text:
    In re Fernand L. LAUDUMIEY, III and Dennis S. Mann.
    No. 2003-B-0234.
    Supreme Court of Louisiana.
    June 27, 2003.

      Charles B. Plattsmier, Baton Rouge, for Applicant.
    Fernand L. Laudumiey, II, William A. Porteous, III, New Orleans, Dennis S. Mann, for Respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS.

PER CURIAM.

This disciplinary matter involves consolidated charges instituted against respondents, Fernand L. Laudumiey, III and Dennis S. Mann, two attorneys who are licensed to practice law in Louisiana, but currently on interim suspension.

UNDERLYING FACTS

Factual Background

In 1996, respondents entered into an employment arrangement with Ernest Aia-volasiti and Michael Palmisano, two non-attorney “legal assistants” who had been previously employed by another law firm. Mr. Aiavolasiti and Mr. Palmisano indicated they had personal contact with their former firm’s clients and felt that many of the clients would follow them after their departure from the firm.

| «At the suggestion of Mr. Aiavolasiti and Mr. Palmisano, respondents set up a law office on Canal Street in the City of New Orleans. Respondents gave Mr. Aiavolasiti and Mr. Palmisano full responsibility and unfettered discretion to set up the office, and to handle all administrative matters and case acquisitions, development, and settlements.

In the first year, respondents put up approximately $270,000 of their own funds to finance the firm’s operating account. Mr. Aiavolasiti and Mr. Palmisano had complete access to these funds. When the funds were exhausted after the first six months of the new firm’s existence, respondents set up a $150,000 line of credit with a bank to finance the operation. Respondents did not monitor how the funds were being spent. It later turned out these funds were being used by Mr. Aiavo-lasiti and Mr. Palmisano, with respondents’ knowledge, to pay “runners,” persons who were used to solicit personal injury clients for the firm.

During the same time, Mr. Aiavolasiti and Mr. Palmisano provided a quick “transition” of approximately 800 to 1,000 client files from their prior employer to respondents’ firm. These clients never met respondents, and communicated exclusively with Mr. Aiavolasiti and Mr. Palmisano.

Eighteen months after its opening, respondents closed the Canal Street office based on concerns that the firm was not generating sufficient revenues. Respondents also began to experience trepidation about their arrangement with Mr. Aiavola-siti and Mr. Palmisano, as an insurance company had begun to question clients during depositions about how they came to be represented by respondents. After the Canal |3Street office closed, respondents had no further contact with Mr. Aiavolasiti and Mr. Palmisano.

Federal Investigation

Unbeknownst to respondents, Mr. Aia-volasiti and Mr. Palmisano began cooperating with federal authorities who were investigating the practice of runner-based solicitation. In connection with this investigation, Mr. Aiavolasiti and Mr. Palmisano agreed to meet with respondents while wearing hidden recording devices. Mr. Aiavolasiti and Mr. Palmisano advised respondents that they had been subpoenaed to appear before a federal grand jury in connection with an FBI investigation. Respondents attempted to persuade Mr. Aia-volasiti and Mr. Palmisano to testify that respondents did not know Mr. Aiavolasiti and Mr. Palmisano were paying runners. After the meeting, respondents gave Mr. Aiavolasiti and Mr. Palmisano $2,000 in cash to retain counsel and advised more funds were available.

Federal Criminal Proceedings

As a result of the information developed in the federal investigation, respondents were indicted in the United States District Court for the Eastern District of Louisiana on one count of obstruction of justice, a violation of 18 U.S.C. § 1512(b)(l)(2). The indictment alleged respondents “did knowingly and intentionally corruptly persuade and attempt to persuade [Mr. Aiavolasiti and Mr. Palmisano] with intent to influence | ¿their testimony in an official proceeding. ...” In March 2001, respondents pled guilty to the charges. In the factual basis for the guilty plea, respondents admitted that they had “full knowledge” that Mr. Aiavolasiti and Mr. Palmisano used runners to solicit personal injury clients while employed by respondents.

