author: McDonald, J.

text:
    Eugene A. GARCIA, III, D.V.M. d/b/a Bayou Animal Clinic v. BANFIELD PET HOSPITAL, INC., Elizabeth B. Saylor, D.V.M. and Northshore Veterinary Services, L.L.C.
    No. 2009 CA 0466.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 2010.
    Writ Denied April 30, 2010.

      Thomas R. Caruso, Slidell, Louisiana, for Plaintifi/Appellee, Eugene A. Garcia III, D.V.M. d/b/a Bayou Animal Clinic.
    Robert L. Henderson, Jr., Slidell, Louisiana, for Defendants/Appellants, Elizabeth Saylor, D.V.M., and Northshore Veterinary Services, L.L.C.
    Before PARRO, KUHN, and McDonald, jj.
   McDonald, J.

12This is an appeal of a judgment finding a non-competition agreement valid and awarding damages and attorney fees in accordance therewith. After a thorough review, we find the agreement invalid and reverse the trial court judgment.

FACTS AND PROCEDURAL HISTORY

On March 4, 2002, plaintiff, Eugene A. Garcia, III, D.V.M. (Dr. Garcia), as owner and on behalf of Bayou Animal Clinic, hired defendant-appellant, Elizabeth B. Saylor, D.V.M. (Dr. Saylor), to perform veterinarian services at his two veterinary clinics located in St. Tammany Parish. One clinic was located in Slidell, Louisiana, and the other in Lacombe, Louisiana. The parties signed an employment contract, which provided that Dr. Saylor would refrain from competing either directly or indirectly with the Bayou Animal Clinic for two years following the termination of her employment. Specifically, the contract delineated a six-mile radius around each of Dr. Garcia’s veterinary clinics, inside of which Dr. Saylor was prohibited from engaging in the practice of veterinary medicine. The contract also provided for liquidated damages of $1,500 per month for the first twelve-month period following any breach of the agreement and $1,000 per month for the second twelve-month period. In return for executing the non-competition agreement, Dr. Saylor was given additional yearly consideration of $1,500.

On May 1, 2003, Dr. Saylor terminated her employment relationship with Dr. Garcia. Six weeks later, on June 12, 2003, she opened a veterinary clinic, Northshore Veterinary Services, L.L.C. (Northshore Veterinary Services). This new clinic was located within six miles of Dr. Garcia’s veterinary clinic in Slidell. Dr. Saylor continued to operate this clinic for over twenty-four months.

|sOn March 9, 2004, Dr. Garcia filed a petition for permanent injunction and damages against Dr. Saylor, Northshore Veterinary Services, and Charter Practices International L.L.C. (Charter). Dr. Garcia filed a motion for summary judgment on May 10, 2007, asserting there was no genuine issue of material fact that the non-competition agreement was valid, that Dr. Saylor had breached the agreement, and that Dr. Saylor owed damages to Dr. Garcia as per the agreement, together with legal interest and attorney fees. On June 22, 2007, the trial court denied the motion for summary judgment, because the employment contract had not been submitted to the court. Dr. Garcia and Dr. Saylor then filed a joint motion for reconsideration of the motion for summary judgment and attached a copy of the contract. The motion for reconsideration was granted. By judgment dated July 26, 2007, the trial court noted that the request for injunctive relief was no longer viable as the two-year time period had passed; and further, the trial court denied the motion for summary judgment, finding that because the non-competition agreement did not give the location of Dr. Garcia’s place of business, the trial court could not discern whether Dr. Saylor’s clinic was within the prohibited six-mile radius.

Thereafter, Dr. Garcia and Charter filed a joint motion to dismiss Dr. Garcia’s claims against Charter, and Charter was dismissed from the suit by the trial court on October 19, 2007.

The case went to trial on November 19, 2008. On November 21, 2008, the trial judge rendered judgment in favor of Dr. Garcia, finding the non-competition agreement enforceable against Dr. Saylor, and awarding damages in the amount of $1,500 per month for the first twelve months, $1,000 per month for the next twelve months, interest, attorney fees, and all costs. From this judgment, Dr. Saylor appeals.

| ¿THE ASSIGNMENTS OF ERROR

Dr. Saylor makes the following assignments of error: 1) that the trial court erred in using parol evidence to reform the non-competition agreement; 2) that the trial court erred when it ruled that the non-competition agreement was enforceable, even though the parish was not described; 3) that the trial court erred in not declaring the agreement invalid even though it attempts to regulate members of a profession; and 4) that the trial court erred when it awarded attorney fees.

STANDARD OF REVIEW

The issues presented in this case, namely, whether the non-competition agreement in question is valid and enforceable, whether La. R.S. 23:921(C) applies to professions; and whether the trial court properly awarded attorney fees, are questions of law which the court reviews de novo. See Hand v. City of New Orleans, 04-0845, p. 5 (La.App. 4th Cir.12/22/04), 892 So.2d 609, 612, writ denied, 05-0143 (La.4/1/05), 897 So.2d 603. Where the trial court’s decision is based on an erroneous interpretation or application of law, rather than a valid exercise of discretion, such an incorrect decision is not entitled to deference by the reviewing court. Hand, 04-0845 at p. 5, 892 So.2d at 612.

LAW AND ANALYSIS

The crux of the matter before this Court is the validity of the noncompetition agreement. Dr. Saylor asserts in her second assignment of error that the trial court erred in upholding the non-competition agreement because it failed to explicitly state that it was to apply in St. Tammany Parish. Non-competition agreements are governed by La. R.S. 23:921. Subsection C of the statute is particularly pertinent to this assignment of error and provides in part as follows:

Any person, including a corporation and the individual shareholders of such corporation, who is employed as an agent, servant, or employee may agree with his employer to refrain from carrying on or engaging in a business similar to that of the employer and/or from soliciting customers of the employer within a specified parish or |fiparishes, municipality or municipalities, or parts thereof.... (emphasis added).

La. R.S. 23:921(C). In addressing the contentions of Dr. Saylor, we are conscious of the fact that this subsection is an exception to Louisiana public policy against such agreements, and as such, it must be strictly construed. Vartech Systems, Inc. v. Hayden, 05-2499, p. 7 (La.App. 1st Cir.12/20/06), 951 So.2d 247, 255.

Louisiana public policy has consistently looked upon non-competition agreements with disdain. Cellular One, Inc. v. Boyd, 94-1783, p. 4 (La.App. 1st Cir.3/3/95), 653 So.2d 30, 32, writ denied, 95-1367 (La.9/15/95), 660 So.2d 449; Water Processing Technologies, Inc. v. Ridgeway, 618 So.2d 533, 535 (La.App. 4th Cir.1993). However, the Louisiana legislature has modified this public policy in La. R.S. 23:921 to carve out exceptions to the public policy of disfavoring, agreements not to compete. Among such legislative modifications, the 1989 revisions to La. R.S. 23:921 are most pertinent to our review of the validity and subsequent enforceability of the non-competition agreement at issue. In reviewing said revisions to La. R.S. 23:921, this court noted the following,

In amending section 921, the Louisiana Legislature expanded the use of noncompetition agreements. The legislature recognized that employers have a right to protect their business investment provided they comply with the exceptions contained in the statute.

Cellular One, 94-1783 at p. 5, 653 So.2d at 33. This recognition of the right of protection on the part of employers and of the fact that employees can have the upper hand in the modern business environment shows a concern for the rights of business owners that has, in some respects, mitigated this state’s harsh sentiment over the use of non-competition agreements. Therefore, while we are cognizant of the fact that the 1989 revisions to La. R.S. 23:921 do not represent a reversal of this state’s public policy, as stated in Team Environmental Services, Inc. v. Addison, 2 F.3d 124, 126 (5th Cir.1993), this court also recognizes that there is a Ingrowing concern for the rights of business owners and employers such as Dr. Garcia.

Such public policy considerations form the lens through which we must now view the non-competition agreement at issue. As previously noted, in order for a non-competition agreement to fit within the statutory exception provided by La. R.S. 23:921(C), the agreement must provide, inter alia, the “specified parish or parishes, municipality or municipalities, or parts thereof’ in which the signing employee is prevented from engaging in competition. The non-competition agreement before this court explicitly provides:

Dr. Saylor further affirms and agrees that for a period of two (2) years following the termination of her employment with the Bayou Animal Clinic she will refrain from competing, and will not compete, directly [or] indirectly, with the Bayou Animal Clinic in the rendition of veterinary medical services whether individually or as an employee ... within a six-mile (6) radius of either of the [Clinic’s] places [of] business on the date of her termination of employment.

