text:
    STATE ex rel. Carrie BELL a/k/a Carrie Franklin v. STATE of Louisiana.
    No. 2002-KH-2556.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Bell, Carrie a/k/a; Franklin, Carrie; — Plaintiffs); Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. I, No. 97-5901; to the Court of Appeal, Fifth Circuit, No. 02-KH-858.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    STATE ex rel. Paul RIDEAU v. STATE of Louisiana.
    No. 2002-KH-2557.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Rideau, Paul; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Landry, 27th Judicial District Court Div. C, No. 95-697; to the Court of Appeal, Third Circuit, No. KH 02-0031.

Denied.


text:
    STATE ex rel. James SIMMONS v. STATE of Louisiana.
    No. 2002-KH-2636.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Simmons, James; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. I, No. 281702; to the Court of Appeal, First Circuit, No. 2002 KW 0192.

Denied.


text:
    STATE ex rel. Kenneth YOUNG v. STATE of Louisiana.
    No. 2002-KH-2765.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Young, Kenneth; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. H, No. unknown; to the Court of Appeal, First Circuit, No. 2002 KW 0944.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 351; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694.


text:
    STATE ex rel. Shanda CRAIN v. STATE of Louisiana.
    No. 2002-KH-2669.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Crain, Shanda; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. A, No. 95-CR3-60272; to the Court of Appeal, First Circuit, No. 2002 CW 1240.

Denied. The prosecutor advises records have been sent on two occasions.


text:
    STATE ex rel. Michael P. GROS v. STATE of Louisiana.
    No. 2002-KH-2796.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Gros, Michael P.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Plaquemines, 25th Judicial District Court Div. B, No. 00-2381; to the Court of Appeal, Fourth Circuit, No. 2002-K-1254.

Denied.


text:
    STATE ex rel. John Davis COLQUITT v. STATE of Louisiana.
    No. 2002-KH-2802.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Colquitt, John Davis; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Claiborne, 2nd Judicial District Court Div. A, No. 19,395; to the Court of Appeal, Second Circuit, No. 36709-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Michael P. GROS v. STATE of Louisiana.
    No. 2002-KH-2810.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Gros, Michael P.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Plaquemines, 25th Judicial District Court Div. B, No. 00-2381; to the Court of Appeal, Fourth Circuit, No. 2002-K-1254.

Denied.


text:
    STATE ex rel. Eugene MOORE v. STATE of Louisiana.
    No. 2002-KH-2828.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Moore, Eugene; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Cameron, 38th Judicial District Court Div. 0, No. 80754; to the Court of Appeal, Third Circuit, No. KW 01-00176.

Denied. Untimely and repetitive. La. C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Patrick HOWARD v. STATE of Louisiana.
    No. 2002-KH-2832.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Howard, Patrick; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. C, No. 04-95-615; to the Court of Appeal, First Circuit, No. 2002-KW-0048.

Denied.

WEIMER, J., recused.


text:
    STATE ex rel. Elzy CADE v. STATE of Louisiana.
    No. 2002-KH-2833.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Cade, Elzy; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. A, Nos. 79895, 84019, 84041, 84080, 91721; to the Court of Appeal, First Circuit, No. 2002 KW 1008.

Denied.


text:
    STATE ex rel. Melvin MANNING v. STATE of Louisiana.
    No. 2002-KH-2836.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Manning, Melvin; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. G, No. 277,114; to the Court of Appeal, First Circuit, No. 2002 KW 1007.

Denied.

WEIMER, J., recused.


text:
    STATE ex rel. Armond MIX v. STATE of Louisiana.
    No. 2002-KH-2837.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Mix, Armond; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 386-148; to the Court of Appeal, Fourth Circuit, No. 2002-K-1753.

Denied. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. William MOSER v. STATE of Louisiana.
    No. 2002-KH-2838.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Moser, William; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. H, No. 184773; to the Court of Appeal, First Circuit, No. 2002-KW-0919.

Denied. See, e.g., Deloch v. Whitley, 96-1901, p. 1 (La.11/22/96), 684 So.2d 349; see also Coe v. Bell, 161 F.3d 320, 352-55 (6th Cir.1998).


text:
    STATE ex rel. James BROWN v. STATE of Louisiana.
    No. 2002-KH-2840.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Brown, James; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Lincoln, 3rd Judicial District Court Div. A, No. 45,193; to the Court of Appeal, Second Circuit, No. 36576-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Concita DIXON v. STATE of Louisiana.
    No. 2002-KH-2879.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Dixon, Concita; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. B, No. 192,875; to the Court of Appeal, Second Circuit, No. 36418-KH.

Denied.


text:
    STATE ex rel. Joe Louis WILLIAMS v. STATE of Louisiana.
    No. 2002-KH-2885.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Williams, Joe Louis; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. K, No. 12-89-729.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.

WEIMER, J., recused.


text:
    STATE ex rel. Melvin FRANK v. STATE of Louisiana.
    No. 2002-KH-2993.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Frank, Melvin; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. C, No. 93-5161; to the Court of Appeal, Fifth Circuit, No. 02-KH-846.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Michael W. GIBSON v. STATE of Louisiana.
    No. 2002-KH-2995.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Gibson, Michael W.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. D, No. 92-F1227; to the Court of Appeal, Second Circuit, No. 36739-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Robert HOWARD v. STATE of Louisiana.
    No. 2002-KH-3010.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Howard, Robert; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 202-256.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Loyal WHITE v. STATE of Louisiana.
    No. 2002-KH-3012.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re White, Loyal; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 229-628.

Denied. See State ex rel. Fleury v. State, 93-2898 (La.10/13/95), 661 So.2d 488.


text:
    STATE ex rel. Charles Carlton WALL v. STATE of Louisiana.
    No. 2002-KH-3013.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Wall, Charles Carlton; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. B, No. 78826; to the Court of Appeal, First Circuit, No. 2002 KW 1448.

Denied. State ex rel. Bernard v. Cr.D.C., 94-2247, p. 1 (La.4/28/95), 653 So.2d 1174/1175.


text:
    STATE ex rel. Lloyd J. WESTON v. STATE of Louisiana.
    No. 2002-KH-3014.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Weston, Lloyd J.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. John, 40th Judicial District Court Div. A, No. 98-638; to the Court of Appeal, Fifth Circuit, No. 02-KH-755.

Denied.


text:
    STATE ex rel. Robert GRANT v. STATE of Louisiana.
    No. 2002-KH-3016.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Grant, Robert; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 253-214.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Kenneth D. KEMP v. STATE of Louisiana.
    No. 2002-KH-3020.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Kemp, Kenneth D.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jackson, 2nd Judicial District Court Div. B, No. 32,103; to the Court of Appeal, Second Circuit, No. 36770-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 351; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694.


text:
    STATE ex rel. Carlton TURNER v. STATE of Louisiana.
    No. 2002-KH-3031.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Turner, Carlton; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Grant, 35th Judicial District Court Div. 0, No. 95-140; to the Court of Appeal, Third Circuit, No. KH 01-01546.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Concita DIXON v. STATE of Louisiana.
    No. 2002-KH-3044.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Dixon, Concita; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. D, No. 192,875; to the Court of Appeal, Second Circuit, No. 36418-KH.

