author: TERRI F. LOVE, Judge.

text:
    Shyra ALLEN v. DEPARTMENT OF POLICE.
    No. 2009-CA-0589.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 2009.

      Kenneth M. Plaisance, New Orleans, LA, for Shyra Allen.
    Nolan P. Lambert, Chief Deputy City Attorney, Victor L. Papai, Jr., Assistant City Attorney, Penya Moses-Fields, City Attorney, New Orleans, LA, for the Department of Police.

      (Court composed of Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   TERRI F. LOVE, Judge.

LShyra Allen was terminated from her position as a New Orleans Police Officer for leaving her post and failing to return following Hurricane Katrina. The Civil Service Commission found that Ms. Allen was terminated for legal cause and denied her appeal. We find that the Civil Service Commission’s denial of Ms. Allen’s appeal was not arbitrary or capricious and affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Shyra Allen was an officer with the New Orleans Police Department (“NOPD”) in the 7th Police District when Hurricane Katrina struck the City of New Orleans. While Ms. Allen reported for duty to Methodist Hospital on August 28, 2005, she allegedly left her post in a van of other officers on September 1, 2005, to find her family. Ms. Allen did not return to New Orleans until November 2, 2005, whereupon she received a termination letter, dated October 24, 2005, from the NOPD. The letter stated that Ms. Allen had “failed to report for duty” and had “not contacted any supervisors to date in your chain of command relative to your absence from work.” The letter also stated that Rule DC of the Rules of the Civil Service Commission gave it the authority to take “corrective action.” Ms. Allen appealed the NOPD’s determination.

|2The Civil Service Commission (“CSC”) granted Ms. Allen’s appeal and reversed her termination, finding that she was denied due process due to the lack of a pre-termination hearing. The NOPD appealed. This Court vacated the decisions of the CSC in a consolidated case, which consisted of NOPD officers who were denied a pre-termination hearing, and remanded the cases. Ms. Allen and the NOPD then submitted her case based on the facts presented in the original hearing. The CSC found that the NOPD terminated Ms. Allen for cause and denied the appeal. Ms. Allen’s appeal to this Court followed.

Ms. Allen contends that the termination letter did not contain rules or regulations that she allegedly violated, that there was no evidence that she was “unwilling or unable” to perform her duties, and that, if Ms. Allen’s actions warranted discipline, termination was excessive.

STANDARD OR REVIEW

The CSC has the “exclusive power and authority to hear and decide all removal and disciplinary cases.” La. Const. Art. X, § 12(B). Cause must be expressed in writing to take disciplinary action against a permanent classified employee. La. Const. Art. IX, § 8(A). “The appointing authority is charged with the operation of his or her department and it is within his or her discretion to discipline an employee for sufficient cause.” Pope v. New Orleans Police Dep’t, 04-1888, p. 6 (La.App. 4 Cir. 4/20/05), 903 So.2d 1, 4. “Legal cause exists whenever an employee’s conduct impairs the efficiency of the public service in which the employee is engaged.” Id., 04-1888, p. 6, 903 So.2d at 5. The burden of proving the impairment remains with the NOPD, as the appointing authority. Cittadino v. Dep’t of Police, 558 So.2d 1311, 1315 (La.App. 4th Cir.1990).

Appellate courts review the factual findings of the CSC using the clearly erroneous/manifest error standard of review. Madison v. Dep’t of Police, 07-2405, p. 3 (La.4/4/08), 978 So.2d 288, 290. If the findings of the CSC are reasonable, this Court cannot reverse the CSC on appeal. Id. As to the CSC’s determination of legal cause and the punishment awarded, this Court will not disturb the ruling absent evidence of arbitrariness, capriciousness, or characteristics of an abuse of discretion. Cure v. Dep’t of Police, 07-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094-95. A CSC decision is arbitrary and capri cious if no rational basis exists as a foundation for the decision. Id., 07-0166, p. 2, 964 So.2d at 1095.

TERMINATION LETTER

The Louisiana Constitution provides, in regards to disciplinary proceedings against a classified employee, that:

No person who has gained permanent status in the classified state or city service shall be subjected to disciplinary action except for cause expressed in writing. A classified employee subjected to such disciplinary action shall have the right of appeal to the appropriate commission pursuant to Section 12 of this Part. The burden of proof on appeal, as to the facts, shall be on the appointing authority.

La. Const. Art. X, § 8(A). The United States Supreme Court held that an employee, like Ms. Allen, must be given notice and afforded an opportunity to respond to the charges against her to ensure that the requirements of the 14th Amendment Due Process Clause are fulfilled. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985); Webb v. Dep’t of Safety and Permits, 543 So.2d 582 (La.App. 4th 1989). “The purpose of requiring cause expressed in writing is to apprise the employee in detail of the [¡grounds upon which the dismissal is based and to limit any subsequent proceedings to the stated grounds.” Lemoine v. Dep’t of Police, 348 So.2d 1281, 1283 (La.App. 4th 1977).

Ms. Allen contends that the termination letter did not contain rules or regulations that she allegedly violated sufficient to provide notice. Ms. Allen’s termination letter stated, in part:

On or about September 2, 2005 you failed to report for duty and have not contacted any supervisors to date in your chain of command relative to your absence from work.
Rule IX of the Rules of the Civil Service Commission of the City of New Orleans stipulates that an appointing authority may take corrective action when an employee in the classified service is unable or unwilling to perform the duties of their position in a satisfactory manner. Therefore, in light of the above, you are hereby notified that you are being dropped from the rolls of the New Orleans Police Department for abandonment of job effective October 29, 2005.

Ms. Allen avers that the letter was vague and failed to apprise her of the specific charge.

Although the letter includes only Rule IX, the remainder of the letter describes the reason for discipline as the failure to return to duty once leaving “[o]n or about September 2, 2005” and failing to advise her supervisors about her absence. The CSC’s decision stated that the “[a]ppellant left her post without the permission of anyone in her chain of command, and failed to return prior to her termination.” This statement consists of the same factual allegations presented in Ms. Allen’s termination letter. Therefore, we find that this assignment is without merit, as the termination letter apprised Ms. Allen of the accusations against her and she presented a defense to these allegations before the CSC’s hearing examiner.

| .PROOF OF ALLEGED OFFENSE & PUNISHMENT

The CSC “has a duty to decide independently from the facts presented whether the appointing authority has a good or lawful cause for taking disciplinary action and, if so, whether punishment imposed is commensurate with the dereliction.” Whitaker v. New Orleans Police Dep’t, 03-0512, p. 2 (La.App. 4 Cir. 9/17/03), 863 So.2d 572, 574. The NOPD, as the appointing authority, must prove by a preponderance of the evidence “the occurrence of the complained of activity and that the conduct complained of impaired the efficiency of the public service.” Id.

At Ms. Allen’s initial hearing, Captain Robert Bardy stated that he was the police captain of the 7th Police District. Captain Bardy testified that Ms. Allen left her post on September 1, 2005, without permission. Captain Bardy stated that four vans of people left on September 1, 2005, and that one van was allowed to cross the river to “make family contacts,” and retrieve medical supplies and food. However, no one was given permission to leave for an extended period of time. Following Ms. Allen’s absence, Captain Bardy declared that Ms. Allen did not call him to report back for duty; however, he thought she visited the temporary headquarters in the 200 block of Bourbon Street at some point.

Sergeant Joseph Lorenzo testified, as the investigating officer, that Ms. Allen failed to return to duty by October 17, 2005, which was the date of his report on the investigation.

Ms. Allen testified that she was told to report to Methodist Hospital at around 5:30 or 6:00 p.m. on August 28, 2005. She stated that Captain Bardy said, on September 1, 2005, they could “leave and take care of our families, and if’ they “weren’t having any problems, then” they could “come back.” Ms. Allen stated |fithat she left in a van with other officers and attempted to contact Captain Bardy for a week to no avail. Ms. Allen conveyed that she relied upon the kindness of strangers to locate her family. After locating her family on or about September 10, 2005, Ms. Allen allegedly telephoned Captain Bardy, but he allegedly told her no one was being accepted back until “they” figured out what was going on. Further, when asked why she did not return or communicate with other supervisors, Ms. Allen testified that she had no other means to communicate with the NOPD and was unable to get into New Orleans. Ms. Allen did not return to New Orleans until November 2, 2005, upon which time she received the termination letter.

Ms. Allen did not deny leaving her post and remaining in Texas until she returned to New Orleans on November 2, 2005. On the other hand, Ms. Allen contends that she should not be terminated because she allegedly attempted to contact Captain Bardy within the 14-day absent-without-leave rule. However, Ms. Allen did not present corroborating evidence to support her testimony. Captain Bardy testified that Ms. Allen did not contact him. Given the juxtaposed testimony, the record supports the factual finding that Ms. Allen was absent without permission for two months following Hurricane Katrina. As such, we do not find that the CSC was arbitrary or capricious in finding that the NOPD terminated Ms. Allen for cause.

EXCESSIVE DISCIPLINE

Ms. Allen contends that her behavior did not warrant discipline given the conditions following Hurricane Katrina, but that if discipline was necessary, termination was excessive. We find this contention lacks merit. In support, Ms. Allen cites a number of cases in which NOPD officers left their post for a short 17period of time.

The CSC found that Ms. Allen was absent from her post for two months without permission. This Court held that the CSC did not err in terminating NOPD officers who were absent without permission in excess of fourteen days after Hurricane Katrina. Given the CSC’s determination that Ms. Allen was absent from duties as a NOPD officer for two months without permission, we do not find that termination constituted excessive discipline and affirm.

DECREE

For the above mentioned reasons, we find that the CSC did not err in finding that the NOPD terminated Ms. Allen for cause and affirm.

AFFIRMED.

      . Reed v. Dep’t of Police, 06-1498, 06-1500, 06-1647, 07-0171, 07-0360, 07-0361, 07-0364, 07-0366, 07-0367, 07-0368, 07-0796, 07-0797 (La.App. 4 Cir. 10/10/07), 967 So.2d 606.

      . See Bradley v. Dep’t of Police, 07-0794 (La.App. 4 Cir. 9/26/07), 968 So.2d 226.