We decline to affirm the trial court’s finding that the contract was valid. The non-competition agreement prohibits competition “within a six-mile (6) radius of either of the [Clinic’s] places [of] business on the date of her termination of employment.” The clause pertaining to places of business on the date of her termination of employment is problematic. This is similar to the problem found in Medivision, Inc. v. Germer, 617 So.2d 69 (La.App. 4th Cir.), writ denied, 619 So.2d 549 (La.1993). In Medivision, the non-competition contract was between an ophthalmologist, Dr. Germer, and the eye medical center that employed him. It prevented Dr. Germer from “providing ophthalmological services at any location within ten miles of any office of the Center existing during the term of this agreement.” The court found:

The contract here proscribes competition within ten miles of offices not established at the time the contract was executed. The employee could not determine at the time of execution the limits of the prohibition. The contract thus contains a potestative element. ^Furthermore, and more significantly, in failing to “specify” the proscribed areas, the contract violates Section 921.

Medivision, 617 So.2d at 72.

The qualifying phrase following the geographical restriction within the noncompetition agreement before us renders this agreement just as vague as the agreement found in Medivision. It proscribes competition within six miles of clinics that exist on the date of the termination of her employment. There is no way to determine at the time of execution of the agreement where these clinics will be located. Tying the non-competition agreement to circumstances existing at a future date creates a situation where Dr. Saylor had no way to properly determine the limits of the non-competition agreement at the time the agreement was confected. For this reason, the contract is ultimately invalid and unenforceable, and we reverse the trial court judgment which found the non-competition agreement valid.

Having reversed the trial court judgment based upon Dr. Saylor’s second assignment of error, we pretermit discussion of her remaining assignments of error.

APPELLEE’S ASSIGNMENTS OF ERROR

Dr. Garcia attempts to raise two assignments of error in his brief. However, as noted by this Court in Heck v. Lafourche Parish Council, 02-2044, p. 9 (La.App. 1st Cir.11/14/03), 860 So.2d 595, 602, writ denied, 04-0067 (La.3/19/04), 869 So.2d 837, a party who has not appealed or answered the appeal may not seek to have the trial court’s judgment modified in its favor. See La. C.C.P. arts. 2082 and 2133. A review of the record shows that Dr. Garcia did not appeal the trial court judgment and filed no answer in response to Dr. Saylor’s appeal. Therefore, we do not consider these two assignments of error.

| «CONCLUSION

For the foregoing reasons, the trial court judgment finding the noncompetition agreement valid and assessing damages against Dr. Saylor is reversed. Costs are assessed against Dr. Garcia.

REVERSED.

KUHN, J., concurs.

      . Dr. Garcia's veterinary clinic in Lacombe had closed.

      . Incorrectly named in the petition as "Ban-field Pet Hospital, Inc.”


source: Caselaw Access Project

author: PETTIGREW, J.

license: Public Domain

text:
    Jack Patrick HARRIS v. METROPOLITAN LIFE INSURANCE COMPANY, New England Life Insurance Company, Diane Freeman, Katherine Sakaloglou and Charles L. McGinty.
    No. 2009 CA 0034.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 5, 2010.

      Jack Patrick Harris, Baton Rouge, LA, In Proper Person Plaintiff-Appellant.
    Lauren A. Welch, Hilliard F. Kelly, III, Metairie, LA, for Defendants-Appellees Metropolitan Life Insurance Company, New England Mutual Life Insurance Company, Diane Freeman and Katherine Sak-aloglou.

      Before CARTER, C.J., GUIDRY, and PETTIGREW, JJ.
   PETTIGREW, J.

| ¡.This appeal arises out of the trial court’s maintenance of defendants’ dilatory exception raising the objection of prematurity. Following a thorough review of the record, we reverse and remand.

FACTS

On or about March 1, 1992, petitioner, Jack Patrick Harris (“Mr. Harris”), purchased a Professional Disability Policy issued by New England Mutual Life Insurance Company, now Metropolitan Life Insurance Company (“MLIC”), a subsidiary of Met-Life, Inc., an insurance holding company. Mr. Harris, an attorney engaged in the practice of law in Louisiana since 1977, ceased practice upon the advice of his treating psychiatrist on September 15, 2005, due to mental health conditions that Mr. Harris claims became physically manifest in 2000.

Due to his alleged inability to engage in the active practice of law, Mr. Harris filed a claim for benefits with MLIC, his professional disability insurer on November 21, 2005. Said claim consisted of a Notice of Claim and a general all purpose medical authorization both executed by Mr. Harris.

On or about December 9, 2005, Mr. Harris received a package addressed to him from New England Financial, A Met-Life Affiliate (“NEF”) containing claimant instructions, and various forms, (1) an “Attending Physician’s Statement”; (2) a “Claimant Statement”; (3) an “Employment Statement”; (4) a “Job Description”; and (5) an “Employee Authorization.” Mr. Harris thereafter forwarded to Dr. Dennis Raymond, his treating physician, the “Attending Physician’s Statement” and completed and returned via facsimile transmission and certified mail on December 26, 2005, the remaining forms sent to him by NEF with the exception of the “Employee Authorization.” Mr. Harris explained his objections to execution of the “Employee’s Authorization” in his accompanying transmittal Lletter. On January 11, 2006, Mr. Harris supplemented his response with a statement detailing his net income for the period January 2005 through September 15, 2005, together with copies of bank records corroborating said fees. Mr. Harris also advised NEF of his decision to petition the Louisiana Supreme Court for a medical leave of absence from the practice of law.

On January 12, 2006, Ms. Katherine Sa-galoglou, Intake Specialist, with the Disability Benefits Center of NEF wrote to Mr. Harris acknowledging receipt of the requisite Claimant’s and Attending Physician’s Statements and advising NEF would be unable to begin evaluation of Mr. Harris’ claim without receipt of the signed “Employee’s Authorization.”

Mr. Harris received correspondence dated January 20, 2006, from a Kathryn J. Roberts, Manager, with the Worcester Benefit Operations of NEF. Ms. Roberts responded to Mr. Harris’ refusal to execute the “Employee Authorization” sent to him by NEF with the explanation that “the purpose of the authorization [was] to allow [NEF] to obtain medical records for [Mr. Hams’] file and to discuss [his] claim for total disability including [Mr. Hams’] current restrictions and limitations.” Ms. Roberts stated that “without such an authorization, [NEF] would never be able to secure any independent information regarding the insured for claim purposes.” Ms. Roberts also stated “[i]mplieit in [NEF’s] claim processing is [NEF’s] right to investigate. As part of [NEF’s] claim evaluation process, [NEF] need[ed] to obtain information on 1) restrictions and limitations due to [Mr. Hams’] medical condition and 2) description and understanding of the important duties of [Mr. Hams’] occupation.”

Ms. Roberts further stated NEF was “duly compliant with all legislated Federal and State privacy laws including HIPAA [Health Insurance Portability and Accountability Act].” and that only “necessary personnel” would review Mr. Harris’ file for the purpose of claim Revaluation. Ms. Roberts cautioned that “[NEF] may during the life of a claim refer claimants to independent medical evaluators; and [NEF] would release copies of medical records to this entity to assist in the claim evaluation.”

At the conclusion of her correspondence, Ms. Roberts quoted Section 9.4 of the MLIC policy captioned “Written Proof of Loss.” Ms. Roberts claimed Mr. Harris’ continued refusal to execute the Employee Authorization would effectively limit NEF’s right to investigate and fail to comply with Mr. Harris’ obligation to provide NEF -with a “complete proof of loss.”

Mr. Harris allegedly placed a telephone call to MLIC upon receipt of Ms. Robert’s correspondence, and his call was later returned by Diane Freeman, who purportedly advised Mr. Harris that she was an employee of MLIC and authorized to speak to him regarding his claim. Ms. Freeman allegedly advised Mr. Harris that MLIC’s rationale for insisting that he execute the “Employee Authorization” was simply to conform to federal HIPAA standards. Accordingly, Mr. Harris proposed, and Ms. Freeman allegedly accepted, an alternative solution whereby Mr. Harris agreed to prepare or obtain HI-PAA compliant authorizations that would be acceptable to all health care providers and forward the executed originals to Ms. Freeman in order that MLIC might obtain all medical records, medical opinions, and medical reports relating to Mr. Harris’ past and current treatment.

In furtherance thereof, on January 27, 2006, Mr. Harris forwarded to Ms. Freeman via facsimile transmission and regular mail a copy of his eight-page evaluation by the Amen Clinic, and an original “Authorization to Exchange Information” required by the Amen Clinic to release Mr. Harris’ medical files. Also enclosed therewith was a copy of a HIPAA compliant medical authorization addressed to Dr. Dennis Raymond authorizing the release of all medical records requested, including psychotherapy notes if required. Mr. Harris concluded this correspondence by stating that it was his belief that he had complied with his obligation under the provisions of the MLIC policy to provide complete hand satisfactory proof of loss. Mr. Harris wrote to Ms. Freeman again on February 10, 2006, and enclosed additional documentation to update his claim information. Said documentation consisted of a February 8, 2006 order from the Louisiana Supreme Court transferring Mr. Harris to “Disability Inactive Status” effective immediately. Also enclosed was a copy of an IRS Form 1099 reflecting Mr. Harris’ total compensation and net income for 2005, through September 15, 2006[sic].

