soft tissue injuries and that the damage award is excessive. Larson appeals alleging that the damage award is inadequate.

DISCUSSION

The City contends the trial court erred in finding that Larson proved that all of her injuries were caused by the December 2001 accident. The City argues that the medical evidence showed that her serious injuries were at least partly caused by a subsequent accident or by her active lifestyle.

In a personal injury action, the plaintiff bears the burden of proving a causal relationship between the injury sustained and the accident at issue. Maranto v. Goodyear Tire & Rubber Co., 94-2603, 94-2615 (La.2/20/95), 650 So.2d 757. The plaintiff must prove causation by a preponderance of the evidence. Maranto, supra. The test for proving the causal relationship between the accident and subsequent injury is whether the plaintiff proved through medical testimony that it is more probable than not that the injuries were caused by the accident. Maranto, supra. A plaintiff is aided in proving causation by the presumption that an injury resulted from an accident if before the accident the injured person was in good health, but commencing with the accident the disabling symptoms appear and 1 .^¡continuously manifest themselves afterward, providing that the medical evidence demonstrates a reasonable possibility of causal connection between the accident and the injury. Mar-anto, supra; Housley v. Cerise, 579 So.2d 973 (La.1991); Saunders v. ANPAC Loui siana Insurance Co., 43,405 (La.App. 2d Cir.8/13/08), 988 So.2d 896.

In the present case, Larson introduced into evidence the testimony of a number of physicians, including Dr. Baer Rambach, an orthopedic surgeon. On December 12, 2002, Dr. Rambach examined Larson, who complained of numbness in her right hand, both wrists and continuing low back pain following the December 2001 accident. Dr. Rambach testified that the electro diagnostic (EMG) test results showed severe carpal tunnel impairment of Larson’s right wrist and moderately severe impairment of her left wrist. Dr. Rambach stated that a person like Larson, who was 50 years old with early degenerative changes in the lumbar and cervical spine, was more prone to have prolonged lower back and neck problems from an accident than a younger person. Given Larson’s lack of a prior wrist injury and her description of gripping the steering wheel during the collision, Dr. Rambach opined that more likely than not the December 2001 accident was a cause of Larson’s carpal tunnel syndrome in both wrists.

Dr. Roger Kelley, who performed the independent medical exam (IME), opined that Larson’s carpal tunnel injury could not be directly attributed to the accident and that in his experience, such an injury more likely occurred over time with repetitive actions like lifting weights. However, Dr. Kelley acknowledged that the EMG results objectively |4documented Larson’s carpal tunnel syndrome (CTS) and that there appeared to be a temporal relationship between the 2001 accident and her symptoms. In addition, Dr. Kelley testified that if Dr. Rambach had seen the patient and could say that more likely than not the CTS was related to the 2001 accident, then he could not dispute that opinion.

Dr. Robert Zahn, a chiropractor, testified that he saw Larson on December 26, 2001, and she complained of neck pain and low back pain extending into the right leg after the accident on December 15, 2001. Dr. Zahn stated that on November 11, 2002, Larson complained of right knee pain and low back pain. Dr. Zahn’s records included a report from Greenacres Chiropractic Clinic, dated March 6, 2003, showing that Larson was complaining of pain in the right knee and lower back. Dr. Zahn testified that he saw Larson on June 2, 2003, when she complained of headaches and bruises on her left shoulder and hip following an accident on May 29, 2003, but she did not say that she had injured her right knee in that accident. Dr. Zahn stated that his treatment of Larson from December 26, 2001 through March 2003 was related to the December 2001 accident.

Dr. Edward Morgan, an orthopedic surgeon, testified that in September 2005 he saw Larson, who was seeking a second opinion for her right knee. Dr. Morgan stated that Larson complained that a locking of her right knee had been causing pain since May 2005. Dr. Morgan explained that although the MRI of Larson’s right knee did not show a meniscus tear, the mechanical difficulties she was having with the knee were consistent with a tear. Dr. Morgan testified that he performed arthroscopic surgery |fiwhich showed a lateral meniscus tear. Assuming that Larson’s complaints of right knee pain began after the December 2001 accident and continued through another accident in 2003, Dr. Morgan opined that more likely than not Larson’s right knee injury was caused by the December 2001 accident.

Dr. Pierce Nunley, an orthopedic spine surgeon, testified that he saw Larson on March 16, 2005, and she gave a history of auto accidents in 2001 and 2003. Dr. Nun-ley stated that Larson complained of low back pain radiating into her right leg and that on a scale of 1 to 10, she said her daily pain was 3 and sometimes as high as 8. Dr. Nunley testified that Larson’s lumbar MRI showed a herniated disc at the L4-5 level and spondylosis. Assuming that Larson had not experienced low back pain radiating into the right leg prior to the 2001 accident, but after that accident she began and continued to complain of such pain, Dr. Nunley opined that more likely than not the lumbar disc herniation was caused by the December 2001 accident. Although Dr. Nunley could not state whether the degenerative changes in Larson’s back were present before the accident in 1999 or 2001, he noted that Larson’s history of radiating low back pain predated the May 2003 accident. In addition, Dr. Nunley testified that the medical records did not show that the 2003 accident involved a problem significantly worse than the back injury which Larson was already complaining about.

Kedgy Larson, who was an owner and operator of a fitness center, testified that she was in good physical condition without any health problems prior to the December 2001 auto accident. Larson stated that she felt neck pain at the time of the accident and she sought chiropractic | (¡treatment with Dr. Zahn, complaining of low back pain radiating into her right leg and tingling in her arms and hands. Larson testified that during 2002, she experienced pain and swelling of her right knee and continued to feel neck and back pain with numbness and tingling in both hands. Larson stated that when her condition did not significantly improve after one year of conservative treatment, she saw Dr. Ram-bach, who diagnosed her with CTS in both wrists in January 2003. Larson attempted conservative treatment of the CTS with wrist splints, ice and Advil, while continuing to experience right knee and low back pain. Larson testified that in the May 2003 accident she hit the left side of her head and bruised her left shoulder and left hip. Larson stated that after the 2003 accident, she continued to feel right knee and low back pain and numbness and tingling in both wrists. Larson explained that when her condition did not improve, she underwent carpal tunnel release surgery in April 2005. Larson testified that in March 2005 she saw Dr. Nunley, who diagnosed her with a lumbar disc herniation and prescribed physical therapy. Larson stated that a locking problem developed in her right knee in May 2005 and that Dr. Morgan removed the torn meniscus in September 2005, after which she participated in physical therapy at Schum-pert Hospital. Larson testified that she had experienced intermittent pain in her right knee, lower back and neck every week since the December 2001 accident.

At trial, Larson presented the medical testimony of orthopedic surgeons who opined that more likely than not her carpal tunnel syndrome, right knee meniscus tear and lumbar disc herniation were caused by the |7December 2001 accident. Larson testified that she was free of pain and enjoyed a physically active lifestyle prior to the 2001 accident. No evidence was introduced to negate the testimony that she was in good health prior to that accident. The medical records show that following the 2001 accident, Larson experienced neck, lower back and right knee pain and numbness in her wrists and hands.

Based upon this record, Larson demonstrated at trial that she was in good health before the December 2001 accident and that beginning with the accident her symptoms appeared and continued thereafter. In addition, she presented medical evidence showing a reasonable causal connection between the accident and her injuries. Consequently, the trial court could reasonably have found that Larson satisfied her burden of proving that her injuries were caused by the 2001 accident. The assignment of error lacks merit. Since we have affirmed the trial court’s finding of causation, the court did not err in granting State Farm’s motion for summary judgment.

Quantum

Both parties contend the trial court erred in awarding damages. The City argues that the damage awards should be reduced because Larson failed to prove that all of her injuries were caused by the 2001 accident. Larson argues that because the court abused its discretion in awarding inadequate general damages the award should be increased.

In the assessment of damages for personal injury, much discretion must be left to the judge or jury. LSA-C.C. art. 2324.1. General damages involve mental or physical pain and suffering, inconvenience and loss of [ Rintellectual or physical enjoyment that cannot be definitively measured in monetary terms. Day v. Ouachita Parish School Board, 35,831 (La.App. 2d Cir.8/8/02), 823 So.2d 1039; Robbins v. State Dept, of Labor, 31,590 (La.App. 2d Cir.2/24/99), 728 So.2d 991. Before the trial court’s general damage award may be disturbed, the record must clearly show that the factfinder abused its broad discretion in making the award. Poulan v. Hunter, 36,225 (La.App. 2d Cir.11/6/02), 830 So.2d 1125; Day, supra.

The finding of an abuse of discretion must be based on the particular injuries sustained and their effect on the particular injured person. After a determination that an award constitutes an abuse of discretion, the appellate court may reduce an excessive award to the highest amount, or increase an inadequate award to the lowest amount, reasonably within the factfinder’s discretion. Poulan, supra; Day, supra.

In the present case, the evidence shows that Larson suffered multiple injuries as a result of the 2001 accident, including carpal tunnel syndrome of both wrists, a meniscus tear of the right knee and a herniated disk in the lumbar spine. Larson has undergone surgical procedures of her left wrist and right knee to address those injuries and she participated in physical therapy for a number of years. Larson testified that although her treatment had reduced pain and increased function in her right knee and improved her lower back condition, she continued to feel minor pain in those areas at the time of trial. Larson did not miss any days from work because of the accident, but she taught fewer exercise classes and lifted less weight.

Based upon the testimony and medical evidence contained in the 19record and considering the effects of the particular injuries sustained by Larson on her physical condition and lifestyle, we cannot say the trial court’s award of $150,000 in general damages is beyond the amount reasonably within the factfinder’s broad discretion. Thus, we decline to either reduce or increase the award of general damages.