      . See Parker v. Dep't of Police, 07-1546 (La.App. 4 Cir. 1/24/08), 977 So.2d 180; Hines v. Dep't of Police, 06-1218 (La.App. 4 Cir. 12/19/07), 974 So.2d 87.

      . See Aubert v. Dep’t of Police, 09-0288 (La.App. 4 Cir. 8/26/09), 19 So.3d 1211; LeBlanc v. Dep't of Police, 07-1168 (La.App. 4 Cir. 11/21/07), 972 So.2d 398; Bradley, 07-0794, 968 So.2d 226.


source: Caselaw Access Project

author: EDWIN A. LOMBARD, Judge.

license: Public Domain

text:
    Ray BYRD v. DEPARTMENT OF POLICE.
    No. 2009-CA-0592.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 18, 2009.

      Raymond C. Burkart III, Amanda A. Trosclair, Burkart & Associates, LLC, Covington, LA, for Plaintiff/Appellant.
    Shawn Lindsay, Assistant City Attorney, Penya Moses-Fields, City Attorney, Victor L. Papai, Jr., Assistant City Attorney, Nolan P. Lambert, Chief Deputy City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY, III, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

|! Sergeant Ray Byrd, an employee of the Department of Police for the City of New Orleans (“NOPD”), appeals from a decision of the Civil Service Commission (the “Commission”), denying his appeal. For the following reasons, we reverse the decision of the Commission.

Relevant Facts

Sgt. Byrd is a police officer with the NOPD. In October 2006, Sgt. Byrd, Sgt. Scott Monaco, and Sgt. Steven Andry were the three supervising sergeants in the Fourth District’s Platoon B. One of the duties of a supervising sergeant is reviewing and logging in all reports from the previous day. On October 21, 2006, Officer Nikia Adams, an officer in Platoon B, investigated a traffic accident and was assigned to file accident report number J-22546-06. Apparently, Off. Adams failed to turn in a final investigative report, and the report had to be reconstructed a year later.

The NOPD subsequently enforced disciplinary action against Sgt. Byrd for failing to follow up on Off. Adam’s accident report. Sgt. Byrd was given a letter of 12reprimand, which provided that the NOPD had determined that on October 21, 2006, Off. Adams was under Sgt. Byrd’s direct supervision, that Off. Adams was assigned an auto accident report, that on October 22, 2006, Sgt. Byrd’s duties included reviewing and logging in all reports from the previous day, and that Sgt. Byrd failed to ensure that the accident report was completed and turned in to a supervisor. The letter further alleged that Sgt. Byrd’s inaction violated Rule 4.2, Instructions from an Authoritative Source, to wit: Chapter 82.2 relative to Processing Police Reports.

Sergeant Byrd appealed the letter of reprimand to the City Civil Service Commission and a hearing was held on his appeal April 8, 2008. At the hearing, the NOPD presented the testimony of Sgt. Albert Miller, a superasing sergeant in the Fourth District’s Platoon A who investigated the matter on NOPD’s behalf. Sgt. Miller testified that he reviewed the report log and noted that Sgt. Byrd initially logged in the report on October 22, 2006. He therefore surmised that it was Sgt. Byrd’s responsibility to make sure the report was turned in timely. Sgt. Miller further testified that, in his platoon, Platoon A, the sergeant who logs in the reports for a particular day is the one responsible for following up to make sure that any corrections that are required are completed, although he admitted that he |swas not aware of Platoon B’s protocol regarding which sergeant is required to follow up on reports, since different platoons can have different policies.

Sgt. Byrd testified on his own behalf at the hearing. It was his testimony that, unlike Platoon A, Platoon B had no policy regarding who followed up to ensure that the reports prepared by officers were turned in timely. He noted that sometime after this incident, Platoon B implemented a policy regarding the responsibilities of the sergeants in the platoon, but that prior to the implementation of the policy, the responsibility of insuring the reports were timely turned in was shared by the three sergeants and the lieutenant. Sgt. Byrd averred that although all three sergeants were investigated with regard to this incident, neither of the other sergeants received a letter of reprimand after the investigation.

After reviewing the testimony and evidence, the Commission concluded that “Police Department policy required Appellant [Sgt. Byrd] as Officer Adams’ supervisor to review the next day (October 22, 2006) any incomplete reports submitted the previous day. Upon discovering an incomplete report, Appellant [Sgt. Byrd] had the responsibility for insuring that the reporting officer get an extension to complete and file the report on a timely basis. Appellant failed to do this.” Accordingly, the Commission denied Sgt. Byrd’s appeal and Sgt. Byrd subsequently appealed to this Court.

Assignments of Error

Sgt. Byrd argues the Civil Service Commission acted arbitrarily and capriciously in denying appellant’s appeal:

)41) by not considering the department’s lack of investigation regarding appellant’s responsibilities;

2) by upholding the department’s disciplining of only one supervising sergeant; and

3) by finding the discipline imposed is commensurate with the alleged violation.

Standard of Review

The appointing authority, here, the NOPD, is charged with the operation of his or her department and it is within his or her discretion to discipline an employee for sufficient cause. Joseph v. Department of Health, 389 So.2d 739, 741 (La.App. 4 Cir.1980); Branighan v. Department of Police, 362 So.2d 1221, 1223 (La.App. 4 Cir.1978). Sufficient cause ex ists whenever an employee’s conduct impairs the efficiency of the public service in which the employee is engaged. Cittadino v. Department of Police, 558 So.2d 1311 (La.App. 4th Cir.1990). The appointing authority has the burden of proving, by a preponderance of the evidence, that the complained-of activity or dereliction occurred, and that such dereliction bore a real and substantial relationship to the efficient operation of the appointing authority. Cure v. Dept. of Police, 07-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094 (citing Marziale v. Dept. of Police, 06-0459, p. 10 (La.App. 4 Cir. 11/8/06), 944 So.2d 760, 767).

The Civil Service Commission has the authority to hear and decide disciplinary cases, which includes the authority to modify (reduce) as well as to reverse or affirm a penalty. La. Const, art. X, § 12; Branighan v. Department of Police, 362 So.2d 1221, 1223 (La.App. 4 Cir.1978). The decision of the Commission is subject to review on any question of law or fact upon appeal to this |sCourt, which reviews findings of fact using the manifestly erroneous/clearly wrong standard of review. La. Const, art. X, § 12; Cure, 07-0166, p. 2, 964 So.2d at 1094. Thus, in determining whether the disciplinary action was based on good cause and whether the punishment is commensurate with the infraction, we should not modify the Commission’s order unless it was arbitrary, capricious, or characterized by an abuse of discretion. Id. A decision of the Commission is “arbitrary and capricious” if there is no rational basis for the action taken by the Commission. Cure, 07-0166, p. 2, 964 So.2d at 1095.

Discussion

On appeal, Sgt. Byrd argues the Commission acted arbitrarily in denying his appeal without considering the Department’s lack of investigation regarding his responsibilities. In support of this argument, Sgt. Byrd cites Marsellus v. Dept. of Public Safety and Corrections., 04-0860 (La.App. 1 Cir. 9/23/05), 923 So.2d 656, wherein the First Circuit Court of Appeal noted that “[a]n administrative agency’s conclusion is “capricious” when it has no substantial evidence to support it.” Id. at p. 8, 923 So.2d at 661.

In response, the NOPD argues that the decision of the Commission was not arbitrary and capricious because NOPD had cause for the disciplinary action it imposed on Sgt. Byrd. NOPD cites Whitaker v. New Orleans Police Dept., 03-0512, p. 6 (La.App. 4 Cir. 9/17/03), 863 So.2d 572, 576, for the proposition that “the Commission should give heightened regard to the appointing authorities that serve as special guardians of the public safety and operate as quasi-military institutions where strict discipline is imperative.”

| fiThere is certainly a lack of substantial evidence to support the Commission’s determination that it was Sgt. Byrd’s duty, alone, to make sure that the relevant report was completed and filed. The testimony at the hearing established that Sgt. Byrd’s platoon, Platoon B, had no policy in place to determine which of the three supervisors was in charge of following up to ensure that the officers under their command completed reports. Although the testimony and evidence established that Sgt. Byrd worked October 21, 2006, and October 22, 2006, the record also reflects that Officer Adams responded to a call on October 21, 2006 and under the rule, had four days, or until October 24, 2006, to complete the report. Sgt. Miller testified that Sgt. Byrd logged some reports on October 22, 2006, and therefore he believed it was Sgt. Byrd’s responsibility to make sure all of the reports were turned in timely. However, while it was Platoon A’s policy that the sergeant who logs the report is responsible for making sure that the officer timely turns in the report, Platoon B had no policy in place to determine which of the three supervisors was responsible for ensuring that the report was turned in timely. The NOPD offered no evidence indicating that the Platoon B supervisor who logged reports in a given day is the only supervisor responsible for following up to ensure that reports are turned in timely. Indeed, Sgt. Miller admitted platoons are allowed to have different policies and that he does not know the policies of Platoon B. Sgt. Byrd testified that in Platoon B, all supervisors are responsible for insuring that reports are turned in timely.

17We are cognizant that the NOPD serves as a special guardian of public safety and operates as a quasi-military institution where strict discipline is imperative. However, the NOPD still bears the burden of proving, by a preponderance of the evidence, that the complained of activity or dereliction occurred, and that such dereliction bore a real and substantial relationship to the efficient operation of the appointing authority. In this case, the NOPD failed to prove that Sgt. Byrd committed a dereliction at all, since it is unclear which sergeant, if any, solely had the duty of logging in the relevant report. There was no evidence offered at the hearing to indicate that Sgt. Byrd was the only supervisor responsible for insuring that Officer Adams’ report was turned in timely.

Rather, the evidence at the hearing indicated that Platoon B had no policy in place to determine which of the three supervisors was responsible for ensuring that the report was turned in timely and that all three supervisors, and the lieutenant, shared the duty. NOPD offered no rational explanation as to why Sgt. Byrd was the only sergeant to receive a letter of reprimand. We find no rational basis for the NOPD to impose disciplinary action on Sgt. Byrd when none of the other sergeants received letters of reprimand for the same offense. Moreover, based on the testimony and evidence produced at the hearing, there is no substantial evidence to support the Commission’s decision to uphold the disciplinary action enforced upon Sgt. Byrd by the NOPD.

| {.Decree

There was no rational basis for the decision of the Commission to uphold the discipline imposed by the NOPD in this instance, and thus, the decision of the Commission was arbitrary and capricious. Accordingly, the decision of the Commission upholding the discipline imposed by NOPD is reversed.

