text:
    In re Margrett FORD.
    No. 2009-B-2524.
    Supreme Court of Louisiana.
    March 26, 2010.
   hATTORNEY DISCIPLINARY PROCEEDINGS.

PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Margrett Ford, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

In 2005, this court considered a joint petition for consent discipline filed by respondent and the ODC, wherein the parties stipulated that respondent neglected a legal matter, failed to communicate with a client, and failed to refund an unearned fee. The court accepted the petition for consent discipline and suspended respondent from the practice of law for one year and one day, fully deferred, subject to two years of supervised probation with conditions. In re: Ford, 05-1328 (La.6/24/05), 905 So.2d 287. Respondent’s probation commenced on February 20, 2006.

In April 2006, Lesley Van paid respondent an advance deposit of $5,000 to represent him and other family members, including Gene and Georgia Rawlings, in a property dispute matter. Despite numerous attempts, neither Mr. Van nor the Rawlings were able to communicate with respondent beginning in approximately June 2006. Consequently, Mr. Rawlings, on Mr. Van’s behalf, contacted [¡.respondent’s office and requested a refund of the $5,000 advance deposit. Respondent failed to respond to this request.

In May 2007, Mr. Van filed a disciplinary complaint against respondent. Respondent failed to cooperate with the ODC in its investigation of the complaint.

In January 2008, the ODC filed a motion to revoke respondent’s probation, based on her failure to comply with the terms of her probation, as well as her failure to cooperate in the investigation of Mr. Van’s complaint. During her testimony at the related hearing before a panel of the disciplinary board, respondent stated that she had communicated with the Rawlings following the filing of Mr. Van’s complaint when, in fact, she had not.

DISCIPLINARY PROCEEDINGS

In September 2008, the ODC filed one count of formal charges against respondent, alleging her conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5(f)(5) (failure to refund an unearned fee), 1.16(a)(3) (a lawyer shall withdraw from the representation of a client when the lawyer is discharged), 1.16(d) (obligations upon termination of the representation), 3.3(a) (candor toward the tribunal), 8.1(a) (a lawyer shall not knowingly make a false statement of material fact in connection with a disciplinary matter), 8.1(c) (failure to cooperate with the ODC in its investigation), and 8.4(a) (violation of the Rules of Professional Conduct).

^Respondent failed to answer the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Report

After considering the ODC’s deemed admitted submission, the hearing committee adopted the deemed admitted factual allegations of the formal charges as its factual findings. Based on those facts, the committee determined respondent violated the Rules of Professional Conduct as charged.

The committee further determined respondent “intentionally, knowingly or negligently” violated duties owed to her clients and the legal profession. She caused actual harm to her clients as they paid fees that were never returned. She failed to respond to Mr. Rawlings and Mr. Van’s attempts to communicate with her. She also failed to cooperate with the ODC and provided misleading and false statements to the ODC. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined the baseline sanction is suspension.

The committee found the following aggravating factors present: prior disciplinary offenses, a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, submission of false evidence, false statements, or other deceptive practices during the disciplinary process, refusal to acknowledge the wrongful nature of the conduct, vulnerability of |4the victim, substantial experience in the practice of law (admitted 1968), and indifference to making restitution. The committee also determined that no mitigating factors are present.

The committee further found respondent exhibited a lack of diligence and an indifference to her obligation to her clients and the legal profession. She also failed to provide her clients with insufficient information and failed and refused to account for the $5,000 advance deposit. Furthermore, respondent failed to cooperate with the ODC’s investigation and made false statements in connection with this disciplinary matter. Finally, the committee found respondent has taken no part in these proceedings and has not filed any pleadings or introduced any evidence.

Under these circumstances, and after considering this court’s prior jurisprudence involving similar misconduct, the committee recommended respondent be suspended from the practice of law for three years. The committee also recommended respondent be ordered to make restitution to Mr. Van in the amount of $5,000.

Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

Disciplinary Board Recommendation

After review, the disciplinary board determined the hearing committee’s factual findings in this deemed admitted matter are supported by the factual allegations in the formal charges and/or by the evidence submitted in support of those allegations. The board also determined the committee correctly applied the Rules of Professional Conduct.

The board further determined respondent knowingly, if not intentionally, violated duties owed to her clients, the legal system, and the legal profession. Her ^failure to pursue her clients’ legal matter and her failure to return the unearned fee has caused her clients significant harm. Her failure to cooperate with the ODC has caused harm to the disciplinary system, and her misleading statements to the board has caused harm to the legal system by compromising the integrity of the disciplinary system. Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the baseline sanction is suspension.

The board found the following aggravating factors present: prior disciplinary offenses, a dishonest or selfish motive, a pattern of misconduct, multiple offenses, submission of false statements during the disciplinary process, vulnerability of the victims, substantial experience in the practice of law, and indifference to making restitution. Like the committee, the board found no mitigating factors present.

Turning to the issue of an appropriate sanction, the board stated:

the present matter is essentially a continuation of the probation revocation proceeding. Respondent was given the benefit of the doubt in the revocation proceeding and her probation was extended. Rather than resolve the complaint, Respondent chose to continue to ignore it. Therefore, Respondent should be suspended for at least one year and one day, which would have been the result if her probation was revoked.

Based on this reasoning, and in light of the court’s prior jurisprudence involving similar misconduct, the board recommended respondent be suspended from the practice of law for one year and one day. The board further recommended respondent be ordered to pay restitution to Mr. Van in the amount of $5,000, plus legal interest.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

|,¿DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57.

In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § 11(E)(8). Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan, 01-3058 (La.1/10/03), 838 So.2d 715.

The record of this deemed admitted matter indicates respondent neglected a legal matter, failed to communicate with her clients, failed to refund a $5,000 unearned fee, made false statements to the disciplinary board and the ODC, and failed to cooperate with the ODC in its investigation. Based on these facts, respondent has violated the Rules of Professional Conduct as charged.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and |7deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

Respondent acted knowingly, if not intentionally, in violating duties owed to her clients, the legal system, and the legal profession. She caused harm to her clients in that them legal matter has been delayed, and Mr. Van continues to be deprived of his $5,000. She also harmed the disciplinary system by making misrepresentations and failing to cooperate with the ODC. Suspension is the baseline sanction.

Aggravating factors present include pri- or disciplinary offenses, a dishonest or selfish motive, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, submission of false statements during the disciplinary process, substantial experience in the practice of law, and indifference to making restitution. No mitigating factors are supported by the record.

Case law indicates that a lengthy suspension is warranted in this matter. For example, in In re: Hebert, 08-2785 (La.5/29/09), 9 So.3d 846, we suspended an attorney for one year and one day after the attorney neglected a legal matter, failed to communicate with his client, made false statements to his client and the ODC, and failed to cooperate with the ODC in its investigation. In In re: Waltzer, 04-1032 (La.10/8/04), 883 So.2d 973, we imposed a two-year suspension upon an attorney who neglected three legal matters, failed to communicate with her clients, failed to properly terminate the representation of her clients, failed to cooperate with the ODC |sin its investigations, failed to appear in response to subpoenas personally served on her, and gave false and misleading information to the ODC.

Under the circumstances, we find a one-year-and-one-day suspension will serve the purposes of disciplinary proceedings. Accordingly, we will adopt the disciplinary board’s recommendation and suspend respondent from the practice of law for one year and one day. We will also order respondent to make restitution to Mr. Van in the amount of $5,000.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Margrett Ford, Louisiana Bar Roll number 5690, be and she hereby is suspended from the practice of law for one year and one day. It is further ordered that respondent make restitution to Lesley Van in the amount of $5,000. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.

      . After a related hearing before a panel of the disciplinary board, the board recommended that respondent’s probation be revoked and the previously deferred one-year-and-one-day suspension be made executory. However, before the court acted on the board's recommendation, the parties filed a joint motion to extend respondent’s probation. Based on the parties' arguments, the court found that "a one-year extension of the period of probation imposed in respondent's previous disciplinary proceeding is appropriate under the circumstances.” Accordingly, the court ordered that respondent's probation be extended for one year. In re: Ford, 08-0274 (La.4/4/08), 978 So.2d 287.


source: Caselaw Access Project

author: PARRO, J.

license: Public Domain

text:
    Randall J. ANGLIN, et al. v. William H. ANGLIN and Louisiana Federal Land Bank Association, FLCA.
    No. 2009 CA 0844.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 16, 2009.

      Phil E. Miley, Baton Rouge, LA, for Plaintiffs-Appellants, Randall J. Anglin, et al.
    E.B. Dittmer, II, Gary L. Hanes, Talley, Anthony, Hughesh & Knight, L.L.C., Mandeville, LA, for Defendant-Appellee, William H. Anglin.
    Before PARRO, McDONALD, and WELCH, JJ.
   PARRO, J.

| .¿Randall J. Anglin, David G. Anglin, Beth Anglin Mora, Pamela Anglin Rowell, and Andrew Darryl Anglin (the appellants) appeal a judgment recognizing them as owners in indivisión of certain immovable property and awarding them attorney fees and all court costs. They seek recognition of greater ownership interests in the property and additional attorney fees, as well as the release of their interests in the property from a mortgage encumbering the property. William H. Anglin answered the appeal, seeking recognition of his ownership of all of the property at issue, reversal or reduction of the attorney fee award, and reversal or reduction of the award of court costs. For the following reasons, we amend the judgment and affirm it as amended.