Ms. Freeman wrote to Mr. Harris on February 8, 2006, and acknowledged receipt of “all portions of [Mr. Hams’] disability claim forms, excluding a current HIPAA signed authorization.” Ms. Freeman explained that using September 16, 2005, as the as the start date of Mr. Harris’ disability, Mr. Harris’ “first disability benefit consideration would have occurred on January 15, 2006; however, [NEF] need[ed] additional information before a claim determination can be made.” “To determine if [Mr. Harris met] the policy definition of disability,” Ms. Freeman advised NEF needed to verify (1) any restrictions and limitations Mr. Harris may have; (2) the duties Mr. Harris was performing in the occupation(s) in which he was engaged at the time the disability began; and (3) how said restrictions and limitations affect the performance of said duties.

In determining any restrictions or limitations Mr. Harris may have, Ms. Freeman advised NEF had requested and received Mr. Harris’ records from Dr. Dennis Raymond and the Amen Clinic in Newport Beach, California. To assist NEF in evaluating Mr. Harris’ claim, Ms. Freeman advised NEF needed to know the duties Mr. Harris performed in his regular occupation prior to the onset of his disability and those duties he can no longer perform. Ms. Freeman stated NEF expected to make a decision on Mr. Harris’ claim “within 60 days, provided we have all of the information needed to determine our liability.” In furtherance thereof, Ms. Freeman requested that Mr. Harris provide NEF with: (1) Billings, diaries, court appearances and court records from 2003 to the present; (2) Complete copies of business and personal tax returns with all schedules and 1 ^attachments, years 2003, 2004, and 2005 when available; (3) Claimant’s Supplemental Statement completed in full, by March 10, 2006; and (4) Signed and dated HIPAA authorization, form 1198-02-NEF-AUTH (9/04). Ms. Freeman stated that as soon as the foregoing information was received, Mr. Harris’ claim would receive NEF’s “immediate attention.” Ms. Freeman wrote to Mr. Harris again on March 15, 2006, acknowledging NEF’s receipt of the supreme court’s order transferring Mr. Harris to disability inactive status, and stated that NEF was awaiting the documentation Ms. Freeman requested from Mr. Harris in her February 8, 2006 correspondence. Ms. Freeman further stated that based upon NEF’s initial review of the clinical records received from Dr. Dennis Raymond and the Amen Clinic, it was determined an Independent Medical Exam (“IME”) was required to clarify Mr. Harris’ “psychiatric diagnoses and any resulting restrictions or limitations due to [Mr. Hams’] condition(s).” Ms. Freeman requested that Mr. Harris respond within 14 days and provide NEF with dates when he would not be available for an IME.

Ms. Freeman wrote to Mr. Harris a third time on April 11, 2006, seeking a response to NEF’s previous requests for information relevant to Mr. Harris’ claim. Ms. Freeman advised that her attempts on this date to contact Mr. Harris via his residence and business phones proved unsuccessful as both had been 'disconnected. Ms. Freeman sought all previously requested documentation within 15 days.

On May 28, 2006, Ms. Freeman wrote to Mr. Harris once again and set forth a chronology regarding the handling of Mr. Harris’ claim to date. Ms. Freeman advised that Mr. Harris’ file was being forwarded to one of NEF’s Field Claim Representatives, who was “an employee of UnumProvident who works within [Mr. Hams’] geographic area to conduct interviews with [NEF’s] clients.” Ms. Freeman also advised that the field representative would “present [Mr. Harris] with a HIPAA authorization for signature, which |7will permit [NEF] to release [Mr. Hams’] medical and other claim file information to the examiner(s) who will perform the [IME].” Ms. Freeman further advised that “[a]s we proceed with the scheduling of the IME and our continued evaluation of your claim, benefits will be issued ... with Reservation of Rights.”

Thereafter, Mr. Harris evidently contacted NEF and advised he had retained an attorney to represent him. Through correspondence directed to said attorney and dated June 8, 2006, Charles L. McGinty, identified himself as a Field Claims Consultant with UnumProvident, Corp., which he claimed was “ [Mr. Hams’] disability insurer.” Mr. McGinty requested a standard interview with Mr. Harris and his attorney “as part of the continuing evaluation process.” Mr. McGinty advised the areas covered in said interview would include, but not be limited to, Mr. Harris’ occupational duties; his medical history, including the names and addresses of Mr. Harris’ medical providers, his symptoms, a list of all medications, his current treatment and restrictions and limitations; Mr. Harris’ financial situation in reference to other disability benefits/policies and salary continuation; Mr. Harris’ current daily activities, future plans and any other concerns or questions of Mr. Harris.

In an effort to verify Mr. Harris’ status as a trial attorney, Mr. McGinty requested the following information: (1) a list of Mr. Harris’ trials going back two years prior to his claimed disability date with case titles, court location, and/or judicial district with docket numbers; (2) current status of who is handling these cases including their name and telephone number; (3) any pending and/or past disciplinary complaints/actions against Mr. Harris regarding his legal practice; and (4) status of Mr. Harris’ lawsuit filed against his partner and the name of the attorney representing Mr. Harris.

Lastly, Mr. Harris requested “a copy of the police report filed or incident/item number regarding an alleged burglary of [Mr. Hams’] law office,” and advised he would also present a HIPAA form for Mr. Harris to sign at the interview.

ACTION OF THE TRIAL COURT

Mr. Harris instituted the present litigation through the filing of a petition in proper person on September 27, 2006. Named as defendants in said litigation were MLIC, NEF |8d/b/a New England Life Insurance Company (erroneously referred to therein as “New England Life Insurance Company”), Diane Freeman, Katherine Sakaloglou, and Charles L. McGinty (collectively referred to hereafter as “defendants”). Said petition, containing ninety-seven paragraphs, alleged Mr. Harris had qualified for disability benefits pursuant to the policy, and that Mr. Harris had established, through his treating physician, his inability to perform the important duties of his occupation as a trial attorney. Mr. Harris alleged MLIC possessed, by no later than February 10, 2006, irrefutable evidence of his disability status within the terms of the policy. Mr. Harris further alleged that pursuant to the terms of the disability policy issued to him by MLIC, the insurer’s obligation to pay benefits was activated once he established, through the submission of reports from his treating physician, his inability to perform the important duties of his occupation and provided verification of his income up to the time of his disability. In requesting that he execute a HIPAA authorization, Mr. Harris alleged that MLIC was attempting to deceptively alter the substantive terms of the disability policy issued to him by MLIC.

With respect to the non-corporate defendants, namely, Ms. Freeman, Ms. Sakalo-glou, and Mr. McGinty, said individuals were alleged to be agents and employees for and on behalf of NEF. Mr. Harris alleged that said individuals “collectively, and in concert, as joint tortfeasors, violated the [ Met-Life] Code of Conduct” applicable to all officers and employees of Met-Life, its affiliated companies and subsidiaries, including NEF.

Following numerous attempts to draft a HIPAA release with language acceptable to all parties, it was determined further discussions between the parties would prove fruitless. On June 21, 2007, MLIC notified Mr. Harris that due to his refusal to sign an authorization, MLIC could not continue to pay monthly benefits pursuant to a reservation of rights. Unable to continue its evaluation of Mr. Harris’ condition, MLIC closed its claim on June 21, 2007.

|9On June 13, 2008, Mr. Harris filed a First Amended and Supplemental Petition setting forth in greater detail his general and special damages and the grounds therefore. A peremptory exception raising the objection of no cause of action, or in the alternative, a motion for summary judgment together with supporting memorandum was filed on behalf of defendants, Ms. Freeman and Ms. Sagaloglou on June 24, 2008. On that same date, a dilatory exception raising the objection of prematurity or, in the alternative, a peremptory exception raising the objection of no cause of action together with supporting memorandum was filed on behalf of all defendants.

In response, Mr. Harris filed a motion for a partial summary judgment on July 11, 2008, seeking a determination that he is totally disabled within the terms of the MLIC disability policy and entitled to benefits together with double statutory penalties (pursuant to La. R.S. 22:213 A(3)). Mr. Harris also moved to strike the exceptions filed by defendants. On August 21, 2008, a hearing was held by the trial court with respect to all exceptions and motions. After reviewing the pleadings and the arguments put forth on behalf of the parties, the trial court, for reasons orally assigned, sustained defendants’ exception objecting to prematurity and dismissed Mr. Harris’ suit without prejudice. As a result of this ruling, all remaining motions and exceptions were rendered moot and removed from the court’s docket.

Following the denial of his motion for a new trial, Mr. Harris filed the instant appeal. In connection with his appeal, Mr. Harris assigned error to the trial court’s grant of defendants’ exception.