Denied.


text:
    STATE of Louisiana v. Michael LOTT.
    No. 2003-KO-0499.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Michael Lott; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. I, No. 97-0229; to the Court of Appeal, Fifth Circuit, No. 02-KA-702.

Denied.


text:
    STATE of Louisiana v. Herbert A. PIERRE, Jr.
    No. 2003-KO-0508.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Pierre, Herbert A. Jr.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. E, No. GO-4859; to the Court of Appeal, Fifth Circuit, No. 02-KA-838.

Denied.


text:
    STATE of Louisiana v. Broc J. LEE.
    No. 2003-KO-0535.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Lee, Broc J.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. C, No. 99-5941; to the Court of Appeal, Fifth Circuit, No. 02-KA-0704.

Denied.


text:
    STATE of Louisiana v. Aubrey J. LEBLANC, Jr.
    No. 2003-KO-0570.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re LeBlanc, Aubrey J. Jr.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. G, No. 90790G; to the Court of Appeal, First Circuit, No. 2001 EA 2856.

Denied.


text:
    STATE of Louisiana v. Lionel YOUNG.
    No. 2003-KO-0599.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Young, Lionel; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. C, No. 404r-797; to the Court of Appeal, Fourth Circuit, No. 2002-KA-1280.

Denied.


text:
    STATE of Louisiana v. Derrick WIX.
    No. 2003-KO-0678.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Wix, Derrick; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. C, No. 413-197; to the Court of Appeal, Fourth Circuit, No. 2002-KA-1493.

Denied.


text:
    STATE of Louisiana v. Charles WILSON.
    No. 2003-KO-0700.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Wilson, Charles; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. L, No. 418-605; to the Court of Appeal, Fourth Circuit, No. 2002-KA-0776.

Denied.


text:
    STATE of Louisiana v. Carlos ZALDIVAS Sr.
    No. 2003-KO-0705.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Zaldivas, Carlos Sr.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. M, No. 00-0967; to the Court of Appeal, Fifth Circuit, No. 02-KA-0690.

Denied.


text:
    STATE ex rel. Noel BROOKS v. STATE of Louisiana.
    No. 2003-KO-0706.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Noel, Brooks; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. E, No. 352-970; to the Court of Appeal, Fourth Circuit, No. 2002-KA-1079.

Denied.


text:
    STATE of Louisiana v. Byron GEORGE.
    No. 2003-KO-0725.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re George, Byron; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. L, No. 99-7750; to the Court of Appeal, Fifth Circuit, No. 02-KA-990.

Denied.


text:
    STATE of Louisiana v. Kevin COBB.
    No. 2003-KO-0747.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Cobb, Kevin; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. F, No. 97-4724; to the Court of Appeal, Fifth Circuit, No. 02-KA-967.

Denied.


text:
    STATE ex rel. Walter MASSEY v. STATE of Louisiana.
    No. 2003-KO-0805.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Massey, Walter; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. D, No. 01-884; to the Court of Appeal, Fifth Circuit, No. 02-KA-872.

Denied.


text:
    STATE of Louisiana v. Randy L. MCDONALD.
    No. 2003-KO-0807.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re McDonald, Randy L.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. C, No. 18591-18; to the Court of Appeal, Third Circuit, No. 02-909.

Denied.


text:
    STATE of Louisiana v. Brandon CITIZEN.
    No. 2003-KO-0831.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Citizen, Brandon; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. E, No. 10199-99; to the Court of Appeal, Third Circuit, No. 02-0619.

Denied.


text:
    STATE of Louisiana v. James Danny JACKSON.
    No. 2003-KO-0832.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Jackson, James Danny; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. C, No. 02-K-0388-C; to the Court of Appeal, Third Circuit, No. 02-1250.

Denied.


text:
    STATE of Louisiana v. Frank SMITH.
    No. 2003-K-1048.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Smith, Frank; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. J, No. 422-610; to the Court of Appeal, Fourth Circuit, No. 2002-KA-2340.

Denied.


text:
    STATE of Louisiana v. Bruce MORGAN.
    No. 2003-K-1062.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Morgan, Bruce; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. L, No. 416-861; to the Court of Appeal, Fourth Circuit, No. 2002-KA-1489.

Denied.


text:
    STATE of Louisiana v. Javan MARSHALL and Alfred D. Williams.
    No. 2003-K-1087.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Marshall, Javan; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. J, No. 423-496; to the Court of Appeal, Fourth Circuit, No. 2002-KA-1453.

Denied.


text:
    STATE of Louisiana v. Javan MARSHALL and Alfred D. Williams.
    No. 2003-K-1101.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Williams, Alfred D.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. J, No. 423-496; to the Court of Appeal, Fourth Circuit, No. 2002 KA 1453.

Denied.


text:
    In the Interest of K.W., A Minor.
    No. 2003-CK-1522.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re K.W.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Orleans Parish Juvenile Court, No. 01-296-46; to the Court of Appeal, Fourth Circuit, No. 2002-C-2491.

Denied.


text:
    Cora GODFREY, et al. v. CADDO PARISH SCHOOL BOARD, et al.
    No. 2003-C-1744.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Godfrey, Cora et al.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. E, No. 447,128; to the Court of Appeal, Second Circuit, No. 37,146-CA.

Denied.


text:
    Michael LANDRY, Sr., Michael J. Landry, Jr., Chris M. Landry, Jeff A. Landry and Jason Landry v. LEONARD J. CHABERT MEDICAL CENTER, Dr. Ronald Marts, Dr. John C. King, Dr. Jonah Ezieme, and Dr. Joe Johnson, Dr. Thomas Ferguson.
    No. 2003-C-1748.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re State of Louisiana; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. A, No. 130539; to the Court of Appeal, First Circuit, No. 2002-CA-1559.

Denied.

VICTORY, J., would grant the writ.


text:
    Michael LANDRY, Sr., Michael J. Landry, Jr., Chris M. Landry, Jeff A. Landry and Jason Landry v. LEONARD J. CHABERT MEDICAL CENTER, Dr. Ronald Marts, Dr. John C. King, Dr. Jonah Ezieme, Dr. Joe Johnson, Dr. Thomas Ferguson.
    No. 2003-C-1752.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Landry, Michael Sr. et al.; Landry, Michael J. Jr.; Landry, Chris M.; Landry, Jeff A.; Landry, Jason P.; — Plaintiffs); Applying for Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. A, No. 130539; to the Court of Appeal, First Circuit, No. 2002-CA-1559.

Denied.


text:
    Roy W. HALL and Helen Hall v. The FOLGER COFFEE COMPANY and XYZ Insurance Company. The Folger Coffee Company v. Roy W. Hall and Helen Hall.
    No. 2003-C-1756.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re T.T.C. Illinois Inc.; Hall, Roy W. et al.; Hall, Helen; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. A, Nos. 95-15166, 96-18775; to the Court of Appeal, Fourth Circuit, No(s). 2002-CA-0920, 2002-CA-0921.

