Datasets:

free-law

/

la_embeddings

like 0

Follow

FreeLaw 14

DOMENGEAUX, Judge. Dorothy Smith King (King) commenced these proceedings to recover damages for the injuries she sustained as the result of an automobile accident. King named as defendants: (1) Vickie D. Louviere Greig (Greig), the driver of the vehicle which struck her car; (2) Waters Oil Tool & Supply, Inc. (Waters Oil Tool), Greig’s employer and the owner of the vehicle which struck the plaintiff; (3) State Farm Mutual Automobile Insurance Company (State Farm), Waters Oil Tool’s automobile liability insurer; and (4) Roger Allen Waters (Waters), the sole incorporator and owner of ninety-five percent of the Waters Oil Tool stock. Intervening in these proceedings was American Motorist Insurance Company (American Motorist). American Motorist was the worker’s compensation insurer of Avon Products, Inc. (Avon), King’s employer. The Trial Court rendered judgment in favor of King and American Motorist. The judgment in favor of King was rendered against Greig, State Farm and Waters Oil Tool, in solido. King was awarded $419,-252.15 with interest at the legal rate accruing from May 4, 1984. King’s award was itemized as follows: General damages $100,000.00 Past medical 3,409.58 Future lost income 270,480.00 Past lost income 45,362.57 Total $419,252.15 State Farm’s liability was limited to $100,-000.00, the extent of its policy, plus interest. The defendants were cast in judgment for all costs. American Motorist was adjudged subro-gated to the rights of King against the defendants for medical payments and weekly worker’s compensation. Judgment in favor of the intervenor amounted to $3,075.27 in medical payments and $16,-800.00 in weekly compensation. Waters, prior to trial on the merits, moved for and was granted summary judgment. Waters premised his argument in support of his motion on the grounds that he was not the owner of the automobile Greig was driving at the time of the accident. The defendant’s affidavit which accompanied his motion attested to the fact that the automobile was owned by Waters Oil Tool. On December 1,1983, shortly after noontime, King, in the course and scope of her employment with Avon, was driving her 1983 Plymouth automobile in an easterly direction on U.B. Landry Road in Lafayette Parish, Louisiana. Greig, at the same time, was driving her employer’s 1981 Oldsmobile in a westerly direction on the same highway. The drivers approached each other at what was described by Lafayette City Police Officer Randy Menard as a very sharp, ninety degree curve. According to Officer Menard’s testimony, the road was posted as a fifty mile per hour zone with a yellow warning sign indicating a curve and suggesting a speed of fifteen miles per hour to negotiate the curve safely. The Officer further indicated that the weather was “misty” and that the surface of the road was wet. Greig testified that as she approached the curve, which would have required that she turn to the right and the plaintiff turn to the left, she was traveling approximately thirty to thirty-five miles per hour, believing the highway was posted forty miles per hour. She stated that the curve was very sharp and that when she attempted to slow her car, three or four car lengths before the curve, she discovered that her brakes did not work. Greig told the Court that she pumped them, but that effort produced no results and she drove “clean across” the highway into the oncoming lane of traffic. The defendant testified that upon entering the oncoming lane the plaintiff was also attempting to negotiate the curve and that she struck King’s automobile on the driver’s side in the rear. King testified that as she was attempting to negotiate the curve she saw the defendant’s car “coming fast.” She stated that Greig’s vehicle crossed the center line striking her vehicle on the rear door and fender, causing the rear tire to blowout. She then testified that her car spun almost completely around and that she struck her head against the side window. King’s car eventually came to rest almost entirely off the highway. Greig, State Farm and Waters Oil Tool sought this appeal. The appellants contend that the Trial Court erred in four respects: (1) The Trial Court erred in finding Greig negligent, failing to conclude that sudden brake failure, unanticipated by the driver of a nonowned automobile is a defense to the liability of the driver; (2) The Trial Court erred in rendering an excessive general damage award of $100,000.00; (3) The Trial Court erred in awarding King $270,480.00 in lost future income; and (4) The Trial Court erred in awarding King $45,362.57 in lost past income. American Motorist, the intervenor, raised two additional issues for review. American Motorist suggests that the Trial Court erred in failing to award it interest on its judgment and that it should additonally be awarded all worker’s compensation benefits paid to or on behalf of King since the judgment of the District Court. The initial issue on appeal addresses the negligence attributed to the defendant Greig. The Trial Court, in oral reasons, concluded that the issue of liability could be resolved “summarily” and held that "the proximate cause of this accident was due to the sole negligence of the defendant.” Greig now appeals contending that as the driver of a nonowned automobile which experienced sudden, unanticipated brake failure she is free from fault and, therefore, liability. Subsequent to our review of the statutory and jurisprudential authority, we are unable to agree with the defendant. We believe the decision of the Trial Judge on this issue should be affirmed, however, we believe the reasoning to be erroneous and, therefore, assign other grounds. Our law currently provides that both the nonowner-driver and the owner of a vehicle which experiences sudden, unanticipated brake failure are strictly liable for the resulting damage, absent proof that the harm resulted from the fault of the victim, the fault of a third person or an irresistible force. The basis of this liability is La.Civ. Code art. 2317 (1870) which provides: We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications. The benchmark decision addressing article 2317 is, of course, Loescher v. Parr, 324 So.2d 441 (La.1975). The Loescher Court held that when harm results from a vice in a thing which creates an unreasonable risk of harm, the custodian of the thing is strictly liable for the damage occasioned. Our review of the jurisprudence has revealed that both the nonowner-driver and the owner of a vehicle which experiences sudden, unexpected brake failure are both custodians. The Louisiana Supreme Court in Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), commonly cited as authority for the manifest error standard of appellate review, held that both the nonowner-driver and the owner of a vehicle which experiences sudden brake failure are both custodians of the vehicle for the purposes of article 2317 and, therefore, are strictly responsible for any damage which may result. See also, Sikes v. McLean Trucking Co., 383 So.2d 111 (La.App. 3rd Cir.1980); But see, Smith v. Crown Zellerbach Corp., 385 So.2d 307 (La.App. 1st Cir.1980) (owner liable; nonowner-driver not a party). Although this result may appear to be a harsh imposition of liability on an unwary nonowner-driver, the nonowner-driver, although less culpable than the owner, is more culpable than the innocent plaintiff. Absent such a conclusion, the risk that an owner may not have properly maintained his or her automobile is borne by the injured plaintiff, who unlike the nonowner-driver, was in absolutely no position to evaluate the condition of the vehicle or the maintenance performed by the owner. The second issue on appeal addresses the Trial Court’s general damage award of $100,000.00. The appellants contend that the award is excessive and not supported by the evidence. We have reviewed the evidence and the jurisprudence addressing quantum, and we fail to agree. Our responsibility on appeal is to review the lower court’s determination and refrain from disturbing the judgment absent finding manifest error. La.Civ.Code art. 1934(3) (1870) (in effect on December 1, 1983); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). The integrity of a lower court award must not be violated without a finding by the reviewing court that the decision is clearly wrong. The primary considerations in assessing quantum are the severity and duration of the injured party’s pain and suffering. Article 1934(3), supra; Head v. St. Paul Fire & Marine Insurance Co., 408 So.2d 1174 (La.App. 3rd Cir.1982), writ denied, 412 So.2d 99 (La.1982); Anthony v. Hospital Service District No. 1, 477 So.2d 1180 (La.App. 1st Cir.1985), writ denied, 480 So.2d 743 (La.1986). We believe the evidence clearly establishes that King has and will continue to endure considerable pain and suffering, and that the judgment of the District Court should not be disturbed. King, at the time of the accident, was a fifty-year-old woman who was leading a very active and successful life. She had worked for Avon for approximately fifteen years, had progressed within the company and had been the recipient of the company’s highest honor, the Candle Circle Of Excellence Award. Subsequent to the accident, she has had to discontinue working, endure neck pain, bouts of depression, lack of energy, anxiety and the inability to sleep well. King’s initial medical attention came from her family doctor, an internist, Dr. Kenneth Edward McCarron. Doctor McCarron saw King on the date of the accident and on approximately fourteen other occasions from December 1, 1983 to the time of trial, October 29, 1986. Doctor McCarron prescribed a cervical collar, exercises and different medications, including cortisone injections. He described King’s condition as “chronic” indicating that, although it might not be permanent, it would be one of long duration with very slow progress. Shortly after King’s initial visit to Doctor McCarron, the doctor recommended that she see Peggy Taylor Hebert, a physical therapist. King saw Hebert on seven occasions over a two week period in mid-December, 1983. King, apparently at Doctor McCarron’s suggestion, did not return to the therapist after seeing Doctor McCarron for a two-week checkup. King’s neck, cervical and upper back pain had not been relieved. In early January, 1984, also at the suggestion of Doctor McCarron, King saw Dr. Stewart Phillips, an orthopedic surgeon. Doctor Phillips diagnosed King’s condition as cervical disc disease. He explained that King, who had previously had discs in her neck fused, had aggravated her former condition as a result of the accident. Doctor Phillips stated that he explained to King that her options were to either attempt additional fusion or to learn to limit her activities and accept her discomfort. The doctor stated that King chose to forgo any additional surgery and that he supported her decision. He explained that subsequent fusion operations rarely provide the profound relief experienced after the first procedure and that there exists a greater liklihood of complications as a result of a second fusion. King also saw, at the recommendation of her Ob-Gyn, Doctor Chesson, Sharon Ann Felder, a psychiatric or clinical social worker. Doctor Chesson suggested that King see Felder because she was experiencing depression, anxiety, a lack of energy, the inability to sleep well, and a decreased interest in sexual relations. King saw Felder on five or six different occasions. Felder concluded that the source of King’s problems was her inability to return to work. Felder arrived at this conclusion subsequent to considerable discussions with King regarding her time with Avon and the enjoyment she received from her job. King’s own testimony further revealed the extent of her discomfort and the dramatic change her life had undergone since the accident. She explained that unless she carefully limits her activity, in particular, the extent of her driving and any lifting or bending, she experiences pain which often requires a visit to Doctor McCarron’s office for a cortisone injection. King told the Court of her efforts to remain with Avon, including changing positions and attempting to alter her business activities, but that in the end she was both frustrated and depressed that her injuries had forced her to leave the job she so much enjoyed and at which she was so successful. It is for the above stated reasons that we decline to alter the lower court award of $100,000.00 in general damages. We do not believe the District Court was manifestly erroneous. The appellant’s third issue on appeal questions the correctness of the Trial Court’s decision awarding King $270,480.00 in lost future income. The Trial Judge based her decision primarily on the fact that at the time of the accident King was only fifty-years-old and was likely to work another fifteen years, until she was sixty-five. This decision rested on the fact that Avon had a retirement plan which commenced payments at age sixty-five and on the fact that King had testified that she did not anticipate, prior to the accident, retiring before age sixty-five. The Court then concluded, based on King’s prior earnings, that she would have earned, at the very least, $25,000.00 per year. The Judge multiplied $25,000.00 by fifteen years and