Dr. William T. Barfield VS St.Tammany Physicians Network
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2010 CA 2246 DR WILLIAM T BARFIELD VERSUS ST TAMMANY PHYSICIANS NETWORK Judgment Rendered September 14 2011 Appealed from the Twentysecond Judicial District Court In and for the Parish of St Tammany Louisiana Docket Number 200414670 Honorable Raymond S Childress Judge Presiding d Prescott L Barfield Counsel for Plaintiff2 James A Marchand Dr William T Barfield Appellant Covington LA Charles H Hollis Counsel for Defendant Appellant I Vasilios Manthos St Tammany Physicians Network New Orleans LA and Sam Collett Jr Covington LA BEFORE WHIPPLE KUHN AND GUIDRY JJ WHIPPLE J In this contract dispute both Dr Tammany Physicians Network William T Physicians Network Barfield and St appeal the trial s court judgment finding that Physicians Network had breached its contract with Dr Barfield and awarding damages to Dr Barfield For the following reasons we affirm FACTS AND PROCEDURAL HISTORY Dr Barfield is a board certified internal medicine specialist who was employed by Physicians Network from 1993 until 2004 Physicians Network is a wholly owned subsidiary of St Tammany Parish Hospital Service District No 1 which in turn owns and operates St Tammany Parish Hospital in Covington Louisiana Prior to 1993 Dr Barfield had been in private practice in the Covington area for twentyone years In furtherance of his employment relationship with Physicians Network Dr Barfield signed employment contracts with Physicians Network in 1993 1996 1999 and 2002 Pursuant to the terms and conditions of those contracts Dr Barfield was to provide designated medical services on behalf of Physicians Network Physicians Network in turn was to provide at its cost office facilities and staff reasonably necessary for Dr Barfield to perform the medical services outlined in the contracts Because Dr Barfield was an employee of Physicians Network the contracts further provided that all revenues earned by Dr Barfield were the property of and belonged to Physicians Network In exchange for the medical services he provided on behalf of Physicians Network Dr Barfield was paid a fixed salary with certain provisions for incentive compensation additional services rendered 2 and compensation for The dispute at issue herein involves the provisions of the 2002 employment contract with Specifically in all his prior employment contracts Physicians Network Dr Barfield contracted to perform certain specified duties regarding call coverage However in the 2002 contract Dr Barfield negotiated with Physicians Network to include Section 1 in c 8 the contract which provides that i is understood that Physician is not t required to take any call whatsoever At the time the 2002 contract was executed arrangements were in place for other physicians to handle his call However these arrangements ended for different reasons and by the end of December 2003 Dr Barfield began taking call in the evenings and on the weekends for his patients Thus in January 2004 Dr Barfield sent Physicians Network an invoice for among other things the hours he had worked up to that time assuming call By letter dated February 3 2004 Patti Ellish the president and CEO of Physicians Network denied that Physicians Network was responsible pursuant to the employment contract to pay Dr Barfield for hours on call stating as follows While your employment contract does not require you to take call Paragraph 1 who cares for your patients after hours and c 8 the arrangement for that coverage is your responsibility Thus Physicians Network denied payment to Dr Barfield for his hours on call Moreover because there was no longterm solution to the call issue in place Dr Barfield continued to assume call for his patients through the end of his contract term despite the contractual agreement by Physicians Network that he would not be required to take any call whatsoever In October 2004 Dr Barfield filed suit against Physicians Network seeking damages under theories of breach of contract unjust enrichment violation of the Louisiana Unfair Trade Practices and Consumer Protection 3 Act and detrimental reliance Thereafter Dr Barfield filed a motion for partial summary judgment contending that there were no material issues of fact and that he was entitled to judgment as a matter of law finding that Physicians Network had breached the 2002 employment contract regarding the issue of call coverage Physicians Network responded by filing a cross motion for partial summary judgment seeking a determination by the court that the 2002 employment contract did not obligate Physicians Network to coordinate coverage for call services and further did not provide for compensation to Dr Barfield if he in fact did take call Following a hearing on the motions the trial court rendered judgment on December 1 2006 granting Dr Barfield motion and denying Physician s s Network cross motion In written reasons for judgment the trial court concluded that because the Network is the employer of Dr Barfield and pays him for the services he rendered to the patients the exclusion of call duty responsibility in the employment