Denied.


text:
    Carmencita PLATER v. WAL-MART STORES, INC.
    No. 2003-C-1804.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Plater, Carmencita; — Plaintiff; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation Dia-trict 1 W, No. 01-03885; to the Court of Appeal, Second Circuit, No. 37,109-WCA.

Denied.


text:
    STATE of Louisiana v. Shaquisha JACKSON and Mark Johnson.
    No. 2003-KK-1805.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Jackson, Shaquisha; Johnson, Mark; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 426,786; to the Court of Appeal, Fourth Circuit, No. 2003-K-0698.

Denied.


text:
    SOUTHERN SILK SCREEN, INC., Philip Bascle, Patsy Searcy, and Harry Mohre v. Jonathan KARDON.
    No. 2003-OC-1807.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Kardon, Jonathan; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, No. 526-984; to the Court of Appeal, Fifth Circuit, No. 03-CM-581.

Denied.


text:
    Todd MALLET v. CITY OF MARINGOUIN.
    No. 2003-C-1808.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Mallet, Todd; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Iberville, 18th Judicial District Court Div. D, No. 52,926; to the Court of Appeal, First Circuit, No. 2002 CA 1095.

Denied.

KIMBALL, J., recused.

KNOLL, J., would grant the writ.


text:
    James COUTEE and Cynthia Coutee, Individually and Administrators of the Estate of Their Minor Child, Brandon Coutee v. GLADE MIDDLE SCHOOL and St. John the Baptist Parish School Board.
    No. 2003-C-1817.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Coutee, James indiv. & on behalf of minor; Coutee, Cynthia; — Plaintiffs); Applying for Writ of Certiorari and/or Review, Parish of St. John, 40th Judicial District Court Div. A, No. 42591; to the Court of Appeal, Fifth Circuit, No. 03-CA-128.

Denied.


text:
    Herbert and Mary A. ROBIN v. ALLSTATE INSURANCE CO.
    No. 2003-C-1818.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Robin, Mary A.; Robin, Herbert; — Plaintiffs); Applying for Writ of Certiorari and/or Review, Parish of St. Martin, 16th Judicial District Court Div. B, No. 01-63098; to the Court of Appeal, Third Circuit, No(s). 1,029-CA, 02-689.

Denied.


text:
    Robert G. CLAITOR, Sr., Doing Business as Marina Del Ray v. Michael DELAHOUSSAYE.
    No. 2003-C-1820.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Delahoussaye, Michael; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. H, No. 99-14677; to the Court of Appeal, First Circuit, No. 2002 CA1632.

Denied.


text:
    Roger W. JORDAN, Jr. v. Arcenious F. ARMOND, Jr., A.F. Armond, Jr., A Professional Law Corporation, and Robert Z. Smith.
    No. 2003-CC-1826.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Armond, Arcenious F. et al.; Ar-mond, A.F. Jr. A Professional Law Corporation; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. K, No. 574-550; to the Court of Appeal, Fifth Circuit, No. 03-C-444.

Denied.


text:
    SID-MAR’S RESTAURANT & LOUNGE, INC. v. Judy GARDNER.
    No. 2003-C-1831.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Sid-Mar’s Restaurant & Lounge, Inc.; — Plaintiff; Applying for Writ of Cer-tiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. J, No. 563-521; to the Court of Appeal, Fifth Circuit, No. 03-CA-125.

Denied.


text:
    Ray CROCHET, et al. v. CISCO SYSTEMS, INC., and Cisco Systems Capital Corporation.
    No. 2003-C-1838.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Crochet, Ray et al.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of- Calcasieu, 14th Judicial District Court Div. E, No. 2001-2199; to the Court of Appeal, Third Circuit, No. 02-1357.

Denied.


text:
    Joel WILLEBY, Individually and as Natural Tutor of His Minor Daughter, Dawn Willeby v. J.E. MERIT CONSTRUCTORS, INC., Trent Thibodeaux, Willie B. Hurst, James Scott Bissette, Paul Gentile, Daryl Robinson, David Rumfola, and Randy P. Farriel.
    No. 2003-CC-1839.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re J.E. Merit Constructors Inc.; Thibodeaux, Trent; Hurst, Willie B.; Bis-sette, James Scott; Gentile, Paul; Robinson, Daryl; Rumfola, David; Farriel, Randy P.; Merit, J.E. Constructors Inc.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of St. Helena, 21st Judicial District Court Div. B, No. 17,937; to the Court of Appeal, First Circuit, No. 2003-CW-0211.

Denied.


text:
    STATE of Louisiana v. Robert “Bob” ODOM.
    No. 2003-K-2142.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re State of Louisiana; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 8-02-547; to the Court of Appeal, First Circuit, No. 2002 KA 2698.

Denied.


text:
    STATE of Louisiana v. Robert “Bob” ODOM.
    No. 2003-KK-2147.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Odom, Robert “Bob”; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 8-02-547; to the Court of Appeal, First Circuit, No. 2002 KW 2701.

Denied.


text:
    Garth Jonathan RIDGE v. Marjorie Ellen COLLIER.
    No. 2003-C-2668.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Ridge, Garth Jonathan; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Iberville, 18th Judicial District Court Div. C, No. 55,593; to the Court of Appeal, First Circuit, No. 2003-CU-0487.

Denied.


text:
    STATE of Louisiana v. Vernon TURNER.
    No. 2003-KH-2707.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Turner, Vernon; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. B, No. 107012.

Denied.


text:
    STATE ex rel. Walter COLEMAN v. STATE of Louisiana.
    No. 2003-KH-2708.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Coleman, Walter; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 286-548.

Denied.


author:
_JjMOORE, J. I,STEWART, J.
      h MOORE, J.,

text:
    Chad E. HEBERT and Shelly Hebert, Individually and On Behalf of their Minor Children, Plaintiff-Appellants, v. W. James HILL, III, et ux., and State Farm Fire and Casualty Co., Defendant-Appellees.
    No. 37,208-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 14, 2003.
    Opinion on Rehearing Oet. 23, 2003.
    Cook, Yancey, King & Galloway, by Bernard S. Johnson, Shreveport, for Appellants.
    Guglielmo, Marks, Schutte, Terhoeve & Love, by Glen Scott Love, Stephen Dale Cronin, Baton Rouge, for Appellee, State Farm Fire and Casualty Company.
    Tutt & Bordelon, LLC, by Charles Gordon Tutt, Shreveport, for Appellee, Sandra Hill.
    Rountree, Cox, Guin & Achee, by Dale G. Cox, Shreveport, for Appellee, W. James Hill, III.
    Before STEWART, DREW and MOORE, JJ.
   _JjMOORE, J.