FACTUAL AND PROCEDURAL BACKGROUND

This appeal is the third time this matter has been before this court. See Anglin v. Anglin, 03-0485 (La.App. 1st Cir.12/31/03), 2003 WL 23182907 (unpublished opinion) {Anglin I), and Anglin v. Anglin, 05-1233 (La.App. 1st Cir.6/9/06), 938 So.2d 766 (Anglin II). The appellants filed suit against their brother, William H. Anglin, and the Louisiana Federal Land Bank Association, FLCA (the Bank), seeking a declaratory judgment annulling the donation of their interests in certain immovable property to William and declaring that a subsequent mortgage in favor of the Bank did not encumber their interests in the property. The first two appeals dealt with the claims against the Bank, ultimately affirming the dismissal of the Bank from the litigation after concluding that it had acted in good faith and reasonably relied on the public records in allowing William to borrow funds secured by the entirety of the property. The judgment concerning the appellants’ remaining claims against William is the subject of this appeal.

The five appellants, along with Kenneth R. Anglin and defendant William H. Ang-lin, are the children of Hillard Anglin. The appellants’ claims stem from their inheritance of an undivided interest in 277 acres of land located in Washington Parish, Louisiana. Their grandparents, Baty and Maggie A. Anglin, acquired this property during their marriage. Baty and Maggie had four children, one of whom was Hillard Anglin, the appellants’ father. After Batyrs death, Maggie was recognized as the owner | sof an undivided 50% interest in the property and the four children were recognized as co-owners in indivisión of the remaining 50% interest. Thus, after Baty’s death, Hillard Anglin owned an undivided 12.5% interest in the property. Accordingly, when Hillard die d, each of his seven children inherited an undivided 1.7875% interest in the property. Hillard predeceased his mother, Maggie. According to a September 7, 2000 judgment of possession in Maggie’s succession, Hil-lard’s seven children received an additional 12.5% undivided interest in her 50% undivided interest in the property, or 6.25%. Therefore, when this suit was filed in April 2002, each of Hillard’s seven children would have owned an undivided 2.6786% interest in the property.

However, in December 1998, William had arranged a meeting with his siblings, after which the appellants agreed to donate them interests to him so he could take the lead in obtaining ownership of the entire tract, either by purchase from the other co-owners or by partition. The acts of donation to William were executed in March 1999. The appellants were under the impression that the acts of donation were not going to be recorded, but were being executed simply to help William acquire the rest of the undivided interests in the property, after which each of the seven siblings would receive an undivided 1/7 ownership interest in the property. However, William had the acts of donation notarized and recorded, thereby showing him on the public records as the sole owner of the undivided interests in the property inherited by him and his siblings. In 2000 and 2001, William acquired the rest of the undivided interests in the property from the other co-owners by purchase and by partition by licitation. After those acquisitions, in September 2001, William executed an act of collateral mortgage in favor of the Bank, encumbering the entire 277 acres.

The appellants sued to have the acts of donation declared null, to have the court Rconvey to each of them an undivided 1/7 interest in the property, and to have the court declare that the Bank’s mortgage did not encumber their undivided interests in the property. After this court recognized the validity of the Bank’s mortgage in Anglin II, they continued to litigate their claims against William. On the date set for trial, the parties entered a number of documents and depositions into the record and agreed to submit the matter to the court on the basis of the record. After considering the evidence, the court stated in written reasons for judgment that the acts of donation were null, because they were not executed in the presence of the notary public who signed them. Therefore, the court concluded that the appellants still owned their undivided interests in the property, which was stated as 1.7857% each. The court also recognized that the mortgage still attached to the entire property, because the Bank had obtained the mortgage in good faith and in reliance on the public records. In a judgment signed December 8, 2008, the court recognized that each of the appellants owned an undivided 1.7857% interest in the 277 acres of land, awarded them $5000 in attorney fees, assessed all court costs to William, and dismissed William’s claims for attorney fees and costs relating to his acquisition of the rest of the property.

DISCUSSION

Ownership of the Property

The appellants assign as error the court’s failure to recognize that each of them is entitled to an undivided 1/7 interest in the property, in accord with their original agreement with William. We find no merit in this argument. Louisiana Civil Code article 1839 states, in pertinent part:

A transfer of immovable property must be made by authentic act or by act under private signature. Nevertheless, an oral transfer is valid between the parties when the property has been actually delivered and the transferor recognizes the transfer when interrogated on oath.

Assuming that there was an agreement among the siblings concerning the eventual transfer to each of them of an undivided 1/7 interest in the property, there is no evidence that this agreement was ever con-fected with the formalities required by Article 1839. Nor were the requirements for a valid oral transfer met. Therefore, any such agreement was ineffective as a transfer or promise to transfer the immovable property. See LSA-C.C. art. 2440; see also East Tangipahoa Dev. Co., LLC v. Bedico Junction, LLC, 08-1262 (La.App. 1st Cir.12/23/08), 5 So.3d 238, 244, writ denied, 09-0166 (La.3/27/09), 5 So.3d 146; Southern Casing of Louisiana, Inc. v. Houma Avionics, Inc., 00-1930, 00-1931 (La.App. 1st Cir.9/28/01), 809 So.2d 1040, 1051. The trial court was legally correct in determining that the appellants were not entitled to more than their inherited interests in the property.

However, we note that the trial court’s judgment contains a mathematical error, in that the seven children inherited an undivided 12.5% interest in the property from their father’s succession, as well as an undivided 6.25% interest from their grandmother’s succession. Therefore, the judgment should have stated that each of the appellants was recognized as the owner of an undivided 2.6786% interest in the property, as previously discussed. The judgment will be amended accordingly.

Attorney Fees/Fraud

The appellants also claim the trial court erred in making an unreasonably low award of attorney fees to them. In his answer to the appeal, William contends the award of attorney fees was legal error or, in the alternative, was too high. Addressing first whether the award of attorney fees was legally appropriate, we note that attorney fees are not allowed under Louisiana law except where authorized by statute or contract. See Whiddon v. Livingston Parish Council, 04-1126 (La.App. 1st Cir.5/6/05), 915 So.2d 863, 866. The trial court stated in written reasons for judgment that the acts of donation and the mortgage were procured by fraud and referred to LSA-C.C. art. 1958, which states that “[t]he party against whom rescission is granted because of fraud is hable for damages and attorney fees.” See Osborne v. McKenzie, 43,658 (La.App. 2nd Cir.10/22/08), 998 So.2d 137, 144-45, writ denied, 08-2555 (La.1/9/09), 998 So.2d 726. William contends there was no fraud, and therefore, the award of attorney fees was legal error.

| (¡Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction. LSA-C.C. art. 1953. Fraud need only be proved by a preponderance of the evidence and may be established by circumstantial evidence. LSA-C.C. art. 1957. Fraud cannot be predicated on mistake or negligence, no matter how gross. Fraudulent intent, which constitutes the intent to deceive, is a necessary element of fraud. Whitehead v. American Coachworks, Inc., 02-0027 (La.App. 1st Cir.12/20/02), 837 So.2d 678, 682. The trial court’s findings with respect to a claim of fraud are subject to the manifest error standard of review. Boudreaux v. Jeff, 03-1932 (La.App. 1st Cir.9/17/04), 884 So.2d 665, 672.

The two-part test for the appellate review of a trial court’s factual finding is: 1) whether there is a reasonable factual basis in the record for the finding of the trier of fact; and 2) whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, if there is no reasonable factual basis in the record for the trier of fact’s finding, no additional inquiry is necessary to conclude there was manifest error. However, if a reasonable factual basis exists, an appellate court may set aside a factual finding only if, after reviewing the record in its entirety, it determines the factual finding was clearly wrong. See Stobart v. State, through Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993); Moss v. State, 07-1686 (La.App. 1st Cir.8/8/07), 993 So.2d 687, 693, writ denied, 08-2166 (La.11/14/08), 996 So.2d 1092.

The evidence reviewed by the trial court included the depositions of all of the appellants, William, and the attorney who originally represented all of the siblings, Rodney C. Cashe. According to the appellants, William represented to them that the acts of donation were not actually transferring their ownership interests to him, but that he would simply be the nominal owner in order to unify the property, after which the ownership would be divided, such that each of the siblings would own an undivided 1/7 interest in the whole. The Bank’s loan, secured by a mortgage on the property, would 17finance the acquisition of the rest of the property, and timber on the land would be sold to repay the loan. Mr. Cashe confirmed that his original understanding was the same as that of the appellants, namely, that the seven siblings had a collective goal to own the 277 acres in equal portions, and their actions and his were designed to facilitate that goal. To that end, the acts of donation were prepared and, although they were not signed in his presence, he notarized them. After William had acquired the remaining undivided interests in the property in his name, Mr. Cashe realized that William intended to claim full ownership of the property and did not intend to divide ownership with his siblings. At this point, recognizing a conflict of interest, Mr. Cashe withdrew as counsel. Based on this evidence, we conclude there was a reasonable factual basis for the trial court to find that William intentionally misrepresented or suppressed the truth in order to obtain an unjust advantage over his siblings. The record as a whole does not show that this factual finding was clearly wrong. Therefore, having rescinded the acts of donation due, in part, to fraud in their execution, the trial court had a legal basis for the award of attorney fees to the appellants.