Larson also contends the trial court erred in failing to award the full amount of Larson’s proven medical expenses. Specifically, Larson complains that the court arbitrarily awarded only 50% of the cost for Larson’s physical therapy with Richard Dechowitz and refused to award an amount for her massage therapy.

A plaintiff is required to prove special damages by a preponderance of the evidence and the district court’s findings in this respect are subject to a manifest error standard. Johnson v. State Dept, of Public Safety, 95-0003 (La.App. 1st Cir.10/6/95), 671 So.2d 454. Medical expenses are a proper item of damages. The failure to award the full amount of medical expenses proven by a victim is error. Sumrall v. Sumrall, 612 So.2d 1010 (La.App. 2d Cir.1993). A tortfeasor is required to pay for the cost of over treatment or unnecessary medical treatment, unless such treatment was incurred by the victim in bad faith. Green v. Nunley, 42,-343-344 (La.App. 2d Cir.8/15/07), 963 So.2d 486; Sumrall, supra.

In this case, Larson presented the testimony of Richard Dechowitz, a licensed physical therapist working at Schumpert Hospital. Dechowitz testified that in January 2006, Larson was referred by Dr. Morgan for right knee and lower back rehabilitation following her arthroscopic surgery. | inDechowitz stated that he treated Larson from January 12, 2006 through May 9, 2007, when she was discharged from physical therapy. Dechowitz testified that during the 15-month period Larson participated in physical therapy sessions 2 or 3 times per week, for a total of approximately 150 therapy sessions. Dechowitz stated that he submitted his therapy reports to Schumpert and was not involved with the hospital billing. He testified that Larson was conscientious, a very hard worker and an excellent patient.

The physical therapy treatment records show that each session generally involved exercise, manual therapy, electrical stimulation and cold packs. The billing records demonstrate that for the period from January 2006 through the discharge date, the total amount for physical therapy equaled $55,647.18. The record indicates that the physical therapy was related to her injuries from the 2001 accident and the City did not present evidence that Larson incurred the expenses in bad faith. Thus, we must conclude that the trial court erred in failing to award the additional amount of $21,934.04 for physical therapy through May 9, 2007.

In addition, the trial court erred in refusing to award Larson the amount of $5,519 for massage therapy, since there was no evidence that Larson incurred that expense in bad faith. Dr. Zahn recommended the massage therapy, which included muscle stretching and hot and cold packs for inflammation. Accordingly, we shall amend the judgment to reflect an additional award of $27,453.04 in special damages.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is amended to |uincrease the award of special damages and Kedgy Larson is hereby awarded the amount of $258,079.36 in total damages. The judgment is otherwise affirmed. The parties are to pay their own costs of appeal; thus, the amount of $145.50 is assessed to the City of Shreveport as appeal costs payable to this court.

AMENDED AND AFFIRMED AS AMENDED.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    Jimmy KEEN, et al., Plaintiff-Appellee, v. Rhoda ASHLEY, et al., Defendant-Appellant.
    No. 44,608-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 26, 2009.

      Preis & Roy by Jennifer E. Michel, Tabitha R. Durbin, Lafayete, for Appellant Ace American Ins. Co.
    Joseph B. Stamey, Natchitoches, for Ap-pellee Farmers Ins.
    Kevin David Alexander, Monroe, for Ap-pellees Jimmy Keen and Janis Keen.
    Before GASKINS, CARAWAY and MOORE, JJ.
   MOORE, J.

hAce American Insurance seeks supervisory review of a summary judgment which found that its insured, American Medical Response, d/b/a Metro Ambulance, did not validly reject UM coverage. We grant the writ and make it peremptory, reverse the summary judgment in favor of the plaintiffs and enter a summary judgment in favor of Ace.

Jimmy Keen was being transported by a Metro Ambulance going south on La. 148 (White’s Ferry Road/North 7th Street) near its intersection with Arkansas Road in West Monroe. Rhoda Ashley was driving her Kia west on Arkansas Road and apparently ran the stop light; she collided with the ambulance, injuring Keen. Keen’s wife witnessed the accident.

The Keens sued Ashley and her liability carrier, Allstate; their own UM carrier, Farmers Insurance Exchange; and Metro Ambulance and its UM carrier, Ace. The Keens settled with Ashley and Allstate, reserving all rights against all other parties.

Ace denied liability on grounds that its insured, Metro Ambulance, rejected UM coverage; it filed a motion for summary judgment to that effect. The Keens responded with a cross motion for summary judgment, seeking to declare the UM waiver invalid.

The summary judgment evidence showed that Metro Ambulance’s Vice-President for Safety and Risk executed forms rejecting both bodily injury and property damage UM coverage. The coverage forms, issued by the Commissioner of Insurance, correctly listed all coverage options; contained spaces, properly filled out, for the insured’s name and signature, policy number and date; and showed the vice-president’s initials next to the |2rejection option. The forms had, however, no space for the insurer’s name. The forms also stated, in a header, “This form was promulgated pursuant to LRS 23 § 1406 D. (l)(a)(ii). This form may not be altered or modified.” A bulletin from the Louisiana Insurance Rating Commission dated August 7, 1998 (LIRC 98-03), stated (among many other things), “The company name must be placed at the lower left-hand corner of the UM Form.”

Ace acknowledged that the UM coverage form, promulgated by the commissioner, did not comply with LIRC 98-03, but because of the prohibition against altering or modifying it, there was nothing else Ace could do. Ace argued that the coverage form met all the requirements of the statute, La. R.S. 22:680(l)(a)(ii); that it was attached to the body of the policy, obviating any chance of confusion; and that the supreme court was taking a more flexible approach to UM rejections, as in Carter v. State Farm, 2007-1294 (La.10/5/07), 964 So.2d 375. In Canter, the court held that failure to write the policy number on the UM coverage form did not invalidate the rejection if the policy number was unavailable at the time.

The Keens argued the older jurisprudence requiring the strictest construction of UM waivers, from the early case of Roger v. Estate of Moulton, 513 So.2d 1126 (La.1987), to the six-point checklist in Duncan v. USAA Ins. Co., 2006-0363 (La.11/29/06), 950 So.2d 544, and the more recent dictum that “rote completion of the six tasks” did not necessarily satisfy all requirements for a valid waiver. Gray v. American National Prop. & Cas., 2007-1670 (La.2/26/08), 977 So.2d 839. The Keens argued that Metro Ambulance’s rejection could not be valid because it failed to 1 :isatisfy LIRC 98-03.

In a memorandum opinion, the district court agreed with the Keens, finding that “the policy number does little to identify the policy without knowing the name of the insurance company holding the policy” and “Ace should have been aware of the need to place the company name on the form.” The court therefore denied Ace’s motion and granted the Keens’, in effect declaring the UM rejection invalid.

Ace applied for supervisory review. Out of abundant caution, it also took an appeal.

After the district court rendered this judgment, the supreme court addressed the issue in Gingles v. Dardenne, 2008-2995 (La.3/13/09), 4 So.3d 799. The per curiam opinion in Gingles held that despite LIRC 98-03, the commissioner’s failure to include a space for the insurer’s name on the UM coverage form did not invalidate the rejection.

Gingles is perfectly apposite to this case. The parties do not dispute that Ace used the UM coverage form promulgated by the commissioner, that it complied with every requirement of R.S. 22:680(l)(a)(ii), and that Metro Ambulance’s designated officer filled it out correctly with a rejection of UM coverage. The only deficiency was that the form failed to comply with an internal regulation, LIRC 98-03, which the Insurance Rating Commission itself apparently disregarded in preparing the coverage form. Under Gingles, this is of no moment given the otherwise full compliance with the statute.

|4For these reasons, we grant the writ and make it peremptory. The summary judgment in favor of the Keens is reversed, and the motion for summary judgment filed by Ace American Insurance is granted, dismissing them from the suit. All costs are to be paid by Jimmy and Janis Keen and their insurer, Farmers Insurance Exchange.

WRIT GRANTED AND MADE PEREMPTORY. SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS IS REVERSED; MOTION FOR SUMMARY JUDGMENT OF ACE AMERICAN INSURANCE IS GRANTED.


author: PETTIGREW, J.

text:
    BATON ROUGE GENERAL MEDICAL CENTER v. LIBERTY MUTUAL INSURANCE COMPANY.
    No. 2009 CA 0316.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 11, 2009.
    John S. Bradford, Thomas A. Filo, Somer G. Brown, Lake Charles, LA, for Plaintiff-Appellant, Baton Rouge General Medical Center.
    Eric J. Waltner, Jacques P. Soileau, Lafayette, LA, for Defendants-Appellees, Holiday Retirement Corporation and Liberty Mutual Ins. Co.
    Before CARTER, C.J., GUIDRY, and PETTIGREW, JJ.
   PETTIGREW, J.

|2The question presented by the instant appeal is whether the Office of Worker’s Compensation (“OWC”) has subject matter jurisdiction in a claim by a health care provider for alleged underpayment of an injured employee’s medical bills. Following a grant by the worker’s compensation court of a peremptory exception raising the objection of lack of subject matter jurisdiction filed by defendant employer and its workers’ compensation insurer, plaintiff health care provider has appealed. For the reasons that follow, we reverse and remand for further proceedings.