Chad and Shelly Hebert, individually and on behalf of their three minor children (collectively, “the Heberts”), appeal a partial judgment that dismissed their claim for penalties against State Farm Fire and Casualty Company on an exception of prescription. For the reasons expressed, we reverse and remand.

Procedural Background

Since the parties offered no evidence (aside from one stipulation) at the hearing on the exception of prescription, this court’s review is based on the allegations of the petition, which are accepted as true. Thomas v. Connolly, 31,447 (La.App. 2 Cir. 1/20/99), 726 So.2d 1052.

The Heberts entered an agreement with James and Sandra Hill to lease the Hills’ rental house at 1608 Gentilly Lane, Shreveport, from October 1999 through October 2000. After that, they remained in the house on a month-to-month basis.

On March 17, 2001, the Heberts notified the Hills of a water leak, apparently from the water heater, which had dampened the carpet and sheetroek in several rooms. Three days later the Hills notified State Farm, their property insurer, of the leak and damage, as well as the fact that the Heberts were living in the house. State Farm advised the Hills that the policy would cover damages done by the leaking water but not the replacement of the water heater itself. The Hills replaced the water heater in April 2001 but did not repair or replace the carpet or sheetroek. State Farm sent an inspector to the house in June 2001.

Lin March 2002, one of the Heberts’ children was diagnosed with neurological hearing loss which would require surgery. On the advice of the Caddo Parish Health Unit, the Heberts hired an environmental lab to test the house. Test results showed “black mold” in the water heater area and high levels of toxic molds throughout the house. The Heberts vacated the house later in March 2002, at which time the carpet and sheetroek still had not been replaced. They later discovered that their youngest son also suffered from neurological damage, and that visiting family members had developed mold allergies while staying at the house.

The Heberts filed this suit for damages against the Hills and State Farm on June 7, 2002. They included a claim for penalties against State Farm under La. R.S. 22:658 A(3) for failing to initiate loss adjustment within 14 days of receiving the Hills’ claim on March 20, 2001. State Farm filed exceptions of no right of action, no cause of action and prescription as to the penalties claim. At a hearing on the exceptions, the parties stipulated that the Heberts were unaware of the mold contamination until they received the results of the environmental study on April 2, 2002.

After hearing argument, the district court sustained the exception of prescription and dismissed the penalty claim as prescribed; it further stated that the other exceptions were moot. The court designated this a final judgment under La. C.C.P. art. 1915 B(l), and this appeal followed.

Exception of Prescription

By two assignments of error, the He-berts urge the district court erred in sustaining the exception of prescription. They contend that an action for ^penalties against an insurer under R.S. 22:658 A(3) is a personal action subject to liberative prescription of 10 years. La. C.C. art. 3499; We Sell Used Cars, Inc. v. United National Ins. Co., 30,671 (La.App. 2 Cir. 6/24/98), 715 So.2d 656; Cantrelle Fence & Supply Co. v. Allstate Ins. Co., 550 So.2d 1306 (La.App. 1 Cir.1989), writ denied, 559 So.2d 123 (La.1990). This argument has merit.

Unless otherwise provided by legislation, a personal action is subject to a liber-ative prescription of 10 years. C.C. art. 3499. A personal action is “one brought to enforce an obligation against the obligor, personally and independently of the property which he may own, claim, or possess.” La. C.C.P. art. 422.

The action against an insurer for failure to adjust and pay a claim timely is established by R.S. 22:658 A:

§ 658. Payment and adjustment of claims, policies other than life and health and accident; personal vehicle damage claims; penalties; arson-related claims suspension
A. (1) All insurers issuing any type of contract, other than those specified in R.S. 22:656, R.S. 22:657, and Chapter 10 of Title 23 of the Louisiana Revised Statutes of 1950, shall pay the amount of any claim due any insured within thirty days after receipt of satisfactory proofs of loss from the insured or any party in interest.
(2) All insurers issuing any type of contract, other than those specified in R.S. 22:656, R.S. 22:657, and Chapter 10 of Title 23 of the Louisiana Revised Statutes of 1950, shall pay the amount of any third party property damage claim and of any reasonable medical expenses claim due any bona fide third party claimant within thirty days after written agreement of settlement of the claim from any third party claimant.
(3) Except in the case of catastrophic loss, the insurer shall initiate loss adjustment of a property damage claim and of a claim for reasonable medical expenses within fourteen days 14after notification of loss by the claimant. In the case of catastrophic loss, the insurer shall initiate loss adjustment of a property damage claim within thirty days after notification of loss by the claimant. Failure to comply with the provisions of this Paragraph shall subject the insurer to the penalties provided in R.S. 22:1220.
(4) All insurers shall make a written offer to settle any property damage claim within thirty days after receipt of satisfactory proofs of loss of that claim.

In We Sell Used Cars, supra, this court determined that the claim for penalties and attorney fees under § 658 A(l) is a personal action subject to 10-year prescription. While the instant claim is based on § 658 A(3), we find nothing in this subsection that would impose a shorter prescriptive period.

State Farm submits that the instant claim is brought by a third-party claimant and thus distinguishable from We Sell Used Cars. In support it cites passages of the opinion referring to the insurer’s obligation as a “contractual duty” and its conduct as “a passive breach of contract.” Such duty and breach were found in We Sell Used Cars. However, we stated that the claim for penalties and attorney fees was “a separate ground or theory of recovery from a claim under uninsured motorist coverage[J” Citing the First Circuit’s rationale in Cantrelle Fence & Supply Co., supra, we further found that “the obligation arising out of the penalty statute is separate from the obligation arising out of the contractual relationship pursuant to the insurance policy.” Since the penalty claim is independent from the policy, we see no basis to distinguish whether the claimant is a policy holder or a third party. State Farm’s contention lacks merit.

|¡;The district court erred in sustaining the exception of prescription. The judgment will be reversed.

Exceptions of No Right and No Cause of Action

State Farm urges in brief that if the Heberts’ claim is not prescribed, it fails to state a right of action. It submits that a third party may bring a penalty claim under § 658 A(2) because that subsection specifically refers to “any third party claimant,” but contends that a third party may not bring such a claim under § 658 A(3) because that subsection makes no similar reference. State Farm concedes that in Rogers v. Commercial Union Ins. Co., 01-443 (La.App. 3 Cir. 10/3/01), 796 So.2d 862, the Third Circuit held that § 658 A(3) applies to third party claimants, but contends that Rogers is wrongly decided. Finally, State Farm urges that because the Heberts have no right of action, they also have no cause of action.