REVERSED.

      . Rule 4.2, Instructions from an Authoritative Source, provides, "[A] member shall professionally, promptly and fully abide by or execute instructions issued from any authoritative source... .The issuing authority shall be held responsible should any conflict materialize.” Chapter 82.2.8 provides that, “All accident reports, excluding fatalities, must be received ... within four (4) days from the dale of assignment. Supervisory personnel shall make certain all authorized delays for accident reports do not exceed this time limit." The officer's supervisor is to then determine whether or not such a delay is warranted.

      . Sgt. Byrd also argues the Commission acted arbitrarily and capriciously in denying his appeal by finding his discipline commensurate with the alleged violation. However, considering our findings above, we pretermit discussion of this assignment of error.


author: BELSOME, Judge.

text:
    Mr. & Mrs. Ross HEIDINGSFELDER, Sr. v. HIBERNIA INSURANCE, LLC; Westport Insurance Corporation and Employers Reinsurance Corporation.
    No. 2009-CA-0753.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 18, 2009.
    Marion D. Floyd, Kenner, LA, for Plaintiffs/Appellants.
    James R. Carter, Porteous, Hainkel & Johnson, L.L.P., New Orleans, LA, for Defendants/Appellees.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME).
   BELSOME, Judge.

11Plaintiffs-Appellants, Mr. and Mrs. Ross Heidingsfelder, Sr., appeal the trial court’s grant of Defendants-Appellees’ motion for summary judgment. Appellants purchased a builder’s risk flood policy from Appellees, Hibernia Insurance, L.L.C., which was converted to a homeowner’s flood policy upon completion of their home’s construction. The homeowner’s flood policy, which Mr. Heidings-felder admitted he did not read, did not include coverage for contents. After sustaining flood damage from Hurricane Katrina, Appellants sued Hibernia under the errors and omissions policy. Hibernia filed a motion for summary judgment, which the trial court granted. We find that Hibernia breached no duty to Appellants and affirm.

FACTS AND PROCEDURAL HISTORY

Appellants’ home construction was financed by Hibernia Bank. Appellants’ banker advised them that they could purchase any insurance needs through Hibernia Insurance, L.L.C. Appellants subsequently purchased a builders risk flood policy from Hibernia that insured the structure, but not its contents, as the home was still under construction at that time. The home was completed in late |22003, and Appellants sought to convert the policy into a homeowner’s flood policy, which Hibernia did. The policy provided for flood coverage for the structure but not for its contents. It is not disputed that although policy declaration pages were sent to and received by Appellants, Appellants did not review any of these documents. As a result of Hurricane Katrina, the structure sustained flood damage, at which time Appellants assert they first became aware that they did not have flood contents coverage.

Appellants filed suit against Hibernia under its errors and omissions policy, alleging that Hibernia failed to fulfill its duties to Appellants as a casualty insurance agent. Hibernia filed a motion for summary judgment, asserting that it breached no duty to Appellants. The trial court granted the motion in favor of Hibernia on January 16, 2009. This appeal followed.

STANDARD OF REVIEW

This Court reviews summary judgments de novo, using the same criteria applied by the trial court to determine whether summary judgment is appropriate. City Blueprint & Supply Co., Inc. v. Bob Boggio, et al., 2008-1093, p. 4 (La.App. 4 Cir. 12/17/08), 3 So.3d 62, 65.

DISCUSSION

Appellants argue that the trial court erroneously applied Karam v. St. Paul Fire & Marine Ins. Co., 281 So.2d 728 (La.1973) to find that Hibernia did not breach a duty to Appellants. Appellants also argue that the trial court erred in granting the motion for summary judgment because there were genuine issues of material fact regarding whether Hibernia had a general duty to Appellants and | ^whether Hibernia had a duty when the builder’s risk policy was converted into a homeowner’s policy.

In Karam, the Louisiana Supreme Court established the duty of an insurance agent to his client. George Karam, the plaintiff in that case operated a laundromat that sustained an explosion from a hot water heater. Karam, 281 So.2d at 729. Karam, the insured, filed suit against his insurance agent under the errors and omissions policy, alleging that the agent only procured $10,000.00 in liability coverage, as opposed to the $100,000.00 that he requested. Id. at 730. The agent had testified that Karam requested him to obtain as much liability coverage as was available, and acknowledged that such coverage would indeed have been $100,000.00; however, he candidly admitted that he obtained only $10,000.00 worth of coverage through pure error on his part. Id. Thus, the Court found that the agent negligently failed to procure property damage liability coverage in the amount requested. Id.

Appellants argue that their request involved a more complex request of a conversion of a builder’s risk policy into a homeowner’s policy, and is thus distinguishable from Karam. Furthermore, they argue that no person directed the plaintiffs to the agent in Karam, as Hibernia Bank did in this case. |4Appellants submit that it was not unreasonable for them to conclude that Hibernia would procure flood coverage sufficient to protect the loan, which would necessarily include coverage for both the building and its contents. We disagree.

Mr. Heidingsfelder acknowledged in his deposition that he was aware that he could have gone to other agencies to satisfy his insurance needs. The request made to Hibernia, according to Mr. Heidingsfelder’s own testimony, was to convert the builders risk policy into a homeowners policy, which Hibernia did. Mr. Heidingsfelder further testified that he in fact received numerous flood declaration documents evidencing no coverage for contents, but candidly admitted that he simply failed to review any of these documents. Finally, Mr. Heidingsfelder conceded that there were no discussions with Hibernia regarding flood insurance upon relocation to the new construction, and that at no time did he ever request contents coverage from Hibernia.

Considering the foregoing, we cannot agree that Appellants established a duty on the part of Hibernia under the facts and circumstances of this case. Moreover, this Court has explicitly held that insurance agents do not have an independent duty to identify their clients’ needs and to advise them regarding whether they may be underinsured. City Blueprint, 3 So.3d 62, 66 n. 1. In City Blueprint, owners of City Blueprint & Supply Co. obtained insurance for their business through their agent, Bob Boggio, with whom they met once a year. Id. at p. 2, B So.3d at 63. The owners never requested Boggio to procure flood insurance for the business; rather, they assumed the fire/hazard policy would provide |5coverage in the event of a flood because Boggio had advised them that they were “fully covered.” Id. at p. 3, 3 So.3d at 64. Robert Mahoney, the owner who handled the insurance for the business, admitted that he never read the policy and was thus unaware that it contained flood exclusion. Id. The other owner, Robert’s brother David Mahoney, similarly testified that he did not read the policy and had no knowledge of a flood exclusion. Id. Both brothers conceded that they had no knowledge as to whether any of the former insurance policies for the business included flood insurance. Id.

The business sustained flooding damage as a result of Hurricane Katrina. Id. As in the instant case, Robert Mahoney admitted that he and his brother did not discover the lack of flood insurance until after the hurricane had struck. Id. City Blueprint sued the insurance agent, Bog-gio and the insurance agency, Morrison, Inc. Id. Morrison and Boggio filed a motion for summary judgment on the grounds that neither owed City Blueprint a duty to procure flood insurance nor to advise City Blueprint with respect to coverage. Id. The trial court granted the motion, and this Court affirmed.

In affirming the trial court, this Court recognized that an insurance agent’s duty when procuring insurance for a customer requires “reasonable diligence in attempting to place the insurance requested, and to notify the client promptly if he has failed to obtain the requested insurance.” Id. at p. 5, 3 So.3d at 65 (citing Taylor v. Sider, 99-2521, p. 3 (La.App. 4 Cir. 5/31/00), 765 So.2d 416, 418)(emphasis in original). For an insured to recover from his agent, the loss sustained must result from the agent’s failure to procure the requested coverage if the agent’s actions “warranted an assumption by the client that he was properly |(iinsured in the amount of the desired coverage.” Id. To determine whether such an assumption by the insured was warranted, this Court applied a three-part test:

[A] plaintiff may recover for loss arising from the failure of an insurance agent to obtain insurance coverage if plaintiff can establish three elements: (1) an undertaking or agreement by the agent to procure insurance; (2) failure of the agent to use reasonable diligence in attempting to place the insurance and failure to notify the client promptly if he has failed to obtain the insurance; and (3) that actions of the agent warranted an assumption by the client that he was properly insured. Id. at 1238.

City Blueprint, 2008-1093, p. 5-6, 3 So.2d at 65 (citing Porter v. Utica Mutual Ins. Co., 357 So.2d 1234 (La.App. 2 Cir.1978)(emphasis added). Considering these three requirements, this Court found that the first requirement was not met, because there was simply no agreement on behalf of the defendants to procure flood insurance for City Blueprint. Id.

Significantly, this Court also recognized that insurance agents do not have an independent duty to spontaneously advise insureds regarding various flood insurance options or whether an insured needs to have flood insurance:

In the aftermath of Hurricanes Katrina and Rita, Louisiana federal district courts considered whether insurance agents have an affirmative duty to inform an insured about the availability of flood coverage in excess of the NFIP limits, and whether insurance agents have an independent duty to spontaneously identify their clients’ needs and advise them as to whether they are un-derinsured. The resounding conclusion is that such duties do not exist under Louisiana law.

City Blueprint, 3 So.3d 62, 66 n. 1 (citing Cameron Parish School Bd. v. State Farm Fire and Cas. Co., 560 F.Supp.2d 485, 489 (W.D.La.2008)(emphasis added). Therefore, this Court concluded that City Blueprint failed to support a claim that Boggio and Morrison were liable for negligent failure to advise them regarding the need for flood insurance or various flood insurance options, “since no such duty exists.” City Blueprint, 2008-1093, p. 6, 3 So.2d at 66 (citing Dobson v. Allstate Ins. Co., 2006 WL 2078423 (E.D.La.7/21/06) (unpub.)).