Our next consideration is whether the amount of attorney fees awarded was reasonable. Factors to be taken into consideration in determining the reasonableness of attorney fees include: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) amount of money involved; (5) extent and character of the work performed; (6) legal knowledge, attainment, and skill of the attorneys; (7) number of appearances made; (8) intricacies of the facts involved; (9) diligence of counsel; and (10) the court’s own knowledge. See Rule 1.5(a) of the Rules of Professional Conduct; State, Dep’t of Transp. and Dev. v. Williamson, 597 So.2d 439, 442 (La.1992); Mayfield v. Reed, 43,226 (La.App. 2nd Cir.4/30/08), 981 So.2d 235, 241. The trial court has much discretion in fixing an award of attorney fees, and its award will not be modified on appeal absent a showing of an abuse of discretion. Regions Bank v. Automax USA, L.L.C., 02-1755 (La.App. 1st Cir.6/27/03), 858 So.2d 593, 595, writ denied, 03-2131 (La.11/7/03), 857 So.2d 503.

laAt the hearing during which the attorney fee award was discussed, counsel for appellants brought to the court’s attention an affidavit he had filed, showing $15,000 in attorney fees — 100 hours at $150/hour— incurred in handling this case. There were no expenses shown on the affidavit. There was some discussion at the hearing concerning the fact that much of the time was involved in pursuing the appellants’ claims against the Bank, including the two prior appeals, and the fact that the appellants did not get the results they sought in this litigation. Without specifically mentioning any of the above factors or explaining its decision, the court awarded $5,000 in attorney fees.

In order to determine whether the court abused its discretion in this award, we must examine the work done by the attorney for the appellants in light of the factors enumerated in the jurisprudence and the rules of professional conduct. The appellants did not obtain all of the results they wanted, although they were recognized as the owners in indivisión of the property they had inherited. The litigation did not involve any novel or difficult legal issues, but the record shows the lawsuit was pursued diligently by appellants’ counsel. We do not think the fee should be discounted because of the time expended in the claim against the Bank concerning the mortgage; William encumbered the appellants’ undivided interests in the property with that mortgage, and thus, necessitated those legal efforts on their behalf. Counsel for the appellants participated in written discovery, appeared at eight depositions, briefed and argued an exception and a motion in district court, attended pre-trial conferences, and briefed and argued the issues in three appeals to this court. We do not find the hourly fee excessive, and it appeal's all of the time entries are reasonable for the work described. Accordingly, we find the court abused its discretion in awarding only $5,000 in attorney fees. Recognizing that the appellants did not get all of the results they sought, we will amend the judgment to award $13,000 in attorney fees.

PaHial Release of Mortgage

The appellants contend the court erred in failing to order William to have their undivided interests in the property released from the mortgage in favor of the Bank. After recognizing that the Bank’s mortgage still attached to the entire property, the trial |9court stated, in written reasons:

The six siblings, however, have a claim against William for their portions of the mortgage since both the “donations” and mortgage were obtained by fraudulent means.

From the record, it appears that the controversy concerning this statement, along with the need to set the attorney fees, delayed the signing of the final judgment for almost a year after the written reasons were signed. Ultimately, the final judgment signed by the court did not include any language concerning the release of the Bank’s mortgage affecting the appellants’ undivided interests in the property.

We find no error in that decision. In Anglin II, this court recognized the validity of the Bank’s mortgage over the entire property, and the appellants’ claims against the Bank were dismissed. Therefore, the court could not require the Bank to grant a partial release of its mortgage, nor could it give the appellants or William the authority to do so. Simply put, the court could not order William to do something that would be impossible for him to accomplish. Even if the court had ordered William to pay damages to the appellants to compensate them for the fact that their property interests were encumbered by the mortgage, the mortgage itself would still remain in place. Therefore, the court did not err in failing to order William to have the appellants’ property interests released from the Bank’s mortgage.

Assessment of Costs

William argues that the court erred in imposing all court costs on him, rather than assessing part or all of the costs against the appellants. As a general rule, the party cast in judgment should be assessed with court costs. See LSA-C.C.P. art. 1920. Article 1920 further provides that except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party as it may consider equitable. The trial court may even assess costs against a party who prevails to some extent on the merits. Adams v. Rhodia, Inc., 07-0897 (La.App. 1st Cir.2/13/09), 5 So.3d 288, 289. On appeal, the trial court’s assessment of costs will not be disturbed in the absence of an abuse of discretion. Steadman v. Georgia-Pacific Corp., 95-1463 (La.App. 1st Cir.4/6/96), 672 So.2d 420, 428, writ denied, 96-1494 (La.9/20/96), 679 So.2d 440.

We recognize that the trial court could have required both sides to bear some portion of the court costs in this case, but we find no abuse of discretion in assessing William with all of the costs. William’s actions made it necessary for the appellants to bring this lawsuit and incur the costs of litigating. Therefore, even though the appellants did not succeed in all of their requests, it was equitable and within the trial court’s discretion to require William to pay the court costs.

CONCLUSION

Based on the foregoing, we amend the judgment of December 8, 2008, to recognize that Randall Anglin, David Anglin, Beth Anglin Mora, Pamela Anglin Rowell, and Andrew Darryl Anglin are each the owner of an undivided 2.6786% interest in the property. We further amend the judgment to award $13,000 in attorney fees to the appellants. In all other respects, the judgment is affirmed. Because that judgment sets out the legal description of the property at issue, a copy of the judgment is attached and made a part hereof. Each party is to bear its own costs of this appeal.

AMENDED AND AFFIRMED AS AMENDED.

In

      . 12.5% + 6.25% = 18.75%, and 18.75% -4- 7 = 2.6786%.

      . Although not a party to this litigation, Kenneth Anglin did execute one of the acts of donation.

      .As this court noted in Anglin II, neither Hillard's nor Maggie’s successions had been opened when tire acts of donation were executed. In Anglin II, this court announced its acceptance of the Second Circuit’s analysis of LSA-C.C. arts. 935 and 938 in Anding v. Anding, 37,778 (La.App. 2nd Cir.10/29/03), 859 So.2d 901, in which the court concluded that a successor could exercise rights of ownership with respect to his interest in a particular thing, as well as in Inis entire interest in a succession. Based on that analysis, this court found that the Bank had reasonably relied on the public records in concluding that William could encumber 100% of the property. Anglin II, 938 So.2d at 773-74.

      . William answered the appeal, claiming the court erred in failing to find him the owner of all of the property. However, he did not brief that issue. Therefore, we consider it abandoned. See Uniform Rules of Courts of Appeal, 2-12.4.

      . William’s answer to the appeal also seeks an award of attorney fees and costs for the partition suit in which he acquired a portion of the property. This issue was also not briefed, and is considered abandoned.

      . In fact, two of the appellants did not actually sign (he act of donation that purportedly bears their signatures.

      . We note that the petition did not request such damages; therefore, the court could not have awarded them.

      . See LSA-C.C.P. art. 1919.


author: WELCH, J.

text:
    Paul DeBOURGH v. B & N ROOFING.
    No. 2009 CA 0953.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 23, 2009.

      Alfred F. McCaleb, III, Livingston, LA, for Plaintiff-Appellee Paul DeBourgh.
    Stephen E. Broyles, Baton Rouge, LA, for Defendant-Appellant Tangi Construction Co., Inc.
    Douglas T. Curet, Hammond, LA, for Defendant-Appellee B & N Roofing.
    Before WHIPPLE, HUGHES, and WELCH, JJ.
   WELCH, J.

^Defendant, Tangi Construction Company, Inc., (Tangi) appeals the denial of its cross-claim for indemnification against co-defendant B & N Roofing, Inc. We reverse and render judgment recognizing Tangi’s right to indemnification.

BACKGROUND

On December 13, 2006, Paul DeBourgh was working on a roof when he lost his balance and fell to the ground, sustaining numerous injuries as a result. At the time, Mr. DeBourgh was working for B & N Roofing, which had been engaged to install a roof on a home being constructed by Tangi.

On April 5, 2007, Mr. DeBourgh filed this disputed claim for compensation in the Office of Workers’ Compensation (OWC) against Tangi and B & N Roofing. Tangi and B & N Roofing denied liability and filed cross-claims against each other. In its cross-claim, Tangi asserted that if it was found liable to pay benefits to Mr. DeBourgh, it was entitled to full indemnification for all amounts paid or to be paid pursuant to La. R.S. 23:1063. In its cross-claim and answer to Tangi’s cross-claim, B & N Roofing urged that it had been told by Tangi that B & N Roofing was covered by Tangi’s workers’ compensation insurance and relied on these representations. B & N Roofing sought damages resulting from Tangi’s alleged breach of contract and its failure to provide B & N Roofing with a defense, economic losses caused by Tangi’s failure to resolve Mr. DeBourgh’s claim, and expenses incurred in defending the main demand.

Tangi and B & N Roofing sought to establish at trial that Mr. DeBourgh had been drinking prior to his fall and that Mr. DeBourgh committed fraud resulting in a forfeiture of his benefits. B & N Roofing also claimed that Mr. DeBourgh was an independent contractor rather than its employee. B & N Roofing did not present any evidence in support of its assertion that Tangi agreed to provide it with workers’ compensation coverage. There was no evidence that either B & N Roofing or Tangi had ever paid Mr. DeBourgh wage benefits, and while there was some testimony |sthat B & N Roofing may have paid for some of Mr. DeBourgh’s medications, there were no specifics as to the amounts paid.