Because it is penal in nature, § 658 must be strictly construed. Hart v. Allstate, 437 So.2d 823 (La.1983); Block v. St. Paul Fire & Marine Ins. Co., 32,306 (La.App. 2 Cir. 9/22/99), 742 So.2d 746. When a statute is clear and free from ambiguity, the court may not restrict or expand its literal meaning under the pretext of pursuing its spirit. La. R.S. 1:4; Horton v. State Farm Ins. Co., 25,943 (La.App. 2 Cir. 8/17/94), 641 So.2d 993. Despite State Farm’s creative efforts to construe § 658, we find it to be clear and free from ambiguity. Subsection A(3) refers simply to “a property damage claim,” without any limitation as to whether the claimant is an insured or a third party. “Claimant,” as used in subsection A(3), encompasses both insureds and third parties. Based on this plain reading, |fiwe agree with the court’s holding in Rogers v. Commercial Union, supra, and decline State Farm’s invitation to introduce a distinction not present in the statute. The Heberts have stated a right of action for penalties under R.S. 22:658 A(3), and State Farm’s exception is overruled.

Finally, State Farm’s exception of no cause of action is based entirely on the theory of no right of action which we have rejected. Under the circumstances, we also overrule the exception of no cause of action.

Conclusion

For the reasons expressed, we reverse the partial judgment that sustained State Farm’s exception of prescription, and overrule the exceptions of no right of action and no cause of action. The case is remanded to the district court for further proceedings. Costs are assessed to State Farm.

REVERSED AND REMANDED.

On Rehearing

I,STEWART, J.

Chad and Shelly Hebert, individually and on behalf of their three minor children (“the Heberts”), appeal a partial judgment that dismissed their claim for penalties against State Farm Fire and Casualty Company (“State Farm”) on an exception of prescription. The original three judge panel reversed the trial court, and State Farm filed an application for rehearing which was granted by a five judge panel of this court. For the reasons expressed, we affirm the judgment of the trial court.

FACTS

The Heberts entered an agreement with James and Sandra Hill (“the Hills”) to lease the Hills’ rental house at 1608 Genially Lane, Shreveport, from October 1999 through October 2000. After that, they remained in the house on a month-to-month basis.

On March 17, 2001, the Heberts notified the Hills of a water leak, apparently from the water heater, which had dampened the carpet and sheetrock in several rooms. Three days later the Hills notified State Farm, their property insurer, of the leak and damage, as well as the fact that the Heberts were living in the house. State Farm advised the Hills that the policy would cover damages done by the leaking water but not the replacement of the water heater itself. The Hills replaced the water heater in April 2001, but did not repair or replace the carpet or sheetrock. State Farm sent an inspector to the house in June 2001.

In March 2002, one of the Heberts’ children was diagnosed with neurological hearing loss which would require surgery. On the advice of the Caddo Parish Health Unit, the Heberts hired an environmental lab to test lathe house. Test results showed “black mold” in the water heater area and high levels of toxic molds throughout the house. The Heberts vacated the house later in March 2002, at which time the carpet and sheetrock still had not been replaced. They later discovered that their youngest son also suffered from neurological damage, and that visiting family members had developed mold allergies while staying at the house.

The Heberts filed this suit for damages against the Hills and State Farm on June 7, 2002. They included a claim for penalties against State Farm under La. R.S. 22:658(A)(3) for failing to initiate loss adjustment within 14 days of receiving the Hills’ claim on March 20, 2001. State Farm filed exceptions of no right of action, no cause of action, and prescription as to the penalties claim. At a hearing on the exceptions, the parties stipulated that the Heberts were unaware of the mold contamination until they received the results of the environmental study on April 2, 2002.

The district court sustained the exception of prescription and dismissed the penalty claim as prescribed; it further stated that the other exceptions were moot. An appeal followed, and the original panel reversed the finding of the trial court on the issue of prescription and rejected State Farm’s arguments on the issues of no right of action and no cause of action. State Farm then filed the instant application for rehearing.

DISCUSSION

Although the original panel reversed the trial court on the issue of prescription, we find that the Heberts have no right of action or cause of | -¡action under the facts of this ease, thus pretermitting any discussion of the prescription issue.

Exceptions of No Right and No Cause of Action

State Farm asserts that the original panel erred in reversing the trial court in finding that the Heberts had a right of action or cause of action against them for penalties under La. R.S. 22:658(A)(3). We agree because we find that the Heberts were never claimants within the meaning of La. R.S. 22:658(A)(3). As such, State Farm cannot be subjected to any penalties for failure to timely adjust and pay a claim under the statute.

The action against an insurer for failure to adjust and pay a claim timely is established by La. R.S. 22:658(A):

§ 658. Payment and adjustment of claims, policies other than life and health and accident; personal vehicle damage claims; penalties; arson-related claims suspension
A. (1) All insurers issuing any type of contract, other than those specified in R.S. 22:656, R.S. 22:657, and Chapter 10 of Title 23 of the Louisiana Revised Statutes of 1950, shall pay the amount of any claim due any insured within thirty days after receipt of satisfactory proofs of loss from the insured or any party in interest.
(2) All insurers issuing any type of contract, other than those specified in R.S. 22:656, R.S. 22:657, and Chapter 10 of Title 28 of the Louisiana Revised Statutes of 1950, shall pay the amount of any third party property damage claim and of any reasonable medical expenses claim due any bona fide third party claimant within thirty days after written agreement of settlement of the claim from any third party claimant.
(3) Except in the case of catastrophic loss, the insurer shall initiate loss adjustment of a property damage claim and of a claim for reasonable medical expenses within fourteen days after notification of loss by the claimant. In the case of catastrophic loss, the insurer shall initiate loss adjustment of a property damage claim within thirty days after notification of loss by the claimant. Failure to comply with the provisions of 14this Paragraph shall subject the insurer to the penalties provided in R.S. 22:1220.
(4) All insurers shall make a written offer to settle any property damage claim within thirty days after receipt of satisfactory proofs of loss of that claim.

State Farm urges in brief that the He-berts’ claim fails to state a right of action because they never filed a claim with State Farm. The record shows that in March of 2001, the Hills submitted a claim to State Farm for payment because of the damage caused by the water leak in the Heberts’ residence. State Farm paid the Hills for that claim, but the Hills failed to replace the carpet that had been soaked in water or the damaged sheetrock. The Hills did replace the broken hot water heater. The Heberts made no claim upon State Farm until March of 2002, when the instant suit arose out of alleged damage from the mold in the residence. Although third parties may be included in the class of persons contemplated by this statute, they must first be a claimant. If anyone would have a cause of action for State Farm’s alleged failure to timely adjust and pay a claim related to the initial water leak, it would have been the Hills. However, State Farm paid for that claim, and the Hills failed to make the repairs to the sheetrock and the carpet. The Hills made no complaint against State Farm under La. R.S. 22:658. Consequently, we find that the Heberts were not claimants under La. R.S. 22:658 in March of 2001, and they have no right of action for penalties under the statute.

Because it is penal in nature, § 658 must be strictly construed. Hart v. Allstate, 437 So.2d 823 (La.1983); Block v. St. Paul Fire & Marine Ins. Co., 32,306 (La. App.2d Cir.9/22/99), 742 So.2d 746. When a statute is |sclear and free from ambiguity, the court may not restrict or expand its literal meaning under the pretext of pursuing its spirit. La. R.S. 1:4; Horton v. State Farm Ins. Co., 25,943 (La.App.2d Cir.8/17/94), 641 So.2d 993. Consequently, we sustain the grant of partial summary judgment finding that the Heberts have no cause of action nor right of action against State Farm.

