
    PETER D. VIZZI, M.D., A Medical Corporation v. LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT.
    No. 10-623.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.
    Rehearing Granted Feb. 2, 2011.
    Opinion on Rehearing Nov. 2, 2011.
    Katherine A Theunissen, Mahtook & La-fleur, Lafayette, LA, for Defendant-Appellant Lafayette City-Parish Consolidated Government.
    Kevin Scott Frederick, James P. Doherty, III, Frederick Law Firm, Lafayette, LA, for Plaintiff-Appellee Peter D. Vizzi, M.D., A Medical Corporation.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and ELIZABETH A. PICKETT, Judges.
   PICKETT, Judge.

| iThe appellant, Lafayette Consolidated Government, appeals a- judgment of the trial court awarding. Peter Vizzi, MD, A Medical Corporation (Dr. Vizzi) $14,062.00 in a suit on an open account plus attorney fees. Dr. Vizzi answers the appeal, seeking additional attorney fees for work done on appeal.

STATEMENT OF THE CASE

The Lafayette City Police responded to a call that someone had attempted to break into a home. When the police arrived, they discovered that the homeowner had shot the intruder, Quintín Contrell Sam, in the leg. The police placed Mr. Sam under arrest, and then a police officer accompanied Mr. Sam to the hospital, where he was treated by Dr. Vizzi.

Dr. Vizzi filed a Petition on Open Account against Lafayette Consolidated Government (Lafayette) and Mr. Sam for the amount of the services he provided, $14,062.00, plus attorney fees, alleging that, pursuant to La.R.S. 15:304, the parish was liable because Mr. Sam was under arrest at the time Dr. Vizzi treated him. Lafayette denied they were responsible for paying for Mr. Sam’s treatment and filed a cross-claim against Mr. Sam. Both Lafayette and Dr. Vizzi filed motions for summary judgment. Following a hearing, the trial court denied Lafayette’s motion for summary judgment and granted Dr. Viz-zi’s motion for summary judgment. The trial court awarded’ Dr. Vizzi '$14,062.00 on the open account, $4,687.33 in attorney fees, and legal interest from- the date of judicial demand. Lafayette now appeals, and Dr. Vizzi has answered the appeal.

| ^ASSIGNMENTS OF ERROR

Lafayette Consolidated Government asserts three assignments of error:

1. The trial court erred in finding that LCG was responsible for medical expenses for treatment of a criminal suspect who was shot and wounded prior to any involvement by police officers.

2. The trial court erred in concluding that the underlying facts were undisputed warranting the grant of summary judgment.

3. The trial court erred in awarding attorney’s fees pursuant to the Louisiana Open Account statute, La.R.S. 9:2781.

Answering the appeal, Dr. Vizzi seeks attorney fees for work done on appeal.

DISCUSSION

Appellate courts review summary judgments de novo, using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730. Summary judgment is appropriately granted if there are no genuine issues of material fact and if the mover is entitled to judgment as a matter of law. Id.

Louisiana Revised Statutes 15:304 states, in pertinent part:

All expenses incurred in the different parishes of the state or in the city of New Orleans by the arrest, confinement, and prosecution of persons accused or convicted of crimes, their removal to prison, the pay of witnesses specifically provided for by law, jurors and all pros-ecutorial expenses whatever attending criminal proceedings shall, be paid by the respective parishes in which the offense charged may have been committed or by the city of New Orleans, as the case may be. The éxpenses shall be paid by the parish treasurer or by the city of New Orleans after an account of the expenses shall be duly certified to be correct by the presiding judge and the clerk of court.

Lafayette argues that since Mr. Sam was wounded by a third party before he was arrested, the parish should not be held liable for the medical bills associated with his treatment. We disagree. As soon as Mr. Sam was placed under arrest, the parish |sbecame liable for his necessary medical care. The record makes clear that Mr. Sam was under arrest and was being removed to prison when he was treated by Dr. Vizzi.

We find that once Mr. Sam was placed under arrest, La.R.S. 15:304 requires that the parish bear the expense of any medical treatment he may have needed. We also do not find persuasive the argument advanced by Lafayette that Dr. Vizzi was obligated to provide treatment to Mr. Sam, and that he should bill Medicaid. At the time of the treatment, Mr. Sam was in the custody of the police, and therefore the parish is obligated to pay for his treatment. The first assignment of error lacks merit.