contract renders the Network financially responsible for the necessary cost of the call duty Thus the trial court held that as a matter of law Physicians Network had breached the 2002 employment contract by failing to provide adequate call support Physicians Network filed a writ application with this court seeking review of the trial court judgment but this court denied the writ on April 4 s 2007 noting that an a remedy exist by review on appeal dequate s following the rendition of a final judgment on the merits Tammany Physicians Network 2007 CW 0074 Barfield v St La App 1 Cir 4407 writ action Thus the matter eventually proceeded to unpublished trial in April 2008 on the issue of damages Following a bench trial the trial court rendered judgment dated June 6 2008 awarding Dr Barfield M 08 538 66 in damages together with costs expert witness fees and interest from the date ofjudicial demand However on appeals by both parties this court reversed the December 1 2006 judgment granting Dr Barfield motion for partial s summary judgment and finding a breach of contract on the issue of call coverage Thus this court reversed and vacated the June 6 2008 judgment awarding damages and remanded the matter for further proceedings Barfield v St Tamman Physicians Network 2008 CA 2431 pp 67 La App 1 Cir 5809 Specifically this court concluded that St unpublished legal and factual issues remained regarding Dr Barfield right to recover s payment under the contract for the call he provided thus precluding disposition by summary judgment Barfield 2008 CA 2431 at p 5 On remand a bench trial on the issues of breach of contract and liability was conducted on April 12 2010 with the understanding that the testimony and exhibits from the earlier trial on damages would be admitted and utilized by the trial court in determining liability and damages Following trial the trial court issued written reasons for judgment again concluding that Physicians Network had breached the 2002 employment contract by failing to coordinate call coverage for Dr Barfield Additionally the court adopted its previous ruling and reasons with regard to the amount of damages it awarded Dr Barfield From the July 24 2010 judgment awarding Dr Barfield 66 in 08 538 damages together with costs expert fees and interest from the date of judicial demand both parties again appeal In its assignments of error Physicians Network contends that the trial court erred in 1 finding that Physicians Network breached the 2002 employment contract 2 finding that Dr Barfield did not unreasonably obstruct Physicians Network s 5 performance of the 2002 employment contract 3 finding that Physicians Network failed to cure any alleged breach of the 2002 employment contract and 4 finding that Dr Barfield may have reasonably relied to his detriment upon the 2002 employment contract no call provision s In his sole assignment of error Dr Barfield challenges the trial court measure of his s damages contending that the trial court erred in not applying the 2002 employment contract as written to award him 100 per hour for 00 additional services of providing oncall coverage as a result of the breach of contract by Physicians Network Breach of the 2002 Employment Contract Physicians Network Assignment of Error No 1 s In this assignment of error Physicians Network contends that the trial court erred in concluding that it had breached the 2002 employment contract by failing to provide call coverage where the contract did not obligate Physicians Network to provide such call coverage to Dr Barfield Rather it contends that the provision in the 2002 employment contract stating that Dr Barfield was not required to take any call whatsoever should be interpreted to mean that Physicians Network merely would not require Dr Barfield to perform call himself but that Dr Barfield was nonetheless responsible for ensuring that oncall coverage was provided Interpretation of a contract is the determination of the common intent of the parties LSAC art 2045 Prejean v Guillo C 00740 La 201 10 2 7 38 So 3d 274 279 The reasonable intention of the parties to a contract is to be sought by examining the words of the contract itself and when the words of a contract are clear and explicit and lead to no absurd consequences no further interpretation may be made in search of the parties intent LSAC art 2046 Prejean 38 So 3d at 279 C D Common intent is determined therefore in accordance with the general ordinary plain and popular meaning of the words used in the contract Accordingly when a clause in a contract is clear and unambiguous the letter of that clause should not be disregarded under the pretext of pursuing its spirit as it is not the duty of the courts to bend the meaning of the words of a contract into harmony with a supposed reasonable intention of the parties Prejean 38 So 3d at 279 If on the other hand the terms of a written contract are susceptible to more than one interpretation or there is uncertainty or ambiguity as to its provisions or the intent of the parties cannot be ascertained from the language employed parol evidence is admissible to clarify the ambiguity or Commercial Properties