CONCLUSION

For the reasons expressed, we affirm the partial judgment dismissing the He-berts claims for penalties against State Farm under La. R.S. 22:658. Costs are assessed to the appellants. This case is remanded to the trial court for further proceedings.

AFFIRMED.

MOORE, J., dissents with written reasons.

DREW, J., dissents for the reasons assigned by Judge Moore.

h MOORE, J.,

dissents.

I respectfully dissent for the reasons expressed in the original opinion. The Heberts are among the class of persons to whom the law grants a cause of action under La. R.S. 22:658. They have a legal interest in the outcome of the litigation. Rogers v. Commercial Union Ins. Co., 01-443 (La.App. 3 Cir. 10/3/01), 796 So.2d 862. Whether they meet the criteria for receiving statutory penalties is a matter for trial on the merits or perhaps summary judgment, not an exception of no right of action.

      . State Farm also contends in brief that in Spivey v. Super Valu, 575 So.2d 876 (La.App. 2 Cir.1991), this court held that "this statute [La. R.S. 22:658] applies only between an insurance company and its insured, not between an injured plaintiff or claimant and the alleged tortfeasor’s insurance company.” The argument is overbroad; Spivey clearly involved a claim for penalties and attorney fees based on subsection A(l), which is indeed limited to "any insured.” Subsection A(3) is not so limited, and this contention lacks merit.


author: J^McDONALD, J. |, McCLENDON, Judge,

text:
    Maurice C. KEMP and Wendy B. Kemp v. ARMSTRONG WORLD INDUSTRIES, et al.
    No. 2002 CA 1293.
    Court of Appeal of Louisiana, First Circuit.
    May 28, 2003.
    Rehearing Denied Oct. 29, 2003.

      George R. Covert, Baton Rouge, Richard M. Perles, New Orleans, Counsel for Plaintiffs/Appellants Wendy B. Kemp, Johnny Lee Kemp Jesse K. Kemp, and Jalacee 0. Kemp.
    Michael R. Sistrunk, Metairie, Counsel for Defendant/Appellee W.R. Grace & Company-Conn.
    John J. Hainkel, III, New Orleans, for Owens Corning.
    Henry D. Salassi, Jr., Baton Rouge, Marilyn R. Forbes, Raleigh, NC, for R.J. Reynolds Tobacco Co.
    Larry G. Canada, New Orleans, for Combustion Engineering, Inc.
    John D. Cosmick, Laura Sanders Brown, Jackson, MS, for Owens-Illinois, Inc.
    Susan B. Kohn, New Orleans, for McCarty Corporation.
    Patrick D. McMurtray, Troy Broussard, New Orleans, for A.P. Green Industries, Inc.
    Donan Renegar, Lafayette, for GAF Corporation.
    Patrick A. Juneau, Lafayette, Billy R. Randles, Noel C. Capps, Beverly T. Brown, Kansas City, MO, for Philip Morris Incorporated.
    Before: McDONALD, McCLENDON, and CIACCIO, JJ.

      . Judge Philip Ciacco, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   J^McDONALD, J.

Plaintiffs appeal the trial court’s granting of partial summary judgment in favor of defendant tobacco company, limiting their claims to those governed by the Louisiana Product Liability Act. We affirm.

FACTS AND PROCEDURAL BACKGROUND

Maurice Kemp was diagnosed in November 1997 with adenocarcinoma. At the time he was 46 years old, had been smoking since age 14, and had worked for many years in chemical plants where he was allegedly exposed to asbestos. In June 1998, suit was filed on behalf of Mr. Kemp and his wife, Wendy, against numerous asbestos manufacturers, an asbestos supplier, and cigarette manufacturers, R.J. Reynolds Tobacco Company and Philip Morris Incorporated. The claims against several asbestos manufacturers were settled and/or dismissed in 1999, 2000, and 2001. In October 2001, the tobacco company defendants filed an omnibus motion for summary judgment on all claims, and motions for partial summary judgment based on federal preemption, first amendment of the U.S. Constitution, lack of causation evidence, and any claims not based on the Louisiana Products Liability Act. In January 2002, the tobacco defendants filed a motion to exclude the testimony of Dr. James H. Lutsch, M.D. Also, in January 2002, R.J. Reynolds Tobacco Company filed a motion for summary judgment asserting that plaintiffs had not and could not produce any evidence that Reynolds was a substantial contributing factor in causing Mr. Kemp’s lung cancer.

On January 29, 2002, the trial court heard the pending motions. R.J. Reynolds’ motion for summary judgment was granted and they were dismissed. The motion to exclude the testimony of Dr. Lutsch was denied. The partial summary judgment on the basis of federal preemption was granted on the issues of negligent misrepresentation, violation of consumer protection statutes, and redhibition. On the issues of fraud and deceit, and the liability claims: absolute, unreasonably dangerous, | ¡¡unreasonably dangerous per se, and unreasonably dangerous in design, the motion was denied. The motion based on the first amendment of the constitution was passed. The court heard argument on the issue of the application of the LPLA that primarily turned on when the tort accrued. The defendants argued that until there was a convergence of fault, causation, and damage there was no cause of action and in this case that was not until November 1997 when Mr. Kemp was diagnosed with lung cancer. Therefore, the law to be applied was that in effect in November 1997, which would mean that the only claims available to plaintiff were those provided by La. R.S. 9:2800.52, the Louisiana Products Liability Act. Plaintiffs argued that the date of manifestation of the disease was not the proper date, but rather the date of significant exposure to the carcinogens should be applied, which was prior to the passage of the products liability act. The court allowed the parties time to submit additional briefs and the matter was continued until then.

The court reconvened on February 15, 2002. After additional argument, partial summary judgment was granted in favor of the defendant, Phillip Morris, dismissing all plaintiffs’ non-LPLA claims. The ruling was found to constitute a final judgment pursuant to La. C.C.P. art. 1915(B) and plaintiffs appealed.

ASSIGNMENT OF ERRORS

Appellants urge four assignments of error: 1. “[T]he trial court erred in ruling that both Mr. Kemp’s survival and wrongful death actions are governed by the LPLA; 2. [T]he trial court erred in dismissing all non-LPLA causes of action in Mr. Kemp’s survival action; 3. [T]he trial court erred in retroactively applying the LPLA to Mr. Kemp’s survival action; 4. [T]he trial court erred in ruling that there was no question of material fact as to when Mr. Kemp’s survival cause of action arose.” Appellant briefed assignments of error number two and three together. Determination of whether the LPLA governs appellants’ claims will dispose of both assignments, and we will likewise consider them together. Assignment of error number 4 raises the issue that Rappellees assert is the only one before this court: whether the trial court correctly determined that, for purposes of the application of the LPLA to this matter, plaintiffs failed to produce factual support sufficient to establish that they will be able to satisfy their evidentiary burden of proving that Mr. Kemp’s lung cancer existed before September 1,1988.