In this case, as in City Blueprint, no agreement existed between Appellants and Hibernia to procure flood insurance coverage for contents. Mr. Heidingsfelder acknowledged that he had no discussions with Hibernia regarding flood insurance coverage, nor did he request that Hibernia procure flood insurance coverage for contents. Furthermore, like the insureds in City Blueprint, Mr. Heidingsfelder admitted that although he received the documents and declaration pages detailing the types and amounts of coverage, he never reviewed those documents. Accordingly, under these particular facts and circumstances, Appellants cannot establish that Hibernia breached a duty by failing to procure flood insurance coverage for contents.

^CONCLUSION.

For the foregoing reasons, the trial court’s judgment is hereby affirmed.

AFFIRMED

      . The structure was located at 6401 General Haig Avenue, New Orleans, Louisiana.

      . The policy did include flood coverage for the structure.

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

        Karam v. St. Paul Fire & Marine Ins. Co., 281 So.2d 728, 730-31 (La.1973)(citing C.C. 3002 and 3003); Kieran v. Commercial Union Insurance Company of New York, 271 So.2d 889 (La.App. 4th Cir.1973); Hight v. Stewart, 265 So.2d 640 (La.App. 2d Cir.1972); Bordelon v. Herculean Risks, Inc., 241 So.2d 766 (La.App. 3d Cir.1970); Shrv Teletype Coin Exchange, Inc. v. Commercial Union Insurance Company of New York, 191 So.2d 208 (La.App. 2d Cir.1966); Arceneaux v. Bellard, 149 So.2d 444 (La.App. 3d Cir.1963); Brown v. Stephens Buick Company, 139 So.2d 579 (La.App. 4th Cir.1962).
      This Court adopted the Karam standard in Taylor v. Sider, 99-2521, p. 3 (La.App. 4 Cir. 5/31/00), 765 So.2d 416, 418 and in City Blueprint, 2008-1093, p. 5, 3 So.3d at 65.

      . Mr. Heidingsfelder testified that he received the Fidelity National Insurance Co. declaration pages for the policy period of 7/10/05 to 7/10/06, which provided $250,000.00 coverage for the structure and no contents coverage.

      . Mr. Heidingsfelder further testified that he received declaration forms from the flood insurers prior to Hurricane Katrina on several occasions evidencing his coverages, but did not read them. He testified that ‘‘[i]f I read them, I’m capable of understanding them.”

      . Applying those principles to the facts of this case, we find that City Blueprint cannot satisfy the first requirement of Porter, since there was no agreement on behalf by defendants to procure flood insurance on the property. Both Mahoney brothers acknowledged that they never specifically requested that Mr. Boggio obtain flood insur-anee on the property. Both admit that they never asked Mr. Boggio if the policy provided flood insurance. The evidence in the record clearly indicates that the Mahoney brothers did not request that Defendants procure flood insurance for City Blueprint. Thus, City Blueprint cannot show that Mr. Boggio and Morrison, Inc. breached a duty by failing to procure flood insurance.

        City Blueprint, 2008-1093, p. 6, 3 So.3d at 65-66.

      . In Dobson, supra, the plaintiffs alleged that their insurance agents failed to tell them that they were underinsured. Like the Ma-honey brothers, the plaintiffs in Dobson did not allege that they specifically inquired about a particular type or amount of coverage, but admitted they relied upon their agents to obtain an adequate type and amount of coverage. The court found that the agents had no duty "to spontaneously identify a client’s needs and advise him as to whether he is underinsured or carries the right type of coverage.” Id. *10; See also Parker v. Lexington Ins. Co., 2006 WL 3328041 (E.D.La.2006) (unpublished). Similarly, in Whitehead v. State Farm Ins. Co., 2006 WL 3747520, *2 (E.D.La.2006) (unpublished), the court noted that there are no Louisiana cases that impose a duty on an agent to identify a client's needs and advise the client that he is underinsured or does not have the proper type of insurance (observing that an agent would, however, have had a duty if the plaintiffs requested a specific type or amount of insurance that the agent failed to provide). Moreover, the "client is himself considered responsible for adequately advising tire agent of the coverage needed and for reading tire clear provisions of the insurance policy.” Frischhertz v. Lexington Ins. Co., 2006 WL 3228385, p. 2 (E.D.La.2006) (unpublished). Thus, City Blueprint’s claim based on Defendants' failure to advise the Mahoney brothers regarding flood insurance is without merit.

        City Blueprint, 2008-1093, p. 7, 3 So.3d at 66.


author: EZELL, Judge.

text:
    STATE of Louisiana v. David Markale BATISTE a/k/a/ David M. Batiste.
    No. KA 09-521.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 9, 2009.
    Michael Harson, District Attorney, Fifteenth Judicial District Court, Patick D. Magee, Assistant District Attorney, Fifteenth Judicial District Court, Patrick D. Magee, Voorhies & Labbe, Lafayette, LA, for Plaintiff/Appellee, State of Louisiana.
    Elbert Lee Guillory, Opelousas, LA, for Defendant/Appellant, David Markale Batiste.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

| ^though the Lafayette Parish Grand Jury originally indicted Defendant, David Markale Batiste a/k/a David M. Batiste, with first degree murder, the State amended the charge to one count of second degree murder. In accordance with a plea agreement, Defendant pled guilty to the further-amended charge of manslaughter, in violation of La. R.S. 14:31, on June 20, 2008.

On November 10, 2008, the sentencing court ordered Defendant to serve thirty-five years at hard labor without benefit of probation, parole, or suspension of sentence. The district court then designated Defendant’s sentence to run consecutively with any other penalties Defendant was already serving. Defendant did not file a motion to reconsider sentence with the district court. Defendant now appeals his sentence.

STATEMENT OF FACTS

Defendant entered into a plea agreement with the State and pled guilty to one count of manslaughter. Defendant admitted to shooting and killing a man at a motel on June 20, 2006.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find there is one error patent concerning the Defendant’s sentence.

For his conviction of manslaughter, the Defendant was sentenced to serve thirty-five years at hard labor without the benefit of parole, probation, or suspension of sentence. Louisiana Revised Statutes 14:31 provides that a person convicted of ^manslaughter “shall be imprisoned at hard labor for not more than forty years,” and it does not set forth any prohibition against parole, probation or suspension of sentence. However, La.Code Crim.P. art. 893 prohibits the court from suspending the sentence and placing persons who are on probation convicted of certain crimes of violence, including manslaughter, but it does not prohibit parole. See La. R.S. 14:2(B)(4). Thus, the trial court erred in ordering the Defendant’s sentence to be served without the benefit of parole. Accordingly, this court will amend the Defendant’s sentence to delete the denial of parole eligibility and instruct the district court to make an entry in the minutes reflecting this change. State v. Levy, 08-1467 (La.App. 3 Cir. 6/10/09), 12 So.3d 1135, and State v. Dupree, 07-98 (La.App. 3 Cir. 5/30/07), 957 So.2d 966.

ASSIGNMENT OF ERROR NUMBER ONE

As his first assignment of error, Defendant asserts his sentence is excessive given the facts of the case. Defendant asserts that he had heard that the Victim was planning to rob him. When Defendant saw the Victim, the Victim moved aggressively toward Defendant. Defendant alleges he shot the Victim because he feared for his safety.

Defendant neither verbally moved for reconsideration of his sentence nor filed a motion to reconsider sentence with the trial court alleging specific errors. Thus, Defendant is not entitled to a review of his sentence. La.Code Crim.P. art. 881.1(E). However, in the interest of justice, this court will review Defendant’s sentence for bare excessiveness even though Defendant is not entitled to review of the penalty imposed. State v. Graves, 01-156, (La.App. 3 Cir. 10/3/01), 798 So.2d 1090, writ denied, 02-29 (La.10/14/02), 827 So.2d 420 (citing La. Code Crim.P. art. 881.1). This court has previously discussed the standard for reviewing excessive sentence claims:

[Louisiana Constitution Article] I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042, writ denied, 01-838 (La.2/1/02), 808 So.2d 331 (citations omitted)(second alteration in original).

In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.”

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061 (citations omitted). “[T]he trial judge need not articulate every aggravating and mitigating circumstance outlined in art. 894.1[;] the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant.” State v. Smith, 433 So.2d 688, 698 (La.1983).

The pertinent penalty range for manslaughter is zero to forty years at hard labor. La. R.S. 14:31. Thus, with the exception of what is addressed by the er~ rors Lpatent section of this memorandum, Defendant’s thirty-five-year hard labor sentence fits within the statutory sentencing range. It is a high-range sentence.

At the sentencing hearing, the Victim’s mother stated that she was currently raising the Victim’s two children and asked the district court to impose the maximum sentence. The defense entered four letters into evidence; they had been written by Marcy Landry, Peggy Voorhies, Jamie Benoit, and Roberta Granger. These letters stated that Defendant’s mother and stepfather had raised him to be a productive, friendly, well-behaved adult who had been seen caring for his sick mother. The missives all concluded by asking for leniency based on Defendant’s background.

Defendant’s mother testified that Defendant had been a shy and passive person who had not gotten into trouble until he became involved in drugs. Ms. Batiste stated that Defendant only shot the Victim because he feared for his life and thought the man was going to steal his drugs.

Finally, Defendant testified on his own behalf. After selling the Victim drugs earlier in the day, two people told Defendant the Victim was planning to rob him. That evening, Defendant went to a motel room where some of his acquaintances were smoking drugs. While there, Defendant provided at least one of the occupants with additional drugs. The Victim knocked on the door, and, after being let in by one of the room’s occupants, the man charged Defendant. In response, Defendant “jumped off the bed,” pulled his gun, and fired two shots. When the Victim fell, Defendant left. At the conclusion of direct examination, Defendant said he was sorry the Victim died, he was sorry about the drags, and he was sorry about everything.

On cross-examination, Defendant agreed that, in addition to the homicide, he was then serving a prison sentence for drug-related charges, he had pled guilty to attempted armed robbery, and he was an admitted drag dealer.

|fiThe sentencing court admitted Defendant’s presentence investigation report, “PSI,” into evidence. The PSI showed that, at the time he was sentenced, Defendant was already serving two years at hard labor for possession on MDMA, ecstasy; Defendant pled guilty to simple possession though he had originally been charged with possession with intent to distribute, and the offense date for the narcotics offense was February 22, 2006. The PSI further showed Defendant to have a five-year hard labor sentence for an attempted armed robbery that occurred on September 12, 2005. Additionally, the PSI revealed both that the instant case involved drug activity and that Defendant had two additional prior arrests for drug activity.