FACTS

On April 4, 2008, Baton Rouge General Medical Center (“Baton Rouge General”) filed a disputed claim for compensation against an employer, Holiday Retirement Corporation (“Holiday”), and its workers’ compensation insurer, Liberty Mutual Insurance Company (“Liberty Mutual”), under the provisions of the Worker’s Compensation Act (the “Act”). Baton Rouge General alleged therein that it had provided health care services to Tammy Tucker-son, an employee of Holiday, and that said defendants were liable to it for underpayment and/or late payment of Ms. Tucker-son’s medical bills, together with penalties and attorney fees for their alleged arbitrary and capricious handling of this claim.

On June 23, 2008, Holiday and Liberty Mutual filed a peremptory exception raising the objection of lack of subject matter jurisdiction alleging the claim filed against them by Baton Rouge General was essentially an action to nullify contracts Baton Rouge General had previously negotiated with preferred provider organizations (“PPOs”). Holiday and Liberty Mutual argued an action to nullify contracts fell outside the statutory jurisdiction of a workers’ compensation tribunal. Following a hearing, the worker’s compensation court signed a judgment on August 22, 2008, granting the peremptory exception filed by | ^Holiday and Liberty Mutual thereby dismissing the claims of Baton Rouge General. From this judgment, Baton Rouge General has appealed.

ISSUE SET FORTH ON APPEAL

The sole issue presented by Baton Rouge General in the instant appeal is whether its claims against Liberty Mutual for underpayment and/or late payment of medical benefits arise under the Act and are, therefore, within the exclusive jurisdiction of the OWC.

LAW AND ANALYSIS

Subject matter jurisdiction is the legal power and authority of a court to hear and determine a particular class of actions or proceedings based upon the object of the demand, the amount in dispute, or the value of the right asserted. La.Code Civ. P. art. 2. The subject matter jurisdiction of the courts is established by the Louisiana Constitution, which provides that original jurisdiction over all civil and criminal matters is vested in the district courts, except as provided by law for administrative agency determinations in workers’ compensation matters. La. Const, art. V § 16 A(l). Louisiana Revised Statutes 23:1310.3 E currently provides for the jurisdiction of the OWC as follows:

Except as otherwise provided by R.S. 23:1101(B), 1361, and 1378(E), the workers’ compensation judge shall be vested with original, exclusive jurisdiction over all claims or disputes arising out of this Chapter, including but not limited to workers’ compensation insurance coverage disputes, group self-insurance indemnity contract disputes, employer demands for recovery for overpayment of benefits, the determination and recognition of employer credits as provided for in this Chapter, and cross-claims between employers or workers’ compensation insurers or self-insurance group funds for indemnification or contribution, concursus proceedings pursuant to Louisiana Code of Civil Procedure Articles 4651 et seq. concerning entitlement to workers’ compensation benefits, payment for medical treatment, or attorney fees arising out of an injury subject to this Chapter.

Recently, a panel of this court was presented with precisely this issue, and in its opinion in Millervillage Chiropractic Center v. East Baton Rouge Pañsh School Board, 08-1350 (La.12/23/08), 4 So.3d 846, said panel reversed a decision by the worker’s compensation court granting a peremptory exception objecting to lack of subject matter jurisdiction filed by defendant employer and its workers’ compensation | ¿administrator. Following an appeal by the plaintiff health care provider, this court reversed and held the OWC possessed subject matter jurisdiction to decide the claim.

In its decision in Millervillage, this court took notice of a recent decision by the Louisiana Supreme Court that held the OWC does not have subject matter jurisdiction to decide a third party demand for defense and indemnification filed by an employer and a workers’ compensation insurer against a PPO. Millervillage, 08-1350, p. 4, 4 So.3d at 848, citing Broussard Physical Therapy v. Family Dollar Stores, Inc., 08-1013 (La.12/2/08), 5 So.3d 812, 817. This court further noted that in its opinion in Broussard, the supreme court reasoned the cause of action asserted by the employer against the PPO provider did not arise out of the Act, and the employer had not alleged that the PPO provider was responsible for payment benefits under the Act, but rather that the PPO was liable to the employer and its insurer under the contract between them. In Broussard, the supreme court concluded “[disputes involving contracts between such parties do not ‘arise out of the Act, even where the relevant claims involve the payment of third party medical bills required under the Act.” Millervillage, 08-1350, p. 4, 4 So.3d at 848, citing Broussard Physical Therapy, 08-1013, pp. 8-9, 5 So.3d at 817.

This court distinguished the facts presented to the supreme court in Broussard from the facts before it in Millemllage. In Millervillage, this court noted “the cause of action presented for consideration in this case is that of a health care provider contending an employer did not make sufficient payments for medical treatment rendered to its employee.” Millervillage, 08-1350, p. 5, 4 So.3d at 848. This court concluded “Millervillage is a medical provider seeking reimbursement of compensation benefits from an employer. The OWC has jurisdiction over Millervillage’s claim pursuant to [La.] R.S. 23:1310.3 E.”

Under the facts presented in the instant case, Baton Rouge General finds itself in the same situation as Millervillage. Accordingly, we conclude the claims asserted by Baton Rouge General in the present litigation against Holiday and Liberty Mutual arise out of the Act and are within the exclusive jurisdiction of the OWC.

| (¡CONCLUSION

For the reasons set forth above, the grant by the worker’s compensation court of the peremptory exception filed by defendant employer and its workers’ compensation insurer is hereby reversed and this matter is remanded to said court for further proceedings. All costs of this appeal are assessed against defendants, Holiday Retirement Corporation and its workers’ compensation insurer, Liberty Mutual Insurance Company.

REVERSED AND REMANDED.

      . Pursuant to La.Code Civ. P. art. 925, a court’s lack of jurisdiction over the subject matter of the action is an objection that may be raised through the filing of a declinatory exception rather than a peremptory exception. As defendants herein captioned their pleading as a peremptory exception and the judgment herein grants same, this court will, for purposes of uniformity and consistency, refer to the objection raised by defendants as a peremptory exception.


author: GUIDRY, J. CARTER, C.J.,

text:
    Raymond WILLIAMS v. The SHAW GROUP, INC.
    No. 2009 CA 0301.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 11, 2009.

      Felicia F. Davis, Port Allen, LA, for Plaintiff/Appellant, Raymond Williams.
    John J. Rabalais, Janice B. Unland, Deanne B. McCauley, Covington, LA, for Defendant/Appellee, The Shaw Group, Inc.
    Before CARTER, C.J., GUIDRY, and PETTIGREW, JJ.
   GUIDRY, J.

|2Claimant appeals a judgment sustaining a peremptory exception based on prescription and dismissing his workers’ compensation claim. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On May 1, 2006, Raymond Williams filed a form 1008 disputed claim for compensation against The Shaw Group, Inc. (Shaw), seeking workers’ compensation benefits for an injury sustained on January 12, 2005. Shaw filed an answer denying liability for payment of workers’ compensation benefits and further alleging, among other defenses and objections, that the disputed claim for compensation was untimely and thus prescribed. Thereafter, Shaw filed a separate pleading by which it asserted peremptory exceptions objecting to the disputed claim for compensation on the grounds of prescription and res judicata. Following a hearing, the workers’ compensation judge sustained the peremptory exception on the basis of prescription and dismissed the disputed claim for compensation with prejudice in a judgment signed July 13, 2007. It is this judgment that Williams appeals.

DISCUSSION

Williams has raised several assignments of error contending that the workers’ compensation judge erred in dismissing his disputed claim for compensation on the basis of prescription and res judicata; however, because we find that the workers’ compensation judge did not err in finding that Williams’s claim is prescribed, we do not consider the other alleged errors assigned.

| .¡The prescriptive period applicable to a workers’ compensation claim is found in La. R.S. 23:1209, which states that all claims for payments shall be forever barred unless within one year after the accident the parties have either agreed upon the workers’ compensation payments to be made or a formal claim has been filed with the director of the office of workers’ compensation. Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception; however, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show that the action has not prescribed. Campo v. Correa, 01-2707, p. 7 (La.6/21/02), 828 So.2d 502, 508.

It is undisputed that no agreement was reached by the parties regarding the payment of compensation. Further, the claim for workers’ compensation benefits was filed with the office of workers’ compensation on May 1, 2006, more than one year after the accident that occurred on January 12, 2005. Thus, on the face of the pleadings, it would appear that the claim is prescribed.

In an attempt to show that his claim was not prescribed, Williams pointed out that prior to filing his claim with the office of workers’ compensation, he filed a tort suit against Shaw in the Nineteenth Judicial District Court on either January 11 or 12, 2006, which suit, he asserts, interrupted the running of prescription on his workers’ compensation claim. Although there is no evidence in the record before us of when Williams filed the tort suit, neither party disputes that he filed a tort suit regarding his workplace accident on or before January 12, 2006.

At the hearing on the peremptory exceptions filed by Shaw, it introduced a copy of a “Motion and Order to Dismiss with Prejudice,” wherein Williams requested the issuance of an order “dismissing Shaw Constructors, Inc.[] with ^prejudice.” An order dismissing Shaw Constructors, Inc., with prejudice, was signed by the trial court on May 1, 2006. According to the hearing transcript, the workers’ compensation judge also had before him proof that Williams mailed his disputed claim for compensation on April 29, 2006, which was received by the office of workers’ compensation on May 1, 2006.

Louisiana Civil Code article 3462 states, in pertinent part, that “[pjrescription is interrupted when ... the obligee com-menees action against the obligor, in a court of competent jurisdiction and venue. If action is commenced in an incompetent court ... prescription is interrupted only as to a defendant served by process within the prescriptive period.” Louisiana Civil Code article 3463 further provides:

An interruption of prescription resulting from the filing of a suit in a competent court and in the proper venue or from service of process within the prescriptive period continues as long as the suit is pending. Interruption is considered never to have occurred if the plaintiff abandons, voluntarily dismisses the action at any time either before the defendant has made any appearance of record or thereafter, or fails to prosecute the suit at the trial. [Emphasis added.]