Development show the intention of the parties CoKporation v State Teachers Retirement System 20000392 La App 1 Cir 3 808 So 2d 534 540 01 28 In cases in which the contract is ambiguous the agreement shall be construed according to the intent of the parties and intent is an issue of fact to be inferred from all of the surrounding circumstances Commercial Properties Develo ment Corporation 808 So 2d at 540 A doubtful provision must be interpreted in light of the nature of the contract equity usages the conduct of the parties before and after the formation of the contract and other contracts of like nature between the LSAC C same parties art 2053 Commercial Properties DevelopmentCorporation 808 So 2d at 540 In the instant case the 2002 employment contract at issue sets forth Dr Barfield responsibilities with regard to providing medical services on s behalf of Physicians Network in pertinent part as follows 1 The Network hereby employs Physician and Physician accepts such employment as a Employment physician to render professional medical services on behalf of 7 the Network The professional medical services to be rendered by Physician pursuant hereto are the following Designated Medical Services a Internal Medicine and such other medical services within the Physician competence s as the Network shall determine after having consulted with Physician and for which Physician is properly credentialed by the Medical Staff of the Hospital Medical Staff b c 4 1 The performance of the services as described in subparagraph a above so as to maintain an office practice admit patients as may be necessary for care in a hospital nursing home or other health care facility and to treat and attend such patients during their hospital nursing home or health care facility stays and additionally All medical services that are performed by internists with active office and hospital practices Rendition of Designated Medical Services Physician agrees to perform the Designated Medical Services for the Network as follows and to be bound by the following a Physician shall devote Physician full time s attention and skill as a physician and in so shall doing Physician i perform and render care in professional services accordance with and in a manner consistent with the standards for the practice of the Designated Medical Services ii comply with the principles of medical ethics of the American Medical Association iii comply with the bylaws rules and regulations of the medical Staff of the Hospital iv comply with federal state and local laws and regulations v comply with the standards of the Joint applicable Commission on Accreditation of Healthcare b Organizations and vi comply with the rules regulations and directives of the Network District and Hospital and Without the express written consent of the Network Physician shall not render professional medical services on Physician s own behalf or on the behalf of any party other than the Network and Physician shall not participate in any medical activities of any find or nature except on behalf of the Network 8 1 Time Devoted to Practice Subject to the provisions of Sections 3 Vacation and 3 Continuing 7 8 Medical Education Physician shall work the following hours a Five days per week Monday through Friday during the office hours established by the Network provided that Physician shall have one of such days off per week except in the event of the occurrence during the week of i holidays observed by the Hospital or ii vacations continuing medical education or illness of Physician or any other physician with whom Physician may practice b c Such hours as may be necessary to treat and attend hospitalized nursing home or other health care facility patients and It is understood that Physician is not required to take any call whatsoever Emphasis added Thus according to the provisions of the 2002 employment contract Dr Barfield was obligated to provide designated medical services during certain specified times on behalf of Physicians Network However by the clear and unambiguous wording of the contract those obligations did not require Dr Barfield to take any call whatsoever on behalf of Physicians Network As noted by the trial court in its reasons for judgment t read o this provision in any other fashion results in an intellectual absurdity Hence given that Dr Barfield was an employee of Physicians Network and pursuant to the 2002 employment contract treated patients only on behalf of Physicians Network the parties agreement to alleviate Dr Barfield from taking any call whatsoever clearly obligated Physicians Network to provide such call coverage Co See generally Labadie v Physician Network oration of Louisiana Inc 01 1180 01 1181 La App 5 Cir 1 th 02 29 805 So 2d 1278 1281 wherein the appellate court determined that the 0 employment contract between two physicians and their employer state d unambiguously that the doctors are to accrue one day off for each on call period entitling the physicians to be paid for those accrued days upon the termination of the parties contractual employment relationship Furthermore even if we were to determine that the contract was ambiguous as