arrived at a gross earnings figure of $375,-000.00. The Court then determined that because the plaintiff had intermittent periods in which she was pain free, she could obtain employment which would pay her minimum wage. Subtracting $104,520.00, fifteen years of minimum wage, from $375,000.00, the Court arrived at its lost future income award of $270,480.00. We are advised by the jurisprudence that calculations of lost future earnings are at best speculative and cannot be made with absolute certainty. Robinson v. Graves, 343 So.2d 147 (La.1977). In rendering a lost income determination, trial courts generally take into consideration the following factors: (1) age; (2) life expectancy; (3) work life expectancy; (4) any discount rate or inflation factor; (5) annual wage rate increases; and (6) probable future earning capacity. Freeman v. Harold Dickey Transport, Inc., 467 So.2d 194 (La.App. 3rd Cir.1985); Rivers v. Schlumberger Well Surveying Corp., 389 So.2d 807 (La.App. 3rd Cir.1980). Our obligation on appeal is to review the decision of the lower court and refrain from adjusting the award absent concluding that the trial court had abused its broad discretion and was manifestly erroneous. Unbehagen v. Bollinger Workover, Inc., 411 So.2d 507 (La.App. 1st Cir.1982). Subsequent to our review of the record, we do not believe the decision of the Trial Judge is manifestly erroneous. The plaintiff’s economic expert, Donald Woodward Cornwell provided the Trial Court with three sets of figures representing lost future income. Each of the figures represented a different period of time for which the plaintiff might have continued to work. Cornwell’s initial present value of future work life expectancy was $189,121.46 and was based on a work life of 7.08 years. This time frame was the average for a worker with King’s education, she had completed the 11th grade, and King’s age. The second estimation, $216,281.43, projected, using United States Department of Labor statistics, that King would be a member of the labor force for another 11.24 years. This conclusion rested on her age at the time of the accident. The economist’s final calculation projected King’s lost future wages to age sixty-five, the age at which she would have been eligible for Avon’s retirement benefits. This calculation resulted in an estimated lost future income of $283,123.07. Although the Trial Judge did not rely on the calculations of the expert, particularly excluding discounts for future earnings, consideration of sick leave, employer contributions to savings and other similar considerations, we do not believe that the judgment rendered by the lower court is erroneous. The Trial Judge’s award of $270,-480.00 is quite close to the third calculation of the economist, $283,123.07. We believe, because of the speculative nature of the calculation involved, that the Trial Court did not abuse its broad discretion. The appellants’ fourth issue on appeal addresses the Trial Court’s award of $45,-362.57 in lost past income. The appellants contend that this award is excessive because it includes $3,783.00 in domestic household help which was never established at trial. Subsequent to our review of the record, we believe that the appellants are correct and reduce the lower court award for lost past income by $3,783.00 to $41,579.57. The $3,783.00 in domestic help was a figure used by the economist, Cornwell, anticipating King’s inability to undertake household tasks herself. We have been unable to find any evidence that King employed any domestic help and, therefore, must amend the judgment accordingly. The final issues on appeal were raised by American Motorist. American Motorist was awarded $19,875.27 by the lower court. This award consisted of $16,-800.00 in weekly worker’s compensation benefits and $3,075.27 in medical benefits paid to King or on her behalf up to the time of trial. The intervenor maintains that because Greig, Waters Oil Tool and State Farm suspensively appealed the lower court judgment it has continued to pay King worker’s compensation benefits and that it is now entitled to be reimbursed for those payments. American Motorist suggests that it is entitled to the original judgment of $19,-875.27, plus judgment in the amount of ail benefits it has paid pending the resolution of this appeal. We believe that American Motorist’s subrogation rights entitle it to the judgment it seeks and we will, therefore, amend the lower court decision to reflect the increase. La.R.S. 23:1021, et seq. American Motorist also maintains that it, similar to King, should receive interest at the legal rate on all amounts it has paid in compensation benefits both pri- or to trial and pending final judgment. We believe the intervenor is correct and is entitled to the interest it seeks. Interest is, therefore, awarded to American Motorist on all sums paid prior to the intervention from the date of the intervention and on all sums paid subsequently, from the date those sums were paid. Lachney v. Motor Parts and Bearing Supply, Inc., 357 So.2d 1277 (La.App. 3rd Cir.1978); Willis v. Stauffer Chemical Co., 349 So.2d 1390 (La.App. 3rd Cir.1977), writ denied, 352 So.2d 1047 (La.1977). For the above and foregoing reasons, the judgment of the District Court in favor of Dorothy Smith King, the plaintiff, and American Motorist Insurance Company, the intervenor, and against Vickie D. Louviere Greig, Waters Oil Tool & Supply, Inc. and State Farm Mutual Automobile Insurance Company, the defendants, is amended in the following respects: (1) The judgment of the District Court awarding King $45,362.57 in lost past income is reduced to $41,579.57; (2) The judgment of the District Court awarding American Motorist $19,875.27 is increased to include all worker’s compensation benefits paid to or on behalf of King during the pendency of this appeal and all benefits it may pay up to the receipt of judgment by King; and (3) American Motorist is entitled to interest at the legal rate on all sums paid prior to its intervention, from the date of its intervention, and on all sums paid subse quent to its intervention, from the date those sums were paid. The judgment in all other respects is affirmed. All costs of this appeal are assessed: ninety percent to Greig, Waters Oil Tool and State Farm, and ten percent to King. AMENDED AND AFFIRMED. . In Coco, this Court at 330 So.2d 649 (La.App. 3rd Cir.1976) reduced the Trial Court’s award for general damages in which instance Domen-geaux, C. J., dissented, concluding that the award should be affirmed. On writs, the Louisiana Supreme Court adopted the rationale of the dissenting opinion and reinstated the Trial Court award. 341 So.2d 332, (La.1976).