When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written. La. C.C. art. 9. Because the evidence clearly shows that Williams voluntarily dismissed his tort suit, and La. C.C. art. 3463 unambiguously states that any interruption of prescription resulting from Williams having filed the tort suit “is considered never to have ^occurred” as a result of Williams having voluntarily dismissed the tort suit, there was no interruption of the running of prescription on the workers’ compensation claim. Thus, Williams failed to meet his burden of showing that the workers’ compensation claim had not prescribed.

Moreover, we find Pierce v. Foster Wheeler Constructors, Inc., 04-0333 (La.App. 1st Cir.2/16/05), 906 So.2d 605, unit denied, 05-0567 (La.4/29/05), 901 So.2d 1071, a ease relied on by Williams, factually distinguishable and therefore inapplicable to this matter. In Pierce, the plaintiff and his employer agreed to a settlement of the plaintiffs workers’ compensation claim and the settlement was acknowledged by the parties as being the basis for the dismissal of the workers’ compensation claim. When the plaintiff later named his employer as a defendant in a tort suit filed against the plaintiffs co-employees, the employer sought to have the tort suit dismissed as prescribed, contending that pursuant to La. C.C. art. 3463, because the previously filed workers’ compensation claim had been voluntarily dismissed, the workers’ compensation claim could not interrupt the running of prescription on the later filed tort suit. Pierce, 04-0333 at 2-3, 906 So.2d at 607. On appeal, this court held that “dismissal on the basis of the transaction or compromise between the parties ..., which had the force and effect of a final judgment on the merits, ... does not constitute a ‘voluntary dismissal’ within the meaning of [La.] C.C. art. 3463.” Pierce, 04-0333 at 7-8, 906 So.2d at 610. In summary, the dismissal of a suit with prejudice after both parties to the action have settled the dispute cannot be characterized as a voluntary and unqualified dismissal by the plaintiff alone. Dark v. Marshall, 41,711, pp. 7-8 (La.App.2d Cir.12/13/06), 945 So.2d 246, 250.

The facts of the instant matter differ materially from those of the Pierce case in that the previously-filed tort suit was not dismissed pursuant to a transaction or compromise. Although Williams acknowledged the correctness of Shaw’s assertion 1„in the tort suit that Williams’s cause of action sounded in workers’ compensation, over which claims the office of workers’ compensation has exclusive jurisdiction, his concession regarding the correctness of Shaw’s objection to his tort suit did not resolve his underlying claim. Further, Shaw does not acknowledge, but strongly disputes that it reached a settlement or otherwise entered into a transaction or compromise agreement with Williams to dismiss his tort suit and Williams has presented no proof of the same. As such, Williams has failed to show that the dismissal of his tort suit was anything other than a voluntary dismissal to which the provisions of La. C.C. art. 3463 applies. Accordingly, the workers’ compensation judge did not err in sustaining the peremptory exception on the basis of prescription and dismissing Williams’s disputed claim for compensation with prejudice.

CONCLUSION

For the foregoing reasons, we find the workers’ compensation judge properly sustained the peremptory exception on the basis of prescription and dismissed claimant’s disputed claim for compensation with prejudice. All costs of this appeal are assessed to the claimant, Raymond Williams.

AFFIRMED.

CARTER, C.J., Dissents and assigns reasons.

CARTER, C.J.,

dissenting.

|,I respectfully disagree with the majority opinion in this case. At the hearing on the peremptory exception raising the objection of prescription, a copy of the motion and order to dismiss the plaintiffs tort suit was introduced without objection and was properly considered by the workers’ compensation judge. The motion and order specifically states that the plaintiffs tort suit against the defendant had “been compromised.” Further, the hearing transcript clearly reflects that the dismissal was due to the parties’ agreement that the plaintiffs exclusive remedy was pursuant to the provisions of the Workers’ Compensation Act. Therefore, Pierce v. Foster Wheeler Constructors, Inc., 04-0333 (La.App. 1 Cir. 2/16/05), 906 So.2d 605, 610, writ denied, 05-0567 (La.4/29/05), 901 So.2d 1071, is controlling precedent that cannot be factually distinguished as the majority holds. The dismissal of a suit with prejudice on the basis of a compromise between the parties cannot be characterized as a voluntary and unqualified dismissal by the plaintiff alone. Id.; Dark v. Marshall, 41,711 (La.App. 2 Cir. 12/13/06), 945 So.2d 246, 250-251.

Accordingly, the normal rule for interruption of prescription applies, and prescription begins to run anew from the last day of the interruption. LSA-C.C. art. 3466; Pierce, 906 So.2d at 610. The plaintiffs prescriptive period began to |2run anew the date the compromise was perfected in the motion and order of dismissal on May 1, 2006. Thus, the plaintiffs disputed claim for compensation, mailed on April 29, 2006, and received by the Office of Workers’ Compensation on May 1, 2006, was timely. I believe the workers’ compensation judge erred in maintaining the defendant’s exception of prescription and in dismissing the plaintiffs disputed claim for compensation.

For these reasons, I respectfully dissent.

      . In his motion for appeal, claimant requested to be granted an appeal of the judgment denying his motion for new trial, but as it is clear from claimant's brief that he intended to appeal the underlying judgment, we will consider his request for an appeal as an appeal of the underlying judgment. See Carpenter v. Hannan, 01-0467, p. 4 (La.App. 1st Cir.3/28/02), 818 So.2d 226, 228-229, writ denied, 02-1707 (La. 10/25/02), 827 So,2d 1153.

      .Although Williams alleges that the workers' compensation judge sustained the peremptory exception, in part, on the basis of res judicata, we find no reference to such reasoning by the workers' compensation judge in either the judgment or his oral reasons for judgment.

      . In its appellate brief, Shaw concedes that Williams was employed by the Shaw Group, Inc. and that Shaw Constructors, Inc. is a corporate sister entity of The Shaw Group, Inc.

      . As Shaw Constructors, Inc. was the only defendant named in the tort suit, the dismissal of Shaw Constructors, Inc. essentially acted as a dismissal of the suit.

      . Based on the nature of the action, the Nineteenth Judicial District Court was not a court of competent jurisdiction for Williams’s claim (see La. C.C.P. art. 5251(4); La. C.C.P. art. 2; La. R.S. 23:1032(A)(1); and La. R.S. 23:1310.3(E)). In pleading the peremptory exceptions, the employer alleged that it was served with the claimant’s tort suit on January 19, 2006, outside of the prescriptive period; however, as this statement is not an adverse factual allegation, it would not constitute a judicial admission or confession of which we could take recognition. See La. C.C. art. 1853; Compensation Specialties, L.L.C. v. New England Mutual Life Insurance Company, 08-1549, p. 9 (La. App. 1st Cir.2/13/09), 6 So.3d 275, 281, writ denied, 09-0575 (La.4/24/09), 7 So.2d 1200. Since there is no evidence in the record before us to establish when the employer was served with the tort suit, for the sake of argument, we assume that the employer was served with process within the prescriptive period.

      . While the "Motion and Order to Dismiss with Prejudice,” whereby the tort suit was dismissed, does recite that the "matter including SHAW CONSTRUCTORS, INC. has been compromised,” the motion with incorporated order was submitted and signed by counsel for the plaintiffs only. A compromise which is not reduced to writing is unenforceable. Obviously, to serve as written proof of the agreement and obligations of both parties and their acquiescence therein, the written agreement must be signed by both parties, obligating both to do what they have agreed on. Anderson-Dunham, Inc. v. Hamilton, 564 So.2d 823, 828 -829 (La.App. 1st Cir.), writ denied, 569 So.2d 963 (La. 1990). Thus, the "Motion and Order to Dismiss with Prejudice,” signed only by counsel for the plaintiffs to the tort suit, is insufficient to sustain Williams's burden of proving that the tort suit was dismissed pursuant to a compromise reached by the parties.


author: KUHN, J.

text:
    Cynthia McINTYRE v. ROUSE’S ENTERPRISES, LLC.
    No. 2009 CA 0083.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 14, 2009.

      Hugh B. Exnicios, Folsom, Louisiana, Michael E. Holoway, Mandeville, Louisiana, for Claimant-Appellant, Cynthia McIntyre.
    Carlos E. Lazarus, Jr., Houma, Louisiana, for Defendant-Appellee, Rouse’s Enterprises, L.L.C.
    Before PARRO, KUHN, and McDonald, jj.
   KUHN, J.

12Claimant-appellant, Cynthia McIntyre, appeals the judgment of the Louisiana Office of Workers’ Compensation Administration (OWC) in favor of her former employer, defendant-appellee, Rouse’s Enterprise, L.L.C. (Rouse’s), dismissing her claims for designation of a physician of her choice, medical benefits, and indemnity benefits. We affirm.

McIntyre avers that OWC erred in: (1) determining that Dr. Paul van Deventer was her choice of physician; (2) failing to conclude that she remains disabled as a result of the December 29, 2004 accident; and (3) finding that Rouse’s made a bona fide effort to return her to work.

OWC determined that it was the hospital where McIntyre received emergency treatment after her fall that provided her with a list of three physicians, from which she selected the name of Dr. van Deventer, an orthopedist, for follow up treatment. This finding is duly supported by the evidence, including McIntyre’s testimony. OWC’s factual findings, duly supported by the evidence, are not manifestly erroneous. See Edwards v. Sawyer Indus. Plastics, Inc., 99-2676, p. 9 (La.6/30/00), 765 So.2d 328, 332.