^STANDARD OF REVIEW

The Louisiana Constitution of 1974 provides that the appellate jurisdiction of the courts of appeal extends to both law and facts. La. Const., art. V, § 10(B). It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). However, where one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review and assessment of the record. Held v. Aubert, 2002-1486, p. 5 (La.App. 1 Cir. 5/9/03), 845 So.2d 625, 630. A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. Williams v. City of Baton Rouge, 2002-0682, p. 13 (La.App. 1 Cir. 3/28/03), 844 So.2d 360, 371.

The facts are not in dispute with respect to this appeal. Therefore, the issue is whether the trial court correctly interpreted and applied the law. Appellate review of questions of law is simply whether the trial court was legally correct or legally incorrect. City of Baker School Board v. East Baton Rouge Parish School Board, 99-2505, pp. 2 (La.App. 1 Cir. 2/18/00), 754 So.2d 291, 292. On legal issues, the appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and renders judgment on the record. Northwest Louisiana Production Credit Association v. State, Department of Revenue and Taxation, 98-1995, p. 3 (La.App. 1 Cir. 11/5/99), 746 So.2d 280, 282.

In the instant case, we must determine whether the trial court erred in its finding that Mr. Harris was obliged, pursuant to the terms of his policy with MLIC, to execute a fourth medical authorization to determine the extent of his disability prior to initiating litigation in court.

LAW AND ANALYSIS

Louisiana Code of Civil Procedure article 926(A)(1) provides for the dilatory exception raising the objection of prematurity. Such an objection is intended to retard the [^progress of the action rather than defeat it. La.Code Civ. P. arts. 923 and 926. A suit is premature if it is brought before the right to enforce the claim sued on has accrued. La.Code Civ. P. art. 423. Prematurity is determined by the facts existing at the time suit is filed. Houghton v. Our Lady of the Lake Hosp. Inc., 03-0135, p. 5 (La.App. 1 Cir. 7/16/03), 859 So.2d 103, 106. Evidence may be introduced to support or controvert the exception, when the grounds do not appear from the petition. La.Code Civ. P. art. 930. The objection of prematurity raises the issue of whether the juridical cause of action has yet come into existence because some prerequisite condition has not been fulfilled. Bridges v. Smith, 01-2166, p. 4 (La.App. 1 Cir. 9/27/02), 832 So.2d 307, 310, writ denied, 02-2951 (La.2/14/03), 836 So.2d 121. The objection contemplates that the action was brought prior to some procedure or assigned time, and is usually utilized in cases where the applicable law or contract has provided a procedure for one aggrieved of a decision to seek relief before resorting to judicial action. Plaisance v. Davis, 03-0767, p. 6 (La.App. 1 Cir. 11/7/03), 868 So.2d 711, 716, writ denied, 03-3362 (La.2/13/04), 867 So.2d 699.

In the present case, defendants argued before the trial court that Mr. Harris’ suit is premature for the reason that Mr. Harris filed suit for benefits pursuant to his disability policy together with claim for damages without executing a medical authorization. Defendants claimed that due to Mr. Harris’ refusal to execute a medical release, they have been unable to properly evaluate the extent of Mr. Harris’ disability through an IME. Defendants argued that rather than accepting the Louisiana Supreme Court’s finding that Mr. Harris was disabled, they are entitled to an IME detailing the nature and extent of said disability. In his response, Mr. Harris attempted to explain to the court that he had previously executed three medical authorizations directed to his treating physician and health care providers, but objected to the fourth medical authorization, styled an “Income Protection Claim/Employee’s Authorization” as it contained broad language unrelated to a medical authorization.

It appears from the record that Mr. Harris, then a practicing attorney, purchased |, disability income insurance, bearing policy number 191D224555, from MLIC on March 1, 1992. Said disability policy remained in effect through the onset of the disability claimed by Mr. Harris on September 15, 2005.

In Marcus v. Hanover Insurance Co., Inc., 98-2040, p. 4 (La.6/4/99), 740 So.2d 603, 606, the supreme court set forth the following legal axioms relating to the interpretation of insurance policies. An insurance policy is a contract and, as with all other contracts, it constitutes the law between the parties. If the policy wording at issue is clear and expresses the intent of the parties, the agreement must be enforced as written. The parties’ intent, as reflected by the words of the policy, determines the extent of coverage. Ledbetter v. Concord General Corp., 95-0809, p. 3 (La.1/6/96), 665 So.2d 1166, 1169, rehearing denied, amended on other grounds, 95-0809 (La.4/18/96), 671 So.2d 915. An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd result. Doiron v. Louisiana Farm Bureau Mutual Insurance Company, 98-2818, p. 7 (La.App. 1 Cir. 2/18/00), 758 So.2d 357, 362. However, if there is any doubt or ambiguity as to the meaning of a provision in an insurance policy, it must be construed in favor of the insured and against the insurer. See La. Civ. Code art.2056. When the ambiguity relates to an exclusionary clause, the law requires that the contract be interpreted liberally in favor of coverage. Gaylord Chemical Corporation v. ProPump, Inc., 98-2367, p. 4 (La.App. 1 Cir. 2/18/00), 753 So.2d 349, 353. Whether a contract is ambiguous is a question of law. Id. With these principles in mind, we now turn to a review of the insurance policy.

Part 1 of the NEF policy defines terms used in the policy and provides in pertinent part:

1.2 You” and Your refer to the insured named in the Policy Schedule.
1.3 “We”, “Us” and “Our” refer to New England Mutual Life Insurance Company....
1.6 “Sickness” means sickness or disease which first manifests itself after the Date of Issue and while Your Policy is in force....
I is* * * *
1.8 “Physician’s Care” means the regular and personal care of a Physician which, under prevailing medical standards, is appropriate for the condition causing the disability.
1.10 “Total Disability” means that because of Injury or Sickness:
a. You are unable to perform the important duties of Your Occupation; and
b. You are receiving Physician’s Care. We will waive this requirement if We receive written proof acceptable to Us that further Physician’s Care would be of no benefit to You.

Part 9 of the NEF policy is captioned “CLAIMS” and further provides in pertinent part:

* * * *
9.2 WRITTEN NOTICE OF CLAIM
Written notice of claim must be given to Us within 30 days after a covered loss starts. If this cannot be done, then notice must be given as soon as reasonably possible.
The notice will be sufficient if it identifies You and is sent to Our Disability Income Administration Center, 18 Chestnut Street, Worcester, Massachusetts 01608, or is given to Our agent.
9.3 CLAIM FORMS
After We receive the written notice of claim, We will send You Our proof of loss forms within 15 days. If We do not, You will meet the written proof of loss requirements if You send Us, within the time set forth below, a written statement of the nature and extent of Your loss.
9.4 WRITTEN PROOF OF LOSS
Written proof of loss must be sent to Us within 90 days after the end of each period for which you are claiming benefits. If that is not reasonably possible, Your claim will not be affected. But, unless You are legally incapacitated, written proof must be given within one year of the date it was required.
We can also require reasonable proof from You of Your:
a. Prior Earnings; and
b. Monthly Earnings for the month for which Disability is claimed.
This may include personal and business tax returns filed with the Internal Revenue Service, financial statements, accountant’s statements or other proof acceptable to Us or which We may require. We can have an audit performed as often as is reasonably required while Your claim is continuing. Such an audit will be at Our expense.
9.5 EXAMINATIONS
At Our expense, We can have a Physician of Our choice examine You as often as reasonably required while Your claim is continuing.
Ji4* * * *

Part 10 of the NEF policy is captioned “THE CONTRACT” and further provides in pertinent part:

10.1 ENTIRE CONTRACT; CHANGES
This Policy (with the application and attached papers) is the entire contract between You and Us....
⅜ ⅜ ‡ ‡
10.4 LEGAL ACTION
You cannot bring legal action within 60 days from the date written proof of loss is given. You cannot bring it after 3 years from the date written proof is required.

Based upon our review of the MLIC policy issued to Mr. Harris, we note at the outset that Mr. Harris instituted the instant suit on September 27, 2006, a period greater than 60 days from November 21, 2005, the date Mr. Harris filed his initial claim for benefits, and February 8, 2006, the date Ms. Freeman acknowledged receipt of “all portions of [Mr. Hams’] disability claim forms, excluding a current HIPAA signed authorization.” We find no provision within the subject policy restricting the right of an insured to file suit until after an IME has been performed. It is apparent from the record MLIC possessed, no later than February 10, 2006, evidence as to Mr. Harris’ total disability status as defined under the terms of the policy. Mr. Harris established, through the submission of reports from his treating physician, his inability to perform the important duties of his occupation and provided verification of his income up to the time of his disability.

Additionally, although MLIC has the right pursuant to Section 9.5 of the subject policy to require an insured to submit to IMEs “as often as reasonably required while [the insured’s] claim is continuing” submission to an IME is not, pursuant to the terms of the policy, a condition precedent to the institution of litigation.