In re Massachusetts Indem./Life; Steve Modica and Assoc.; Bill Whittle & Assoc. Inc.; applying for writ of certiorari and/or review; to the Court of Appeal, Fifth Circuit, No. 87-CA-0531; Parish of Jefferson, 24th Judicial District Court, Div. “L”, No. 305-446. Prior report: La.App., 520 So.2d 451. Denied. MARCUS and LEMMON, JJ., would grant the writ.

SCHOTT, Judge. We granted certiorari in order to consider the validity of a judgment of the trial court granting a motion for new trial in favor of respondent, Trunkline Gas Company, and setting aside two previous judgment in favor of relators, Cooper Brothers Welding Service, Inc. and First Insurance Company. The suit began with a claim by the plaintiff against Trunkline for injuries he sustained while working on Trunkline’s fixed platform on the Outer Continental Shelf off the Louisiana coast. Trunkline filed a third party demand against Cooper alleging that pursuant to a contract between Trunk-line and Cooper the latter was required to indemnify Trunkline and to have Trunkline insured under First’s policy. Trunkline also filed a third party demand against First claiming to be an insured under the policy First issued to Cooper. Cooper and First filed motions for summary judgment against Trunkline contending that the contract’s indemnity provisions were null and void by virtue of the anti-indemnity provisions of LSA-R.S. 9:2780. On June 26, 1987 the trial court granted Cooper’s motion but held that the anti-indemnity statute did not apply to an insurer and denied First’s motion. First applied to this court for supervisory writs claiming that the anti-indemnity statute applied to it as well as its insured, Cooper. On November 24 this court took the following action on First’s application: Writ Granted The trial court erred in denying relator’s Motion for Summary Judgment. LSA-R.S. 9:2780(A)(G). Respondent’s argument based upon Clarko Contractors, Inc. v. Texas Eastern Gas Pipeline, Co., 615 F.Supp. 775 (M.D.La.1985) is a new argument that was not addressed at the trial court level and, therefore, should not be addressed by this court. United States Fidelity & Guaranty Co. v. Victory Land, Inc., 410 So.2d 359 (La.App. 4th Cir.1982). In a December 8,1987 judgment the trial court acknowledged the foregoing decision of this court and dismissed Trunkline’s third party demand against First. However, on January 11, 1988 the trial court granted Trunkline’s timely motion for new trial with respect to the December judgment with the following decree: IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Motion for a New Trial filed by Trunkline Gas Company be, and it is hereby, grant ed, and that the Judgments heretofore granted in this matter in favor of Cooper Bros. Welding Service, Inc., and First Horizon Insurance Company be, and are hereby annulled, vacated and recalled. Cooper contends that the trial court erroneously recalled its judgment of June 26, 1987 because that judgment was final. This contention is correct. The dismissal of Trunkline’s demand against Cooper became a “thing adjudged” or res judicata when the time for taking an appeal from the judgment elapsed. LSA-C.C. art. 3556(31). Consequently the judgment of the trial court with respect to Cooper’s June judgment will be reversed and set aside. With respect to First’s application, Trunkline contends that the anti-indemnity statute is inapplicable to the contract between Trunkline and Cooper because Trunkline’s platform was not a drilling platform but was a valving platform servicing pipelines transporting gas to the mainland. This contention based originally on Clarko Contractors v. Texas Eastern Gas Pipeline, 615 F.Supp. 775 (M.D.La.1985) was found to be correct by this court in Griffin v. Tenneco Oil Company, 519 So.2d 1194 (La.App. 4th Cir., 1988), writs refused 521 So.2d 1154 (La.1988). Thus, it appears that Trunkline’s third party demand was erroneously dismissed in December and that the trial court properly grant ed Trunkline’s motion for new trial and recalled the December judgment. First’s principal contention is that the “law of the case” doctrine precludes Trunkline from prevailing on the principle recognized in the Griffin case because of the writ action taken by this court on November 24. First argues that when this court refused to consider Trunkline’s Clar-ko argument because it had not been theretofore made in the trial court but was made for the first time in this court in opposition to the earlier application for writs this court precluded further consideration of the argument in the trial court. A review of the precise action taken by this court in November and quoted above does not support First’s position. The court merely declared that the trial court had erred in denying First’s motion for summary judgment on the basis of what was before it at the time, i.e., without benefit of Trunkline’s Clarko argument. This court also stated that it would not consider this argument because it had not been addressed to the trial court. But this court did not grant First’s motion or order the trial court to do so. It did not prohibit the trial court from considering the new argument. Thus, the trial court erred in its December judgment when it declined to consider the argument, it properly granted Trunkline’s motion for new trial as to First, and properly set aside the December judgment as to First. Accordingly, the January 11, 1988 judgment of the trial court granting a new trial with respect to the June judgment in favor of Cooper Brothers Welding Services, Inc. and recalling this judgment is reversed and set aside; the judgment with respect to First Horizon Insurance Company is affirmed. REVERSED IN PART; AFFIRMED IN PART.