McIntyre treated with Dr. van Deventer from January 2005 until August 2005. Although she testified that she was receiving medical treatment from Dr. Rosalind Cropper, McIntyre provided no evidence to support that claim and admitted that she never submitted a request to Rouse’s for payment of any medical treatment rendered by Dr. Cropper. McIntyre saw no other health care providers |3until April 2006 when, by agreement of the parties, she returned to Dr. van Deventer, who released her to sedentary duty opining she had reached maximum medical improvement for her back and right knee. It was not until May 18, 2007, that McIntyre requested treatment from another orthopedist, Dr. John Logan. Because McIntyre was treated by Dr. van Deven-ter, who was also an orthopedist and to whom she was not specifically directed to by Rouse’s, OWC correctly concluded that he is regarded as her choice of treating physician. See La. R.S. 23:1121 B(2)(a).

In addition to releasing McIntyre to sedentary work duty on April 20, 2006, Dr. van Deventer’s deposition testimony revealed that McIntyre complained of lower back pain during her first two visits. After reviewing MRI studies undertaken on McIntyre’s back on January 17, 2005, Dr. van Deventer noted findings of some disc degeneration and arthritis in the facet joints, mostly at L4-5 and L5-S1 levels, and did not see any evidence of acute pathology, expressly ruling out any disc herniation or acute compression of the spinal cord or nerves. Based on his physical exam and the MRI studies, he opined that she had a lumbar strain. Dr. van Deven-ter’s notes revealed that while she returned to see him in May, June, and August 2005, she voiced no complaints of back pain.

McIntyre sought medical treatment from Dr. Logan, commencing on May 18, 2007. Dr. Logan’s review of MRI studies conducted on that day showed diminished 14disc space height at L4-5 and L5-S1 levels with facet arthropathy at L3-A, L4-5, and L5-S1 level. Based on the history related to him by the patient, Dr. Logan concluded that the condition of McIntyre’s back was reasonably, medically related to the December 29, 2004 fall. But Dr. Logan admitted the May 2007 MRI study showed findings that were “reasonably in the same ballpark” as those of the January 2005 study. Moreover, he testified that it was reasonable to suggest that, in light of the MRI findings and McIntyre’s arthritic condition, the aggravation of the preexisting condition of her back as a result of the December 29, 2004 accident had resolved itself by May 2005, when Dr. van Deven-ter’s notes do not indicate any express complaints of back pain upon his examinations of McIntyre. Thus, a reasonable factual basis exists to support OWC’s conclusion that the complaints of low back pain had resolved by May 2005, and that Dr. Logan’s treatment of McIntyre for low back pain in May 2007 was not related to the December 29, 2004 accident. See Ed-iva/rds, 99-2676 at p. 9, 765 So.2d at 332.

McIntyre maintains that OWC erred in finding that Rouse’s made a bona fide effort to return her to work, suggesting that while the employer claimed that sedentary employment was offered to her, the evidence establishes that management actually sent her home when she tried to return to work the first time Dr. van De-venter stated she could perform sedentary job duties. While McIntyre’s uncontro-verted testimony was that she appeared for work on crutches and was sent home, she indicated that was in 2005. The record establishes that during this time, Rouse’s continuously paid her medical and indemnity benefits. After Dr. van Deven-ter released her to sedentary job duties in April 2006 and Rouse’s indicated it had a job for her within those medical restrictions, McIntyre admitted that she never | r,contacted Rouse’s to inquire about when she should report to the store to work. Accordingly, there was no manifest error by OWC in finding that before it discontinued payment of benefits, Rouse’s made a bona fide offer to return McIntyre to work within her restrictions and she refused it.

For these reasons, we affirm the OWC judgment, dismissing McIntyre’s claims, in this memorandum opinion issued in compliance with La. URCA Rule 2-16.1B. Appeal costs are assessed against claimant-appellant, Cynthia McIntyre.

AFFIRMED.

      . Although McIntyre lists numerous assignments of error, only three have been briefed, and consequently the others are considered abandoned. See La. URCA Rule 2-12.4.

      . The release to sedentary work duty by McIntyre’s treating physician supports OWC's finding that her right knee did not give rise to a disability due to a work-related injury on May 18, 2007. when she sought additional medical treatment from Dr. Logan, who deferred his medical assessment of her knee to Dr. van Deventer. Moreover, at the commencement of the hearing. McIntyre’s counsel conceded that the aneurysm from which she suffered and that precluded Dr. van De-venter’s treatment of her knee until evaluated by a vascular surgeon was not a preexisting condition that had been aggravated by the accident.


author: PEATROSS, J. PER CURIAM.

text:
    Johnny CUBLEY and Kathy Cubley, Plaintiffs-Appellees v. WILLIS-KNIGHTON MEDICAL CENTER, Defendant-Appellant.
    No. 44,435-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 23, 2009.
    Opinion on Grant of Rehearing Nov. 4, 2009.
    Pettiette, Armand, Dunkelman, Wood-ley, Byrd & Cromwell, LLP, by Lawrence W. Pettiette Rendi Wiggins, Shreveport, for Appellants, Louisiana Patient’s Compensation Fund & Louisiana Patient’s Compensation Fund Oversight Board.
    Wallace Law Firm, by Lacey P. Wallace, Bossier City, for Appellees, Johnny Cubley & Kathy Cubley.
    Watson, Blanche, Wilson & Posner, by Thomas H. Wartelle, Baton Rouge, for Appellant, Willis-Knighton Medical Center.
    Before WILLIAMS, PEATROSS & LOLLEY, JJ.
   PEATROSS, J.

| ;In this medical malpractice case, this court issued a Rule to Show Cause why this appeal should not be dismissed as moot and referred resolution of the issue to the merits of the appeal. In addition, with leave from this court, the Patient’s Compensation Fund (“PCF”) has filed a brief on the merits of the appeal challenging the trial court’s partial summary judgment in favor of Plaintiffs, Johnny and Kathy Cubley. For ' the reasons stated herein, we conclude that the appeal is properly before this court, with the PCF as appellant. Furthermore, we reverse the partial summary judgment and remand the matter to the trial court for further proceedings.

FACTS

Mr. Cubley underwent a total knee replacement at Willis-Knighton Medical Center (“Willis-Knighton”) in Shreveport on October 29, 2003. On October 31, he was transferred to the rehabilitation unit for physical therapy until his discharge on November 10. On November 2, while Mr. Cubley was being transported in his wheelchair by technician Debra Houston from physical therapy back to his room, the foot or leg rest unexpectedly swung out and Mr. Cubley’s surgical leg fell from the rest and lowered toward the floor causing him pain. It is undisputed that the leg rest was not locked into position. Mr. Cubley submits that Ms. Houston was weaving down the hall, talking to other employees who were walking down the hall. According to Mr. Cubley, when the foot rest swung out, he screamed in pain, but Ms. Houston told him to quit “hollering” and continued her conversation. He states that his leg was actually pulled under the wheelchair and his entire body had to arch up leaving only his head resting on the back of the chair. | ¡.Mr. Cubley contends that, as a result, he suffered a prolonged recovery and hospital stay and has experienced back pain, which has required further medical care.

Ms. Houston testified in deposition that she heard Mr. Cubley “scream” in pain and she went around the wheelchair, locked the footrest back in place and positioned Mr. Cubley’s leg back on the footrest and continued to his room. She denies that his leg was hyperflexed under the wheelchair and does not recall that his leg actually hit the floor-just that it lowered down some.

After Mr. Cubley was returned to his hospital bed, polar packs were applied to the knee and he was given pain medication. Ms. Houston filled out an incident report as required by hospital policy. The nurse on duty noted that the knee “appeared as before” and x-rays revealed that the prosthesis was still well positioned. Mr. Cubley’s physician noted that the knee was stable and there was “no significant injury.”

Mr. Cubley filed this malpractice claim, asserting that the physical therapy technician breached the standard of care in transporting him from physical therapy back to his hospital room with the wheelchair footrest unlocked. According to the Cubleys, the failure to secure the footrest allowed it to swing out of position allowing his leg on which he had just had knee surgery to fall to the floor causing further injury to his leg and back. The medical review panel found no breach of the standard of care, addressing only the knee surgery with no reference to the alleged wheelchair incident in its brief opinion. The Cubleys then moved for |ssummary judgment, which was granted as to liability and denied as to post-accident medical treatment. Willis-Knighton subsequently moved for new trial, which was denied, and Willis-Knighton filed notice of appeal.

Prior to the filing of briefs on appeal, however, the Cubleys and Willis-Knighton mediated and settled the claim for approximately $53,000. In the settlement document, the Cubleys reserved their right to proceed against the PCF and made a demand for excess judgment against the PCF. Notice of settlement was provided to the PCF. The parties then petitioned for court approval of the settlement. The petition alleged that the appeal filed by Willis-Knighton would be dismissed, absent an objection by the PCF. The PCF subsequently filed an “Objection to Petition for Court Approval of Settlement” alleging that the appeal should continue and not be dismissed. The appeal was not dismissed and Willis-Knighton filed for an extension of the briefing deadline to allow counsel to enroll for the PCF on appeal. The extension was granted by this court and a motion to enroll as counsel on behalf of the PCF was filed. The motion was initially denied on the basis that the PCF was not a party to the action, had not been substituted as a party or intervened in the suit and because the record contained no court-approved settlement.