The PSI included information that there were four eye-witnesses who identified Defendant as the shooter. At least one of those witnesses said Defendant both kicked the Victim after shooting him and threatened to kill the witnesses if they said anything.

The hearing concluded with the trial court imposing the sentence and giving oral reasons for the penalty it imposed:

The Court has considered the pre-sen-tence investigation and all contained therein, and defendant’s criminal record. I have also considered the aggravating and mitigating circumstances listed in the appropriate Articles of the Code of Criminal Procedure.
Mr. Batiste, I hereby sentence you to serve 35 years at hard labor. That sentence is to be served without benefit of probation, parole, or suspension of sentence. That sentence is also to be served consecutively] to any other sentence you are presently serving.

In similar cases where defendants pled guilty to manslaughter though the original charge was either first or second degree murder, this court has affirmed forty-year sentences after holding that those defendants benefitted greatly from the plea agreement because a conviction for either first or second degree murder carries a minimum penalty of life imprisonment. See State v. Pickens, 98-1443, (La.App. 3 Cir. 4/28/99), 741 So.2d 696, writ denied, 99-1577 (La.11/5/99), 751 So.2d 232, writ denied, 01-2178 (La.4/19/02), 813 So.2d 1081; See also State v. Coco, 98-855, (La.App. 3 Cir. 12/9/98), 723 So.2d 513.

Defendant received a significant sentencing benefit from pleading guilty to manslaughter; his guilty plea reduced his potential sentence from a minimum of life imprisonment to a maximum forty years at hard labor. Additionally, the record shows that, at the time he was sentenced, Defendant was serving a sentence for a drug offense and the instant crime was also drug-related. Moreover, at the time Defendant pled guilty to manslaughter, he also pled guilty to an attempted armed robbery involving a firearm.

Accordingly, Defendant’s sentence is not constitutionally excessive.

ASSIGNMENT OF ERROR NUMBER TWO

As his second assignment of error, Defendant argues the trial court improperly ordered his manslaughter sentence to run consecutively with the other penalties Defendant was serving. Defendant asserts a consecutive sentence was improper in the instant case because his plea agreement in docket number 112210 required, the trial court to run his attempted armed robbery sentence in that docket number concurrently with the manslaughter sentence.

As previously noted, Defendant failed to file a motion to reconsider sentence, so this claim is barred under La.Code Crim.P. art. 881.1. However, even though Defendant failed to contest the consecutive nature of his sentence in the trial court, this court will address this issue in the interests of justice and judicial economy. Uniform Rules — Courts of Appeal, Rule 1-3.

At the time of Defendant’s guilty plea, the trial court stated its understood that, as part of Defendant’s plea agreement with the State, the penalty to be imposed for 17manslaughter was to run concurrently with Defendant’s sentence for attempted armed robbery. When Defendant agreed that the concurrent nature of the sentences had been part of the plea agreement, the trial court agreed to the terms of the agreement.

In its brief to this court, the State specifically puts forth that it does not traverse this assignment of error as the concurrent nature of the sentences was, in fact, part of Defendant’s plea agreement. The prosecution further adds that, following a telephone conference, the sentencing court has agreed to correct the sentence once jurisdiction over this case returns to the district court.

Because Defendant’s plea agreement was set forth in the record at the time of his guilty plea and because the trial court accepted the guilty plea under the terms of that agreement, in the interests of justice and judicial economy, we amend Defendant’s manslaughter sentence to run concurrently -with his attempted armed robbery penalty.

CONCLUSION

This court amends the Defendant’s sentence to delete the denial of parole eligibility. In accordance with Defendant’s plea agreement set forth in the record at the time of his guilty plea, this court also modifies Defendant’s manslaughter sentence to run concurrently with the attempted aimed robbery sentence. The district court is instructed to make an entry in the minutes reflecting the ordered changes. Finally, we affirm Defendant’s sentence, as amended.

SENTENCE AFFIRMED AS AMENDED.

      . We note Defendant's motion for appeal requests appeal of Defendant's sentence, which was imposed on November 10, 2008. The order signed by the trial court, which was included on the same page as the motion for appeal, grants Defendant “an appeal from the Judgment rendered herein on the 10th day of December 2008.”

      . We note La. R.S. 14:31(B) has a penalty range of ten to forty years at hard labor without benefit of probation or suspension of sentence for cases where the victim was killed as a result of receiving a battery and was under the age of ten years, a provision not applicable in this case.

      . "It is my understanding that part of the plea agreement is that the sentence that will be imposed in this Docket Number 112210 will be concurrent with the sentence I have already sentenced you to in the attempted armed robbery charge.”

      . "I will live by that and agree to that agreement.”


author: PETERS, J.

text:
    Joseph Levin SAVOY v. BAYOU PLAQUEMINE & WICKOFF GRAVITY DRAINAGE DISTRICT.
    No. 09-0686.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 9, 2009.
    Malcolm Brasseaux, Attorney at Law, Church Point, LA, for Plaintiff/Appellee, Joseph Levin Savoy.
    Nicholas Bellard, Bellard Law Offices, L.L.C., Church Point, LA, for Defendant/Appellant, Bayou Plaquemine & Wickoff Gravity Drainage District.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   PETERS, J.

_JjThe Bayou Plaquemine and Wickoff Gravity Drainage District, a political subdivision of the Acadia Parish Police Jury, appeals the trial court’s grant of a permanent injunction prohibiting it from digging a ditch on seventy-six acres of Acadia Parish immovable property. For the reasons that follow, we affirm the trial court’s judgment in all respects.

FACTS AND PROCEDURAL HISTORY

Joseph Levin Savoy is the lessee of the seventy-six acres involved in this litigation, having farmed rice and crawfish on the property since the early 1990’s. When he first began farming the property, it was encumbered by a ditch (hereinafter referred to as the “ricefield ditch”) which ran through the property. In 1994 he filled in the ditch and built a field road on top of the filled-in area.

This litigation arises because, in the fall of 2008, the Bayou Plaquemine and Wick-off Gravity Drainage District (hereinafter referred to as the “Drainage District”) began digging a drainage ditch on land adjacent to Mr. Savoy’s leased property with the clear intention of excavating the rice-field ditch and extending the drainage ditch across the leased property. On October 10, 2008, Mr. Savoy filed a petition seeking a temporary and a permanent injunction to prohibit the Drainage District from constructing the ditch.

At the conclusion of an October 27, 2008 hearing, the Drainage District stipulated that it would place the proposed ditch on the leased property at a point parallel to the field road constructed by Mr. Savoy, and, based on that stipulation, the trial court concluded that “no irreparable harm could occur as a result of the |2continued operations on the property should the Drainage Board continue to act.” Given that conclusion, the trial court denied Mr. Savoy’s request for a temporary injunction. However, after a March 80, 2009 hearing, the trial court rendered judgment granting Mr. Savoy relief and “forever enjoining, restraining and prohibiting the [Drainage District] from channeling water upon the property which was the subject of this suit and/or digging ditches or taking other action to effectuate same, absent other legal action being taken in the future.” Thereafter, the Drainage District perfected this appeal.

OPINION

Standard of Review

“An appeal may be taken as a matter of right from an order or judgment relating to a preliminary or final injunction.” La. Code Civ.P. art. 3612(B). In Mary Moe, L.L.C. v. Louisiana Board of Ethics, 03-2220, p. 9 (La.4/14/04), 875 So.2d 22, 29 (citations omitted), our supreme court set forth the standard of review applicable to the issuance of a permanent injunction:

The standard of review for the issuance of a permanent injunction is the manifest error standard. The issuance of a permanent injunction takes place only after a trial on the merits in which the burden of proof is a preponderance of the evidence, but a preliminary injunction may be issued on merely a pri-ma facie showing by the plaintiff that he is entitled to relief.

Thus, we review the trial court’s decision to grant the permanent injunction for manifest error. However, if the trial court committed an error of law, we review the entire record de novo. Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742.

| -¡Legal Issues

Louisiana Revised Statutes 38:113 authorizes a drainage district to “preserve and maintain the efficiency of public drainage channels within its districts.” Terrebonne Parish Police Jury v. Matherne, 405 So.2d 314, 317 (La.1981). Additionally, the statute grants a drainage district a legal servitude over the drainage channels within its district:

The various levee and drainage districts shall have control over all public drainage channels or outfall canals within the limits of their districts which are selected by the district, and for a space of one hundred feet on both sides of the banks of such channels or outfall canals, and one hundred feet continuing out.ward from the mouth of such channels or outfall canals, whether the drainage channels or outfall canals have been improved by the levee or drainage district, or have been adopted without improvement as necessary parts of or extensions to improved drainage channels or outfall canals, and may adopt rules and regulations for preserving the efficiency of the drainage channels or outfall canals.

However, this court has held that before a drainage district can exercise the statutory legal servitude, it must meet three prerequisites:

First, the drainage channel must have been either previously improved by the drainage district or adopted without pri- or improvement as a necessary part of or extension to improved drainage channels. Second, the drainage channel must be a public channel. Third, the channel must be selected by the drainage district and recommended and approved by the Office of Public Works.

Whipp v. Bayou Plaquemine Brule Drainage Bd., 476 So.2d 1042, 1044-45 (La.App. 3d Cir.1985).

In its reasons for judgment in this matter, the trial court concluded that the Drainage District failed to establish the first prerequisite, stating that “[t]he Drainage Board has failed to establish the ditch or canal was ever legally adopted. While the canal may have been utilized and maintained in the past, there was no right of way obtained nor expropriation of the property by the Drainage Board.”

|4We find no manifest error in that finding of fact. In fact, the record contains no evidence of how or why the original ditch came into being. Merlin Young, who served as a member of the Board of Directors of the Drainage District from 1984 to 1994, testified that he could not recall the Drainage District performing any work on the ricefield ditch. In fact, the only evidence of the ricefield ditch’s origin is in an eight-page letter to the trial court from Charles T. Mader of Mader Engineering, Inc. In that letter, Mr. Mader stated that “[t]he ‘Rice Field Ditch’ was originally constructed in the early 1960’s” but “[i]t is not clear as to what reasoning or events led to the original construction of the ditch, and the original ditch’s exact limits are also unclear.” Mr. Mader did make it clear in his letter that he made no investigation concerning the existence or non-existence of a servitude to any entity, concluding that investigation was outside his mandate from the trial court.