DISCIPLINARY PROCEEDINGS

Interim Suspension

Following their guilty pleas, respondents and the ODC filed a joint motion in this court requesting that respondents be placed on interim suspension. On April 11, 2001, we placed respondents on interim suspension and ordered that disciplinary proceedings be instituted. In re: Laudu-miey, 01-0925 (La.4/11/01), 787 So.2d 275; In re: Mann, 01-0926 (La.4/11/01), 787 So.2d 275.

Formal Charges

On July 23, 2001, the ODC filed identical sets of formal charges against both respondents. The formal charges set forth the facts underlying respondents’ convictions, but did not set forth any specific rule violations. On August 22, 2001, the ODC filed a “first supplemental and amending formal charge” against respondents, which alleged respondents’ criminal conviction constituted a violation of Rule 8.4 of the Rules of Professional Conduct and warranted their “permanent disbarment from the practice of law.”

| ¡¿Respondents’ declinatory and peremptory exceptions asserting numerous due process violations were overruled. Subsequently, their disciplinary proceedings were consolidated and respondents filed admissions to the allegations of professional misconduct.

A formal hearing was conducted before the committee. Respondents testified at the hearing and presented mitigating evidence.

Recommendation of the Hearing Committee

The hearing committee found the ODC proved by clear and convincing evidence respondents violated Rule 8.4(b) based on their commission of a criminal act adversely reflecting on their honesty, trustworthiness, or fitness as lawyers. The committee further found the crime of which they were convicted was a “serious crime” for purposes of Supreme Court Rule XIX § 19(B).

As aggravating factors, the committee recognized respondents’ dishonest or selfish motive, pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of the conduct, and substantial experience in the practice of law. Also, specifically with regard to respondent Mann, the committee noted prior disciplinary offenses.

In mitigation, the committee recognized character or reputation and, in the case of respondent Laudumiey, the absence of a prior disciplinary record. However, the committee specifically declined to find remorse as a mitigating factor, stating:

^Respondents knowingly entered into an enterprise with non-lawyers to solicit personal injury cases for personal gain. They gave unfettered discretion to individuals who were not lawyers and essentially gave them a blank check to run the operation. Little control or supervision was offered and the non-lawyers answered only to themselves. To suggest that two lawyers with more than twenty years of experience respectively should have known better is an understatement. Financial gain appears to be the underlying motivation. To be remorseful at this time because one has been caught is of little consequence.

Based on these factors, the committee recommended respondents be permanently disbarred from the practice of law.

Recommendation of the Disciplinary Board

The disciplinary board adopted the committee’s findings of fact and conclusion that respondents violated Rule 8.4(b). The board noted that respondents breached duties owed to the public, resulting in actual injury to the legal profession. Relying on the ABA’s Standards for Imposing Lawyer Sanctions and jurisprudence from this court, the committee concluded the appropriate baseline sanction for respondents’ misconduct is disbarment. Applying the aggravating and mitigating factors cited by the committee, and relying on the Guidelines for Imposition of Permanent Disbarment set forth in Appendix E to Supreme Court Rule XIX, the board unanimously recommended respondents be permanently disbarred from the practice of law.

Respondents filed objections to the board’s findings and the severity of the proposed sanctions, and reasserted their due process claims. Accordingly, the court docketed the matter for briefing and argument in accordance with Supreme Court Rule XIX, § 11(G)(1)(b).

^DISCUSSION

In their brief and argument to this court, respondents raise two procedural objections to the disciplinary board’s recommendation of permanent disbarment. First, they contend the amendments to Supreme Court Rule XIX, § 10(A) and § 24(A), which provide for the sanction of permanent disbarment, may not be applied to their conduct in this case, as their conduct occurred prior to the August 1, 2001 effective date of the amendments. Second, they assert that the lawyer disciplinary system set forth in Supreme Court Rule XIX is unconstitutional. We will address these arguments separately.

