Stephen Michael Duke" Allgood, Et Ux. v. Roch Bordelon "

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

15-504

STEPHEN MICHAEL “DUKE” ALLGOOD, ET UX.

VERSUS

ROCH BORDELON, ET AL.

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APPEAL FROM THE TWELFTH JUDICIAL DISTRICT COURT PARISH OF AVOYELLES, NO. 2009-3899-A HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE

********** ON REHEARING

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SHANNON J. GREMILLION JUDGE

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Court composed of James T. Genovese, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.

REHEARING GRANTED AND CASE REMANDED. Howard Battle Gist, III The Gist Law Firm, APLC P. O. Box 13705 Alexandria, LA 71315 (318) 448-1632 COUNSEL FOR DEFENDANT/APPELLEE: Avoyelles Parish School Board

Rodney Marchive Rabalais Attorney at Law P. O. Box 447 Marksville, LA 71351 (318) 253-4622 COUNSEL FOR DEFENDANT/APPELLEE: Roch Bordelon

Victor Herbert Sooter Sooter & Associates P. O. Box 1671 Alexandria, LA 71309 (318) 448-8301 COUNSEL FOR PLAINTIFFS/APPELLANTS: Stephen Michael “Duke” Allgood Patricia Allgood GREMILLION, Judge.

The Plaintiffs/Appellants and Defendant/Appellee, the Avoyelles Parish

School Board, have requested rehearing of our original opinion, Allgood v.

Bordelon, 15-504 (La.App. 3 Cir. 12/9/15), ___ So.3d ___. For the reasons that

follow, we grant rehearing.

The Plaintiffs/Appellants assert that our judgment was deficient in that we

failed to award expert witness fees for the testimonies of the treating physicians.

The Plaintiffs/Appellants introduced the deposition testimonies of five health care

providers. They request that we award $1,000.00 each for four and $750.00 for

one. The record contains no evidence regarding the amounts Plaintiffs/Appellants

were charged for these depositions. We have long held, though, that the trial court

retains jurisdiction to fix these costs, and the trial court is where they should seek

redress. Muirhead v. Transworld Drilling Co., 469 So.2d 474 (La.App. 3 Cir.

1985). In accordance with the Muirhead case, we remand the matter to the trial

court for the purpose of fixing the expert witness costs.

The Avoyelles Parish School Board objects to our judgment awarding future

medical expenses to Mr. Allgood without ordering that the award for future

medical expenses be placed into a reversionary trust pursuant to La.R.S.

13:5106(B)(3)(a). The provisions of the statute do not constitute an affirmative

defense and do not have to be specifically pleaded. Mitchell v. State, Dep’t of

Transp. & Dev., 596 So.2d 353 (La.App. 3 Cir.), writ denied, 600 So.2d 680

(1992). We therefore grant rehearing to the Avoyelles Parish School Board and

order that a reversionary trust be created to pay Mr. Allgood’s medical care and

related expenses directly to his medical providers.

In all other respects, the applications for rehearing are denied.