The record on appeal was then supplemented to include a judgment of the trial court approving the settlement and reserving the Cubleys’ right to proceed against the PCF. Counsel for the PCF then filed a “Motion to Substitute Parties, Enroll as Counsel of Record for Louisiana Patient’s Compensation Fund, and For Leave to File Attached Brief on Behalf of |4Appellant, Louisiana Patient’s Compensation Fund.” In this motion, the PCF argued that, when the PCF received notice of the petition for court approval of the settlement and filed its objection thereto, it became a party to the litigation and now steps into the shoes of Willis-Knighton on appeal. This court then issued a Rule to Show Cause to the Cubleys, Willis-Knigh-ton and the PCF why the appeal should not be dismissed as moot. The PCF and the Cubleys filed briefs on the issue and this court then ordered that the issue be referred to the merits of the appeal and allowed the PCF to file a brief on the merits. As a threshold issue, we will first rule on the PCF’s motion and the dismissal of the appeal as moot.

DISCUSSION

Dismissal of Appeal as Moot

Summarily stated, the question to be resolved is whether or not the appeal is moot by virtue of the settlement between the initial party plaintiff and defendant and PCF’s failure to intervene or become a party to the action prior to the appeal. Stated another way, can the PCF continue the appeal in Willis-Knighton’s capacity as Defendant/Appellant in order to exercise its statutory right to contest the ruling on liability in the partial summary judgment below? We conclude that the appeal may proceed with the PCF as Appellant.

Pursuant to the Louisiana Medical Malpractice Act (“MMA”), La. R.S. 40:1299.41, et seq., the liability of a single qualified health care provider is limited to $100,000 for the injury or death of any one person. La. R.S. 40:1299.42(B)(2). The act provides that damages in excess of 15$100,000, but which do not exceed $500,000, shall be paid by the PCF. La. R.S. 40:1299.42(B)(3). In approving a settlement or determining the amount, if any, to be paid by the PCF, the court is required to consider the liability of the health care provider as admitted and established when the provider or its insurer has paid $100,000. La. R.S. 40:1299.44(0(5). A settlement for the health care provider’s maximum liability of $100,000 triggers the PCF’s liability for excess damages and precludes the PCF from contesting the health care provider’s liability. La. R.S. 40:1299.42(B)(3); Allen v. Bridges, 41,169 (La.App. 2d Cir.11/1/06), 942 So.2d 686, citing Russo v. Vasquez, 94-2407 (La.1/17/95), 648 So.2d 879. A settlement of less than the full $100,000, however, does not trigger the PCF’s statutory liability for excess damages and is insufficient to preclude the PCF from contesting the health care provider’s liability. Allen, supra; Russo, supra; Taylor v. Tulane University of Louisiana, 97-0977 (La.App. 4th Cir.9/17/97), 699 So.2d 1117. In such cases, the PCF has an absolute right to contest liability.

In medical malpractice cases, the PCF is not a co-obligor or co-defendant with the health care provider. Dodson v. Community Blood Center of Louisiana, Inc., 92-2068 (La.App. 1st Cir.11/24/93), 633 So.2d 252, units denied, 93-3158, 93-3174 (La.3/18/94), 634 So.2d 850, 851. Rather, when the fund is defending an action for excess damages after a plaintiff has settled with a health care provider, the PCF is in the nature of a statutory intervenor rather than a party defendant. Dodson, supra; Stuka v. Fleming, 561 So.2d 1371 (La. 1990), cert, denied, 498 U.S. 982, 111 S.Ct. [r,513, 112 L.Ed.2d 525 (1990). Again, the issue presented in the case sub judice is what action is required by the PCF in order to bring it into the suit for purposes of exercising its statutory right to contest liability when there has been a prior summary judgment on the issue of liability, and an appeal filed thereto, before the health care provider and plaintiffs settled and before the PCF has been given notice of the settlement and an opportunity to object.

As previously described, a petition for court approval of the settlement was filed which contained a provision for dismissal of the present appeal, absent an objection to the settlement by the PCF. On receipt of notice of the petition for court approval, the PCF filed an objection, urging that the appeal not be dismissed. While it may have been optimal for the PCF to have filed a Petition for Intervention as well as its objection, we conclude that the PCF entered the litigation at the time the demand for excess judgment was made against it and it objected to the settlement, requesting that the appeal proceed. In Dodson, supra, the court treated a petition for approval of settlement and the PCF’s objection thereto as the PCF’s entrance into the suit and held that the PCF “takes the proceedings as it finds them” upon entering the litigation. In this regard, we note that the PCF enters the current litigation, taking the proceeding as it finds them, with a pending appeal from a partial motion for summary judgment on the issue of liability, an issue that it has a statutory right to contest. The PCF could not have contested liability earlier, as the PCF is not a party defendant until a demand for excess judgment is made against it. If the PCF were not fallowed to proceed with the appeal, its statutory right would be abrogated by a judgment rendered before the PCF was on notice of any claim for excess damages against it. We do not believe that such a result was envisioned by the legislature in adopting the process outlined in La. R.S. 40:1299.41, et seq. We find, therefore, that the appeal is not moot and grant the motion to enroll of the PCF and now turn to the merits of the appeal.

Partial Motion for Summary Judgment

The PCF presents two assignments of error: 1) that there is a genuine issue of material fact as to liability and 2) that the trial court erred in dividing the issue of negligence from causation in granting the motion for partial summary judgment. Finding merit in the second argument of the PCF, we conclude that the trial court improperly bifurcated the issues of liability and causation; and, therefore, we must reverse the partial summary judgment.

In oral reasons for granting the partial summary judgment, the trial judge stated:

... no genuine issue of material fact and that the mover is entitled to summary judgment on the issue of liability arising out of the incident involving the wheelchair ... Insofar as post-incident treatment, summary judgment must be denied. That sort of care would require an expert opinion. So to restate briefly, motion for summary judgment as to liability of the wheelchair incident is granted. The issue remaining will be that of damages.

The ruling was reduced to judgment reading, in pertinent part, as follows:

It is hereby ORDERED, ADJUDGED, AND DECREED that plaintiffs motion for summary Judgment on the issue of liability arising out of the “wheelchair incident” is GRANTED.
| ¡¿Plaintiffs motion for Summary Judgment on all other issues is DENIED.

This court has previously addressed the issue of a partial summary judgment on the issue of liability in the case of Jones v. LSUSHSC, 39,292 (La.App. 2d Cir.9/2/04), 880 So.2d 269, wherein we held that the trial court erred in granting a partial motion for summary judgment on the sole issue of the breach of standard of care in a medical malpractice action. In Jones, the trial court ruled only on liability, or the breach of the standard of care, and did not address the issue of whether the breach caused the plaintiffs injury. Writing for this court, J. Moore explained:

We further conclude that while La. C.C.P. art. 966 E permits summary judgment dispositive of “a particular issue,” in this instance, the grant of a summary judgment on a single element of La. R.S. 9:2794, which sets out the elements to show liability in a medical malpractice claim, was improper. By dividing the issue of liability into smaller issues, the court’s judgment that the defendant breached the standard of care might be used at trial to preclude the introduction of evidence by the defendant regarding whether there was a breach in the standard of care and that breach caused the plaintiffs injury. There is possibility of confusion arising out of the factual interrelationship between the adjudicated element and the unadjudicated element that could lead to inconsistent rulings and piecemeal litigation.

As in Jones, the partial summary judgment in the instant case ruled only on liability and did not speak to the issue of causation. As such, the judgment improperly divided the issues on summary judgment. For this reason, we reverse the partial summary judgment of the trial court and remand the matter for further proceedings.

J¡¿DECREE

For the foregoing reasons, the “Motion to Substitute Parties, Enroll as Counsel of Record for Louisiana Patient’s Compensation Fund, and For Leave to File Attached Brief on Behalf of Appellant, Louisiana Patient’s Compensation Fund” filed by the Patient’s Compensation Fund is granted. The judgment of the trial court granting partial summary judgment in favor of the Cubleys on the issue of liability is reversed and the matter is remanded for further proceedings. Costs of appeal are assessed to Plaintiffs/Appellees Johnny and Kathy Cubley.

MOTION GRANTED; JUDGMENT REVERSED AND REMANDED.

Per Curiam on Rehearing

Before BROWN, WILLIAMS, PEATROSS, MOORE and LOLLEY, JJ.

PER CURIAM.

| Rehearing was granted in the case sub judice to reconsider whether the appeal is moot. Briefly, this is an appeal by Defendant Willis-Knighton of a partial summary judgment in favor of the Plaintiffs, the Cubleys, in a medical malpractice action. Following the partial summary judgment, Willis-Knighton settled with the Cubleys for less than $100,000, with the Cubleys reserving their rights to proceed against the PCF. The appeal of the partial summary judgment was not dismissed and counsel for the PCF then filed in this court a “Motion to Substitute Parties, Enroll as Counsel of Record for Louisiana Patient’s Compensation Fund, and For Leave to File Attached Brief on Behalf of Appellant, Louisiana Patient’s Compensation Fund” seeking to “step into the shoes” of Willis-Knighton on appeal. This court then issued a Rule to Show Cause to the Cubleys, Willis-Knighton and the PCF why the appeal should not be dismissed as moot.

After further consideration, this court finds the instant appeal to be moot, because the partial summary judgment therein, between the Cubleys and Willis-Knighton, is not binding on the PCF.