LeBLANC, Judge. Kevin J. Deville was charged by bill of information with distribution of cocaine, a violation of La.R.S. 40:967 A(l). Defendant pled not guilty. Following trial by jury, he was convicted as charged. The trial court sentenced defendant to a five year term of imprisonment at hard labor. Defendant brings this appeal, urging five assignments of error: 1. The trial court erred by accepting Mary Sue Trull as an expert in the analysis and identification of controlled dangerous substances. 2. The trial court erred by allowing the state to question Officer Louis Hyatt about conversations with defendant concerning other drug transactions. 3. The trial court erred by admitting State Exhibit I, the certificate of analysis, into evidence. 4. The trial court erred by denying defendant’s motion for a new trial. 5. The instant verdict is contrary to the law and to the evidence. FACTS The record reflects that defendant was arrested after selling one-eighth ounce of cocaine to undercover officer Louis Hyatt of the Louisiana State Police on September 17, 1986. Officer Hyatt testified that he learned from an informant that defendant would be willing to sell cocaine. Through the informant, Hyatt met defendant during the early morning hours of September 13. Defendant agreed to sell Hyatt one-fourth ounce of cocaine, but he was unable to complete the deal that night. During the initial contact, defendant indicated that he could sell two ounces of cocaine for $1800 per ounce. Hyatt next spoke with defendant by telephone on September 16. Hyatt testified that he telephoned defendant at the Soul Castle Lounge, inquiring if the two ounces of cocaine were still available. Defendant returned Hyatt’s call about fifteen minutes later, indicating that the man holding the two ounces of cocaine had returned to New Orleans. However, defendant did offer to sell Hyatt one-eighth ounce of cocaine. Hyatt accepted the offer. The next day Hyatt met defendant and gave him three hundred dollars in exchange for the cocaine. In furtherance of the sale of a larger quantity of cocaine, defendant met Hyatt later than evening. However, when defendant requested $1,000 in advance of delivery, Hyatt placed defendant under arrest. ASSIGNMENT OF ERROR NUMBER ONE: Defendant contends that the trial court erred when it accepted Mary Sue Trull, over his objection, as an expert in the identification of controlled dangerous substances. He argues that she lacked the necessary educational background to understand the testing procedures utilized herein. The record reveals that Ms. Trull, who conducted the substance analysis tests on the suspected cocaine, had worked as a drug analyst for the Louisiana State Police Crime Laboratory for about eight years. She held a B.S. degree in zoology and had taken six college chemistry courses, including organic chemistry and quantitative and qualitative analysis. She had also qualified in court as an expert in drug analysis more than fifty times. A proposed expert witness must satisfy the trial court as to his knowledge and competency in the field about which he is called upon to express an opinion. The competence of an expert witness is a question of fact to be determined within the sound discretion of the trial court. Its ruling on the qualification of an expert witness will not be disturbed in the absence of manifest error. State v. Myles, 432 So.2d 1018 (La.App. 1st Cir.1983). We find no manifest error in the trial court’s ruling in this instance. Ms. Trull’s educational background combined with her vast experience supported her qualification as an expert. This assignment of error lacks merit. ASSIGNMENT OF ERROR NUMBER THREE: Defendant contends that the trial court erred by admitting State Exhibit I, the certificate of analysis, into evidence over his objection. He argues that it was not demonstrated that Ms. Trull had the expertise to conduct these tests or that the equipment utilized was properly maintained. In assignment of error number one, we addressed defendant’s argument that Ms. Trull was not qualified as an expert in the identification of controlled dangerous substances and rejected it. At trial, Ms. Trull gave a detailed explanation of the screening tests utilized in identifying cocaine. Defendant than had the opportunity to challenge the accuracy and reliability of the test results. During his cross-examination, defense counsel questioned Ms. Trull extensively concerning the conditions under which the tests were conducted and the safeguards taken to assure their validity. Ms. Trull testified that the apparatus employed were “state of the art” and in such a condition as to allow for accurate experimentation. There is nothing of record to indicate that the accuracy of these test results was not safeguarded. Defendant argues that the state should be required to comply with detailed state promulgated regulations, as with the handling of blood-alcohol testing. However, the legislature has not mandated such regulation by the state for the testing of cocaine but, rather, has left that responsibility with those who prepare forensic science handbooks. The general rule is that results of scientific tests and expert opinions based thereon are admissible if the scientific principle is generally considered reliable and accurate by the scientific community when conducted by a competent individual. See State v. Boyer, 406 So.2d 143, 147 (La.1981). It is apparent that Ms. Trull was extremely competent in this area. Accordingly, this assignment of error lacks merit. ASSIGNMENT OF ERROR NUMBER TWO: Defendant argues that the state imper-missibly elicited references to other crimes evidence when it questioned Officer Louis Hyatt about his conversations with defendant directed toward the purchase of two ounces of cocaine. Initially, we note that defendant did not object to the first reference by Officer Hyatt to the intended purchase. When de-. fendant did finally object, it was only on! the basis of relevance. A new ground for-objection cannot be urged for the first time on appeal. See State v. Hookfin, 476 So.2d 481, 492 (La.App. 1st Cir.1985). Moreover, even had defendant urged this ground, it would have been mer-itless. The general rule is that the prosecution may not introduce evidence of other criminal acts of defendant. An exception is made if the evidence is substantially relevant to some purpose other than to show defendant is a bad person, therefore more likely to have committed the charged offense. The prohibition does not bar admission of criminal acts that form part of the res gestae. See La.R.S. 15:447; 15:448; State v. Belgard, 410 So.2d 720 (La.1982). In addition, State v. Prieur, 277 So.2d 126, 130 (La.1973), does not require the state to provide notice to defendant of crimes that fall within the res gestae exception. State v. Belgard, supra. In the instant case, discussion of the intended purchase of two ounces of cocaine occurred both before and after defendant had sold Officer Hyatt cocaine. Thus, it was part of the continuous transaction of drug distribution between defendant and the officer. Moreover, defendant invoked the defense of entrapment. When entrapment is a defense, the prosecution may introduce evidence of other criminal activity to show a defendant’s predisposition to commit the crime. See State v. Batiste, 363 So.2d 639 (La.1978), on rehearing. Although the actual purchase of two ounces of cocaine involved a future criminal act, the discussion was material to defendant’s predisposition to distribute cocaine. For the foregoing reasons, this assignment of error lacks merit. ASSIGNMENT OF ERROR NUMBER FIVE: By this assignment of error, defendant argues that the trial court erred in failing to find the defendant not guilty on the basis of his affirmative defense of entrapment. He argues that he had no prior disposition to commit the instant offense and that the offense was instead designed and initiated by the undercover officer and his informant. An entrapment is perpetrated when a law enforcement official or a person acting in cooperation with such an official for the purpose of obtaining evidence of the commission of an offense solicits, encourages, or otherwise induces another person to engage in conduct constituting such offense when he is not otherwise so disposed. State v. Batiste, at 641. When entrapment is at issue, the focal point of the inquiry is on the predisposition of the defendant to commit the crime at issue as well as on the conduct of the police. Id. An entrapment defense will not lie if the officers or agents merely furnished a defendant who is predisposed to commit the crime the opportunity to do so. State v. Moody, 393 So.2d 1212, 1216 (La.1981). The relevant inquiry is whether the defendant adduced evidence of his entrapment such that any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could conclude that defendant had not proved by a preponderance of the evidence that he was entrapped. State v. Brand, 506 So.2d 702 (La.App. 1st Cir.1987), affirmed 520 So.2d 114 (La.1988). The trier of fact apparently determined that the undercover officer did not induce the crime but merely afforded defendant an opportunity to commit the offense. That conclusion is supported by the record. In defendant’s own testimony in regard to the drug sale, he admitted to already having possession of the cocaine prior to its distribution. In addition, he acknowledged that he was stringing along Hyatt hoping to make more money by finding a larger supply of cocaine. We find, therefore, that any rational trier of fact could have concluded that defendant failed to establish the defense of entrapment by a preponderance of the evidence. This assignment of error has no merit. ASSIGNMENT OF ERROR NUMBER FOUR: By this assignment, defendant contends that because of errors urged in the other assignments, he should have been granted a new trial. Having found no merit to defendant’s other assignments of error, this assignment of error lacks merit. AFFIRMED.