The workers’ compensation judge (WCJ) determined that the evidence showed there was a job related accident, the result of which Mr. DeBourgh suffered serious injuries preventing him from obtaining gainful employment for at least one year. The WCJ concluded that Mr. DeBourgh was an employee of B & N Roofing at the time of the accident and that Tangi was his statutory employer. The defenses raised by Tangi and B & N Roofing were rejected, and judgment was entered in favor of Mr. DeBourgh and against Tangi & B & N Roofing jointly, severally and in solido. Mr. DeBourgh was awarded indemnity benefits in the amount of $176.76 per week from December 20, 2006 through January 18, 2008, past and future medical benefits, $2,000.00 in penalties for the failure of Tangi and B & N Roofing to reasonably controvert the claim, and $5,000.00 in attorney fees. The WCJ also denied Tangi and B & N Roofing’s cross-claims, dismissing those claims with prejudice.

Tangi appealed, contesting only the WCJ’s denial of its Section 1063 indemnification claim against B & N Roofing.

DISCUSSION

Tangi submits that the WCJ committed legal error in refusing to grant judgment in its favor for indemnification against B & N Roofing. We agree.

Louisiana Revised Statutes 23:1063(A) provides that a principal contractor, when sued by an employee of a subcontractor, shall be entitled to indemnity from his subcontractor for compensation payments made by the principal contractor on account of accidental injury to the subcontractor’s employee. The WCJ determined that Tangi was Mr. DeBourgh’s statutory employer, B & N Roofing was Mr. DeB-ourgh’s direct employer, and they were solidarity liable for workers’ compensation benefits. Under similar circumstances, the Louisiana Supreme Court |4held that it was error to fail to render judgment in favor of a statutory principal-employer on its indemnification claim against a direct employer. In Jones v. Southern Tupelo Lumber Company, 257 La. 869, 244 So.2d 815 (1971), the court held that pursuant to La. R.S. 23:1063, a statutory employer was entitled to judgment against the injured workers’ immediate employer for any and all workers’ compensation benefits paid by the statutory employer to the injured worker, and rendered judgment for all sums heretofore or hereafter paid by the statutory employer under the judgment on the principal demand. Jones, 257 La. at 875-876, 244 So.2d at 817.

The record shows that Tangi did not pay any compensation benefits to Mr. DeBourgh prior to the time the WCJ entered judgment dismissing Tangi’s cross-claim. Nevertheless, the WCJ should have recognized Tangi’s statutory right to indemnification from B & N Roofing for compensation payments made by Tangi to Mr. DeBourgh pursuant to the judgment rendered on the principal demand. Therefore, the WCJ’s dismissal of Tangi’s cross-claim against B & N Roofing must be reversed.

CONCLUSION

For the foregoing reasons, judgment is entered in favor of Tangi Construction Company, Inc. against B & N Roofing for all compensation payments heretofore or hereafter paid by Tangi Construction Company, Inc., to plaintiff, Paul DeB-ourgh, under the judgment on the principal demand. All costs of this proceeding are assessed to B & N Roofing.

REVERSED AND RENDERED.

      . A settlement entered into between Mr. DeB-ourgh and Tangi after the entry of judgment in the OWC appears in the record. The OWC is the proper forum to determine the value of Tangi's indemnification claim and should the need arise, Tangi may seek a judgment setting the amount of its indemnification claim in the OWC.


author: GAIDRY, J.

text:
    Joe A. WILLIAMS v. TEMPLE INLAND, INC.
    No. 2008 CA 2153.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 23, 2009.

      Delbert G. Talley, Covington, Louisiana, for Plaintiff/Appellant Joe A. Williams.
    Deanne B. McCauley, Covington, Louisiana, for Defendant/Appellee Temple Inland, Inc.
    Before DOWNING, GAIDRY, and McClendon, jj.
   GAIDRY, J.

An employee appeals the judgment of the Office of Workers’ Compensation, dismissing his claim for workers’ compensation for an occupational disease. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The claimant, Joe A. Williams, was a longtime employee at the Bogalusa paper mill operated by Temple Inland, Inc., his employer, and its predecessors. Mr. Williams first began working at the paper mill in October 1969, and worked there in various positions until March 2005. He officially retired in October 2005.

On April 19, 2006, Mr. Williams filed a Disputed Claim for Compensation, claiming that he has sustained “respiratory problems” from chemical exposure and that those problems had constantly gotten worse over time until he was eventually hospitalized in March 2005. Mr. Williams’s pulmonary condition has over the years been consistently diagnosed as asthma, with possible elements of chronic obstructive pulmonary disease and reactive airways disease syndrome, or RADS.

This matter was tried before the workers’ compensation judge (WCJ) on March 19, 2008. At the conclusion of the trial, the WCJ took the matter under advisement for decision. Following submission of detailed post-trial memoranda, the WCJ issued written reasons for judgment and signed a judgment on June 25, 2008, dismissing Mr. Williams’s claim. A copy of the WCJ’s Written Reasons, detailing the evidence and testimony presented at trial, is attached to this opinion as an addendum.

Mr. Williams now appeals.

ASSIGNMENTS OF ERROR

Mr. Williams has listed eight separate assignments of error, but all essentially relate to the WCJ’s factual findings and the weight of the evidence upon which she based her decision that he failed to meet his burden of proof that he contracted an occupational disease that arose out of and in the course and scope of his employment. Thus, the central issue presented for our determination is whether the WCJ was clearly wrong in concluding that Mr. Williams failed to meet that burden of proof by a preponderance of the evidence.

ANALYSIS

In a workers’ compensation case, as in other civil cases, the appellate court’s review of factual findings is governed by the manifest error or clearly wrong standard. Pertuis v. Architectural Fabrications, Inc., 01-2684, p. 6 (La.App. 1st Cir.12/20/02), 836 So.2d 450, 453, writ denied, 03-0231 (La.4/4/03), 840 So.2d 1216. The two-part test for the appellate review of a factual finding is: (1) whether there is a reasonable factual basis in the record for the finding of the trial court, and (2) whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, if there is no reasonable factual basis in the record for the WCJ’s finding, no additional inquiry is necessary. However, if a reasonable factual basis exists, an appellate court may set aside a WCJ’s factual finding only if, after reviewing the record in its entirety, it determines the WCJ’s finding was clearly wrong. Dressel v. Topeka Transfer & Storage, 02-0779, pp. 4-5 (La.App. 1st Cir.3/28/03), 844 So.2d 288, 291. If the findings are reasonable in light of the record reviewed in its entirety, this court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Thus, where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State ex rel. Dep’t of Transp. & Dev., 617 So.2d 880, 883 (La.1993).

The trial court’s finding regarding causation is a factual finding and must be reviewed under the manifest error standard. Robling v. Allstate Ins. Co., 97-0582, p. 4 (La.App. 1st Cir.4/8/98), 711 So.2d 780, 783. Mr. Williams correctly emphasizes that Louisiana courts should interpret workers’ compensation laws liberally in order to afford coverage. See Coats v. Am. Tel. & Tel. Co., 95-2670, p. 4 (La.10/25/96), 681 So.2d 1243, 1245. However, despite such liberal construction, the claimant’s burden of proof as to causation is not relaxed and must be shown by a preponderance of the evidence. Id.

Every employee who is disabled because of the contraction of an occupational disease is entitled to receive workers’ compensation benefits. La. R.S. 23:1031.1(A); Seal v. Gaylord Container Corp., 97-0688, p. 5 (La.12/02/97), 704 So.2d 1161, 1164. An occupational disease is defined as “only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease.” La. R.S. 23:1031.1(B). The causal link between the employee’s illness and work-related duties must be established by a reasonable probability. Seal, 97-0688 at p. 6, 704 So.2d at 1165.

Mr. Williams’s physicians’ opinions on the relationship of his complaints to his employment were based largely on the history provided by Mr. Williams. In her detailed written reasons for judgment, the WCJ took notice of the admissions of several of Mr. Williams’ treating physicians that they were unaware of the significant fact that he resided on a tree farm for many years, as well as information relating to his history and treatment by other physicians. She further expressly noted a number of inconsistencies in Mr. Williams’s testimony and the evidence relating to his medical history, onset of symptoms, and treatment. Of particular significance were the prior history and description of symptoms, provided by Mr. Williams to Dr. Merlin Wilson and Dr. Lee Roy Joyner (two of his treating physicians), that his symptoms did not improve when he was away from the environment of the mill. The medical evidence and testimony uniformly suggest that such a circumstance would be inconsistent with occupational asthma, as such improvement by history is the most important diagnostic criterion for occupational asthma.

The rule that questions of credibility are for the trier of fact applies also to the evaluation of expert testimony. Lirette v. State Farm Ins. Co., 563 So.2d 850, 853 (La.1990). A trial court may accept or reject in whole or in part the opinion expressed by an expert. The effect and weight to be given expert testimony is within the broad discretion of the trial judge. Rao v. Rao, 05-0059, p. 14 (La.App. 1st Cir.11/4/05), 927 So.2d 356, 365, writ denied, 05-2453 (La.3/24/06), 925 So.2d 1232. It is the function of the WCJ to assess the weight to be accorded both the lay and the medical testimony, and the court may accept or reject the opinion of a medical expert depending upon what impression the qualifications, credibility, and testimony of that expert make on the court. Ivy v. V’s Holding Co., 02-1927, p. 7 (La.App. 1st Cir.7/2/03), 859 So.2d 22, 28.