As set forth in the original opinion of this court:

Pursuant to the Louisiana Medical Malpractice Act (“MMA”), La. R.S. 40:1299.41, et seq., the liability of a single qualified health care provider is limited to $100,000 for the injury or death of any one person. La. R.S. 40:1299.42(B)(2). The act provides that damages in excess of $100,000, but which do not exceed $500,000, shall be paid by the PCF. La. R.S. 40:1299.42(B)(3). In approving a settlement or determining the amount, if any, to be paid by the PCF, the court is required to consider the liability of the health care provider as admitted and established when the provider or its insurer has paid $100,000. La. R.S. 40:1299.44(C)(5). A settlement for the health care provider’s maximum liability of $100,000 12 triggers the PCF’s liability for excess damages and precludes the PCF from contesting the health care provider’s liability. La. R.S. 40:1299.42(B)(S); Allen v. Bridges, 41,-169 (La.App. 2d Cir.11/1/06), 942 So.2d 686, citing Russo v. Vasquez, 94-2407 (La.1/17/95), 648 So.2d 879. A settlement of less than the full $100,000, however, does not trigger the PCF’s statutory liability for excess damages and is insufficient to preclude the PCF from contesting the health care provider’s liability. Allen, supra; Russo, supra; Taylor v. Tulane University of Louisiana, 97-0977 (La.App. 4th Cir.9/17/97), 699 So.2d 1117. In such cases, the PCF has an absolute right to contest liability.

Based on the above statutory scheme and jurisprudence, we conclude that there are two instances in which the PCF may become bound on liability: (1) where there is a settlement for a minimum of $100,000; and (2) where there is a judgment following trial in the amount of $100,000 or more, neither of which occurred in this case. Accordingly, we further conclude that the partial summary judgment in the instant case, between the Cubleys and Willis-Knighton, is not binding on the PCF. Moreover, the partial summary judgment in favor of the Cubleys has no res judicata effect, as the continuing proceedings below involve the Cubleys’ demand for excess judgment against a wholly different defendant, the PCF. It logically follows, therefore, that the PCF does not “stand in the shoes” of Willis-Knighton for purposes of appealing the partial summary judgment. Rather, the appeal is moot, as Willis-Knighton, after taking the appeal, settled with the Cubleys.

In summary, since the partial summary judgment is not binding on the PCF, the PCF may exercise its right to contest liability in the trial court. In addition, the PCF is not required to proceed with the appeal of a partial summary judgment rendered against a different defendant. Regarding the | slatter, we note that the PCF did not have the opportunity to oppose the motion for partial summary judgment in the trial court and, under this holding, the PCF will have the opportunity to fully contest liability with the presentation of evidence to the court if necessary.

In light of our conclusion that the current appeal is moot, we will not address the merits of the appeal concerning the alleged improper division of issues in the partial summary judgment.

APPEAL DISMISSED AS MOOT.


author: GASKINS, J.

text:
    Gerald Eugene LEEPER, Plaintiff-Appellee v. Karen Terrase LEEPER, Defendant-Appellant.
    No. 44,777-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 23, 2009.

      Karen Terrase Leeper, In Proper Person.
    Shereba L. Diaz, for Appellee.
    Before GASKINS, DREW and LOLLEY, JJ.
   GASKINS, J.

|! This appeal arises from a judgment in which the trial court awarded sole custody of a seven-year-old boy to his father and refused to order that the child visit his mother in prison. The mother contends that the trial court erred in accepting the recommendation of a hearing officer when she was not allowed to attend the hearing officer conference and the trial court did not consider her objections to the hearing officer’s recommendations. We affirm the trial court judgment.

FACTS

The parents, Gerald and Karen Leeper, were married in January 2002 in Jefferson Parish following the September 2001 birth of their son. The mother was incarcerated from February 2002 to May 2004. After her release, the family lived together in Jefferson Parish.

In April 2006, the mother was sentenced to six years at hard labor for possession of cocaine; pursuant to a plea bargain, a charge of possession of hydrocodone was dismissed. In May 2006, a Jefferson Parish district court order designated the father as the domiciliary parent in a joint custody plan. Because the mother was in prison, no visitation was ordered; the court stated that the mother had reasonable contact with the child by phone or mail. The father and the child moved to Ouachita Parish that same month.

In March 2008, the father filed the instant petition for divorce and custody in Ouachita Parish. He requested sole custody of the child or, in the alternative, joint custody with domiciliary custody to him and reasonable contact by phone or mail with the mother. The father asserted that visiting with the mother in prison and/or contact with her had caused the child | ^distress. He alleged that he and the child moved to Monroe due to threats by persons associated with the mother.

On April 14, 2008, the mother answered in proper person, requesting joint custody and visitation with the child. As to visitation, she cited a “caring parents” program at the prison. The trial court did not sign an order for the mother to be brought from prison to a hearing.

On January 5, 2009, the father filed an expedited motion for custody seeking sole custody of the child. The matter was set for hearing on February 18, 2009. Service of notice of the hearing was made at the mother’s prison on January 20, 2009.

On January 28, 2009, the mother’s response to the father’s expedited motion was received and filed. A second copy of this pleading was received on February 13, 2009, and filed on February 19, 2009; according to a handwritten notation, it was a duplicate held for payment. In her response, the mother again stated that she would like to be present for the hearing. She attached an order to compel the prison warden to allow her to attend. The order on the first pleading was not signed; as to the order on the second copy of the pleading, at 10:10 a.m. on February 18, 2009, in a handwritten notation, the trial court denied the order “as per order issued in open court on 2/18/09 at 9:15 a.m.” The minutes for February 18, 2009, state: “Defendant present. [Father’s attorney] absent. Faxed letter from [father’s attorney] filed into the record per order of the Court. Interim Custody order | .¡provided by the Court, copy served to Defendant in open court.” No copy of the interim order of custody is found in the appellate record.

In the meantime, on February 13, 2009, the mother filed a motion to proceed in forma pauperis, which was granted on February 18, 2009.

On February 25, 2009, a hearing officer conference [HOC] order was issued setting a HOC for April 15, 2009. Service of this order was made at the mother’s prison on March 8, 2009.

On March 6, 2009, the mother filed a “motion to appeal,” which she requested be considered as an objection to any order leaving the child in the sole custody of his father. The trial court denied the mother’s request to set a rule to show cause hearing on the motion at which she would be present “on the showing made in light of the existing record.”

On April 15, 2009, the HOC was held. The father and his attorney were present but the mother, who was served, did not appear. Various findings of undisputed fact were made, including the following. The father had not taken the child to the prison to visit the mother for more than a year. Previously, he had taken the child on some occasions; however, the child became upset during the visits and he had indicated a desire to not return to the prison to visit. During 2007 and early 2008, the mother attempted to maintain contact through cards and letters. Each parent contended that threats have been made by the other parent or persons associated with the other parent. The mother’s release date from prison is in 2012. There were also statements that the mother had sought sexual encounters through ads in publications.

14 The hearing officer concluded that 10 of the 12 factors set forth in La. C.C. art. 134 favored the father and that the two remaining factors — preference of the child and willingness to encourage a relationship with the other parent — did not favor either party. As a result, sole custody to the father was found to be in the child’s best interest. Additionally, the hearing officer found that visitation with the mother at the prison at St. Gabriel would place a substantial burden of travel on the father and the child and would likely be upsetting to the child. Instead, the hearing officer held that it would be in the child’s best interest for the mother to communicate by mail. The hearing officer also stated that after her release, the mother can file pleadings seeking visitation. The HOC report was filed April 16, 2009.

On April 16, 2009, the trial court signed a judgment adopting and implementing the hearing officer’s recommendations. The court noted that no objections had been filed to the HOC report and that the delays for filing such objections had been expressly waived by the father and waived by the mother due to “her failure to appear for the conference after proper notice.”

On April 23, 2009, the mother was served in prison with the trial court judgment. On April 24, 2009, the mother filed a multitude of objections to the HOC report. She signed a certification that acknowledged receipt of a copy of the HOC report rendered on April 16, 2009, and essentially tracked the language set forth in the acknowledgment form attached to the HOC report.

The mother appeals from the trial court judgment. She requests that joint custody of the child be granted and that the child be compelled to visit her in prison.

|,LAW

The paramount consideration in any determination of child custody is the best interest of the child. La. C.C. art. 131. In order to obtain an award of sole custody, the parent seeking custody must prove by clear and convincing evidence that sole custody, as opposed to joint custody, is in the best interest of the child. La. C.C. art. 132. A parent not granted custody or joint custody of a child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would not be in the best interest of the child. La. C.C. art. 136.

The jurisprudence emphasizes that the best interest of the child is the sole criterion for determining a noncustodial parent’s right to visitation. Smith v. Smith, 41,871 (La.App. 2d Cir.1/24/07), 948 So.2d 386, writ not considered, 2007-0621 (La.4/20/07), 954 So.2d 149; Davis v. Davis, 494 So.2d 1315 (La.App. 2d Cir. 1986). Because each case depends on its own facts, the determination regarding visitation is made on a case-by-case basis. Davis, supra. Great weight is given to the trial court’s determination, and the court’s judgment will not be overturned unless a clear abuse of discretion is shown. Smith, supra; Davis, supra.

As to objections to HOC reports, Rule 27.2(D) of the Local Rules of the Fourth Judicial District Court provides, in relevant part:

1. After the Hearing Officer issues the written Hearing Officer Conference Report, the parties will have three (3) days, exclusive of weekends and legal holidays, from the date of the rendition of said Report, to file a written objection with the office of the Clerk of Court for the parish in which the case is pending....
|fi4. Any objection not timely filed in accordance with the above provisions shall be subject to ex parte dismissal by the court, on the court’s own motion.
5. A party who, after having been duly cited and served with process, fails to appear or remain for the duration of a Hearing Officer Conference waives the right to file an objection to the recommendations contained in the Hearing Officer Conference Report, unless the Hearing Officer has excused the failure to appear or to remain for the duration of the Hearing Officer Conference. [Emphasis theirs.]