KNOLL, Judge. For the reasons stated in the companion case of Dugas v. W.R. Cason, 524 So.2d 1248 (La.App. 3rd Cir.1988), in which a separate decision is being rendered by us this day, the judgment of the trial court granting Dugas’ motion to strike is reversed and remanded. All costs of this appeal are assessed to the appellee, Ernest G. Dugas. REVERSED AND REMANDED.

YELVERTON, Judge. Plaintiff, Vinell Williams, filed suit against his former employer, Union Tank Car Company, through its Lithcote Company Division (Lithcote) to recover worker’s compensation benefits, penalties, and attorney’s fees as a result of a work related accident on May 28, 1985. From a judgment finding plaintiff temporarily totally disabled under La. R.S. 23:1221 (1) and entitled to training and rehabilitation under R.S. 28:1226, and further awarding penalties and attorney’s fees, the defendant has appealed. We affirm. Lithcote raises two issues on appeal. The first is whether the trial court erred in finding the plaintiff temporarily totally disabled within the odd lot doctrine under La. R.S. 23:1221(1). The second is whether the trial court erred in finding Lithcote arbitrary and capricious in failing to provide medical care and weekly compensation, entitling plaintiff to penalties and attorney’s fees. DISABILITY As this court stated in Valley v. Ameri-can Insurance Co., 510 So.2d 449 (La.App. 3rd Cir.1987): [2-4] A trial court’s factual findings concerning work related disability should not be disturbed on appeal unless the evidence does not furnish a reasonable basis for the findings or the findings are clearly wrong. Notto v. Morton-Norwich Products, Inc., 498 So.2d 1158 (La.App. 3rd Cir.1986). A finding by the trial court that pain prevents a claimant from working is a question of fact. Newell v. United States Fidelity & Guaranty Company, 368 So.2d 1158 (La.App. 3rd Cir.1979). Great weight is afforded a trial court’s findings on the credibility of a claimant in a worker’s compensation case. Dominick v. CNA Insurance Company, 497 So.2d 758 (La.App. 3rd Cir.1986), writ denied, 501 So.2d 231 (La.1987). In the present case the trial judge wrote excellent reasons for judgment carefully explaining his findings of fact. His reasons for judgment are as follows: “From the evidence, the court finds as a fact proven that plaintiff, Vinell Williams, was employed by defendant on May 28, 1985; that on that date he suffered an accident, during the course and scope of his employment; then attempted to return to work about August 10, 1985, at which time he worked for about one and one-half hours, being unable to continue due to his inability to perform the work assigned him because of the very severe and constant pain he experienced while attempting to do so. The work he was told to perform consisted of carrying one and a quarter inch pipes about twenty feet long a distance of about thirty feet, and heating the ends of it with a torch in order to flatten them with a big hammer. “A great deal of the information regarding plaintiff’s employment, salary, and other pertinent information, was obtained from the testimony of Peggy Las-trapes, clerk at Lithcote, who was in charge of the company records of the defendant. The Court understood that the last check plaintiff received was dated August 13, 1985. “Plaintiff testified that he is a married man 32 years old and has two children, a girl ten years old, and a boy five years old. He is a high school graduate, and attended a trade school at Yidrine while in high school, studying welding and auto mechanics. He also attended the Ville Platte Vo-Tech school for a very short period of time, about one week. A few years ago he did some mechanic work at Pitre Ford Company. He was employed at Lithcote for about 8 years at the time of the accident. His work record consists almost entirely of heavy manual labor. He suffered one or two minor accidents during his employment at Lithcote, but returned to work after only a few days off, and the court understands that he made no claims or filed any suit against his employer. “On the day of the accident he was inside a tank car and had an air machine belt around his waist, and was operating a big air powered grinder machine. A transformer very near to the tank car blew up and caused a loud noise, and much electrical activity inside and around the tank car. Plaintiff climbed out of the car, and as he says ‘panicked’, and jumped from atop the car onto the concrete nearby and injured himself. Workers all about him were scurring (sic) away from the frightening electrical phenomenon, trying to get out of harms way, not really understanding at the time what had happened. “Plaintiff complained of having been injured to a supervisor who told plaintiff to go to the front office. He went there and was given a cold drink, and told to rest a while. He remained there about forty-five minutes to an hour. Although it appears that plaintiff was not categorically denied medical attention, he was certainly discouraged to say the least, from going to the doctor to see about the injuries he claimed to have suffered from the accident, a rather unusual attitude for the employer to take toward an employee who exhibited symptoms of having been just injured in an unusual accident. R.S. 23:1122. “After a while, he went home, but two days later [he was] still suffering severe pain. He complained to his employer, and on May 30, 1985, plaintiff was sent by defendant to their physician, Dr. Barney Fusilier, who examined and treated plaintiff, and whose diagnosis was an acute lumbo-sacral strain. “Later, Dr. Fusilier became ill and could no longer treat plaintiff. Dr. Fusilier testified that he saw about 70% of all employees of defendant when they required medical attention as a result of injuries received on the job so he was, in effect, the defendant’s company doctor. Dr. Fusilier treated plaintiff but for a very short time, and therefore, in the Court’s opinion could not adequately evaluate his long-term condition, and consequently his opinion is of limited probative value. “As Dr. Fusilier was no longer able to attend to plaintiff he decided to consult another physician. This physician was Dr. A. John Tassin of Ville Platte, La. Dr. Tassin examined and treated plaintiff, and indeed continues to do so. “Dr. Tassin, being of the opinion that plaintiff needed an orthopaedic examination referred him to Dr. Frank Anders, an orthopaedic surgeon, who examined and treated him, and recommended among other things, a lumbosacral corset, which plaintiff wore. “The whole tenor of Dr. Ander’s (sic) deposition is that plaintiff is suffering from a serious injury which may or may not improve, and which precludes him from engaging in heavy manual labor at this time, but is able to engage in light work. “Dr. Tassin requested that plaintiff undergo