Medical testimony, albeit significant, is not conclusive as to the issue of causation, which is generally the ultimate fact to be decided by the court after weighing all the evidence. Peveto v. WHC Contractors, 93-1402 (La.1/14/94), 630 So.2d 689, 691. Medical testimony must be weighed in the light of other credible evidence of a non-medical character, such as a sequence of symptoms or events in order to judicially determine probability. Schouest v. J. Ray McDermott & Co., Inc., 411 So.2d 1042, 1044-45 (La.1982). The credibility of the plaintiff is especially significant when a physician must relate a medical condition to an accident when it is the plaintiff who provides a physician with a history of his symptoms. Mart v. Hill, 496 So.2d 1149, 1152 (La.App. 4th Cir.1986), reversed on other grounds, 505 So.2d 1120 (La.1987). Similarly, a claimant’s lack of credibility on factual issues can serve to dimmish the veracity of his complaints to a physician. Bass v. Allstate Ins. Co., 32,652, p. 13 (La.App. 2nd Cir.1/26/00), 750 So.2d 460, 467. Thus, in many cases the credibility of the history given by the claimant to his physicians becomes as important as the medical opinions based in part on that history. See Cheatum v. Wackenhut Corp. 346 So.2d 888, 890 (La.App. 4th Cir.1977).

Both parties have fully and cogently set forth the opposing evidence before the WCJ and those factors favoring their positions. The trial evidence, taken in toto, admits of two opposing views on the issue of causation. As the WCJ’s finding on the issue of causation was based upon her determination of witness credibility, it is entitled to great deference. See Rosell, 549 So.2d at 844. Although we may have reached a different result if we were determining this issue as trier of fact, we cannot find that the WCJ’s determination regarding this issue was manifestly erroneous. See Stobart, 617 So.2d at 882. Accordingly, we must affirm the judgment of the WCJ.

DECREE

The judgment of the Office of Workers’ Compensation, dismissing the claim of the claimant, Joe A. Williams, is affirmed. All costs of this appeal are assessed to the claimant.

AFFIRMED.

      . Two of the prior operators of the paper mill were Crown-Zellerbach Corporation and Gaylord Container Corporation.

      . Because we affirm the judgment on the merits, it is unnecessary for us to address the issue of prescription raised by the defendant employer,


author: GUIDRY, J.

text:
    Denise Morales GENUSA v. Louis GENUSA Jr.
    No. 2009 CA 0917.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 23, 2009.

      Dana K. Larpenteur, Plaquemine, LA, for Plaintiff/Appellee, Denise Morales Gen-usa.
    Deborah P. Gibbs, Baton Rouge, LA, for Defendant/Appellant, Louis Genusa, Jr.
    Before CARTER, C.J., GUIDRY, and PETTIGREW, JJ.
   GUIDRY, J.

|;>A divorced father, who receives social security disability benefits, appeals a judgment based on the trial court’s failure to credit against his support obligation the full amount of social security benefits received by his children as a result of his disability.

FACTS AND PROCEDURAL HISTORY

In March 2001, Denise Morales Genusa filed a petition to divorce Louis Genusa Jr. Pending the grant of a divorce decree, Denise and Louis agreed to a stipulated judgment, signed on June 13, 2001, which provided, in pertinent part, that Louis would pay child support in the amount of $400.00 per month for the couple’s first child, Victoria, retroactive to April 1, 2001, pending the birth of the couple’s second child, Olivia, at which time Louis’s child support obligation would increase to $650.00 per month. The June 13, 2001 stipulated judgment further obligated Louis to maintain medical insurance on Denise and Victoria and to pay 35 percent of all reasonable and necessary medical and dental expenses incurred by or on behalf of Victoria that were not covered by the medical insurance provided by Louis.

Denise and Louis were officially divorced by a judgment signed on October 30, 2002. The divorce decree provided that the provisions of the June 13, 2001 stipulated judgment “be maintained and incorporated herein by reference but for the requirement that Louis ... maintain insurance on Denise ... and adding thereto that Louis ... maintain insurance on both of his minor children, Victoria Genusa and Olivia Genusa.”

In 2004, Louis applied for and began receiving social security disability benefits. In December 2004, a lump sum of benefits in the amount of $26,500.00 was paid to Louis, and a lump sum of benefits in the amount of $12,500.00 was paid to Denise on behalf of Victoria and Olivia. Thereafter, from December 2004 Rto May 2006, Louis began paying Denise $325.00 per month in child support, which was half of the sum mandated under the June 13, 2001 stipulated judgment.

Consequently, in May 2006, Denise filed a rule nisi requesting that Louis be found in contempt of court for his failure to pay the proper amount of child support as ordered in the June 13, 2001 stipulated judgment. Denise also alleged that Louis refused to pay his 35 percent share of the reasonable and necessary medical and dental expenses incurred by the children, despite amicable demand. Additionally, Denise stated that both children were enrolled in Holy Family School, a private school, and had been enrolled in the school for a significant period of time; however, Louis did not assist in the payment of the expenses related thereto.

In response to the rule nisi filed by Denise, Louis filed a rule to modify child support, requesting that if any arrearage should be determined, it should be offset by the lump sum social security disability benefits received by Denise on behalf of the children. Louis also requested that his monthly support obligation be offset by the monthly social security disability benefits paid to Denise on behalf of the children.

This matter was initially heard by a hearing officer appointed by the trial court, but upon both parties disagreeing with certain determinations made by the hearing officer, the matter was set before the trial court. Following a hearing at which both parties testified and documentary evidence was introduced to establish the income and expenses claimed by the parties, the trial court rendered judgment finding that Louis owed basic child support arrearages in the amount of $6,850.00 and medical and dental expense arrearages in the amount of $17,119.64. The trial court credited half of the December 2004 lump sum social security benefits paid to Denise on behalf of the children against the total amount of arrearages Louis was | ^determined to owe. Louis was therefore found to owe arrearages in the amount of $17,719.64.

The court also set the percentages of the parties’ child support obligations at 49.07 percent for Denise and 50.93 percent for Louis based on its calculation of the parties’ respective incomes. Accordingly, the trial court calculated the basic monthly child support owed by Louis to be $746.41, which was completely offset by the amount of monthly social security disability benefits paid to Denise on behalf of the minor children. The trial court further ordered that the minor children be maintained in private school at Holy Family in Port Allen, Louisiana, and ordered the parents to pay “their assigned percent of tuition and fees retroactive to the date of filing of this matter!,] which is June 29, 2006.” Finally, the trial court ordered the parents to pay their respective share of “medical, tutoring, tuition, educational fees and other medical/educational expenses,” but did not allow Louis a credit towards these expenses for the amount that monthly social security disability benefits paid on behalf of the children exceeded the amount of the basic monthly child support he owed. Louis appeals.

ASSIGNMENTS OF ERROR

Louis alleges that the trial court committed the following errors in rendering the decree appealed herein:

1. The Trial Court erred in finding that tuition, medical expenses, tutoring expenses, and other medical/educational expenses do not constitute child support.
2. The Trial Court erred in failing to give Louis Genusa, Jr. a full credit for the social security benefits received by his minor children due to his earning in accordance with [La.] R.S. 9:315.7 D.
3. The Trial Court erred in failing to give Louis Genusa, Jr. a full credit against any arrearages owed for the lump sum disability payment of $12,500.00 paid on behalf of the minor children in December of 2004 based upon Mr. Genusa’s earnings.
|s4. The Trial Court erred in failing to give Louis Genusa, Jr. credit for child support paid by Louis Genusa, Jr. to Denise Genusa in excess of his basic support obligation.
5. The Trial Court erred in issuing an Income Assignment Order for up to 50% of [the] disposable income of Louis Genusa, Jr.

DISCUSSION

Louis’s first, second, and fourth assignments of error all relate to the trial court’s failure to credit the full amount of social security disability benefits paid to the minor children against the total child support obligation he was found to owe. We find merit in these assignments.

In his first assignment of error, Louis alleges that the trial court incorrectly determined that the extraordinary medical and educational expenses of the children that the parties were ordered to pay did not constitute child support.

The total child support obligation owed by a parent is comprised of the basic child support obligation, as determined by using the “Louisiana Child Support Guideline Schedule of Basic Child Support Obligations” table, and such additional amounts as provided by La. R.S. 9:315, et seq. See La. R.S. 9:315.2(E). To the extent that the parties agree or the court so orders, extraordinary medical expenses, expenses related to private school attendance, and other expenses “intended to enhance the health, athletic, social, or cultural development of a child” can be added to the basic child support obligation. These expenses then become a part of the total child support obligation owed by the parents. See La. R.S. 9:315.5 and 315.6.

In the June 13, 2001 stipulated judgment, the parties agreed to add extraordinary medical expenses to the basic child support obligation, which, Irrelative to Louis, resulted in a total child support obligation that included his basic child support obligation of $650.00 per month plus 35 percent of all the children’s medical and dental expenses that were not covered by the health insurance Louis maintained on the children. The February 13, 2009 support judgment, appealed herein, modified the June 13, 2001 stipulated judgment to set Louis’s basic child support obligation at $746.41 per month. The February 13, 2009 judgment further provided that Louis was obligated to pay 50.93 percent of all medical, tutoring, tuition, educational fees, and other medical/educational fees incurred by the children and to continue to maintain health insurance coverage for the children. Hence, the extraordinary medical and educational expenses Louis agreed to pay in the June 13, 2001 stipulated judgment and later was ordered to pay in the February 13, 2009 judgment, added to his allotted portion of the basic child support obligation, constituted the total child support obligation owed by him.