to Physicians Network responsibility to provide s call coverage for Dr Barfield we would nonetheless reach the same result from all of the surrounding circumstances At the outset we note that while Physicians Network contends that the 2002 employment contract obligated Dr Barfield to make arrangements for call coverage the 2002 employment contract is totally devoid of any language imposing such a duty upon him Moreover a comparison of the provisions of the parties earlier contracts with the provisions of the 2002 employment contract does not support and in fact negates the contractual interpretation suggested by Physicians Network As noted by the trial court in reasons for judgment changes to the standard form employment contract were made by the parties during negotiations and s 1 c was a complete change from how ection 8 the contract had been written since 1993 Indeed a reading of the prior contracts demonstrates that not only was Dr Barfield responsible for taking call but Physicians Network retained the authority to determine and approve Dr Barfield oncall schedules and the physicians with whom he s would assume call Even more important to the issue before us the prior contracts further outlined Physicians Network responsibility and duty to s provide assistance to Dr Barfield with the call coverage that he had been previously obligated to handle Specifically the 1993 employment contract provided that on the Effective Date it is intended that Physician shall initially share call with one 10 other physician and that w 180 days after the Effective Date ithin Network shall have a continuing duty to arrange for Physician to share call with not fewer than two other physicians provided that Physician shall assist Network in arranging such call with such other physicians added The Emphasis 1996 employment contract similarly provided that the Network shall have a continuing duty to arrange for Physician to share call with no fewer than two other physicians provided that Physician shall assist Network in arranging such call with such other physicians Finally the 1999 employment contract provided that it is intended that Physician shall share call with three other physicians and that the Network will make every reasonable effort to provide call with at least two other physicians Thus the prior employment contracts between the parties clearly established a continuing duty upon Physicians Network to provide or arrange for other physicians to assist Dr Barfield with call coverage By contrast the 2002 employment contract omitted any obligation whatsoever on the part of Dr Barfield to take call Consequently the provisions regarding Physicians Network duty to provide assistance to Dr s Barfield for call coverage were likewise omitted Thus considering the continuing duty of Physicians Network in the prior employment contracts it executed with Dr Barfield to coordinate call coverage to assist Dr Barfield with his oncall responsibilities we find no merit to Physicians Network s claim that Dr Barfield somehow assumed that responsibility of coordinating call coverage in the 2002 employment contract where the parties had specifically negotiated to include a provision in that contract alleviating Dr Barfield from having to take any call whatsoever Moreover the arrangements with mere other fact that Dr physicians 11 to Barfield handle had call himself made for him which arrangements were in place at the time this contract was executed does not negate the fact that the ultimate responsibility for providing call coverage remained with Physicians Network as Dr Barfield was no longer contractually obligated to assume any call responsibilities on behalf of Physicians Network As noted by the trial court in its reasons for judgment because the contract exempted the physician from this employment related responsibility call duty the obligation remained with his employer The Network Accordingly we find no merit to the argument by Physicians Network that although Dr Barfield was not contractually obligated to take any call whatsoever he was nonetheless contractually responsible for arranging for other physicians to assume call on behalf of Physicians Network or in the event he was unable to coordinate such call coverage he himself would be responsible for once again taking call Consequently we likewise find no error in the trial court finding s that Physicians Network breached the 2002 employment contract when it failed to provide call coverage for Dr Barfield When the arrangements that Dr Barfield had put into place for other physicians to handle call dissolved Physicians Network failed to make appropriate arrangements for call coverage for the patients Dr Barfield saw in the clinic setting and in the hospital on behalf of Physicians Network This failure on the part of Physicians Network to arrange for call resulted in Dr Barfield having to assume that call coverage despite the clear provision of his contract alleviating him of any obligation to do so on behalf of Physicians Network Thus we find no error in the trial court finding that this failure on the part s of Physicians Network constituted a breach of the 