Application of Supreme Court Rule XIX, §10 and § to Conduct Occurring Prior to August 1, 2001

In In re: Rujfalo, 390 U.S. 544, 550, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968), the United States Supreme Court held that a lawyer facing discipline is “entitled to procedural due process, which includes fair notice of the charge.” A review of the record in the instant case leaves no doubt that respondents were given fair notice that the ODC intended to seek to Rhave them disbarred on a permanent basis. The ODC filed formal charges against respondents in July 2001. On August 1, 2001, we adopted amendments to Supreme Court Rule XIX, § 10 and § 24 which provide for permanent disbarment. Shortly after we adopted those amendments, the ODC filed a “first supplemental and amending charge” alleging that respondents’ conduct warranted permanent disbarment from the practice of law. This amended charge was filed well in advance of the formal hearing. Respondents concede they had an adequate opportunity to present any appropriate mitigating evidence and to argue against imposition of permanent disbarment. Accordingly, we find no infringement of respondents’ due process rights in these proceedings.

Nonetheless, respondents insist that application of the permanent disbarment amendments to conduct which occurred prior to the effective date of those amendments would be a violation of their substantive due process rights. In essence, respondents submit that if these amendments are applied to pre-amendment conduct, the amendments would violate the prohibition on ex post facto laws found in Article I, § 10 of the United States Constitution and Article I, § 23 of the Louisiana Constitution.

We conclude nothing in Supreme Court Rule XIX, § 10 and § 24 has an ex post facto effect on respondents’ case. In State v. Everett, 00-2998 (La.5/14/02), 816 So.2d 1272, this court explained the focus of the ex post facto analysis is whether the | mew law redefines conduct or increases the penalty by which the conduct is punishable:

Art. I, § 10 of the United States Constitution and La. Const, art. I, § 23 prohibit ex post facto application of the criminal law by the State. The focus of the ex post facto inquiry is whether a new law redefines criminal conduct or increases the penalty by which the crime is punishable. State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790; State ex rel. Olivieri v. State, 00-0172 (La.2/21/01), 779 So.2d 735, cert. denied, 533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed.2d 730 (2001).

Obviously, the amendments to Supreme Court Rule XIX, § 10 and § 24 do not redefine respondents’ conduct, which remains controlled by the Rules of Professional Conduct in effect at the time of their offense. However, respondents contend that the amendments have the effect of increasing the penalty they may receive for their misconduct.

The fallacy in respondents’ argument is that nothing in the amendments to Supreme Court Rule XIX, § 10 and § 24 altered the penalties a lawyer may receive for professional misconduct. Both prior to and after the amendment, the most serious sanction a lawyer may receive under Rule XIX is the sanction of disbarment. The only change effected by the amendments relates to the ability of a disbarred attorney to seek readmission. However, respondents maintain that the elimination of this “right” to seek readmission exposes them to a greater sanction than they could have received at the time of their misconduct.

| ^Respondents have pointed to no constitutional authority or jurisprudence from this court which would indicate a disbarred attorney has a “right” to seek readmission to the bar of this state. The five-year minimum period for seeking readmission, as set forth in Supreme Court Rule XIX, § 24, is a rule of procedure that does not vest any substantive rights in the attorney. The procedural nature of the rule is illustrated by our decisions in In re: White, 00-2732 (La.4/25/01), 791 So.2d 602, and Louisiana State Bar Ass’n v. Krasnoff, 502 So.2d 1018 (La.1987), in which we held that the minimum period for applying for readmission may be extended or otherwise modified at our discretion. Thus, it is clear that our rules create no substantive right to seek readmission.

Our authority to regulate readmission to the bar is a fundamental component in the exercise of our plenary power over the practice of law. La. Const. art. V, § 5(B); Chittenden v. State Farm Mut. Auto. Ins. Co., 00-0414 (La.5/15/01), 788 So.2d 1140; In re: Bar Exam Class Action, 99-2880 (La.2/18/00), 752 So.2d 159; Succession of Wallace, 574 So.2d 348 (La. 1991). Given this court’s absolute discretion over readmission, it is beyond dispute that this court has always had the unfettered authority to refuse readmission to disbarred attorneys, including the right to do so on a permanent basis.