A prisoner has a right of access to state and federal civil courts. La. Const, art. 1, § 22; Pollard v. White, 788 F.2d 1124 (11th Cir.1984), cert, denied, 469 U.S. 1111, 105 S.Ct. 791, 83 L.Ed.2d 785 (1985); Taylor v. Broom, 526 So.2d 1367 (La.App. 1st Cir.1988). However, this right does not necessarily include the right to be physically present at the trial of a civil suit. Pollard, 738 F.2d at 1125; Jones v. Phelps, 374 So.2d 144 (La.App. 1st Cir.1979); Taylor v. Broom, supra. Generally, prisoners who bring civil actions have no right to be personally present in court at any stage of the action. Holt v. Pitts, 619 F.2d 558 (6th Cir.1980). Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, among which is the right of a prisoner to plead and manage his action in court personally. Price v. Johnston, 334 U.S. 266, 285-86, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948), overruled on other grounds by McCleshey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).

It is not unusual for individuals who are incarcerated to be parties to civil litigation, either as plaintiff or defendant, and a writ of habeas corpus ad testifican-dum is the means for such individuals to be present in court. Prisoners who are parties to litigation utilize this mechanism to obtain their presence in court. Ardoin v. Bourgeois, 2004-1663 (LaApp. 3d Cir. [11/2/05),7 916 So.2d 329; Falcon v. Falcon, 07-491 (La.App. 5th Cir.12/27/07), 975 So.2d 40, writ denied, 2008-0295 (La.3/28/08), 978 So.2d 311.

The determination of whether a prisoner-party in a civil action should appear personally in court for the trial of the action rests in the discretion of the trial court. Ballard v. Spradley, 557 F.2d 476 (5th Cir.1977); Taylor v. Broom, supra.

DISCUSSION

The record shows that the mother was served with the notice for the HOC. While the mother filed requests to be present at other proceedings, she did not file one specifically for the HOC. Accordingly, since she failed to take the necessary steps to secure her presence at the hearing, she cannot complain now that she was not there. See Proctor v. Calaban, 95-210 (La.App. Bd Cir.8/30/95), 663 So.2d 110; Ardoin v. Bourgeois, supra; Falcon v. Falcon, supra. Nor can she be heard to complain about the fact that her absence from the HOC waived her right to object to the recommendations in the HOC report, which the trial court then adopted and implemented in its judgment.

Furthermore, even assuming arguendo that the mother’s “motion to appeal” filed on March 6, 2009, could be construed as a request to be present at the HOC, nothing in the record indicates an abuse of the trial court’s discretion in denying the same. As an incarcerated inmate, the mother had no absolute right to be physically present at such a hearing.

|8The record demonstrates that the mother has been absent for most of the child’s life due to her incarcerations for criminal activities. The father has been the child’s primary caregiver since infancy. Under the circumstances of the instant case, we find no error in the trial court’s determination that the father proved by clear and convincing evidence that granting him sole custody was in the child’s best interest. On the issue of visitation, the hearing officer and the trial court found that visitation at the prison was not in the best interest of the child. The father indicated that the prior visits to the mother in prison were distressing to this young child. We find that the trial court’s refusal to force the child to visit the mother in the confines of a state prison — an activity which upset the child in the past — is not an abuse of discretion. See Smith, supra; Davis, supra.

We note that following her release from prison, the mother will have the opportunity to seek a modification of custody and/or visitation. In the meantime, the mother is allowed to reasonably maintain her relationship with the child through communication by mail.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed against the mother, Karen Leeper.

AFFIRMED.

      . The handwritten notation on the proposed order sent by the mother with her pleadings appears to say: "Returned unsigned pending a status conf. by phone or in person being held.”


author: LOLLEY, J.

text:
    John C. COOKSEY, M.D. and John C. Cooksey, M.D. (a Professional Medical Corporation), Plaintiffs-Appellants v. HEARD, McELROY & VESTAL, L.L.P. and Ron Stewart, Defendants-Appellees.
    No. 44,761-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 23, 2009.

      Donald L. Kneipp, Monroe, for Appellants.
    Cook, Yancey, King & Galloway, by Bernard S. Johnson, Shreveport, for Appel-lees.
    Before GASKINS, DREW and LOLLEY, JJ.
   LOLLEY, J.

| ,In this prescription case, plaintiffs, John Cooksey, M.D., and his medical corporation appeal the judgment of the Fourth Judicial District Court, Parish of Ouachita, State of Louisiana, which found in favor of defendants, Heard, McElroy <& Vestal, LLP (“Heard McElroy”) and Ron Stewart. For the following reasons, we affirm the trial court’s judgment.

FACTS

Dr. John Cooksey is an opthalmologist and John Cooksey, M.D., a professional medical corporation is Dr. Cooksey’s wholly owned medical corporation (“plaintiffs”). From 1993 to 2003, Ron Stewart, a certified public accountant with Heard McEl-roy (“defendants”) performed accounting services for plaintiffs. From 1997 until 2003, Dr. Cooksey served in the United States Congress and did not practice medicine full time. According to Dr. Cooksey, during his time in Congress, defendants began to submit bills for fictitious and/or improperly inflated services, in addition to misallocating overhead expenses to him instead of his co-owner and partner, Dr. Priscilla Perry.

Due to personal reasons, Dr. Perry relocated and sought to leave the practice. Dr. Cooksey hired David Knight, a certified public accountant, to help with negotiations as he attempted to buy out Dr. Perry from the medical practice. The buy-out eventually occurred in March 2003. During his review of the company’s financial documents that the defendants’ supplied, Knight brought to Dr. Cooksey’s attention his concerns about the numbers | gused in the valuation process and potential excessive billing issues. On May 23, 2005, plaintiffs filed a suit against Heard McElroy and Stewart alleging accounting malpractice. However, due to procedural reasons, the suit was dismissed without prejudice by the trial court on December 29, 2005. On June 4, 2008, plaintiffs filed an Amended Supplemental Petition for damages stating that it “related back” to the original petition. On November 24, 2008, defendants filed a Peremptory Exception of Prescription to the Amended and Supplemental Petition. On December 12, 2008, defendants filed a Second Peremptory Exception of Prescription to the Original Petition. After a hearing on the exceptions, the trial court granted the defendants’ exceptions and dismissed the instant suit. Plaintiffs now appeal.

LAW AND DISCUSSION

Plaintiffs argue that the amended pleadings established that the evidence of defendants’ wrongdoings were discovered within one year of filing the instant suit.

Louisiana R.S. 9:5604 states, in pertinent part:

A. No action for damages against any accountant duly licensed under the laws of this state, or any firm as defined in R.S. 37:71, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide professional accounting service shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within o?ie year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect. (Emphasis added.)

| ¿The party raising the exception of prescription ordinarily bears the burden of proof at the trial of the peremptory exception. Spott v. Otis Elevator Co., 601 So.2d 1355 (La.1992). However, when prescription is evident from the face of the pleadings, the plaintiff bears the burden of showing the action has not prescribed. Id. When evidence is introduced at the hearing on the exception of prescription, the trial court’s findings of fact are reviewed under the manifest error-clearly wrong standard of review. McKinley v. Scott, 44,414 (La.App.2d Cir.07/15/09), 17 So.3d 81. Here, defendants submit that plaintiffs’ own records show clearly that all of the facts were known in March 2003, and therefore the applicable prescriptive period has expired. We agree.

According to the record, and as the trial court noted, the information regarding the alleged wrongdoings were known or should have been known in 2003, when Knight raised his concerns with the financial documents based on the information defendants’ had supplied. Knight eventually created a report dated June 8, 2004, which plaintiffs rely on as the “date of discovery,” that raised various malpractice claims that could be brought against defendants. However, according to the March 27, 2003 minutes, at least two of the issues raised in Knight’s 2004 report, were covered at the board of directors’ meeting for John Cooksey, M.D. & Priscilla Perry, M.D., a Louisiana Medical Corporation. Knight testified to the same. In light of this evidence, the trial court was not manifestly erroneous in its finding that plaintiffs had knowledge of the facts forming the basis for the “alleged” malpractice in 2003. Therefore, the time in which to bring a malpractice |4suit is prescribed, and any new claims pled in the amended petition are moot.

In the alternative, plaintiffs argue that the peremptive period is not applicable since the defendants’ actions constituted fraud. Louisiana R.S. 9:5604 states that the “peremptive period provided in Subsection A of this Section shall not apply in cases of fraud, as defined in Civil Code Article 1953.” Two elements essential to establishing legal fraud are intent to defraud or gain an unfair advantage and a resulting loss or damage. First Downtown Development v. Cimochowski, 613 So.2d 671 (La.App. 2d Cir.1993), writ denied, 615 So.2d 340 (La.1993). The party alleging fraud must prove it by a preponderance of the evidence. La. C.C. art. 1957; W.A McMichael Const. Co. v. D & W Properties, Inc., 356 So.2d 1115, (La. App. 2d Cir.1978), writ denied, 359 So.2d 198 (La.1978).

After a review of the record, we fail to find that fraud was established. First, nothing in the record indicates that defendants intentionally inflated their fees to defraud plaintiffs. In addition, Cooksey, at trial, could not point to specific billing errors, services not rendered, or their excessive fees to substantiate his allegations of fraud. As such, we find this argument unpersuasive.

CONCLUSION

For the foregoing reasons, the trial court’s opinion is affirmed. Costs of this appeal are assessed against plaintiffs, Dr. John Cooksey and John Cooksey, M.D., a • professional medical corporation.

AFFIRMED.