As to the parish’s second assignment of error, we find that it is unnecessary to determine if the expenses were incurred “by the arrest” of Mr. Sam, as our discussion of the previous assignment explains. Furthermore, the argument that the procedure required by La.R.S. 15:304 was not followed or that the amount awarded was not reasonably proven are affirmative defenses that were not pled or raised in the trial court. See La.Code Civ.P. art. 1005. As these issues were not submitted to the trial court, we will not consider them on appeal. See Uniform Rules — Courts of Appeal, Rule 1-3. This assignment of error lacks merit. •

Finally, Lafayette argues that the trial court erred in awarding attorney fees pursuant to the open account statute, La.R.S. 9:2781. We find that the open account statute was properly utilized by Dr. Vizzi, and the award of attorney fees was proper under that provision. Furthermore, we find no abuse of discretion in the trial court’s award of attorney fees. See Industrial Screw & Supply Co., Inc. v. WPS, Inc., 05-1188 (La.App. 3 Cir. 4/5/06), 926 So.2d 134, writ denied, 2006-1063 (La.6/23/06), 930 So.2d 986. This assignment of error lacks merit.

|4The judgment of the trial court is affirmed. We decline to award Dr. Vizzi additional attorney fees for work done on appeal, as we find the amount awarded by the trial court adequate. Costs in the amount of $351.18 are assessed to the appellant, Lafayette Consolidated Government.

AFFIRMED.

ON REHEARING

Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, ELIZABETH A. PICKETT, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.

PICKETT, Judge.

pFor the reasons assigned in the original opinion released by a three-judge panel of this court on December 8, 2010, the judgment of the trial court is affirmed.

AFFIRMED.

COOKS, J.,

dissenting.

|J disagree with the majority’s decision to reaffirm the earlier opinion in this matter. I believe the earlier opinion was in error, and I would reverse the judgment of the trial court and render judgment in favor of Lafayette City-Parish Consolidated Government.

Quintín Contréll Sam allegedly robbed a taxi driver, fled from the scene, and attempted to force his way into á private residence occupied by Mr. George Richard. In the attempt to eiiter the house, Mr. Sam was shot in the leg by Mr. Richard, who then called 911. Shortly thereafter, Acadian Ambulance and the police (after being notified by 911) arrived on the scene to find Mr. Sam injured. Mr. Sam was transported to Lafayette General Medical Center for emergency medical care by Acadian Ambulance. At some point prior to his arrival at the hospital, he was arrested. Mr. Sam was treated for his injuries by Dr. Peter Vizzi, who was Lafayette General’s on-call physician in the emergency room at that time.

Dr. Vizzi contends the Parish is liable because Mr. Sam was under arrest at the time Dr. Vizzi treated him. I disagree.

There are no disputed issues of fact in this case. The sole issue before us is whether La.R.S. 15:304 requires Lafayette to pay .the medical expenses of Mr. Sam under the facts of this case. La.R.S. 15:304 provides in pertinent part:

li>All expenses incuired in the different parishes of the state or in the city of New Orleans by the arrest, confinement, and prosecution of persons accused or convicted of crimes, their removal to prison, the pay of witnesses specifically provide for by law, jurors and all prosecutorial expenses whatever attending criminal proceedings shall be paid by the respective parishes which the offense charged may have been committed or by the city of New Orleans, as the case may be.

(Emphasis added.)

The statute specifically requires that expenses must be incurred as a result of “arrest, confinement and prosecution.” In this case, it is plainly obvious the resultant medical treatment required by the injury was not an “expense incurred ... by the arrest” of Mr. Sam as the statute mandates.

When the law is clear and unambiguous, and its application does not result in absurd consequences, it shall be applied as written and no interpretation may be made in search of the legislature’s intent. La. Civ.Code art. 9. When a statute is clear, the court must give credence to the mandate expressed by the legislature. Vogt v. Board of Levee Commissioners of the Orleans Levee District, 95-1187 (La.App. 4 Cir.9/4/96), 680 So.2d 149. Further, courts may not extend statutes to situations, which the legislature never intended to be covered thereby. Schackai v. Louisiana Board of Massage Therapy, 99-1957 (La.App. 1 Cir.9/22/00), 767 So.2d 955.

Counsel for Dr. Vizzi argued because the arrest occurred before Sam arrived at the hospital, the Parish is required to shoulder financial responsibility for the ar-restee’s care. I do not agree. The plain wording of La.R.S. 15:304 clearly provides that the Parish is only responsible for expenses that are “incurred ... by the arrest, confinement, and prosecution of persons accused or convicted of crimes.” The legislature did not intend to hold governmental entities financially responsible for situations they did not cause or that did not occur during the confinement of an arrestee or prisoner.