It appears defendants sought to have an IME of Mr. Harris performed, which they have a right to do “as often as reasonably required” pursuant to Section 9.5 of the subject policy; however, defendants maintained said IME could not be performed unless and until | lsMr. Harris executed the “Income Protection Claim/Employees’ Authorization,” that defendants contend is simply a “HIPAA authorization.” HIPAA was passed long after March 1, 1992, the effective date of the insurance policy at issue in this case.

Contained within the provisions of the Health Insurance Portability and Accountability Act (“HIPAA”) of 1996, are regulations promulgated by the secretary of the United States Department of Health and Human Services (“HHS”) establishing national standards to insure the privacy of “protected health information” or individually identifiable health information. Said regulations are generally referred to as the “Privacy Rule.” 45 C.F.R. § 164(E); see also Hill v. East Baton Rouge Department of Emergency Medical Services, 05-1236, p. 6 (La.App. 1 Cir. 12/22/05), 925 So.2d 17, 21, writ denied, 06-0229 (La.5/5/06), 927 So.2d 311.

Mr. Harris has urged that HI-PAA regulations do not apply to disability insurance policies such as the policy provided by MLIC in the present case. We agree. Pursuant to the definitions set forth in 45 C.F.R. § 160.103, “Health plan means an individual or group plan that provides, or pays the cost of, medical care (as defined in section 2791(a)(2) of the PHS [Public Health Service] Act, 42 U.S.C. 300gg-91(a)(2)).” The statute further provides “Health plan excludes: (i) Any policy, plan, or program to the extent that it provides, or pays the costs of, excepted benefits that are listed in section 2791(c)(1)of the PHS Act, 42 U.S.C. 300gg-91(c)(1).” Additionally, 42 U.S.C. 300gg-91(c) provides:

(c) Excepted benefits
For purposes of this subchapter, the term “excepted benefits” means benefits under one or more (or any combination thereof) of the following:
(1) Benefits not subject to requirements
(A) Coverage only for accident, or disability income insurance, or any combination thereof.

Based upon our reading of the foregoing statute, we conclude that HIPAA regulations are not applicable to an insurance disability policy such as the policy provided by MLIC in the present case.

Additionally, we note that a copy of the “Income Protection Claim/ Employee’s Authorization” form at issue in this case is contained within the record. Although defendants claim said form is simply a “medical authorization” we find that the [ 16information released by the execution of said authorization extends much further and may alter some of the terms of the original policy. The form in question, form 1198-02-NEF-AUTH (9/04), provides, in pertinent part, as follows:

New England Life Insurance Company Metropolitan Life Insurance Company
Members of the MetLife Family of Companies
Claims settlement services with respect to Disability Income claims may be adjudicated on behalf of NEF under policies issued by New England Life Insurance Company (which became Metropolitan Life Insurance Company policies upon merger of these two companies) and are provided and underwritten by the Paul Revere Life Insurance Company, a subsidiary of UnumProvident Corporation, pursuant to a written agreement.
NOTE: This Authorization form was designed to comply with requirements set forth in the Health Insurance Portability and Accountability Act (HIPAA). HI-PAA requires that we obtain this authorization from you. You are not required to sign the authorization, but if you do not, we may not be able to evaluate or administer your claim(s). Please sign and return this authorization to the address noted above.
AUTHORIZATION
For Disability Income Insurance claims settlement purposes
I authorize any health care provider including, but not limited to, any health care professional, any medical facility, hospital, clinic, laboratory, pharmacy or other medically related facility or service; health plan; rehabilitation professional; vocational evaluator; insurance company; reinsurer; insurance service provider; third party administrator; producer; employer; consumer reporting agency; department of motor vehicles; the MIB Group, Inc.; the Association of Life Insurance Companies (which operates the Health Claims Index and the Disability Income Record System); and government organization that has information about my health; financial or credit history; personal information or data; earnings; employment history; motor vehicle reports, driving record; aviation activities; or other insurance coverage, claims and benefits to disclose any and all of this information, including my entire medical file for up to the last ten (10) years, to the New England Life Insurance Company or Metropolitan Life Insurance Company, or to persons who administer disability income claims for New England Life Insurance Company or Metropolitan Life Insurance Company, including, and/or The Paul Revere Life Insurance Company and their duly authorized representatives (the “Company”). Information provided about my health may relate to any disorder of the immune system including, but not limited to, HIV and AIDS; use of drugs and alcohol (including information related to drug and alcohol abuse protected by Federal Regulations 42 CFR part 2); and mental and physical history, condition, advice or treatment, but does not include psychotherapy notes. I understand that any information the Company obtains pursuant to this authorization will be used for evaluating and administering my claim(s) for benefits, which may include assisting me in returning to work. I further understand that the information is subject to redisclosure (to the extent required or permitted by applicable laws) and may no longer be protected by certain federal regulations governing the privacy of health information.
⅜ ⅜ ⅜ ⅜
I may revoke this authorization in writing at any time except to the extent that the Company has relied on the authorization prior to notice of revocation or has a legal right to contest a claim under the policy or the policy itself. I understand if I revoke this authorization, the Company may not be able to evaluate or administer my claim(s) and this may be the basis for denying my claim(s). I may revoke this authorization by sending written notice to the address above.
I understand if I do not sign this authorization or if I alter its content in any way, the Company may not be able to evaluate or administer my claim(s) and this may be the basis for denying my claim(s).

Although MLIC, pursuant to the language of the disability policy at issue in this case, is authorized to obtain an IME of its insured “as often as reasonably required,” said IME is not a condition precedent, pursuant to the terms of the policy, to the initiation of litigation by an insured. Further, the foregoing “medical authorization” demanded by MLIC is far broader than what is required for an IME. Thus, Mr. Harris’ suit was clearly not premature, and the trial court legally erred in so holding.

CONCLUSION

Based on the foregoing, we reverse the judgment of the trial court in favor of defendants, and remand this matter to the trial court for further proceedings. All costs of this appeal are assessed against defendants.

REVERSED AND REMANDED.

      . Metropolitan Life Insurance Company (“MLIC”) subsumed New England Mutual Life Insurance Company by merger in 1996, and demutualized in 2000, becoming MLIC, a subsidiary of Met-Life, Inc., an insurance holding company. The parties have stipulated MLIC to be Mr. Harris' insurer with respect to the Preferred Professional Disability Policy.

      . Through consultation with Charles L. Platts-mier, director of the Louisiana State Bar Association’s Office of Disciplinary Counsel ("ODC”), Mr. Harris disclosed his medical condition and executed medical authorizations thereby allowing the ODC to obtain medical records and reports from Mr. Harris’ treating physicians. Upon review of Mr. Harris' medical records, the ODC and Mr. Harris filed a joint petition with the Louisiana Supreme Court requesting a determination of Mr. Harris’ medical qualification for Disability Inactive Status pursuant to Louisiana Supreme Court Rule XIX § 22(C).

      . The Employee's Authorization sought by NEF specifically excluded the release of an insured’s psychotherapy notes.

      . Curiously, unlike all prior and subsequent correspondence between the parties, Ms. Freeman directed this letter to Mr. Harris at his home address. Mr. Harris claimed that he vacated said residence in January 2006 following notice of foreclosure, and thus did not receive this correspondence until June 2006.

      . Said correspondence was directed to Mr. Harris at the customary address used by the parties.

      . Said correspondence was directed to Mr. Harris at the customary address used by the parties, and according to NEF was sent by Federal Express with signature required delivery. It is not known whether Mr. Harris received said correspondence.

      . Said correspondence was directed to Mr. Harris at the customary address used by the parties.

      . Although defendants claim in Footnote 1 of their appellate brief that Mr. Harris "erroneously named New England Life Ins. Co.” as a defendant in this matter, said entity is identified in this manner on the "Employee’s Authorization” or "HIPAA authorization” demanded by defendants.

      . Prior to the redesignation and renumbering of Title 22 of the Louisiana Revised Statutes of 1950, the Louisiana Insurance Code, by Acts 2008, No. 415, § 1, which became effective on January 1, 2009, R.S. 22:213 A(3) (now redesignated R.S. 22:975 A(3)) read as follows:
      (3) Notice of claim: Written notice of claim for injury or for sickness must be given to the insurer within twenty days after the date of the accident causing such injury or the commencement of the disability from such sickness,.... Such notice given by or on behalf of the insured or the beneficiary to the insurer at (insert the location of such office as the insurer may designate for that purpose), or to any authorized agent of the insurer, with information sufficient to identify the insured, shall be deemed notice to the insurer. Failure to give such notice within such time shall not invalidate nor reduce any claim if it was not reasonably possible to give such notice within the time required, provided written notice of claim is given as soon as reasonably possible.


author: KUHN, J.

text:
    Amanda Abney, Wife of and William ABNEY, Individually, and as the Natural Tutrix of their Minor Children, Kylie M. Abney, Hunter Abney, and Katelynn M. Abney v. Stephanie L. SMITH and USAA Insurance Company, State of Louisiana, Department of Transportation and Development and the Parish of St. Tammany.
    No. 2009 CA 0794.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 8, 2010.
    Writ Denied May 7, 2010.