Thus, it is clear the amendments to Supreme Court Rule XIX, § 10(A) and § 24(A) do not represent a substantive change to the bar disciplinary rules, nor do they result in the adoption of a new sanction which did not previously exist. Rather, these amendments simply represent a procedural change to Supreme Court Rule XIX in order to recognize a power this court has always possessed. See Louisiana State Bar Ass’n v. Gremillion, 320 So.2d 171, 174 (La.1975) (amendment to bar disciplinary rules occurring after respondent’s conduct “changed no substantive rights of h respondent; it only provided a better procedural method to handle disciplinary actions.”).

The procedural nature of the amendments is made clear by the language of Supreme Court Rule XIX, § 10(A), which provides “the court retains the discretion to permanently disbar the lawyer and permanently prohibit any such lawyer from being readmitted to the practice of law.” [emphasis added]. Likewise, we made this reasoning clear in our commentary accompanying the amendment:

In the public interest, the Court has amended Louisiana Supreme Court Rule XIX to codify Permanent Disbarment as an available sanction for attorney misconduct. While the Court has always had the discretion to deny an application for readmission after the requisite five (5)-year waiting period after disbarment, an attorney who is permanently disbarred under these circumstances will be prohibited from applying for readmission to the bar. These amendments reflect the judgment of the Court that in some instances lawyer misconduct may be so egregious as to warrant a sanction of permanent disbarment based on the facts of an individual case and in consideration of the guidelines in Appendix E to the Rules of Lawyer Disciplinary Enforcement.

In sum, we hold that the amendments to Supreme Court Rule XIX, § 10(A) and § 24(A) do not create a new penalty. Accordingly, we conclude there is no merit to respondents’ argument that these amendments constitute prohibited ex post facto laws.

Constitutionality of Supreme Court Rule XIX

Respondents next raise a constitutional challenge to the entire lawyer disciplinary system as set forth in Supreme Court Rule XIX. They contend the rule is unconstitutional because it improperly delegates the original jurisdiction of this court to non-judges on the hearing committee and disciplinary board, thereby depriving them of access to the courts.

h¡>La. Const, art. V, § 5(B) provides this court has “exclusive original jurisdiction of disciplinary proceedings against a member of the bar.” In exercising this jurisdiction, we have held it is within our authority to appoint a commissioner to report findings and recommendations of discipline to this court. Louisiana State Bar Ass’n v. Sackett, 231 La. 655, 92 So.2d 571 (1957); In re: Mundy, 182 La. 148, 161 So. 184 (1935). While the scheme of Supreme Court Rule XIX provides for a system of hearing committees and a disciplinary board, there is no fundamental difference between this system and the commissioner system which we upheld in Sackett and Mundy,

Despite respondents’ arguments to the contrary, Supreme Court Rule XIX does not delegate our original jurisdiction over disciplinary proceedings to the hearing committees and the disciplinary board. Regardless of the recommendation of the disciplinary board, “it is the ultimate duty of this court to determine under the broad discretion vested in it what action, if any is to be taken against an attorney charged with misconduct....” Louisiana State Bar Ass’n v. Wheeler, 243 La. 618, 145 So.2d 774, 777 (1962). When we consider a disciplinary case, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343, 348; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444, 445 (La.1992). Accordingly, we find nothing in Supreme Court Rule li3XIX which contradicts the constitutional grant of original jurisdiction in bar disciplinary cases to this court.

Respondents next argue the system created under Supreme Court Rule XIX is flawed because there is no separation between the prosecutorial and adjudicative functions in the disciplinary system. In support, respondents point out that this court appoints the disciplinary board, which in turn appoints the disciplinary counsel, subject to the approval of this court. According to respondents, this link between the court, the disciplinary board, and the disciplinary counsel results in a merging of the prosecutorial and adjudicative functions.

In Allen v. State Board of Dentistry, 543 So.2d 908 (La.1989), we held that a system whereby the prosecutor of a state board drafted the board’s findings of fact violated due process because it represented a commingling of prosecutorial and adjudicative functions in a single person. Nothing in Supreme Court Rule XIX creates such an impermissible commingling of ‘ functions. While the disciplinary board performs both an adjudicative and prosecutorial function, these functions are separated within the board. Supreme Court Rule XIX, § 2(A). The rule clearly delineates the functions of the disciplinary board and the disciplinary counsel, avoiding the commingling of functions in a single person which we found objectionable in Allen.