Dr. Vizzi cites Southwest Louisiana Hospital Association v. Hunt, 551 So.2d 818 (La.App. 3 Cir.1989) for his position that La.R.S. 15:304 places responsibility on the Parish in this case. In Hunt an inmate in the Beauregard Parish jail required hospitalization after being beaten by an inmate. The hospital eventually brought a suit for open account against curatrix of the inmate for payment of medical services. The curatrix of the inmate brought a third party action against the parish police jury. The trial judge found the police jury was responsible under La. R.S. 15:304 for the inmate’s medical care. The trial court specifically noted that at the time the injury was suffered the inmate was incarcerated in the parish jail. This court agreed with the trial court, specifically finding the police jury was statutorily responsible for the inmate’s medical care “while he was an inmate in the parish jail.” Id. at 820.

The' facts in Hunt are clearly distinguishable from those in the present case. Hunt involved injuries sustained by an inmate from another inmate while in the care and custody of the parish jail.

Dr. Vizzi also cites Opinion No. 89-308, of Louisiana’s Office of the Attorney General in support of his position. In that opinion, the attorney general concluded the parish was liable for the medical expenses of a subject who was shot by police while attempting to run through a roadblock. In reaching this conclusion, the attorney general stated:

In the present case, the subject was shot by law enforcement officials in the process during their attempt to arrest the subject. At that point, it became the duty of the Police Jury under R.S. 15:304 and Amiss v. Dumas[, 411 So.2d 1137 (La.App. 1 Cir.1982) ] to provide medical care to the subject.

As the Attorney General’s opinion specifically notes, the injury occurred during the police attempt to arrest the subject. Clearly that instance is distinguishable from this case. Here the injury occurred prior to law enforcement arriving on the scene.

| ¿The Parish is not automatically responsible for payment of expenses associated with an independent ambulance service bringing an injured man to a hospital for necessary medical treatment. Simply because Mr. Sam was arrested at the scene does not change the nature of the police involvement in this matter. The Lafayette Police Department did not cause or contribute in any way to the injuries sustained by Mr. Sam, nor did the injuries occur while he was in the care or custody of the police or housed in the jail. Therefore, the expenses were not incurred by the arrest, confinement or prosecution of Mr. Sam, and the Parish is not statutorily obligated to pay Dr. Vizzi for his services. Further, the statute which Dr. Vizzi relies upon for payment does not provide a penalty or attorney fees for failure to pay. Moreover, the Parish has good reasons to dispute the invoice forwarded to it. Additionally, the Parish did not have an existing relationship with ■ Dr. Vizzi' arid did not obligate itself to pay Mr. Sam’s medical expenses by consenting to or establishing an account with Dr. Vizzi. In order to prevail on a suit for an open account, the creditor must prove that the debtor “contracted for services on open account,” and there must necessarily be a contract which gave rise to the debt. Dixie Machine Welding & Metal Works, Inc. v. Gulf States Marine Technical Bureau, Inc., 96-869 (La.App. 5 Cir. 3/12/97), 692 So.2d 1167, 1169. An open account necessarily involves an underlying agreement between the parties on which the debt is based. Vintage Wings and Things, LLC v. Toce & Daiy, LLC, 04-706 (La.App. 3 Cir. 11/10/04), 886 So.2d 652. No such contract or agreement was present in this case between the Parish and Dr. Vizzi, thus any recovery of attorney fees under the open account statute is inappropriate. .

For the above reasons, I would reverse the trial court’s judgment holding otherwise and enter summary judgment in favor of Lafayette City-Parish Consolidated Government.

GENOVESE, J.,

dissents and assigns the following written reasons.

hi disagree with the majority’s affirmation of the trial court judgment in this case finding Lafayette City-Parish Consolidated Government (LCG) legally responsible for Mr. Sam’s medical expenses. This case is governed by La.R.S. 15:304, which states in pertinent part that “[a]ll expenses incurred ... by the arrest, confinement, and prosecution ... shall be paid by the respective parishes in which the offense charged may have been committed....”

It is an undisputed fact that Mr. Sam was wounded (shot) by a third party before he was arrested. A strict reading of La. R.S. 15:304 states that the parish (LCG) is responsible for all expenses incurred “by the arrest, confinement, and prosecution[.]” Mr. Sam’s medical expenses were not incurred “by [his] arrest” or as a result of his arrest or confinement; his medical expehses became manifest and were subsequently incurred when he was shot and wounded. His subsequent arrest and confinement were not the cause of his incurred medical • expenses. Being shot as an intruder was the cause of his incurred medical expenses.

This decision opens Pandora’s box and subjects all parishes to liability for any and all expenses incurred before and after an arrest regardless of their involvement in arrest, confinement, or prosecution. I do not find that to be the wording or the intent of the statute. Consequently, I dissent from the majority. 11 ¿would reverse the trial court judgment and absolve LOG from any legal liability for Mr. Sam’s medical expenses based on the facts of this case and La.R.S. 15:304.  