a C T Scan. The scan showed profusion (sic) of the disc at L-4 and L-5 level, a sign of a possibly very serious condition with grave consequences. According to Dr. Tassin’s deposition he is still disabled, and under his medical care and treatment. Pages 25 and 32 of Dr. Tassin’s deposition. “Defendants then had plaintiff examined by Dr. William Louis Meuleman, an orthopaedic surgeon of Lafayette, Louisiana. His report is in evidence. While the report recites a fair history, and his examination seems quite adequate, his opinion appears to the court to be somewhat ambigous (sic) and inconclusive. Because of this, the court does not give too much weight to his conclusions. “Plaintiff’s wife also testified that he complains a lot of pain. He can no longer perform chores around the house, such as cutting grass, etc., and uses a cane most of the time. He drives very little, and usually for short distances, although he has driven to Lafayette, La. “Plaintiff attempted, on the advice of his physicians, to return to light duty work. He was given regular duties as Lithcote has no provision for light duty work for its injured employees. John H. Lavergne, production superintendent at Lithcote, and Carroll Fontenot, a supervisor there, so testified. He worked about one and one-half hours and had to quit due to excessive pain. He never returned to work, and according to him, he is unable to do so now, or in the foreseeable future, as he continues to suffer severe back pain and numbness in both legs. “A thorough and systematic review and evaluation of the medical testimony in this case convinces the court that Dr. Fusilier, due to circumstances beyond his control, was not able to form a full and factual opinion of the plaintiff’s condition, and to provide a comprehensive prognosis. “Dr. Meuleman’s report has already been commented upon by the court. Dr. Razza’s report is more complete than Dr. Meuleman’s, and therefore, the court gives greater weight to it. The depositions of Dr. Anders and Dr. Tassin are to the effect that plaintiff cannot engage in heavy physical labor at the present time, but possibly could do light duty. Their prognoses, however, are guarded. “During all this time, Lithcote knew that plaintiff was still suffering from his injuries. They had medical reports which so indicated, and yet refused to pay for his medical expenses, and stopped his compensation payments. “There are two issues for determination by the court: 1. Disability; and 2. Penalties and attorney fees. “The court has carefully reviewed all the evidence in this case and the law and jurisprudence governing, and finds as a fact proven that plaintiff is temporarily totally disabled, and falls within the ‘odd lot’ doctrine under Section 1221 (1) of the 1983 worker’s compensation act; and is entitled to supplemental earnings benefits under Section 1221 (3) of the act should he secure any employment; and further, plaintiff is entitled to training and rehabilitation under Section 1226 of said act. The court further finds that plaintiff has proven his case as required by law. “The court is of the opinion that plaintiff can, with proper medical treatment and rehabilitation, re-enter the labor pool and become once again a self-supporting and productive member of society. This is, after all, one of the purposes of the Louisiana Worker’s Compensation Law as the court interprets it. “For the foregoing reasons the court finds that plaintiff is entitled to recover from defendant weekly compensation benefits of $248.00 from May 28,1985, to date, (credit to be given for sums previously paid) and to continue receiving this amount until a further determination by this court, with compensation payments brought up to date, and with interest on all past due payments; and further, plaintiff is entitled to recover all medical and other recoverable expenses incurred in connection with the injury suffered which have not been paid, reserving to plaintiff to receive and recover those future medical and other necessary expenses resulting from the injuries he received in the accident. Thomas v. Elder Pallet & Lumber Sales, Inc., 493 So.2d 1267 (La.App. 3rd Cir.1986).” After a careful review of the record we find that we agree with the trial court. Plaintiff proved by a preponderance of the evidence that he suffered from a disability which continued through the trial, and that his condition will most likely improve within a foreseeable time. Accordingly, we cannot say that the trial court was clearly wrong in its finding of temporary total disability. Cf. Thomas v. Elder Pallet & Lumber Sales, Inc., 493 So.2d 1267 (La.App. 3rd Cir.1986), writ denied 497 So.2d 312 (La.1986). Lithcote emphasizes in its brief that plaintiff should not have been found temporarily totally disabled because his doctors testified that he could perform light duty work, and that plaintiff was offered light duty work but he refused it. However, the evidence reveals that plaintiff attempted to perform the light duties assigned to him and he had to leave due to severe pain. The evidence also reveals that the plaintiff had worked mostly at heavy manual labor and that his lack of education and training, and his disability made it unlikely that he could secure suitable employment. Accordingly, the trial court did not err in applying the odd lot doctrine, in finding plaintiff classified as an odd lot claimant, and in ordering rehabilitation. See Thomas v. Elder Pallet & Lumber Sales, Inc., supra. The trial court also awarded the plaintiff attorney’s fees in the amount of $5,000 and penalties. Lithcote argues this award was in error. We disagree. The trial court’s determination that an award of penalties and attorney’s fees is warranted is based on a finding of fact and his decision should not be disturbed unless it is clearly wrong. Valley v. American Insurance Co., supra. The defendant herein was fully aware of the medical reports which reflected that plaintiff had suffered an injury to his back which severely restricted his activities. The reports suggested that plaintiff could return to light duty, however he was not supposed to bend, stoop, lift objects weighing more than 25 pounds, or stay in one spot for longer than 30 minutes. Lithcote ordered the plaintiff to return to “light duty” work which, the trial court found and the record supports, was not light duty work at all, but required lifting heavy objects as well as bending and stooping. The plaintiff had to leave after an hour and a half due to severe pain. The defendant promptly terminated plaintiff’s workmen’s compensation benefits on that very date. Under these facts the record fully supports the trial court’s finding of defendant’s arbitrary and capricious termination of benefits. For these reasons the judgment of the lower court is affirmed at defendant’s costs. AFFIRMED.