2002 employment contract by Physicians Network This assignment of error lacks merit 12 Unreasonable Obstruction of Ph sicians Network Performance and s the Alleged Cure of Any Breach of the 2002 Employment Contract Physicians Network Assignments of Error Nos 2 s 3 In these related assignments of error Physicians Network contends that the trial court erred in failing to find that Dr Barfield unreasonably obstructed its performance of the 2002 employment contract and in finding that Physicians Network had failed to cure any alleged breach Specifically Physicians Network argues that Dr Barfield displayed an unyielding unwillingness to work with Physicians Network to resolve the call problem or to accept a reasonable call arrangement offer contending that Dr Barfield refused an offer by Dr John Simon to take over all of Dr s Barfield call if allowed to also round on Dr Barfield hospitalized s patients on weeknights and that he refused an offer to join the call rotation group of Dr Ralph Millet which would have reduced the number of days that Dr Barfield was on call Additionally Physicians Network avers that the actions of Patti Ellish the president and CEO of Physicians Network in hiring a nurse practitioner to partially assist Dr Barfield with call coverage and in arranging to have Dr Barfield included in Dr Millet call coverage group demonstrate that s Physicians Network cured any alleged breach of the 2002 employment contract In asserting that Dr Barfield should be barred from claiming damages for its non performance of the contract Physicians Network relies upon LSAC art 2003 which provides in pertinent part that a obligee may C n not recover damages when his own bad faith has caused the obligor failure s Physicians Network contends in brief that rounding on hospital patients in the evenings is lucrative given that a fee is generated for the visit While in the case of Dr s Barfield contract any fees he generated were the property of Physicians Network his incentive compensation under the contract was calculated based on the amount of fees he generated 13 to perform The determination of whether a party to a contract acted in bad faith is a factual determination which will not be reversed by the appellate court unless it is manifestly erroneous or clearly wrong NY Associates Inc v Board of Commissioners of Orleans Parish Levee District 20041598 La App 4 Cir 2 926 So 2d 20 24 writ denied 20060666 La th 06 22 06 26 5 930 So 2d 31 Weeks v T L James Co Inc 626 So 2d 420 425 La App P Cir 1993 writs denied 932909 932936 La 6 94 28 630 So 2d 794 Moreover the question of whether Physicians Network had cured its breach is likewise a question of fact dependent upon the particular facts of the case and thus also subject to the manifest error standard of review The record before us establishes that prior to the execution of the 2002 employment contract Dr Barfield had been in practice with other physicians employed by Physicians Network and those physicians in his practice were handling call for the practice as a courtesy to Dr Barfield despite the fact that Dr Barfield had been obligated under his earlier contract to participate in call coverage However as both parties to the contract were aware at the time the 2002 employment contract was executed these other physicians in Dr Barfield practice had either left the s employment of Physicians Network or were in the process of doing so Nonetheless two of those physicians had agreed to continue to take call for Dr Barfield and that arrangement was approved by Physicians Network Eventually however this call arrangement dissolved and Dr Simon then agreed that he and his nephrology group would handle call for Dr Barfield in the summer of 2002 However one physician in particular in Dr s Simon group became disgruntled about having to take call for Dr s Barfield patients and ultimately in September 2003 Dr Simon met with 14 Dr Barfield to discuss continued call coverage for Dr Barfield At that meeting Dr Simon proposed that he and his group would agree to continue to take call for Dr Barfield if Dr Barfield would agree to allow Dr Simon s group to also perform all of Dr Barfield rounds on his hospitalized s patients However Dr Barfield testified that this was not the agreement that he had reached with Dr Simon which was that Dr Simon and his group would gradually take over complete hospital coverage after a year to one and one half years Dr Barfield explained that his patients did not find this arrangement pleasing or acceptable because they wanted Dr Barfield to continue to see them and treat them in the hospital Thus Dr Barfield believed that a gradual transition of hospital coverage by a hospitalist was needed to ensure patient satisfaction and for the benefit of the hospital the patients everyone involved Accordingly Dr Barfield would not agree to hand over complete hospital coverage for his patients to Dr Simon and his group at that time and as a result this call arrangement also dissolved by the end of December 2003 Considering the foregoing it is clear that Dr Barfield reasons for s not allowing Dr Simon and his group to take over complete hospital