      Tom W. Thornhill, Mitchell A. Palmer, Slidell, Louisiana, for Plaintiffs-Appellees William Abney and Amanda D’Angela as the natural tutrix of the minor children, Kylie, Hunter, and Katelynn Abney.
    Thomas M. Brahney, Assistant Attorney General, New Orleans, Louisiana, for Defendant-Appellant State of Louisiana through the Department of Transportation and Development.
    Before PARRO, KUHN, and McDonald, jj.
   KUHN, J.

| gDefendant-appellant, the State of Louisiana, through the Department of Transportation and Development (DOTD), appeals the trial court’s judgment rendered after a jury’s verdict ultimately concluded that it was liable to plaintiffs-appellees, William “Will” Abney, Jr., his ex-wife Amanda D’Angela, and their three minor children (collectively the Abneys), for twenty percent of the damages they sustained in a vehicular accident. For the reasons that follow, we vacate the judgment and remand the case for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

At approximately 7 p.m., February 8, 2000, the Abneys were returning to their home located off Howze Beach Road with Will driving, Amanda in the front passenger seat, and the children in the back in their car seats. As their car proceeded in a southerly direction down Howze Beach Road, a SUV driven in an easterly direction by Stephanie Smith pulled out of a gas station situated on the corner at a T-intersection of Oak Harbor Boulevard, crossed two lanes of travel and, without stopping, attempted a left turn onto the favored Howze Beach Road. As the Smith vehicle attempted to turn left into the Ab-neys’ lane of travel, the SUV collided directly into their car. The Abneys were injured as a result of the collision, with Will suffering serious injuries, particularly to his right leg including his anterior cruciate ligament and knee.

On the day of the accident, Oak Harbor Boulevard, a four-lane roadway separated by a median that ended at Howze Beach Road, was controlled by a single stop sign located on the right-hand side of Oak Harbor Boulevard, situated |sin the right-of-way that buttressed the gas station. It is undisputed that the area was remote and dimly lit; besides the gas station, there was no other development at the T-intersection. It is also uncontested that Howze Beach Road, which consisted of two lanes, was the favored roadway.

The Abneys filed a lawsuit naming Smith, her insurer, and DOTD as defendants. Subsequently, the Abneys voluntarily dismissed Smith after amicably resolving their claims. The matter proceeded to a jury trial against DOTD. The jury ultimately rendered a verdict, finding DOTD twenty percent at fault. The trial court signed a judgment in conformity with this determination by the jury and DOTD appeals.

PROPRIETY OF JURY INTERROGATORIES AND INSTRUCTIONS

The relevant interrogatories on the verdict form stated:

1. Do you find that on the date of the accident there [were] one or more hazardous conditions at the intersection of Howze Beach Road and Oak Harbor Boulevard in Slidell, Louisiana?
Yes_ No_
If your answer to Question # 1 is “yes,” proceed to Question # 2. If your answer is “no,” skip to the end, sign and date the form, and call the bailiff.
2. Do you find that [DOTD] was responsible for any hazardous conditions on the date of the accident?
Yes_ No_
3. Do you find that these hazardous conditions caused or contributed to the accident?
Yes_ No_
4. Do you find that William Abney was negligent in the accident?
Yes__ No_
5. Do you find that another person was negligent in the accident?
Yes_ No_
6. What percentage of fault do you assign to the following (do not grant any percentage to those you find free from fault or negligence):
Defendant, DOTD _
Plaintiff William Abney _
Another Person _
TOTAL: 100%

The verdict form may not be set aside unless the form is so inadequate that the jury is precluded from reaching a verdict based on correct law and facts. Ford v. Beam Radiator, Inc., 96-2787, p. 3 (La.App. 1st Cir.2/20/98), 708 So.2d 1158, 1160. Jury forms or interrogatories that are misleading or confusing may be reversible error. Id. Jury interrogatories must fairly and reasonably point out the issues to guide the jury in reaching an appropriate verdict. If the verdict form does not adequately set forth the issues to be decided by the jury (i. e., omits an applicable essential legal principle or is misleading and confusing), such interrogatories may constitute reversible error. Guidry v. Bank of LaPlace, 94-1758 (La.App. 4th Cir.9/15/95), 661 So.2d 1052, 1055, writs denied, 95-2498, 95-2490, and 95-2477 (La.1/5/96), 666 So.2d 295 and 296.

IfiTwo major areas of concern appear in the verdict form. First, Question # 2 references DOTD directly stating: “Do you find that [DOTD] was responsible for any hazardous conditions on the date of the accident?” Questions # 1 and # 3 simply inquire whether hazardous conditions existed and whether those hazardous conditions caused or contributed to the accident, without referencing DOTD as the responsible entity for those hazardous conditions. Secondly, in response to Questions # 2 and # 3, the verdict form fails to direct the jury, “If your answer ... is ‘yes,’ proceed to [the next question]. If your answer is ‘no,’ skip to the end, sign and date the form, and call the bailiff,” as it does for Question # 1. These shortcomings were not lost on the jury.

After having been retired to deliberate, the jury sent notice to the trial judge that it had a question. In the presence of the parties’ attorneys, the trial judge stated:

Okay, the question is: If in Question No. 6 the jury has determined that the defendant DOTD had 0 percent fault, do we need to complete Question[s] 7 through 11 [assessing damages for each of the five plaintiffs] ? The answer is no, but I have to bring them out here to tell them that. Isn’t that correct?

Although defense counsel stated “I believe so, Your Honor,” plaintiffs’ attorney said, “Well, maybe not if 1 through 5 [are] inconsistent....” An exchange continued between the trial judge and the parties’ attorneys. Before returning the jury to the courtroom, the trial judge stated, “Bring them in. I’ll do something.” When the jury was returned to the courtroom, the following colloquy occurred:

[BY THE COURT:]
The answer to that is I can’t look at [Question] 6 in a vacuum because I don’t know what you have done for Questions 1 through 5, and I’m not allowed to inquire into that. So I’m going to send you back....
BY A JUROR:
Rlf we were to provide the answers to the first six questions, could you provide the answer?
BY THE COURT:
If I knew what the answers were to the first five questions, yes, then I could answer that question. But I don’t know what you have answered to the first five questions, so I can’t answer that question because what you have answered to the first five questions will have an impact on what happens at Question 6. I can’t even ask you if you have answered the first five questions. I’m not allowed to comment on the evidence.
So I am going to send you back.

The transcript reveals that after the jury re-retired to deliberate, the following occurred:

BY THE COURT:
I have another question from the jury. It says, Your Honor, does the jury need to complete Question[s] 7 through 11 based on the answers to Questions 1 through 6 below? Question 1, yes. Question 2, no. Question 3, yes. Question 4, no. Question 5, yes. Question 6, defendant DOTD 0 percent. Plaintiff William Abney, 0 percent. Another person, 100 percent.
I think with that answer, yes, they need to complete the rest of the form. Don’t you? Tell me before I bring them in here.
BY [PLAINTIFFS’ ATTORNEY]:
Yes. Yes. Yes, we’ve got an inconsistent verdict.
BY THE COURT:
Yes, we do. Bring in the jury, please.

The trial judge instructed the jury, “Based on these answers, yes, you must complete the verdict form.”

A member of the jury then advised the trial judge that some of the jurors were having “a problem” with the word “hazardous” stating that “it makes no preference” and indicating “some of the references are indefinite.” The trial judge instructed:

You heard all that testimony and you heard the jury instructions. You collectively, you need to deliberate and come up with an answer. I’m sure that among you if you’re all talking and deliberating that you can come to a conclusion as to what the words mean. And we are not allowed to go outside of what we’ve already told you. I can’t add nor subtract anything from what I’ve already — how I have already instructed you. They can’t add or subtract anything from the evidence or from their arguments or opening statements. So you have to work with what you have.

The jury re-retired to deliberations and, approximately two hours later, returned with its verdict. The verdict form showed that the response “No” in Question #2 had been struck and replaced with “Yes.” In Question # 6, assigning percentage of fault, the response of “0%” had been replaced with “20%” for “Defendant, DOTD.” The jury also assessed damages in Questions # 7 through # 11.

Initially, we note that before the jury was charged, DOTD objected to the use of the term “hazardous conditions” rather than “defect” in the interrogatories, noting the latter conformed to the substantive law articulated in La. R.S. 9:2800. See La. C.C.P. art. 1798 C (requiring a party to object and specifically state the basis of his objection before the jury retires). On this element, the trial court instructed the jury the plaintiffs had to prove “[t]he thing was defective because it had a condition that created an unreasonable risk of harm.” The jury was also instructed “[t]he owner or custodian of a thing is answerable for damage ^occasioned by its ruin, vice or defect which cause damage,” and that “ ‘[a]n unreasonable risk of harm’ to others means that the likelihood that harm might occur and the seriousness of such harm if it did happen outweighs the importance to society of the custody of the thing and the way the owner or custodian has chosen to maintain the thing under the circumstances.”