The Drainage District asserts that, notwithstanding the lack of proof on the origins of the ditch, the trial court misinterpreted La. R.S. 38:113. The Drainage District asserts that the statute establishes “two mutually exclusive standards ... for the finding of a legal servitude.” That is to say, there is one standard for ditches or canals maintained by a drainage district and another for unimproved canals or ditches. The Drainage District contends that under the first standard a drainage district acquires a legal servitude over a canal or ditch by virtue of its actions in improving the ditch or canal, with no need for the drainage district to adopt the ditch or canal as a necessary extension to the drainage system; while under the second standard, which deals with canals or ditches that the drainage district has not improved, the drainage | r,district must adopt the canal or ditch as a necessary extension to the drainage system. Here, the Drainage District asserts a legal servitude based on the first standard.

Under the Drainage District’s interpretation of the statute, if “the canal has previously been improved by the Drainage District,” then a legal servitude exists over the drainage canal. The Drainage District argues that because the ricefield ditch had been maintained by the Drainage District for decades before it was filled in, it had a legal servitude over the area where the ditch used to be. However, this argument ignores the fact that, as previously noted, the record contains no evidence the Drainage District ever incurred any expenses or performed any work in association with maintaining the ricefield ditch.

Even considering that evidence might exist to establish some activity by the Drainage District in association with its interpretation of La. R.S. 38:113, we disagree with its interpretation of the statute. To accept the Drainage District’s interpretation would be to ignore the language in Whipp, 476 So.2d at 1046, to the effect that “[o]nce the canal ... has been adopted by the drainage district as a part of or an extension to an improved drainage channel, there exists a legal servitude to preserve and maintain the canal. However, it is imperative that the canal first he adopted.” (Emphasis added.)

DISPOSITION

For the foregoing reasons, we affirm the trial court judgment in all respects. We assess all costs of this appeal to the defendant, Bayou Plaquemine and Wickoff Gravity Drainage District. Pursuant to La. R.S. 13:5112(A), we set those costs at $490.46.

AFFIRMED.

      . Mr. Savoy's petition also named the Acadia Parish Police Jury (the Police Jury) as a defendant. However, the Police Jury was subsequently dismissed as a party defendant and the only defendant remaining in the litigation is the Drainage District.

      . The trial court took the permanent injunction question under advisement after the March 30 hearing, and on April 17, 2009, issued written reasons for judgment. It signed a judgment granting the permanent injunction on May 14, 2009.

      . At the conclusion of the hearing on the preliminary injunction, the trial court appointed Mr. Mader, a Lafayette, Louisiana civil engineer, to examine the elevations of the property at issue and to determine the natural flow of water thereon. The letter was placed in evidence as satisfaction of that appointment.


author: PICKETT, Judge.

text:
    Betty Jean Pharis MORRISON, et al. v. ALEXANDRIA COMMONS, LLC, et al.
    No. 09-652.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 9, 2009.

      Fred A. Pharis, Pharis Law Offices, Alexandria, LA, for Plaintiffs/Appellees, Betty Jean Pharis Morrison, Samuel Jean Morrison.
    Charles V. Musso Jr., Plauche, Smith & Nieset, Lake Charles, LA, for Defendants/Appellants, First Mercury Ins. Co., Jorge Dino.
    Court composed of ELIZABETH A. PICKETT, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PICKETT, Judge.

hThe defendants, First Mercury Insurance Company and its insured, Jorge Dino (referred to jointly as First Mercury), appeal a judgment of the trial court awarding the plaintiffs, Betty Jean Morrison, individually and on behalf of her minor son, Benjamin Duane Morrison, and Samuel Jean Morrison, penalties and attorney’s fees for First Mercury’s bad faith in processing the settlement executed between the plaintiffs and the defendants. We affirm the judgment of the trial court.

FACTS

The facts in this case were succinctly set out by the trial court in its Written Reasons for Judgment, and we adopt them as our own:

Plaintiffs filed suit against Alexandria Common, LLC, Alexandria Lincoln Road, LLC, Partner’s Commercial Roofing, Inc. and Zurich-American insurance for injuries Betty Jean Pharis Morrison sustained from an accident that occurred on May 29, 2006.
A trial was set for October 14, 2008. The parties agreed to a settlement in which First Mercury Insurance was required to pay $190,000.00. The settlement was confected on September 19, 2008. The settlement was to be funded no later than October 20, 2008. The plaintiffs assert that First Mercury Insurance Company did not pay or fund the settlement within 30 days of the agreement. The payment was made on October 28, 2008. The plaintiffs state that because the settlement was contingent on all parties complying with the agreement, the additional sums [sic] of $80,000 paid by Zurich Insurance could not be timely negotiated. The plaintiffs assert that they sent repeated reminders to First Mercury to make the payment timely. Counsel for the plaintiffs was contacted by counsel for First Mercury on October 16, 2008, who stated that the payment was going to be delayed one day and requested extra time. Counsel for plaintiffs refused and warned that a motion would be filed to enforce the settlement. First Mercury replied that there was not going to be any additional effort to make sure the check was on time because plaintiffs would not waive its [sic] statutory insurance settlement enforcement rights.
As a result, the plaintiffs filed a motion for damages for bad faith handling of [the] settlement alleging that defendant, First Mercury Insurance Company, failed to pay the settlement within 30 days after it was reduced to writing. First Mercury asserts that the handling of the 12settlement was not in bad faith[,] and the plaintiffs are not entitled to penalties or attorney’s fees.

The trial court found in favor of the plaintiffs and awarded the following amounts:

(1) $27,359.14 in penalties and $2,500.00 in attorney’s fees to the plaintiffs under La. R.S. 22:658 [now La. R.S. 22:1892];
(2) $10,000.00 in general damages in favor of Betty Jean Morrison individually and on behalf of her minor son, Benjamin Duane Morrison (i. e., $5,000.00 each); plus $5,000.00 in favor of Samuel Jean Morrison, all under La. R.S. 22:1220 [now La. R.S. 22:1973]; and
(3) $5,000.00 in penalties to the plaintiffs under La.R.S. 22:1220.

The trial court also ordered that legal interest run on all amounts, excluding attorney’s fees, from the date of the filing of the motion and that interest run on the $2,500.00, awarded as attorney’s fees, from the date of the signing of the judgment. Additionally, First Mercury was cast with all costs.

First Mercury appeals arguing the following assignments of error:

(1) The Trial Court erred in finding that the settlement did not contain an unsatisfied suspensive condition and was not contingent upon approval of the workers’ compensation settlement by the Workers’ Compensation Court.
(2) The Trial Court erred in finding that First Mercury Insurance Company knowingly failed to pay the settlement within 30 days after it was reduced to writing.
(3) The Trial Court erred in finding that First Mercury Insurance Company violated the provisions of La. R.S. 22:658 by failing to pay medical expenses due to a third party within 30 days and awarding penalty and attorneys fees for said violation.
(4)The Trial Court erred in awarding a $5,000.00 penalty to the two loss of consortium claimants.
|s(5) The Trial Court erred in awarding $15,000.00 in general damages under Louisiana R.S. 22:1220.

LAW AND DISCUSSION

In its written reasons for judgment the trial court set out the applicable law and discussed its application to the case sub judice as follows:

Louisiana Revised Statute provides two pertinent statutes applicable to this case.

Louisiana R.S. 22:1220 provides,

A. An insurer, including but not limited to a foreign line and surplus line insurer, owes to his insured a duty of good faith and fair dealing. The insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant, or both. Any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach.
B. Any one of the following acts, if knowingly committed or performed by an insurer, constitutes a breach of the insurer’s duties imposed in Subsection A:
[-...]
2) Failing to pay a settlement within thirty days after an agreement is reduced to writing.
[....]
C. In addition to any general or special damages to which a claimant is entitled for breach of the imposed duty, the claimant may be awarded penalties assessed against the insurer in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater. Such penalties, if awarded, shall not be used by the insurer in computing either past or prospective loss experience for the purpose of setting rates or making rate filings.
The plaintiffs allege that First Mercury breached this duty because the payment was to occur on October 20, 2008 which was thirty days after the settlement agreement was reduced to -writing. The settlement |4was received on October 28, 2008, eight days later. First Mercury argues that it did not violate the statute because it sent the settlement draft for overnight delivery through DHL on October 17, 2008 directly to the plaintiffs’ attorney[’s] office on October 18, 2008 or October 20, 2008. First Mercury contends that it did not know that DHL was not making overnight deliveries in Alexandria, Louisiana, so the late delivery was justified, not intentional as required by the statute.
Contrary[sic], the plaintiffs argue that the failure to pay was arbitrary and capricious because on October 18, 2008, the plaintiffs’ attorney sent correspondence to First Mercury’s counsel warning that the settlement deadline was approaching because of the defendant’s reluctance and delay during the lawsuit by upsetting a planned mediation in November 2007, cancelling a mediation in August 2008, and indications that the defendant would wait until the last minute to pay the funds.
In Sultana v. Jewelers Mutual Insurance, 860 So.2d 1112, 1119 (La.2003), the defendant failed to pay the amount owed within thirty days of settlement because of a clerical error in the defendant’s office. After discovering the error, counsel for the defendant immediately forwarded a settlement check. The defendant argued that Sultana did not suffer actual damages as a result of the delay. The Louisiana Supreme Court held [the defendant] cannot shield itself by hiding behind its assertion that timely payment was not forthcoming because of a clerical error.
Likewise, in this case, the defendant claims that the delay in payment was a result of a clerical error on the part of a third party. However, it is the determination of this Court that First Mercury had ample time to pay the funds to the plaintiffs, but insisted on delaying the payment to the last minute. This Court does not accept defendant’s argument that it is DHL that caused the delay, not the defendant. The problem with DHL could have been avoided had the defendant not waited until October 18, 2008 to “overnight” the payment. According to the[sic] La. R.S. 22:1220 because of the defendant’s late payment, the plaintiffs are entitled to a penalty of at least $5,000.00. Thus, this Court casts the defendant with $5,000.00 in penalties.
Furthermore, because of the defendant’s failure to pay the settlement within thirty days as required by statute, the plaintiffs argue that they should be awarded general or special damages without a showing of actual damages.
The Court held “The language of the statute does not expressly require that a claimant suffer damages before recovering penalties. Moreover, if this requirement was so, the statute’s purpose more often would be thwarted. Claimants may decide not to file claims against | ¡¡insurers if the disputed amount or the damages are not substantial. As an end result, the misconduct which the legislature obviously intended to curb or deter would thrive. Thus, we find if an insurer commits any one of the acts enumerated in Section 1220(B), penalties may be imposed without a showing of damages.” Sultana v. Jewelers Mutual Insurance, 860 So.2d 1112 (La.2003).
In this case, the plaintiffs assert that Ms. Betty Morrison had been under constant stress because of the lawsuit. At the hearing, Ms. Morrison and her witness testified that she and her children had been living below the poverty line because of her inability to work. She has had to depend on her father to help with expenses as a result of her injuries due to the accident. She testified that she and her children were eagerly anticipating the disbursement of the settlement to help with their living expenses and relieve her father from her financial burden. When the settlement proceeds did not arrive on schedule, this exerted more stress and disappointment.
Therefore, this Court awards the plaintiffs $15,000 in damages ($5,000 per plaintiff) as a result of the defendant’s failure to pay the settlement in the time limit prescribed by statute.