care of his patients in exchange for call coverage clearly related to his concern over patient care Additionally we note that pursuant to section 1 of the b 2002 employment contract Dr Barfield was personally responsible for ing treat and attend ing to his patients during their hospital nursing According 2 to the testimony of record a physician or group of physicians who handles all patient care while patients are hospitalized is referred to as a hospitalist a position which Dr Simon was evidently seeking to achieve Indeed Dr Simon acknowledged that in addition to the resentment displayed by one of the physicians in his group over having to take call for Dr Barfield patients the s other physician in his group had issues with communication skills which left something to be desired 15 home or health care facility stays Thus considering Dr Barfield s responsibilities pursuant to the 2002 employment contract and his legitimate concerns about handing over complete hospital coverage to Dr Simon and his group we find no merit to Physicians Network argument that the trial s court erred in not concluding that Dr Barfield obstructed its performance of the contract by his failure to hand over complete care of his hospitalized patients to Dr Simon in exchange for call coverage We likewise find no merit to the assertion that Dr Barfield obstructed Physicians Network performance of the 2002 employment contract by s refusing an offer to join the call rotation group of Dr Ralph Millet In finding that Dr Barfield actions in this regard were not unreasonable the s trial court noted in reasons for judgment the existence of a longstanding acrimonious relationship between Drs Millet and Barfield which had resulted in litigation and further noted that Dr Millet at trial was unaware of objections by another physician within his group to carrying the call load associated with Dr Barfield practice Moreover as noted by the trial s court this arrangement would not have provided complete call coverage for Dr Barfield as contemplated by the 2002 employment contract but rather would have required Dr Barfield to continue to have night and weekend call Based on our review of the record and mindful of the deference owed to the trial court findings where there is conflicting evidence we cannot s conclude that these factual findings of the trial court were manifestly erroneous Finally we also find no merit to Physicians Network contention that s the trial court erred in finding that Physicians Network had failed to cure its breach of the 2002 employment contract At the outset we note that when the problem developed with call coverage Ellish attitude was that Dr s 16 Barfield not Physicians Network had the responsibility of providing call coverage if Dr Barfield was unable to find someone to cover call Thus although Dr Barfield had to take call himself according to Ellish he nonetheless was not entitled to any compensation for this additional work that was not contemplated by the 2002 employment contract Moreover none of the limited efforts made by Ellish would have provided complete call coverage for Dr Barfield Thus while Physicians Network contends that the actions of Ellish in hiring a nurse practitioner to partially assist Dr Barfield with call coverage and in arranging to have Dr Barfield included in Dr Millet call coverage group demonstrate that Physicians Network cured s the breach of the 2002 employment contract the trial court concluded that these efforts were not curative of Physicians Network breach of the s contract a finding that we cannot say is manifestly erroneous or clearly wrong With regard to the hiring of the nurse practitioner to assist Dr Barfield as noted by the trial court the assistance she could provide with call coverage as a nurse practitioner was limited and Dr Barfield often was present with her because she was unfamiliar with the patients and their conditions and did not have particular expertise in the field of internal medicine Moreover as discussed more fully above the attempt to include Dr Barfield in Dr Millet call group was untenable and also would have s required Dr Barfield to assume call on some weeknights and weekends contrary to the provision of his 2002 employment contract providing that he was not responsible for any call whatsoever Notably 4 when the nurse practitioner was hired by Physicians Network her contract provided that she was not required to take call However when she was later told by a representative of Physicians Network that she would have to assist Dr Barfield with call Physicians Network agreed to compensate her for that additional work 17 Accordingly for the foregoing reasons and based on our review of the record as a whole we find no manifest error in the trial court findings that s Physicians Network failed to cure its breach of contract and that Dr Barfield did not obstruct Physicians Network performance of its obligations under s the contract These assignments of error also lack merit Dama es Dr Barfield Assignment of Error s Dr Barfield contends in his assignment of error that the trial court erred in not applying the 2002 employment contract as