In his second assignment of error, Louis asserts that the trial court failed to accord him full credit for the social security benefits paid to the minor children as a consequence of his disability. According to La. R.S. 9:315.7(D), “social security benefits received by a child due to the earnings of a parent shall be credited as child support to the parent upon whose earning record it is based, by crediting the amount against the potential obligation of that parent.” In the February 13, 2009 judgment, the trial court did not allow for an immediate credit of the monthly social security benefits paid to Denise on behalf of the children against Louis’s existing obligation at the commencement of Denise’s receipt of such benefits in |7January 2005, but instead decreed that the credit would be applied only to the basic child support obligation owed by Louis, beginning June 29, 2006.

Denise argues that the trial court’s application of the credit allowed under paragraph D was proper by pointing out that in enacting the provision, the legislature added it to La. R.S. 9:315.7, which is titled “Deductions for income of the child.” She further points out that in paragraph A of La. R.S. 9:315.7 and in the preamble to 2006 La. Acts, No. 386, § 1 (the legislation wherein paragraphs D and E were enacted and added to La. R.S. 9:315.7) reference is made to deductions being applied to the basic child support obligation. We are not persuaded by this reasoning.

Denise correctly points out that paragraph A of La. R.S. 9:315.7 and the preamble to Act 386 refer to the income of the child being a deduction and, as such, applies to the basic child support obligation. However, as this court concluded in Salles v. Salles, 04-1449, p. 12 (La.App. 1st Cir.12/2/05), 928 So.2d 1, 8, amounts considered as “income of the child” under paragraph A of La. R.S. 9:315.7 must be deducted from the calculation of the undivided basic child support obligation owed by the parents, and thus, such income benefits both parents since it reduces the amount of the basic child support obligation before it is apportioned between the parents. And while the social security benefits received by the children as a result of Louis’s disability are considered income of the children, see Flickinger v. Flickinger, 05-2228, pp. 4-5 (La.App. 1st Cir.12/28/06), 952 So.2d 70, 73-74, we find that according to the plain language of paragraph D, such income is not to be applied as a deduction, but as a credit. Moreover, as plainly stated in paragraph D, the credit is not simply to be applied to the amount of the basic child support owed, but “shall be credited ... against the potential obligation of that parent” for whose disability the children are receiving social security benefits. (Emphasis added.)

| ¡¡This construction of paragraph D is further supported by the legislative history of Act 386, wherein paragraphs D and E were added to La. R.S. 9:315.7. The original version of House Bill 539 of the 2006 Regular Session, which eventually became Act 386, read:

D. Notwithstanding the provisions of Subsection C of this Section, income of the child received from social security benefits, whether paid by lump sum or monthly payments, shall be deducted from the basic child support obligation.
E. In cases where there is a child support arrearage, due in part to the failure to deduct from the basic child support obligation social security benefits received for the benefit of the child, the obligor may deduct such benefits in order to reduce the arrearages owed by the obligor.

The wording of the original bill would support the trial court’s decree and Denise’s argument regarding how the social security benefits received by the minor children should be used in calculating the amount of child support Louis is personally obligated to pay; however, the legislature’s amendment of the original bill to provide the language that now exists in paragraphs D and E of La. R.S. 9:315.7 indicates a clear rejection of limiting application of the credit to only the basic, and not the total, amount of a party’s child support obligation. Hence, the trial court erred in limiting application of the credit accorded Louis under La. R.S. 9:315.7(D) to only offset the basic amount of the child support that Louis owed.

We further find merit in Louis’s fourth assignment of error, wherein he asserts that the trial court failed to give him credit for the amounts paid in excess of the $650.00 basic child support obligation he agreed to pay pursuant to the June 13, 2001 decree. This error occurred as a result of the trial court’s failure to immediately grant Louis the credit afforded under La. R.S. 9:315.7(D) with the commencement of the payment of monthly social security benefits to Denise on behalf of the children. As recognized by this court, the legislature expressly declared that its amendment of La. R.S. 9:315.7 to add paragraph D was merely [¡¡interpretative legislation such that the provisions of paragraph D should be given retroactive effect. See Flickinger, 05-2228 at 5, 952 So.2d at 74. Thus, the trial court erred in failing to credit against the monthly child support owed by Louis, the amount of social security benefits Denise received on behalf of the children, beginning in January 2005.

Therefore, considering the foregoing legal errors committed by the trial court in construing La. R.S. 9:315.7(D), the amount of arrearages owed by Louis must be recalculated to account for the sums Louis paid to Denise in addition to the amounts she was receiving on behalf of the children in social security benefits. In December 2004, Denise received a lump sum payment of $12,500.00 in social security benefits on behalf of the children. Thereafter, Denise began receiving monthly social security benefits on behalf of the children in the amount of $842.00 per month beginning in January 2005.

We can extrapolate from the testimony of the parties and the documentary evidence submitted by Denise to establish the amount of past due basic child support allegedly owed by Louis that the amount of arrearages owed should be reduced by at least $10,148.00. From December 2004 to May 2006, Louis paid Denise $325.00 per month in child support in addition to the $842.00 per month she was receiving in social security benefits for the children, amounting to a credit of $6,500.00. Moreover, at least $842.00 in social security benefits were paid to Denise beginning January 2005, which exceeded Louis’s basic child support obligation of $650.00 by $192.00, resulting in an additional credit of at least $3,648.00 through June 2006. According to the February 13, 2009 judgment, beginning June 29, 2006, Louis owed a basic child support obligation of $746.41, which was offset by the $900.00 in social security benefits being paid to Denise on behalf of the children, leaving a balance of $153.59 to be credited towards the remaining portions of Louis’s child support obligation.

| inNevertheless, we cannot definitively calculate the arrearages owed by Louis, because there is nothing in the record stating exactly how much support was paid by Louis personally. In September 2006, the parties stipulated that Louis’s basic monthly child support obligation would be $318.00, retroactive to June 29, 2006, which indicates he may have paid that reduced amount pending ultimate resolution of the matter by the trial court with the February 13, 2009 judgment. We further observe, however, that the February 13, 2009 judgment holds Louis liable for medical arrearages owed through March 22, 2007, while simultaneously ordering that he owed the increased amount of support retroactive to June 29, 2006. So rather than trying to extrapolate and estimate what amounts were paid and what amounts were left owing, we will remand this matter to the trial court to recalculate the arrearages owed by Louis after giving him full credit against his potential child support obligation for social security benefits received on behalf of the children and any amounts he personally paid in support of the children.

As for Louis’s third assignment of error, we must reject his assertion that the trial court erred in failing to give him a full credit equal to the amount of the lump sum payment of social security benefits that Denise received in December 2004, against any arrearages owed. Unlike paragraph D, paragraph E of La. R.S. 9:315.7 does not mandate or require the trial court to grant Louis a credit to reduce the amount of arrearages owed. Instead, paragraph E only mandates that an evidentiary hearing be granted before any arrearage is reduced based on receipt of a lump sum payment. Absent language mandating that there be a reduction, we do not construe La. R.S. 9:315.7(E) as requiring the trial court to reduce the amount of any arrearage by the full amount of the lump sum payment.

In this case, the trial court did hold an evidentiary hearing and was openly critical of Louis’s farming “hobby,” wherein he claimed expenses that exceeded the income he received from the operation by $18,000.00. Louis explained that since luhe had been declared disabled, he had been selling off his cattle stock and equipment to close out the farming operation, because he was no longer physically able to maintain the operation. Yet, he attempted to justify his failure to pay his percentage of the extraordinary medical expenses incurred by his children, despite his agreement to do so pursuant to the June 13, 2001 stipulated judgment, by stating that he could not afford those expenses.

Further, the trial court heard testimony that Louis received a lump sum payment of Social Security benefits in the amount of $26,500.00 at the same time Denise received the lump sum payment for the children. Denise also testified that she was terminated from her job in February 2007. She stated that she had been fired from her job due to her constant absences to attend medical appointments for the children and her ailing parents. She said her supervisor felt she was missing too much time from work for the medical appointments. She testified that she was actively searching for a new job and had sent out quite a number of resumes, but had not been successful in obtaining or even learning of an available job comparable and suitable to her work experience. Despite her job loss, Denise expressed her commitment to maintaining the children in the Holy Family School. She explained to the court that she had been using her savings and 401K to supplement her unemployment income to keep up with her household expenses.

Considering this evidence, we cannot say that the trial court abused its discretion by choosing to reduce the amount of arrear-ages owed by Louis by only half of the amount of the lump sum social security benefits paid to Denise. Moreover, in light of our rulings regarding the trial court’s application of the credit owed to Louis pursuant to La. R.S. 9:315.7(D), the amount of arrearages owed by Louis should be determined to be significantly less, such that the amount of the reduction granted Louis for the lump sum payment may be sufficient to eliminate any residual arrearages that the trial court may determine he owes on remand.

| ^CONCLUSION

For the foregoing reasons, we amend the February 13, 2009 judgment to decree that the amount of social security benefits paid to Denise on behalf of the minor children shall be fully credited against the total monthly child support obligation owed by Louis. Based on this amendment, we remand this matter to the trial court with instructions to recalculate the amount of child support arrearages owed by Louis, based on a proper application of the La. R.S. 9:315.7(D) credit and consideration of any additional sums paid directly by Louis in support of the children, subject to a reduction equal to half of the lump sum payment of social security benefits Denise received on behalf of the children. All costs of this appeal are apportioned one-half to appellant, Louis Genusa, Jr., and one-half to appellee, Denise Morales Genusa.

AMENDED IN PART AND REMANDED.

PETTIGREW, J., concurs.