LAW AND ANALYSIS

In September 2002, the Louisiana Supreme Court decided Austin v. Abney Mills, Inc., 2001-1598 (La.9/4/02), 824 So.2d 1137. Thereafter, appellants submitted a supplemental brief asserting that the decision answers all of the issues raised in this appeal. We do not agree that the Austin decision has such a sweeping effect. It does, however, definitively dispose of the appellee’s argument that Mr. Kemp’s tort action accrued in November 1997. In Austin, the Supreme Court held that “the date of disability is not the relevant date to decide the issue of when a tort cause of action under La. C.C. art. 2315 accrues in a long-latency occupational disease case in which the individual suffers from the disease.” Austin, supra. Whether Mr. Kemp’s cancer was an occupational disease has yet to be determined; at this point we are dealing only with the alleged effects of tobacco smoke exposure. Whether this is a tort action pursuant to La. C.C. art. 2315 or to the LPLA is one of the issues before us. While we recognize that the context in which claims arise can distinguish them from other similar actions, we do not find that to be the case here.

Further, this court has already decided the issue of which date, that of exposure, or that of manifestation, should be controlling in this type of case in Pitre v. GAF Corp., 97-1024, (La.App. 1 Cir. 12/29/97), 705 So.2d 1149; writ denied, 98-0723 (La.11/19/99), 749 So.2d 666. The Pitre case also involved a plaintiff who smoked for many years and additionally was exposed to asbestos in the workplace. Also similarly, the plaintiff was diagnosed with lung cancer after the effective date of the LPLA, and the tobacco defendants argued that the LPLA provided the exclusive remedy for claims against cigarette manufacturers. In finding that the “exposure rule” Lset forth in Cole v. Celotex Corp., 599 So.2d 1058 (La.1992) was applicable in Pitre the court noted:

Although Mr. Pitre’s disease, if caused solely by cigarette smoking, would not be an occupational disease, we recognize that plaintiffs allege Mr. Pitre developed lung cancer as a result of exposure to asbestos in the workplace and exposure to tobacco smoke. Where a long-latency disease is alleged to have been caused by repeated tortious exposures to more than one substance, we see no logical rationale for applying different rules to determine the applicable law governing each claim. Pitre, at 1156.

Therefore, the “exposure rule” is to be applied in determining the date of the accrual of this tort action.

The decision in Pitre, however, did not reach the issue of whether or not the LPLA provided the exclusive remedy to Mr. Pitre. The appeal was of the trial court’s granting of summary judgment in favor of the tobacco company defendants on June 3,1996 — prior to the effective date of the legislative amendments to the Code of Civil Procedure articles on summary judgment. Because those amendments radically changed the way in which courts ruled on summary judgment motions, it was believed that justice was best served by remanding the case to allow the parties the opportunity to introduce additional evidence into the record in contemplation of any differences they perceived in the burdens of proof under the new law. The case does make clear that “[b]ecause plaintiffs urge that pre-LPLA tort law is applicable to this action, plaintiffs have the burden of proving, pursuant to amended La. C.C.P. art. 966 C(2), that significant ‘repeated tortious exposures resulting in continuous, on-going damages’ occurred prior to the effective date of the LPLA, and that such exposures later resulted in the manifestation of damages in order to prevail.” Pitre, at 1157.

In the context of a defense motion for summary judgment, “repeated tortious exposure resulting in continuous, on-going damage” requires more than proof of a Insignificant history of cigarette smoking prior to September 1988 and knowledge that smoking causes lung disease. La. C.C.P. art. 966 C(2) provides:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy Ms evidentiary burden of proof at trial, there is no genuine issue of material fact. Emphasis added.

To satisfy his evidentiary burden at trial, plaintiff will have to prove that the exposures prior to September 1988 were “significant and such exposures later resulted[ed] in the manifestation of damages .... ” Austin, 824 So.2d at 1153, citing Cole, at 1066.

In opposition to the motion for summary judgment, plaintiffs submitted the affidavit of Dr. Gerald Liuzza, a clinical pathologist, and excerpts from the deposition of Dr. David Hanson, Mr. Kemp’s treating physician, an oncologist. Dr. Liuzza’s affidavit was based on review of the November 7, 1997 pathology report on Maurice Kemp prepared by Dr. Lim from Earl K. Long Hospital. The affidavit contains several opinions concerning the development of adenocarcinoma in general and applies those opinions to the development of Mr. Kemp’s disease. Similarly, Dr. Hanson’s testimony was based on his understanding of the risk of contracting lung cancer based on a significant history of smoking. Neither of these opinions was based on specific medical facts regarding Mr. Kemp.

The affidavit of Dr. George Hensley, a physician, board certified in anatomical pathology was submitted by defendants. Dr. Hensley examined lung and brain tissue surgically removed from Mr. Kemp in 1997 and 1998. His opinion on the evolution of Mr. Kemp’s lung cancer, expressed to a reasonable degree of medical certainty, was that Mr. Kemp’s cancer was relatively aggressive and fast-growing and there was no reliable scientific evidence to support an assertion that Mr. Kemp suffered irreversible cellular changes that remained indolent for a decade before developing into clinically detectable lung cancer.

^Similarly, after examining Mr. Kemp’s medical records, Dr. Steven Stogner, a physician, board certified in Internal Medicine, Pulmonary Medicine and Critical Care Medicine, testified that Mr. Kemp’s malignancy was aggressive. Dr. Stogner’s affidavit also noted that unlike asbestos, smoking is not an exposure that deposits fibers into the lungs, and that respiratory epithelium is regenerated, repaired, and replaced. This distinction between long-latency occupational diseases, e.g. asbestosis (as in Cole), silicosis (as in Walls), and mesothelioma (as in Austin), and Mr. Kemp’s lung cancer, allegedly caused by exposure to tobacco smoke, is significant, especially in view of the fact that he is required to establish a pre-1988 causative connection between cigarette smoking and his 1997 diagnosis of adenocarcinoma. Mr. Kemp cannot rely on showing that he was exposed and later manifested damages. It is not an arithmetical formulation of exposure plus damage; but rather an equation whereby one proves that exposure equals damage.

Appellate courts are to review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Potter v. First Federal Savings and Loan Association of Scotlandville, 615 So.2d 318 (La.1993). The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action.. .The procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2); Pitre, supra at 1152.

Our review of the record fails to reveal sufficient factual support to establish that appellant’s exposure to tobacco smoke prior to September 1988 was a significant cause of damage that manifested in lung cancer in November 1997 and resulted in his death one year later. Therefore, we affirm the trial court’s decision that Mr. Kemp’s claims against Philip Morris are those provided by the LPLA and granting the defendant’s motion for summary judgment on all non-LPLA claims. Costs of this appeal are-assessed against appellants, Wendy B. Kemp, Johnny Lee kemp, Jesse K. Kemp, and Jalacee O. Kemp.

AFFIRMED.

McCLENDON, J., dissents with reasons.

|, McCLENDON, Judge,

dissenting.