written to award him 00 100 per hour for the additional services of providing oncall services as a result of the breach of contract by Physicians Network With regard to compensation for additional services the 2002 employment contract provided that Dr Barfield would be compensated for additional services at a rate of 100 per hour 00 The contract further defined additional services as follows In addition to the activities provided for in Section 1 the 22 Physician shall undertake as reasonably directed by the Network from time to time special activities on behalf of the Network District or Hospital included but not limited to medical administrative duties selected medical society activities education and marketing programs and activities of the Network District or Hospital which are consistent with the accepted professional standards of conduct for physicians collectively Additional Services However additional services as defined in the contract does not specifically include taking call As noted by this court in its prior opinion in this matter the contract is silent concerning the parties responsibilities if Because 5 we have affirmed the trial court finding that Physicians Network s breached the contract by failing to provide call coverage for Dr Barfield we pretermit discussion of Physicians Network fourth assignment of error wherein it challenges the s trial court finding under Dr Barfield alternative claim of detrimental reliance that s s Dr Barfield reasonably relied to his detriment on the provision of the contract providing that he would not be responsible for taking any call whatsoever IN Dr Barfield took call in that it does not specifically address payment to Dr Barfield if he were required to take call Physicians Network 5 809 unpublished 2008 CA 2431 Barfield v St Tamman p 5 La App 1s Cir Thus in the absence of a contractual provision providing for the specific amount to be paid to Dr Barfield for taking call we cannot conclude that the trial court erred in failing to apply the 100 00 rate for additional services in the 2002 employment contract to compensate Dr Barfield for his oncall duties Rather the appropriate award herein is the measure of Dr Barfield s damages as a result of Physicians Network breach of contract An obligor s is liable for the damages caused by his failure to perform a conventional obligation and damages are measured by the loss sustained by the obligee and the profit of which he has been deprived LSAC arts 1994 C Frankel v Exxon Mobil Co 1995 oration 20041236 La App 1 Cir 8 st 05 10 923 So 2d 55 64 The party bringing suit has the burden of proving any damages suffered by him as a result of a breach of contract L A Contracting Company Inc v Ram Industrial Coatings Inc 990354 La App lst Cir 00 23 6 762 So 2d 1223 1235 writ denied 20002232 La 11 775 00 13 So 2d 438 When damages are insusceptible of precise measurement much discretion shall be left to the court for the reasonable assessment of these damages LSAC art 1999 L C A Contracting Com an Inc 762 So 2d at 1235 Thus absent an abuse of discretion an appellate court will not disturb a trial court assessment of damages s In the instant case the trial court in assessing Dr Barfield damages s relied upon Dr Barfield own expert economist Dr Hugh Long who s calculated Dr Barfield damages by estimating the hourly rate Dr Barfield s IM was paid for services he was contractually obligated to render and by then multiplying that amount by the number of hours in which Dr Barfield assumed call Based on his calculations Long estimated that Dr Barfield earned between 50 and 65 per hour for the services he provided 40 52 under the contract and that he had worked approximately 1 hours 180 assuming call Thus he estimated Dr Barfield damages to range from s 50 24 712 826 93 to 121 In assessing Dr Barfield damages the trial court found that Dr s Barfield should be awarded 57 per hour for the uncompensated hours 96 that Dr Barfield was on call which was the midpoint in the range suggested by Long Furthermore the trial court reduced the number of hours that Long estimated Dr Barfield was on call by thirtytwo hours based on Dr s Barfield testimony that he was able to find other physicians to take call for him for two weekends during the time in question Accordingly the trial court determined that Dr Barfield was entitled to 66 in damages as 08 538 a result of Physicians Network breach of contract s Considering that the language of the contract at issue did not specifically provide for compensation to Dr Barfield if he were forced to take call and further considering the trial court reasonable reliance on Dr s s Barfield own expert as well as the testimony of Dr Barfield in calculating his damages we cannot conclude that the trial court abused its discretion herein in the amount of damages awarded Accordingly Dr Barfield assignment of error is likewise without s merit Oil CONCLUSION For the above and foregoing reasons the July 24 2010 judgment of the trial court is affirmed Costs of this appeal are assessed equally against Physicians Network and Dr Barfield AFFIRMED 21
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