      . See La. R.S. 9:315.19.

      . According lo La. R.S. 9:315.5, to the extent that extraordinary medical expenses exist, they must be added to the basic child support obligation of the parents. Extraordinary medical expenses are unreimbursed medical expenses which exceed two hundred fifty dollars per child per calendar year. La. R.S. 9:315.5.

      . The June 13, 2001 stipulated judgment obligated Louis to maintain health insurance on the minor children, which also was added to the basic child support owed by Louis to establish his total child support obligation. See La. R.S. 9:315.4.

      . And in conformity with our determination that the extraordinary medical expenses and educational expenses the parties were ordered to pay constitute "child support,” we reject Louis’s fifth assignment of error alleging that if such expenses were not a part of the child support obligation he owed, then the trial court erred in issuing an income assignment order for arrearages based on the extraordinary medical expenses and educational expenses that the trial court found he owed.


author: GAIDRY, J. McCLENDON, J.,

text:
    Regina GILLMER, individually, and on Behalf of Morgan Schumacher v. PARISH STERLING STUCKEY and Progressive Paloverde Insurance Company.
    No. 2009 CA 0901.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 23, 2009.

      Jack W. Riffle, Baton Rouge, Louisiana, for Defendant/Appellant, Allstate Insurance Company.
    Matthew W. Pryor, Timothy E. Pujol, Gonzales, Louisiana, for Plaintiff/Appellee, Regina Gillmer, individually, and on behalf of Morgan Schumacher.
    Before DOWNING, GAIDRY, and McClendon, jj.
   GAIDRY, J.

|2An automobile insurer appeals a judgment against it and in favor of its insured, awarding damages under its underinsured motorists coverage. The insured answers the appeal, seeking an additional award of damages for her minor granddaughter un~ der that coverage. For the following reasons, we affirm the trial court’s judgment and deny the answer to the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

On May 5, 2006, at approximately 6:00 p.m., a collision occurred between two motor vehicles at the intersection of the Florida Boulevard service road and Stevendale Avenue in Baton Rouge, Louisiana. The collision involved an automobile owned and operated by the plaintiff, Regina Gillmer, and a pickup truck owned and operated by Parrish S. Stuckey. Plaintiffs minor granddaughter, Morgan Schumacher, was a passenger in plaintiffs automobile. After plaintiff executed a right turn from Florida Boulevard onto Stevendale Avenue, her automobile was struck by Mr. Stuckey’s pickup truck, which was travel-ling on the service road that parallels Florida Boulevard.

On April 30, 2007, plaintiff filed a petition for damages against Mr. Stuckey and his automobile liability insurer, Progressive Paloverde Insurance Company (Progressive), in Livingston Parish, where Mr. Stuckey resided. Plaintiff alleged that the accident at issue was caused by Mr. Stuck-ey’s fault, and that she and Morgan sustained personal injuries as the result of the accident. Progressive answered the petition, generally denying its liability and that of Mr. Stuckey, and also alleged various affirmative defenses. Progressive neither expressly admitted nor denied its issuance of a Impolicy of insurance to Mr. Stuckey, but only alleged that any such policy was the best evidence of its terms and conditions.

On October 1, 2007, plaintiff filed a supplemental and amending petition, adding Allstate Insurance Company (Allstate) as a defendant and asserting a cause of action against it under the underinsured motorists (UIM) coverage of plaintiffs policy of automobile liability insurance.

On October 19, 2007, plaintiff moved to dismiss her claims against Mr. Stuckey and Progressive on the grounds that they had been compromised, but reserved her rights to seek further damages from Allstate. The order dismissing plaintiffs claims against Mr. Stuckey and Progressive was signed on October 24, 2007.

Allstate filed its answer to plaintiffs petition on December 11, 2007, admitting the existence of its policy but denying its liability. It further affirmatively alleged plaintiffs fault in causing the accident at issue and her failure to mitigate her damages. Finally, it asserted its right to a credit for all underlying liability coverage, including that of Progressive, applicable to plaintiffs claims.

A bench trial was conducted on December 16, 2008. Following the conclusion of the presentation of plaintiffs case, Allstate moved for involuntary dismissal of plaintiffs claims, on the grounds that she failed to meet her burden of proof of Mr. Stuck-ey’s underinsured status. The trial court denied the motion. After Allstate rested its case, the trial court took the matter under advisement.

_JjThe trial court issued written reasons for judgment on January 22, 2009. In its written reasons, the trial court explained the basis for its ruling denying Allstate’s motion for involuntary dismissal. It further found that Mr. Stuckey was solely at fault in causing the accident, and that plaintiff made a prima, facie showing that he was underinsured as to her damages. Finally, the trial court found that plaintiff was entitled to judgment against Allstate in the amount of $10,000.00 for her individual injuries, but that the total monetary amount of Morgan’s damages did not exceed the applicable liability limits of $10,000.00 under Progressive’s policy. Its judgment to the foregoing effect was signed on March 4, 2009.

Allstate now appeals, contending that the trial court committed legal error in holding that La. R.S. 22:1295(6) serves only to provide a procedural presumption of uninsured or underinsured status and that the trial court was also clearly wrong in factually concluding that plaintiff met her burden of proving Mr. Stuckey’s un-derinsured status. Plaintiff answers the appeal, contending that the trial court abused its discretion in failing to award any damages against Allstate under its UIM coverage for Morgan’s injuries.

ANALYSIS

Proof of a Tortfeasor’s Uninsured or Underinsured Status

For purposes of UIM coverage, an un-derinsured motorist is one whose “automobile liability insurance on [a motor vehicle] is less than the amount of damages suffered by an insured [of the UM/UIM insurer] and/or the passengers in the insured’s vehicle at the time of an accident, as agreed to by the parties and their insurers or as determined by final adjudication.” La. R.S. 22:1295(2)(b).

Louisiana Revised Statutes 22:1295(6) provides:

| r,In any action to enforce a claim under the uninsured motorist provisions of an automobile liability policy the following shall be admissible as prima facie proof that the owner and operator of the vehicle involved did not have automobile liability insurance in effect on the date of the accident in question:
(a) The introduction of sworn notarized affidavits from the owner and the operator of the alleged uninsured vehicle attesting to their current addresses and declaring that they did not have automobile liability insurance in effect covering the vehicle in question on the date of the accident in question. When the owner and the operator of the vehicle in question are the same person, this fact shall be attested to in a single affidavit.
(b) A sworn notarized affidavit by an official of the Department of Public Safety and Corrections to the effect that inquiry has been made pursuant to R.S. 32:871 by depositing the inquiry with the United States mail, postage prepaid, to the address of the owner and operator as shown on the accident report, and that neither the owner nor the operator has responded within thirty days of the inquiry, or that the owner or operator, or both, have responded negatively as to the required security, or a sworn notarized affidavit by an official of the Department of Public Safety and Corrections that said department has not or cannot make an inquiry regarding insurance. This affidavit shall be served by certified mail upon all parties fifteen days prior to introduction into evidence.
(c) Any admissible evidence showing that the owner and operator of the alleged uninsured vehicle was a nonresident or not a citizen of Louisiana on the date of the accident in question, or that the residency and citizenship of the owner or operator of the alleged uninsured vehicle is unknown, together with a sworn notarized affidavit by an official of the Department of Public Safety and Corrections to the effect that on the date of the accident in question, neither the owner nor the operator had in effect a policy of automobile liability insurance.
(d)The effect of the prima facie evidence referred to in (a), (b) and (c) above is to shift the burden of proof from the party or parties alleging the uninsured status of the vehicle in question to their uninsured motorist insurer.

| (¡(Emphasis added.)

As demonstrated by the emphasized phrases, the statutory language quoted above relates only to the fact of existence of automobile liability insurance covering the operation of the offending vehicle, not the monetary limits of such coverage (beyond compliance with the statutory required minimum limits of La. R.S. 32:900) or its adequacy in satisfying any damages suffered by claimants. The determination of whether a vehicle (or, more properly, a motorist) is uninsured simply involves the issue of whether legally satisfactory proof has been presented to show that the motorist was operating a motor vehicle for which no policy of liability insurance was issued to its owner, or that he had no such policy issued to him or otherwise covering him for his operation of that motor vehicle. The monetary amount or quantum of damages sustained by the injured victim is irrelevant to the simple issue of whether the offending driver had no liability insurance covering him. By its literal terms, La. R.S. 22:1295(6) does not prescribe any method of establishing the undennsured, status of the owner and the operator of the offending vehicle, apart from establishing the uninsured status of either.

In the situation where the owner and operator are the same person, and the primary liability policy required by law has been identified, there are only a limited number of conceivable situations where additional liability coverage might exist. One obvious situation might involve an excess or umbrella policy specifically providing excess liability coverage to the owner-operator. But the existence of such excess coverage cannot be presumed, as it is not required by law. Another situation might involve 17coverage provided to a third person vicariously or jointly liable with the owner-operator, such as an employer. Again, however, neither the existence of such a relationship nor the existence of such additional coverage may be presumed to exist as a matter of law. As a practical matter, any attempt to apply the terms of La. R.S. 22:1295(6) to negate the existence of other applicable liability coverage would necessarily require subjective factual inquiry or conclusions as to the terms and conditions of any potential excess policy applicable to the specific factual circumstances. By its terms, the statute does not specifically provide for methods of excluding such possibilities.