Louisiana R.S. 22:658 provides in pertinent part:

A. (1) All insurers issuing any type of contract, other than those specified in R.S. 22:656, R.S. 22:657, and Chapter 10 of Title 23 of the Louisiana Revised Statutes of 1950, shall pay the amount of any claim due any insured within thirty days after receipt of satisfactory proof[s] of [loss] from the insured or any party in interest.
(2) All insurers issuing any type of contract ... shall pay the amount of any third party property damage [claim] and of any reasonable medical expenses claim due any bona fide third party claimant within thirty days after written agreement of settlement of the claim from any third party claimant.
[....]
B. (1) Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefore or failure to make a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim, as provided ..., or failure to make such payment within thirty days after written agreement or settlement as provided in Paragraph A(2), when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in ^addition to the amount of the loss, of fifty percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, or to any of said employees, or in the event of a partial payment or tender has been made, fifty percent of the difference between the amount paid or tendered and the amount found to be due as well as reasonable attorney fees and costs. Such penalties, if awarded, shall not be used by the insurer in computing either past or prospective loss experience for the purpose of setting rates or making rate filings.
First Mercury argues that in order to receive penalties under La. R.S. 22:658, the plaintiff[s] must prove that First Mercury’s failure to pay was arbitrary, capricious, or without probable cause.
Both La. R.S. 22:658 and La. R.S. 22:1220 require proof that the insurer was arbitrary, capricious, or without probable cause, a phrase that is synonymous with “vexatious.” “Vexatious refusal to pay means unjustified, without reasonable or probable cause or excuse.” Reed v. State Farm Mutual Ins., 857 So.2d 1012, [1021](La.2003).
The plaintiffs assert that First Mercury’s failure to pay was arbitrary and capricious because the plaintiffs’ counsel was contacted by counsel for First Mercury on October 16, 2008, who stated that the payment was going to be delayed one day and requested an agreement for extra time. When the request was denied, First Mercury’s counsel stated that there was going to be no additional effort to make sure the check was on time because the plaintiffs would not waive [their] statutory rights of enforcement. The plaintiffs further contend that on October 17, 2008, they were informed by email that the check would be delivered on October 20, 2008. Moreover, on October 21, 2008, First Mercury[’s] counsel stated that it would recommend that the money be wire transferred if plaintiffs would waive their statutory rights, but before any reply was made First Mercury retracted stating it could not wire the money.
First Mercury also argues that the payment was not late because the settlement was contingent upon approval by the worker’s compensation judge of the settlement between the plaintiff and Michael’s Stores, Inc. The condition did not occur until the judge signed the order approving the worker’s compensation settlement. Therefore, the time period to pay the settlement did not begin until October 30, 2008.
This Court disagrees. The statute provides that the payment must be made within thirty days of the written settlement agreement. The payment did not occur until after that time period which ended on 17October 20, 2008. Based on the facts and correspondence between the parties, this Court finds that First Mercury’s failure to pay the settlement proceeds was arbitrary and capricious.
The plaintiffs argue they were required to pay $70,333.00 to Michaels Stores as the workers compensation in-tervenor. The total amount of the lien as of September 5, 2008 was $105, 351.79, with $82, 077.41 of that amount being medical expenses. One-third of the total was reduced in the settlement for attorney’s fees. Therefore, one-third of the $82,077.41 was for medical expense reimbursement, or $54, 718.27. Accordingly, 50% of that amount, $27,359.14, should be awarded to the plaintiffs.
According to statute, the defendant is to be penalized fifty (50%) percent of the amount of the damage or loss. Thus, this Court awards the plaintiffs $27,359.14. Additionally, the plaintiffs are entitled to attorney’s fees of $2,500.00 plus court costs.

On appeal, the defendants basically set out the same arguments they used at the trial level. Since we find no error in the ruling of the trial court, we also find no merit to the defendants’ arguments on appeal.

We find no merit to their argument that the required approval of the workers’ compensation judge constituted a suspensive condition which suspended the thirty-day limit imposed by the statutes at issue. A workers’ compensation settlement requires that the settlement amount be tendered at the time of the settlement. Hence, the workers’ compensation judge could not “approve” the settlement until the funds were tendered. Since the settlement funds were not tendered within the thirty-day statutory mandate, this argument is without merit.

The defendants also argue that they were not arbitrary, and capricious, but acting in good faith in placing the settlement funds in the hands of DHL for, what they believed to be, over-night, on-time delivery. Therefore, they argue, any penalties awarded under La. R.S. 22:1220 were awarded in error. However, the law does not support the defendants’ argument. In Louisiana Bag Co., Inc. v. Audubon Indemnity Co., 08-453, pp. 13-17 (La.12/2/08), 999 So.2d 1104, 1114-16 (footnotes omitted)(emphasis ours), the Louisiana Supreme Court stated:

Turning now to what is arbitrary, capricious or without probable cause, this court has previously stated in Reed v. State Farm Auto. Ins. Co., 03-0107 (La.10/21/03), 857 So.2d 1012, that the New Oxford English American Dictionary defines an “arbitrary” act as one “ ‘based on random choice or personal whim, rather than reason or system,’ ” and capricious as “ ‘given to sudden and unaccountable changes in behavior.’ ” Id. at 1020. The phrase “arbitrary, capricious, or without probable cause” is synonymous with “vexatious,” and a “vexatious refusal to pay” means “unjustified, without reasonable or probable cause or excuse.” Id. at 1021. See also La. Maint. Servs., Inc. v. Certain Underwriters at Lloyd’s of London, 616 So.2d 1250, 1253 (La.1993). Both phrases describe an insurer whose willful refusal of a claim is not based on a good-faith defense. Reed, 857 So.2d at 1021. See also La. Maint., 616 So.2d at 1253.
This court has also stated that penalties should be imposed only when the facts “negate probable cause for nonpayment.” Guillory v. Travelers Ins. Co., 294 So.2d 215, 217 (La.1974). See also Crawford v. Al Smith P. & H. Serv., Inc., 352 So.2d 669, 673 (La.1977); McDill v. Utica Mut. Ins. Co., 475 So.2d 1085, 1092 (La.1985). An insurer’s conduct depends on the facts known to the insurer at the time of its action, and this court has declined to assess penalties “when the insurer has a reasonable basis to defend the claim and acts in good-faith reliance on that defense.” Reed, 857 So.2d at 1021 (citing Block v. St. Paul Fire & Marine Ins. Co., 32,306 (La.App. 2 Cir. 9/22/99), 742 So.2d 746, 752, 754). Specifically, when there is a “reasonable and legitimate question as to the extent and causation of a claim, bad faith should not be inferred from an insurer’s failure to pay within the statutory time limits when such reasonable doubts exist.” Id. (citing Block, 742 So.2d at 752). In these instances, when there are substantial, reasonable and legitimate questions as to the extent of an insurer’s liability or an insured’s loss, failure to pay within the statutory time period is not arbitrary, capricious or without probable cause.
In sum, an insurer need not pay a disputed amount in a claim for which there are substantial, reasonable and legitimate questions as to the extent of the insurer’s liability or of the insured’s loss. Reed, 857 So.2d at 1021. However, an insurer must pay any undisputed amount over which reasonable minds could not differ. McDill, 475 So.2d at 1092. Any insurer who fails to pay said undisputed amount has acted in a manner that is, by definition, arbitrary, capricious or without probable cause, Hammett[ v. Fire Ass’n of Philadelphia, 181 La. 694], 160 So.[302] at 304-05, and will be subject to penalties ....

In the case before us, there is no disputed claim. Both sides agreed on the amount of the plaintiffs’ damages in the settlement, and all that remained was for the defendants to pay that amount.

The defendants further argue that the plaintiffs failed to prove damages and that the trial court erred in awarding damages on the loss of consortium claims. Proof of damages is not a prerequisite to the recovery of penalties under La. R.S. 22:1220; the trial court’s award of penalties is discretionary. Sultana Carp., 860 So.2d 1112. Additionally, La. R.S. 22:1220 does not limit the type of damages for which penalties may be awarded. We find no error in the trial court’s awards.

As to the defendants’ argument that they acted in “good faith” in trusting delivery of the settlement check to DHL, an insurer “cannot not shield itself from potential liability for penalties by hiding behind its assertion that timely payment was not forthcoming because of a clerical error [in this case picking the wrong means of delivery].” Sultana Corp., 860 So.2d at 1119.