While the interrogatories may have more closely stated the substantive law as set forth in La. R.S. 9:2800 by referencing “defects,” we cannot say that the trial court abused its discretion in its use of the term “hazardous conditions,” which was so confusing or misleading as to preclude the jury from reaching a decision based on the correct law and the facts. See Ford v. Beam Radiator, Inc., 96-2787, p. 3 (La.App. 1st Cir.2/20/98), 708 So.2d 1158, 1160. But the trial court’s supplemental instructions to the jury compounded the less-than-accurate jury interrogatories.

La. C.C.P. art. 1796 C, addressing supplemental jury instructions, states in pertinent part:

The court, after giving notice to the parties, may recall the jury after they have retired:
(1) To correct or withdraw an erroneous instruction.
(2) To clarify an ambiguous instruction.
(3) To inform the jury on a point of law which should have been covered in the original instructions.
(4) To give such further instructions as may be appropriate.

The trial court is required to instruct jurors on the law applicable to the cause submitted to them. See La. C.C.P. arts. 1792 A and 1796 B; LeBlanc v. Landry, 2008-1643, p. 5 (La.App. 1st Cir.6/24/09), 21 So.3d 353, 358, writ denied, 2009-1705 (La.10/2/09), 18 So.3d 117. The trial court is responsible for reducing the possibility of confusing the jury and may exercise the right to decide what law is applicable and what law the trial court deems inappropriate. LeBlanc, 2008-1643 at p. 5, 21 So.3d at 358. The charge must correctly state the law and be based on evidence adduced at trial. Id.

Adequate jury instructions are those which fairly and reasonably point out the issues and which provide correct principles of law for the jury to apply to those issues. The trial court must correctly charge the jury. If the trial court omits an applicable, essential legal principle, its instruction does not adequately set forth the issues to be decided by the jury and may constitute reversible error. Correlative to the judge’s duty to charge the jury as to the law applicable in a case is a responsibility to require that the jury receives only the correct law. Id.

Louisiana jurisprudence is well established that an appellate court must exercise great restraint before it reverses a jury verdict because of erroneous jury instructions. Trial courts are given broad discretion in formulating jury instructions, and a trial court judgment should not be reversed so long as the charge correctly states the substance of the law. The rule of law requiring an appellate court to exercise great restraint before upsetting a jury verdict is based, in part, on respect for the jury determination rendered by citizens chosen from the community who serve a valuable role in the judicial system. We assume a jury will not disregard its sworn duty and be improperly motivated. We assume a jury will render a decision based on the evidence and the totality of the instructions provided by the judge. Id.

But when a jury is erroneously instructed and the error probably contributed to the verdict, an appellate court must set aside the verdict. In the assessment of an alleged erroneous jury instruction, it is the duty of the reviewing court to assess such impropriety in light of the entire jury charge to determine if the charges Inadequately provided the correct principies of law as applied to the issues framed in the pleadings and the evidence and whether the charges adequately guided the jury in its deliberation. Ultimately, the determinative question is whether the jury instructions misled the jury to the extent that it was prevented from dispensing justice. Id. The standard of review in determining whether an erroneous jury instruction has been given requires a comparison of the degree of error with the jury instructions as a whole and the circumstances of the case. Id.

A supplemental instruction must be considered as an addition to the original instruction rather than as an independent charge. As long as the combined charges accurately cover the point of law at issue, no reversible error exists. Adams v. Rhodia, Inc., 2007-2110, p. 8 (La.5/21/08), 983 So.2d 798, 805.

In this case, the trial court declined to clarify the ambiguous references to “hazardous conditions.” More importantly, the trial court failed to instruct the jury that in light of its responses to Questions # 2 and # 6, it could “skip to the end, sign and date the form, and call the bailiff’; or otherwise respond to the jury’s inquiry that it need not complete Questions # 7 through # 11, based on its answers to Questions # 2 and # 6. We cannot fathom that this failure and the trial court’s instruction, “Based on these answers, yes, you must complete the verdict form,” did not contribute to the verdict. At no time was the jury advised that its answer “[n]o” to the question whether DOTD “was responsible for any hazardous conditions on the date of the accident” and its assessment of “0%” fault to DOTD meant that it need not complete Question # 7 through # 11. Moreover, with the ambiguity in the definition of “hazardous conditions,” which the trial court declined to clarify, the jury was never advised whether the answers it supplied | n showed an inconsistent verdict. Clearly, the instruction to the jury that “yes, you must complete the verdict form” answering Questions # 7 through # 11, which assessed amounts of damages sustained by each plaintiff, misled the jury to the extent that it was prevented from dispensing justice. Considering all these factors as a whole, we conclude that the failure of the interrogatories to direct the jury that a “no” answer to Questions # 2 and # 3 permitted it to skip to the end, as well as the supplemental instruction, “Based on these answers, yes, you must complete the verdict form,” likely misled the jury, thus interdicting the fact-finding process and tainting the verdict. Therefore, no weight should be accorded the jury verdict.

Plaintiffs contend that DOTD failed to preserve its right to appeal either the failure of the verdict form to include the direction or the objection to the supplemental instruction as required by La. C.C.P. art. 1793 C. However, La. C.C.P. art. 1793 B requires that the trial court give accurate and necessary jury instructions and interrogatories based on the facts and evidence of the case. Accordingly, courts have held that where the jury instructions or interrogatories contain a “plain and fundamental” error, the contemporaneous objection requirement is relaxed and appellate review is not prohibited. Berg v. Zummo, 2000-1699, p. 13 n. 5 (La.4/25/01), 786 So.2d 708, 716 n. 5. We find that the interrogatories and the supplemental instruction provided by the trial court on the issue of whether the jury had to assess damages in favor of each of the plaintiffs misstated the law and thus contained a “plain and fundamental” error which has 112lead us to relax the contemporaneous objection requirement. See Berg, 2000-1699 at p. 13 n. 5, 786 So.2d at 716 n. 5.

Generally, when a legal error interdicts the fact finding process, the manifest error standard no longer applies. If the record is otherwise complete, the reviewing court should conduct a de novo review. Franklin v. Franklin, 2005-1814, p. 8 (La.App. 1st Cir.12/22/05), 928 So.2d 90, 94, writ denied, 2006-0206 (La.2/17/06), 924 So.2d 1021. But there are occasions where the weight of the evidence is so nearly equal that a first-hand view of witnesses is essential to a fair resolution of the issues. Where such a need arises, the case should be remanded for a new trial. Id.; see Masters v. Courtesy Ford Co., Inc., 2000-1330 (La.6/30/00), 765 So.2d 1055, 1056; see also Diez v. Schwegmann Giant Supermarkets, Inc., 94-1089, p. 7 (La.App. 1st Cir.6/23/95), 657 So.2d 1066, 1071, writ denied, 95-1883 (La.11/17/95), 663 So.2d 720.

Because a preponderance of the evidence cannot be determined fairly from the cold record due to the substantial conflict in testimony on the condition of the single stop sign situated in the right-of-way that buttressed the gas station, remand is proper in this case. Furthermore, because the record presents substantial conflicts in the testimony and serious questions of credibility, we are convinced the interests of justice would best be served by remanding for a new trial.

DECREE

For these reasons, the trial court’s judgment is vacated, and the case is remanded for a new trial consistent with this opinion. Appeal costs are assessed against plaintiffs-appellees, William Abney, Jr. and Amanda D’Angela.

VACATED AND REMANDED.

      . Will and Amanda divorced after the accident, and Amanda remarried.

      . Evidence established that Will’s medical bills exceeded $170,000.

      . Subdivisions have developed in the area and Oak Harbor Boulevard has subsequently been extended across Howze Beach Road.

      . Although St. Tammany Parish was also a named defendant, it was dismissed by summary judgment.

      . The jury concluded that the Abneys had suffered $1,390,929.63 in damages, allotting $906,909.07 to Will; $25,925.01 to Amanda; and $15,554, $5,365.30, and $5,399.70, respectively, to each Abney child. The judgment states that DOTD was liable to the Abneys in the amount of $278,185.92, “representing twenty percent of the sum of $1,390,929.63, which sum equals the damages awarded totaling $959,153.08 plus judicial interest from the date of judicial demand until end of trial on August 9, 2008, and which interest totals $431,776.55,” plus continuing judicial interest until paid, and all costs in the amount of $20,048.57.

      . La. R.S. 9:2800 C states in relevant part:
      No person shall have a cause of action based solely upon liability imposed under [La. C.C. art.] 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so. (Emphasis added.)