KLEES, Judge. The defendant, Donald Newsome, was charged on February 18, 1987 by bill of information with aggravated arson, a violation of R.S. 14:51. Newsome pleaded not guilty at his arraignment on February 24, 1987. On March 27, 1987, Newsome was found guilty as charged by the jury. He was sentenced on April 30, 1987 to twenty years at hard labor, the first two years to be served without benefit of parole, probation or suspension of sentence. From his conviction and sentence he appeals. FACTS Defendant was the ex-boyfriend of Maxine Curry, whom he had dated briefly in November 1986. After Ms. Curry ended their relationship and became involved with someone else, the defendant continued to come by her apartment in the Desire Housing Project. On these occasions she called the police to make the defendant leave. On January 11, 1987 Ms. Curry and her new boyfriend, Ishmel Wallace, were sitting on the bed in her bedroom playing cards, when the defendant began to throw flaming oil cans through her window, causing the plastic window panes to melt and the curtains to catch on fire. Her five sons and her brother were also in the apartment. Wallace went to the door and told the defendant to leave. The defendant brandished a gun and threatened to kill everyone in the apartment. The fire and police departments were called while Wallace and others attempted to put out the fire. The fire was subsequently put out and the defendant apprehended. We have reviewed the record for errors patent and find none. ASSIGNMENT OF ERRORS In his sole assignment of error, the defendant argues that his sentence is excessive. The trial court imposed the maximum penalty for aggravated arson under R.S. 14:51; twenty years at hard labor, the first two years to be spent without benefit of parole, probation or suspension of sentence. A sentence is excessive if it is grossly out of proportion to the severity of the crime and is nothing more than the purposeless and needless imposition of pain and suffering. State v. Brogdon, 457 So.2d 616 (La.1984), cert. denied, Brogdon v. Louisiana, 471 U.S. 1111, 105 S.Ct. 2345, 85 L.Ed.2d 862, reh. denied, Brogdon v. Louisiana, 473 U.S. 921, 105 S.Ct. 3547, 87 L.Ed.2d 670 (1985). In determining if a sentence is excessive, the appellate court must first review whether the trial judge follows the sentencing guidlines, the sentence must not be set aside unless the trial judge has abused his wide sentencing discretion. State v. Quebedeaux, 424 So.2d 1009 (La.1982), appeal after remand, 446 So.2d 1210 (La.1984). In this case, the trial judge followed the C.Cr.P. 894.1 guidelines. The judge noted that the defendant was a twenty-two year old, single construction worker whose criminal history included arrests for battery, resisting arrest, aggravated assault, disturbing the peace and battery upon a police officer. He further commented on the serious nature of the crime evidenced by defendant’s threats to kill everyone in the apartment, including Ms. Curry’s five sons, while armed with a gun. He also commented on defendant’s lack of remorse and hostile, uncooperative attitude. He further found that a lesser sentence would deprecate the seriousness of the crime, the “enormity of which boggles the mind” since the defendant “made a serious attempt to burn to death five young children and several adults”. Few decisions are reported that address the appropriateness of sentences imposed for aggravated arson. None were found in which the trial judge imposed the maximum twenty year sentence. However, in State v. Simmons, 443 So.2d 512 (La.1983), a fifteen year sentence was imposed for this crime where defendant set fire to a bingo hall containing approximately 100-150 individuals. Other courts have imposed the following sentences for aggravated arson: ten years in State v. Washington, 421 So.2d 887 (La. 1982) where defendant was a third offender and set fire to the jail where he was incarcerated; nine and one half years in State v. Smith, 448 So.2d 778 (La.App. 2nd Cir.1984) where drunk defendant set fire to the house where his wife lived; six years in State v. Williams, 457 So.2d 610 (La.1984) where defendant set fire to the hotel at which his ex-girlfriend worked; seven years in State v. Barnes, 495 So.2d 310 (La.App. 4th Cir.1986) where defendant set fire to ex-girlfriend’s house. Notwithstanding the absence of decisions in which the trial court imposed a maximum penalty for aggravated arson, given the facts of this case we conclude that it was not an abuse of the trial court’s discretion in imposing this sentence. The defendant indicated his intention to set fire to his ex-girlfriend’s apartment and to kill her, her boyfriend, her brother and her five children. He stayed outside the apartment waving a gun so that the occupants of the house, even though the apartment was on fire, were afraid to leave the apartment for fear of being shot. Under these facts the imposition of the maximum penalty was warranted. The sentence is not disproportionate to the crime. Nor does the imprisonment result in “purposeless and needless imposition of pain and suffering” since the trial court correctly concluded that the defendant’s incarceration was necessary to protect the public. Accordingly, for the reasons discussed the conviction and sentence are affirmed. AFFIRMED. PLOTKIN, J., dissents with reasons.

In re Hall, John; applying for writ of certiorari and/or review, and supervisory Writs; to the Court of Appeal, Second Circuit, No. 19312-KA; Parish of Ouachita, 4th Judicial District Court, Div. “G”, No. 43721. Prior report: La.App., 519 So.2d 391. Denied.

"GOTHARD, Judge.\nA summary judgment below dismissed in part this indemnification action by a genera(...TRUNCATED)

"DOMENGEAUX, Judge.\nThe plaintiff-appellant, Cathryn Gibbs, filed suit against defendant-appellee, (...TRUNCATED)