I respectfully dissent from the majority opinion in the instant case. I believe the trial court erred in granting summary judgment dismissing all non-LPLA claims, which finding was based on the premise that Maurice C. Kemp’s cancer and/or damage therefrom accrued after September 1, 1988, which was the effective date of the LPLA.

In support of their motion for summary judgment, defendants submitted the affidavits of Dr. George Hensley and Dr. Steven Stogner.

Dr. Hensley, a pathologist, stated in his affidavit that he had examined the slide preparations made from the lung and brain tissue surgically removed from Mr. Kemp in 1997 and 1998, respectively. Dr. Hensley stated that his examination of the lung tissue revealed no cellular abnormalities that could be considered pre-malig-nant. It was the opinion of Dr. Hensley that “Mr. Kemp’s cancer was relatively aggressive and therefore fast-growing.” Dr. Hensley further stated, “There is simply no reliable scientific evidence to support the assertion that Mr. Kemp suffered irreversible cellular changes which remained indolent for a decade before developing into clinically detectable lung cancer.” However, Dr. Hensley admitted that “it is sheer speculation to hypothesize a particular time frame for the evolution of the disease process that culminated in Mr. Kemp’s cancer.”

Dr. Steven W. Stogner, an internist practicing pulmonary and critical care medicine, testified by affidavit that he “reviewed the medical history of Maurice C. Kemp,” and that based on these records, “there is no evidence of any lung changes or lung disease before 1987.” Dr. Stogner further stated that “Mr. Kemp’s malignancy was aggressive and, in [his] experience and | ¡¡training, it is more reasonable to conclude that his disease process started some time immediately prior to diagnosis.” However, Dr. Stogner, like Dr. Hensley, admitted that there is “no medically sound way to determine when Mr. Kemp’s lung cancer started or from what source.”

In opposition, plaintiffs presented excerpts of the deposition of Dr. David S. Hanson and the affidavit of Dr. Gerald Liuzza. Dr. Hanson treated Mr. Kemp as an oncologist. Dr. Hanson stated that the duration and severity of cigarette usage were factors in the risk of contracting cancer, and that his “understanding” was that “there’s a period of time between the insult from the carcinogen and whatever cofactors that are required for the overt cancer to develop.” Dr. Hanson noted that Mr. Kemp had started smoking as a teenager and since that time had regularly smoked multiple packs per day. Dr. Hanson further noted that normally he sees lung cancer manifested in patients closer to age sixty, whereas Mr. Kemp was only in his thirties.

Dr. Gerald Liuzza, a pathologist, testified via affidavit that he had examined the “pathology report of Dr. Juanito Lim from Earl K. Long Hospital in Baton Rouge, pertaining to Mr. Maurice Kemp, dated on or about November 7, 1997.” This report diagnosed Mr. Kemp as having been afflicted with an “adenocarcinoma.” In the opinion of Dr. Liuzza, “[a]denocarcinomas, such as that suffered by Mr. Kemp, develop over a period of many years or decades.” Further, Dr. Liuzza stated that “[a]denocarcinomas begin at a cellular level and therefore can exist for a substantial period of time in the body before they are detectable by current medical technologies.” Dr. Liuzza opined that, given Mr. Kemp’s history of heavy cigarette smoking beginning at a young age and extending through the time he was discovered to have cancer at age thirty-seven, it was “more Llikely than not that in 1987, Mr. Kemp had significant and latent, pre-ma-lignant cellular changes that later developed into his lung cancer.”

This Court has held that to defeat a motion for summary judgment seeking to exclude the application of pre-LPLA tort law, “plaintiffs have the burden of proving ... that significant ‘repeated tortiuous exposures resulting in continuous, on-going damages’ occurred prior to the effective date of the LPLA, and that such exposures later resulted in the manifestation of damages in order to prevail.” Pitre v. GAF Corporation, 97-1024, p. 17 (La.App. 1 Cir. 12/29/97), 705 So.2d 1149, 1157. The testimony presented on the motion for summary judgment is conflicting on this point. Defendants’ experts aver that Mr. Kemp’s disease process was fast-growing and of relatively short duration, while admitting that the actual length of time that it took the cancer to develop cannot be stated with scientific certainty. Plaintiffs’ experts take the opposite position that cancers of the type acquired by Mr. Kemp begin on a cellular level with an asymptomatic latency period that very likely extended back to 1987 in this case.

We are mindful that if the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense, then the nonmoving party must produce factual support sufficient to satisfy his evidentiary burden at trial. La. C.C.P. art. 966(C)(2). If the nonmoving party fails to do so, there is no genuine issue of material fact and summary judgment should be granted. La. C.C.P. arts. 966 and 967; Bergeron v. Williams, 99-0886 at p. 5, 764 So.2d at 1087; LeJeune v. Brewster, 97-2342, pp. 3-4 (La.App. 1 Cir. 11/6/98), 722 So.2d 74, 76. In determining whether an issue is “genuine,” courts cannot consider the merits, make credibility determinations, evaluate testimony or |4weigh evidence. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751.

A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Hardy v. Bowie, 98-2821, p. 6 (La.9/8/99), 744 So.2d 606, 610, Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 at p. 27, 639 So.2d at 751. Simply put, a “material” fact is one that would matter on the trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 at p. 27, 639 So.2d at 751.

In the instant case, resolution of the conflicting expert testimony necessitates a credibility determination. Although the expert testimony presented by defendants may be more convincing, it is not the court’s duty on a motion for summary judgment to weigh credibility, as long as the expert testimony has a rational basis and connexity to the facts of the case. Plaintiffs in this case have produced factual support sufficient to meet their burden to show Mr. Kemp’s disease process began prior to the enactment of the LPLA. Therefore, there is a genuine issue of material fact such that summary judgment was inappropriate.

Therefore, I respectfully dissent.

      . In December 1998, following the death of Mr. Kemp, the suit was amended to a survival action and wrongful death action and the deceased’s children were added as plaintiffs.

      . The trial court denied the defense motion for summary judgment on the issue of causation; however, as this decision was not appealed, we do not address it.

      . The Louisiana Supreme Court in Walls v. American Optical Corp., No. 98-0455 (La.9/8/99), 740 So.2d 1262, 1268 and also in Anderson v. Avondale Industries, Inc., No.2000-2799 (La.10/16/01), 798 So.2d 93, 99 cites Pitre, noting, incorrectly, that the LPLA was not applied. The issue in Walls was retroactiovity in a survival and wrongful death action in the context of workers' compensation not alleging tobacco exposure; in Anderson, also not a tobacco case, the Court’s approval of Pitre was because the plaintiff’s exposure was prior to the enactment of the LPLA and a retroactive application would be in violation of Plainol’s first test.

      . While a court is entitled to assess whether the reasoning or methodology underlying expert testimony is scientifically valid and whether that reasoning or methodology properly can be applied to the facts in issue, under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), I am unable to find any Daubert defect in the expert testimony presented herein.