      . Although plaintiffs assert that the only evidence to support a finding of "hazardous conditions” was of things within DOTD's custody and control, because the jury was not apprised of what constituted a "hazardous condition,” it may have reasoned that the limited lighting at the intersection was a hazardous condition which caused the accident and for which DOTD was not responsible. Similarly, the jury may have considered Smith's erratic driving was a hazardous condition which caused the accident for which DOTD was not responsible.


author: PARRO, J.

text:
    Teresa QUICK v. TERREBONNE GENERAL MEDICAL CENTER and Gulf South Risk Services, Inc.
    No. 2009 CA 1101.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 10, 2010.

      D. Steven Wanko, Jr., Covington, LA, for Plaintiff-Appellee, Teresa Quick.
    David J. Shea, Bordelon & Shea, L.L.P., Houma, LA, for Defendant-Appellant, Terrebonne General Medical Center.
    Before PARRO, KUHN, and McDonald, jj.
   PARRO, J.

|2This is an appeal by an employer of a judgment in a workers’ compensation proceeding in favor of the claimant awarding benefits, penalties, and attorney fees. For the following reasons, the judgment is vacated in part and affirmed in part.

Initially, the employer, Terrebonne General Medical Center (TGMC), challenged the workers’ compensation judge’s finding that the claimant, Teresa Quick (Quick), was temporarily, totally disabled as the result of an accident on August 26, 2007, and entitled to workers’ compensation benefits notwithstanding the fact that her orthopedist of choice, Dr. William H. Kin-nard, issued a report indicating that she had a multitude of complaints that he felt were excessive and indicative of symptom magnification. In his October 16, 2007 report, Dr. Kinnard opined that Quick should be capable of returning to work without restrictions in one week.

After a thorough review of the record and relevant jurisprudence, and considering the credibility findings by the workers’ compensation judge (WO), we find that the WCJ’s extensive oral reasons for judgment adequately explain the decision with respect to the claimant’s entitlement to workers’ compensation benefits for temporary total disability. As this issue involves no more than an application of well-settled rules to a recurring fact situation, we affirm the portion of the judgment awarding temporary total disability benefits.

TGMC also urged that the WCJ erred in finding that Quick was entitled to medical expenses once she had been released to return to work without restrictions by Dr. Kinnard. The employer’s duty to furnish medical expenses is |3governed by LSA-R.S. 23:1203(A), which in part provides:

In every case coming under this Chapter, the employer shall furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment recognized by the laws of this state as legal, and shall utilize such state, federal, public, or private facilities as will provide the injured employee with such necessary services....

Concerning medical treatment, LSA-R.S. 23:1142, in pertinent part, further provides:

B. Nonemergency care. (1) Except as provided herein, each health care provider may not incur more than a total of seven hundred fifty dollars in nonemer-gency diagnostic testing or treatment without the mutual consent of the payor and the employee as provided by regulation. Except as provided herein, that portion of the fees for nonemergency services of each health care provider in excess of seven hundred fifty dollars shall not be an enforceable obligation against the employee or the employer or the employer’s workers’ compensation insurer unless the employee and the payor have agreed upon the diagnostic testing or treatment by the health care provider.
* * *
C. Emergency care....
(2) Fees for those services of the health care provider held not to have been of an emergency nature shall not be an enforceable obligation against the employee or the employer or the employer’s workers’ compensation insurer unless the employee and the payor have agreed upon the treatment or diagnostic testing by the health care provider, except as provided in R.S. 23:1272(D).
E. Exception. In the event that the payor has denied that the employee’s injury is compensable under this Chapter, then no approval from the payor is required prior to the provision of any diagnostic testing or treatment for that injury.

According to subsection E, when compens-ability is denied, no approval by the employer or payor is required for testing or treatment. Stewart v. Livingston Parish School Bd., 07-1881 (La.App. 1st Cir.5/2/08), 991 So.2d 469, 475. The statute does not specify “when” or “how” a denial of compensability must occur; it merely states that if the payor denies that an injury is compensable, the employee need not seek approval for medical treatment. Id.

Relying on Dr. Kinnard’s report, TGMC denied liability for any treatment rendered after October 26, 2007. Accordingly, we agree with the WO that such denial of compensability triggered the exception in LSA-R.S. 23:1142(E). See Stewart, 991 So.2d at 475-76. After a thorough review of the record and relevant jurisprudence, and considering the credibility findings by the WCJ, we are unable to find manifest error in the WCJ’s finding that Quick was entitled to reasonable and necessary medical treatment without approval even though she had been released to return to work by Dr. Kinnard. See LSA-R.S. 23:1203(A).

Nonetheless, TGMC urged that the WO erred in ordering it to pay for the care and treatment that Quick received at Ochsner Medical Center (Ochsner Clinic) for pain management purposes, as well as related expenses. This argument is in part based on lack of proof. In connection with a motion to strike by TGMC, the WO disallowed the introduction of the uncertified medical records from Ochsner Clinic. To recover past medical expenses, Quick had to establish the amount of such expenses. See Lanoue v. All Star Chevrolet, 03-0012 (La.App. 1st Cir.11/7/03), 867 So.2d 755, 761. The record lacks evidence of the medical bills and itemization of expenses paid to Ochsner Clinic by Quick and her insurer, most likely due to the exclusion of the Ochsner Clinic records by the WCJ. In the absence of proof of the expenses for treatment rendered by Ochsner Clinic, we vacate the portion of the judgment awarding past medical expenses and related expenses for treatment rendered by Ochsner Clinic.

TGMC next asserted that the WCJ erred in assessing penalties and attorney fees against it. After a thorough review of the record and relevant jurisprudence, and considering the credibility findings by the WCJ, we find that the WCJ’s extensive oral reasons for judgment adequately explain her decision with respect to the claimant’s entitlement to penalties and attorney fees for TGMC’s failure to pay medical expenses related to her emergency room care and its four-day delay in authorizing follow-up care by her family physician. As the issue involves no more than an application of well-settled rules to a recurring fact situation, we affirm the portion of the judgment awarding penalties and attorney fees.

Quick answered the appeal and requested additional attorney fees for the work necessitated by the appeal. Additional attorney fees are usually awarded on appeal when a party appeals, obtains no relief, and the appeal has necessitated additional work on the opposing party’s counsel, provided that the opposing party ap-propriately requests an increase. Loup v. Louisiana State Sch. for the Deaf, 98-0329 (La.App. 1st Cir.2/19/99), 729 So.2d 689, 694; see Hall v. McDonald Insulation, 537 So.2d 328, 333-34 (La.App. 1st Cir.1988). Because TGMC has obtained relief on the appeal, we do not award additional attorney fees to Quick for the appeal. See Ibrahim v. Hawkins, 02-0350 (La.App. 1st Cir.2/14/03), 845 So.2d 471, 485; Guidry v. Millers Cas. Ins. Co., 01-0001 (La.App. 1st Cir.6/21/02), 822 So.2d 675, 684.

For the foregoing reasons, we vacate those portions of the judgment of the Office of Workers’ Compensation Administration declaring that Ochsner Clinic is a health care provider who must be paid “directly for all past medical benefits incurred by ... Quick which was related to or was a consequence of the accident of August 26, 2007, including but not limited to prescription | f,medication, medical visits, diagnostic tests or treatment,” and ordering reimbursement to Quick “for all past medical benefits incurred by her which was related to or was a consequence of the accident of August 26, 2007, including but not limited to co-payments for and/or out of pocket expenses for prescription medication, medical visits, medical treatment, medical tests or mileage” relating to the care rendered by Ochsner Clinic. Otherwise, the judgment is affirmed in accordance with URCA Rule 2-16.2(A)(2), (4), (5), (6), and (8). Costs of this appeal are assessed to Terrebonne General Medical Center.

VACATED IN PART AND AFFIRMED IN PART.

      . In a letter dated November 12, 2009, Quick’s treating family physician, Dr. Richard Haydel, wrote that he was treating Quick for a back injury and she could not return to work. In a November 26, 2007 letter, Dr. Haydel further voiced his disagreement with Dr. Kinnard's opinion. He stated that Quick was still exhibiting back and hip pain and requested that she be given the opportunity to get a second opinion from another orthopedic surgeon or a neurosurgeon.

      . As previously stated, reimbursement of all medical expenses is limited to those that are necessary. LSA-R.S. 23:1203(A).

      . Louisiana Revised Statute 23:1203(D) provides:
      In addition, the employer shall be liable for the actual expenses reasonably and necessarily incurred by the employee for mileage reasonably and necessarily traveled by the employee in order to obtain the medical services, medicines, and prosthetic devices, which the employer is required to furnish under this Section, and for the vocational rehabilitation-related mileage traveled by the employee at the direction of the employer. When the employee uses his own vehi-ele, he shall be reimbursed at the same rate per mile as established by the state of Louisiana for reimbursement of state employees for use of their personal vehicle on state business. The office shall inform the employee of his right to reimbursement for mileage.

      . Furthermore, we note that an award of past medical expenses should reflect the specific dollar amount that the employer must pay to the claimant. See Stewart, 991 So.2d at 477.