Even if La. R.S. 22:1295(6) may somehow properly be utilized to secure prima facie evidence of the underinsured status of the operator of the offending vehicle, nothing in its language or in the jurisprudence interpreting it suggests that it is the exclusive means of establishing that status. See Releford v. Doe, 618 So.2d 464, 466 (La.App. 4th Cir.1993), and Scherer v. Chaisson, 469 So.2d 510, 514-15 (La.App. 3rd Cir.1985); see also 15 William Shelby McKenzie & H. Alston Johnson III, Louisiana Civil Law Treatise: Insurance Law and Practice § 106 n. 4 (3rd ed.2006). Simply stated, in the case of an offending vehicle operated by its owner, once the insured claimant has proven the existence of the required primary policy of liability insurance for the offending vehicle and damages exceeding in monetary value the applicable limits of that policy, he has established a prima facie case for recovery under his UIM coverage. Absent evidence of other applicable excess liability coverage, or evidence supporting the |spresumption of the existence of such coverage, the insured claimant would then be entitled to recovery for the proven amount of damages exceeding the underlying liability policy limits. At that point, the burden rests with the UIM insurer to put forth evidence of other underlying liability coverage, or evidence supporting a legal presumption of such coverage, sufficient to shift the burden back to the insured claimant.

In the course of investigating the accident, the investigating police officer determined that the driver of the involved pickup truck was Parrish Sterling Stuckey. At trial, both plaintiff and the investigating officer identified Mr. Stuckey’s vehicle as a Ford F150 pickup truck. The investigating officer confirmed its year of manufacture as 1999.

The policy at issue, introduced into evidence, was issued by Progressive to Parrish S. Stuckey as named insured. The policy period was April 13, 2006 to October 13, 2006. The declarations page lists two covered vehicles, the second being a 1999 Ford F150 pickup truck, added on April 26, 2006. The bodily injury liability coverage limits were $10,000.00 per person/$20,000.00 per accident, the minimum limits permitted by La. R.S. 32:900(B)(2).

Here, plaintiff had no need to utilize the statutory methods of proving the uninsured status of Mr. Stuckey, as she had proof that he was in fact insured by Progressive. As for her burden of proof of his underinsured status, the certified copies of Progressive’s declarations page and policy agreement served to establish the monetary limits of the available liability coverage, and the testimony and other evidence relating to her damages provided the basis of the trial court’s determination of the issue of whether |nthe monetary value of those damages exceeded Progressive’s liability limits. The burden then shifted to Allstate to prove the existence of other applicable liability policies in order to defeat the application of its UIM coverage. See Simon v. Reel, 03-932, p. 6 (La.App. 3rd Cir.3/3/04), 867 So.2d 174, 179. It failed to present any such proof, either in the form of direct or circumstantial evidence. Its assignment of error has no merit.

Damages

Plaintiffs granddaughter Morgan was nine years old at the time of the accident. Following the accident, Morgan complained of low back pain. She was initially seen by her pediatrician, G.J. Gelpi, M.D., who diagnosed a lower back ache and ordered x-ray films, which were reported as normal. Morgan was subsequently treated by Shay Corbin, D.C., the same chiropractor who treated plaintiff, on sixteen occasions from May 11, 2006 through September 18, 2006. Dr. Corbin diagnosed sprains or strains of the thoracic spine, lumbosacral spine, and the calves, and noted that Morgan also complained of cervical and jaw pain during the course of treatment.

In her appellate brief, plaintiff complains that the award of general damages for Morgan was inadequate, in that it “averaged only $1,705.88 per month of treatment.” Certainly, the duration of a plaintiffs injury symptoms and the duration of treatment are relevant factors for a trier of fact to consider in awarding general damages. But they are not the only relevant factors; the nature and relative severity and extent of injuries are qualitative factors that must be considered. This court has previously disapproved of the use of a mathematical formula, or simple multiplication, to arrive at an appropriate award of general damages, as such a “shortcut” approach presupposes uniformity of symptoms over the course of time and fails to take account of each victim’s unique and subjective injuries and course of | ^recovery. See, e.g., Lee v. Briggs, 08-2120, p. 2 (La.App. 1st Cir.9/10/09), 23 So.3d 362, 363. Nevertheless, we find no abuse of discretion in the trial court’s conclusion that Morgan’s total general damages did not exceed $7,250.00 for a soft-tissue injury with gradually-decreasing symptoms over four and a half months.

We further find no manifest or legal error as to the trial court’s failure to award specific damages for Morgan’s “loss of enjoyment of life.” The trial court evidently concluded that her acute soft-tissue injuries did not cause her a detrimental lifestyle change warranting such an award. See McGee v. AC and S, Inc., 05-1036, p. 5 (La.7/10/06), 933 So.2d 770, 775, and Oden v. Gales, 06-0946, p. 14 (La.App. 1st Cir.3/23/07), 960 So.2d 114, 122. The record provides an evidentiary basis for the trial court’s decision in that regard. Thus, we conclude that the plaintiffs answer to the appeal has no merit, and deny it.

CONCLUSION

The judgment of the trial court is affirmed, and the answer of the plaintiff-appellee, Regina Gillmer, to the appeal is denied. All costs of this appeal are assessed to the defendant-appellant, Allstate Insurance Company.

AFFIRMED; ANSWER TO APPEAL DENIED.

McCLENDON, J., dissents and assigns reasons.

McCLENDON, J.,

dissents and assigns reasons.

1,1 respectfully disagree with the majority to the extent that it finds the filing of a liability policy issued in the tortfeasor’s name that lists the involved vehicle, coupled with proof that the plaintiffs damages exceed the coverage available under said policy, without any other evidence, is sufficient to satisfy the plaintiffs initial burden of proof that the tortfeasor was underin-sured. While the existence of an excess, umbrella, or other policy covering the tort-feasor is not presumed, there remains the possibility that such policies exist.

Clearly, the methods provided under LSA-R.S. 22:1295(6) are not the exclusive means of establishing whether a tortfeasor is uninsured or underinsured. For instance, in Campbell v. Am. Home Assur. Co., 260 La. 1047, 258 So.2d 81 (La.1972), the court admitted as sufficient proof a letter signed by the driver’s husband which stated that the defendant driver had no liability insurance. See also Dairyland Ins. Co. v. Trail, 459 So.2d 1368 (La.App. 3 Cir.1984)(defendant admitted to being uninsured in his answer) and Schexnaider v. Rome, 485 So.2d 245 (La.App. 3 Cir.1986)(court admitted as declaration against interest testimony of broker that defendant told broker that he had no liability insurance at the time of the accident). However, in this case, no 12such additional evidence was offered. Although a liability policy was introduced, plaintiff failed to offer any testimony or other evidence showing that the coverage afforded Mr. Stuckey’s vehicle was limited to the policy issued by Progressive.

Further, plaintiff does not assert that she was unable to locate Mr. Stuckey in order to ascertain whether any other insurance policy may have provided coverage for the accident. Contrast Boudreaux v. State Farm Mut. Auto. Ins. Co., 385 So.2d 480 (La.App. 1 Cir.), writ refused, 392 So.2d 690, 691 (La.1980), Jones v. Liberty Mut. Fire Ins. Co., 99-2990 (La.App. 4 Cir. 2/18/00), 767 So.2d 45, and Loupe v. Tillman, 367 So.2d 1289 (La.App. 4 Cir.1979). In fact, plaintiff entered into a settlement agreement with Mr. Stuckey and Progressive and released both, but failed to obtain an affidavit, statement, or any other admissible evidence with regard to coverage.

Thus, I find the majority to be incorrect. Plaintiffs introduction of Progressive’s declarations page and policy did not meet the initial burden to show that Mr. Stuck-ey was underinsured. As such, the burden never shifted to Allstate to prove the existence of other applicable liability policies in order to defeat application of its underin-sured motorist coverage. Accordingly, I respectfully dissent.

      . Plaintiff had the legal custody of her granddaughter.

      . Allstate's counsel orally moved for a "directed verdict,” which may be granted in a jury trial under La. C.C.P. art. 1810, rather than for an involuntary dismissal under La. C.C.P. 1672(B), which may be granted in a bench trial. But that error is one of form rather than substance, as the ultimate object of both motions is the same. See Broussard V. Voorhies, 06-2306, p. 3 n. 1 (La.App. 1st Cir.9/19/07), 970 So.2d 1038, 1041 n. 1, writ denied, 07-2052 (La.12/14/07), 970 So.2d 535.

      . At the time of the trial, this statute was designated as La. R.S. 22:680(6). It was re-designated as La. R.S. 22:1295(6) by Acts 2008, No. 415, § 1, effective January 1, 2009. No substantive changes to the language were made.

      . For example, if the operator of the offending vehicle was in the course and scope of his employment by another person, did his employer even have any applicable automobile liability insurance? If so, was the employee operator defined or included as an insured under that policy? Was the operation of the offending vehicle actually covered under that potential excess policy? Were there any applicable exclusions?

      . See McKenzie & Johnson, supra, § 106 ("When the insured presents prima facie evidence that the negligent driver has no liability coverage or that his liability limits are inadequate, the burden shifts to the UM [uninsured] insurer to show that there is other applicable liability coverage....") [Footnote omitted.]

      . I also respectfully disagree with the current jurisprudence from the Third Circuit that is in accord with the majority's rationale. See Scherer v. Chiasson, 469 So.2d 510 (La.App. 3 Cir.1985) and Simon v. Reel, 03-0932, p. 6 (La.App. 3 Cir. 3/3/04), 867 So.2d 174, 179.