Finally, the defendants argue that La. R.S. 22:658 “is simply not applicable to this case. Plaintiff cannot ‘piggy back’ her obligation to reimburse the worker’s [sic] compensation intervenor into a failure to timely pay medical expenses to a third party.” We disagree. The law is clear: “All insurers issuing any type of contract, ..., shall pay the amount of any third party property damage claim and of any reasonable medical expenses claim due any bona fide third party claimant within thirty days after written agreement of settlement of the claim from any third party claimant.” La. R.S. 22:658(A)(2). Further, section (B)(1) (emphasis ours) provides:

Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor or failure to make |lfla written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim, as provided in Paragraphs (A)(1) and (4), respectively, or failure to make such payment within thirty days after written agreement or settlement as provided in Paragraph (A)(2), when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of fifty percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured....

Accordingly, for the reasons stated, the judgment of the trial court is affirmed. All costs of this appeal are assessed to the appellants, First Mercury Insurance Company and its insured, Jorge Dino.

AFFIRMED.


author: PAINTER, Judge.

text:
    James BURNETT, Sr. v. VILLAGE OF ESTHERWOOD.
    No. 09-680.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 9, 2009.

      Michael B. Miller, Attorney at Law Crowley, LA for Plaintiff-Appellant James Burnett, Sr.
    Christopher R. Philipp, Attorney at Law Lafayette, LA for Defendant-Appellee Village of Estherwood.
    Court composed of ELIZABETH A. PICKETT, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, Judge.

11 Plaintiff, James Burnett, Sr., appeals the judgment of the Workers’ Compensation Judge (WCJ) setting the amount of his temporary total disability (TTD) benefits at $34.62 per week. Defendant, the Village of Estherwood, has answered the appeal, asserting that the awards of penalties and attorney’s fees imposed by the WCJ is excessive. For the following reasons, we reverse the judgment of the WCJ’s setting Burnett’s average weekly wage and amount of TTD benefits, affirm the award of penalties and attorney’s fees, and render judgment setting TTD benefits at $41.35 per week.

FACTUAL AND PROCEDURAL BACKGROUND

Burnett was the long-time Chief of Police for the Village of Estherwood, having been elected to that position in 1986. He alleges that while in the course and scope of his employment as Chief of Police, on May 25, 2006, he was injured in a fall down some steps that occurred when leaving a home where he was investigating a claim. As a result of those injuries, Burnett alleges that he now requires the use of a wheelchair for mobility; has had to undergo two major neck surgeries, a left shoulder surgery, and a left knee surgery; and has gone from working several jobs to not being able to earn any income. The 1008 filed by Burnett indicates that his last day of work as Chief of Police was December 31, 2006. It is noteworthy that in 1979, Burnett was paralyzed for several months after falling from a horse. However, within two years, he began walking again without assistance and was able to return to the workforce.

Burnett filed a disputed claim for compensation, and the matter proceeded to trial. The parties stipulated that pursuant to ordinance, Burnett was paid $50.00 per | ¿month as the elected Chief of Police and also received $100.00 per month in supplemental pay from the Acadia Parish Sheriffs Office. Following trial, the WCJ found that Burnett was injured in the course and scope of his employment with the Village of Estherwood and was entitled to TTD benefits in the amount of $34.62 per week from January 1, 2007. The WCJ also awarded penalties in the total amount of $8,000.00, attorney’s fees in the amount of $10,000.00, and expenses in the amount of $905.25.

Burnett now appeals, asserting that the WCJ erred in setting his TTD benefits at $34.62 and seeking an increase to the statutory minimum for hourly employees of $121.00 per week. The Village of Esther-wood has answered the appeal, contesting the award of penalties and the amount of attorney’s fees. For the following reasons, we reverse the WCJ’s ruling with respect to the amount of TTD benefits and affirm the awards of penalties and attorney’s fees. We render judgment setting TTD benefits at $41.35 per week and awarding $2,000.00 in attorney’s fees for work done on appeal.

DISCUSSION

Burnett avers that he had several jobs in addition to his job as Chief of Police. Apparently, as Chief of Police, Burnett was on call twenty-four hours a day and had no set work hours. Part of his job as Chief of Police was to testify in court when subpoenaed. His W-2 income tax form for 2006 shows that Burnett received $350.00 for his in-court testimony. Additionally, he was employed doing yard work and house cleaning; however, he was unable to establish his earnings from those endeavors. He was also employed by Don Shetler Motors and Shetler-Corley Motors to provide janitorial services. He was paid $40.00 per week for those services. Based |aon these amounts, Burnett asserts that his average weekly wage would be $126.35 per week and that two-thirds of that amount would be $84.23, which is less than the statutory minimum of $121.00 set by La.R.S. 23:1202. Burnett, therefore, seeks a weekly compensation rate of $121.00. He argues that the rule for hourly employees should be used such that his income from the “successive” employers would be considered in determining his compensation rate because he earned two-thirds of his income from those “successive” employments. In the alternative, Burnett asserts that at least his income from in-court testimony should have been used in computing his TTD benefits such that his average weekly wage would be $41.35.

Burnett asserts that the WCJ erred in failing to apply La.R.S. 23:1021(12)(a)(iv)(bb) to consider the amounts earned from his “successive” employments. The WCJ refused to apply that provision because it applies only to hourly employees, and Burnett was a monthly employee.

Louisiana Revised Statutes 23:1021 provides, in pertinent part, as follows:

(12) “Wages” means average weekly wage at the time of the accident. The average weekly wage shall be determined as:
(a) Hourly wages.
(i) If the employee is paid on an hourly basis and the employee is employed for forty hours or more, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the accident or forty hours, whichever is greater; or
(ii) If the employee is paid on an hourly basis and the employee was offered employment for forty hours or more but regularly, and at his own discretion, works less than forty hours per week for whatever reason, then, the average of his total earnings per week for the four full weeks preceding the date of the accident; or
(iii) If the employee is paid on an hourly basis and the employee is a part-time employee, his hourly wage rate | ¿multiplied by the average actual hours worked in the four full weeks preceding the date of the injury.
(iv) A part-time employee, as defined in R.S. 23:1021(9) and who is employed by two or more different employers in two or more successive employments, shall be entitled to receive benefits as follows:
(aa) If an employee is employed by two or more different employers in two or more successive employments and the employee incurs a compensa-ble injury under the provisions of this Chapter in one of the employments, the employer in whose service the employee was injured shall pay the benefits due the employee as provided in this Chapter.
(bb) If the employee is a part-time employee in one of the successive employments, is injured in that employment, but as a result of the injury also incurs loss of income from other successive employments, that employee shall be entitled to benefits computed by determining wages under the provisions of this Subsection using his hourly rate in employment at the time of injury and using the total hours worked for all employers of the part-time employee, but not to exceed his average, actual weekly hours worked or forty hours weekly, whichever is less.
(b) Monthly wages. If the employee is paid on a monthly basis, his monthly salary multiplied by twelve then divided by fifty-two.

All parties agreed that Burnett’s situation was unique as he had no set hours and was neither a full-time nor a part-time employee of the Village of Estherwood. Defendant argues that Burnett was clearly a monthly employee whose monthly wage was set by ordinance and that the federal minimum wage law does not apply to this category of employee. Thus, Defendant argues that the WCJ was correct in setting the TTD benefits at $34.62 per week.

While we are sympathetic with Burnett’s plight, we cannot ignore the facts that he is a monthly employee and that the current law makes no provision for cumu-lating Lthe additional income from other employment for a monthly employee. Burnett’s situation does not squarely fit within the legislature’s reasoning for not making the “successive” employment provisions applicable to monthly employees because he earned the majority of his income from the “successive” employment rather than from his monthly employment. This apparent flaw in the statute must be addressed by the legislature. However, we do find that the WCJ erred in not considering the amount Burnett received from his in-court testimony as part of his duties as Chief of Police. Accordingly, we find that his TTD benefits are $41.35.

A WCJ’s decision to award penalties and attorney’s fees is subject to the manifest error standard of review. Bolton v. Mike Fleming Const., 36,521 (La.App. 2 Cir. 12/11/02), 833 So.2d 1177.

In this case, the WCJ awarded a total of $8,000.00 in penalties including three $2,000.00 penalties for failure to pay mileage submissions dated October 4, 2007, March 10, 2008, and June 18, 2008, and a $2,000.00 penalty for failure to pay indemnity benefits. Defendant argues that only one $2,000.00 penalty should have been imposed with respect to the mileage submissions and does not contest the $2,000.00 penalty for failure to start disability benefits. However, in brief, Defendant admits that the October 4 and March 10 submissions were “probably” underpaid and that the June 18 submission was not paid until more than sixty days after it was submitted. However, Defendant would have us find that its handling of the mileage submissions warrants only one penalty and cites Ducote v. Louisiana Industries, Inc., 07-1536 (La.App. 3 Cir. 4/2/08), 980 So.2d 843, wherein this court held that a claimant was not entitled to recover multiple penalties for each week the employer failed to pay indemnity benefits for six weeks due to a clerical error. In the Ducote |Bcase, however, there was one act by the employer (i.e., the clerical error) that caused the non-payment to occur for six weeks. In this case, there were three separate mileage submissions which were either underpaid or paid late for different reasons. Multiple penalties for multiple violations are allowed by statute. See La.R.S. 23:1201(F). We agree with the WCJ in her finding that there were three separate acts in this case such that three separate penalties are warranted.

The WCJ also awarded $10,000.00 in attorney’s fees. Defendant argues that this amount is excessive since the case involved taking only one deposition, filing a 1008, responding to one set of discovery, and appearing for a trial that lasted, at most, four hours. Defendant also asserts that the issues in this case were not so complex as to require unusual skill or require an extraordinary amount of time for preparation. In fixing this award, the WCJ stated that since the employer had denied compensation from the inception of the case, the attorney had to prosecute the whole case to get the indemnity benefits. The affidavit submitted by Burnett’s attorney indicated that he had expended a total of ninety-fours of work on this case. We find attorney’s fees in the amount of $10,000.00 are reasonable in this case.

Thus, we find no manifest error in the WCJ’s imposition of penalties and attorney’s fees and affirm the WCJ’s ruling in that respect.

DECREE

For all of the foregoing reasons, the judgment of the WCJ is reversed with respect to the amount of TTD benefits. The award of penalties and attorney’s fees is affirmed. We render judgment setting TTD benefits at $41.35 per week and awarding [7an additional $2,000.00 in attorney’s fees to Plaintiff for work done on appeal. All costs of this appeal are assessed to Defendant-Appellee, Village of Estherwood.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.