Respondents’ arguments relating to the role of this court in the process are also not well founded. As explained previously, the constitution grants this court exclusive original jurisdiction over disciplinary proceedings. The procedures we have enacted | uunder Supreme Court Rule XIX foster the exercise of this jurisdiction and avoid any unfairness to the respondent lawyer.

In sum, we do not find Supreme Court Rule XIX is in violation of any constitutional provisions. Accordingly, respondents’ arguments on this ground are without merit.

Determination of Misconduct and Appropriate Discipline

The charges against respondents are based on their pleas of guilty to the crime of obstruction of justice in violation of 18 U.S.C. § 1512(b)(l)(2). In an attorney disciplinary proceeding based on the lawyer’s criminal conviction, the issue of his guilt may not be relitigated. Because the lawyer’s conviction, whether based on, adjudication or guilty plea, is tantamount to a finding of his guilt beyond a reasonable doubt, the clear and convincing standard of proof that applies to disciplinary proceedings has already been satisfied. In re: Bankston, 01-2780 (La.3/8/02), 810 So.2d 1113; Louisiana State Bar Ass’n v. Wilkinson, 562 So.2d 902 (La.1990). In this type of proceeding, the sole issue to be determined is whether the crime warrants discipline and, if so, the extent thereof. Louisiana State Bar Ass’n v. Frank, 472 So.2d 1 (La.1985). The discipline to be imposed depends on the seriousness of the offense, the circumstances of the offense, and the extent of aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Brumfield, 449 So.2d 1017 (La.1984). Clearly, the crime to which respondents pled guilty, obstruction of justice, is a very serious offense. This court has not hesitated to disbar attorneys convicted of similar crimes which relate to the integrity of the judicial process. See In re: Mithun, 00-3174 (La.1/5/01), 776 So.2d 426; In re: Hingle, 98-0774 (La.9/18/98), 717 So.2d 636; In re: Fabacher, 94-0731 (La.12/9/94), 646 So.2d 915; Louisiana State Bar Ass’n v. Pitard, 462 So.2d 178 (La.1985); Louisiana State Bar Ass’n v. Adams, 363 So.2d 418 (La.1978). Respondents’ convictions are particularly egregious because the investigation they sought to impede related directly to runner-based solicitation in the legal profession. Under these circumstances, the only appropriate sanction for their misconduct is disbarment.

Having determined respondents must be disbarred, the only remaining question is whether the nature of respondents’ conduct is so reprehensible as to prohibit them from being readmitted to the practice of law. In Appendix E to Supreme Court Rule XIX, we provided guidelines illustrating the types of conduct which might result in permanent disbarment. Guideline 2 applies to “[i]ntentional corruption of the judicial process, including but not limited to bribery, perjury and subornation of perjury.”

Respondents’ conduct clearly falls within the scope of this guideline. Their willful decision to attempt to subvert the judicial process convincingly demonstrates they lack the good moral character and moral fitness necessary to practice law in this state. Supreme Court Rule XVII, § 3(C). Respondents have blatantly disregarded and ignored the obligations they assumed when they took the oath as members of the bar of this state. In the face of this indisputable evidence of a fundamental lack of moral fitness, we can conceive of no circumstance under which we would grant readmission to respondents. Accordingly, they must be permanently disbarred.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that the names of Fernand L. Laudumiey, III, Louisiana Bar Roll number 8126, and Dennis S. Mann, Louisiana Bar Roll number 9095, be stricken from the roll of 11fiattorneys and that their licenses to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondents be permanently prohibited from being readmitted to the practice of law in this state. All costs and expenses in the matter are assessed against respondents in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . Mr. Aiavolasiti and Mr. Palmisano were previously employed as legal assistants by the law office of Michael O'Keefe. After Mr. O'Keefe began to experience criminal and disciplinary difficulties arising from allegations that he engaged in runner-based solicitation, Mr. Aiavolasiti and Mr. Palmisano decided to leave the firm.

      . Mr. Aiavolasiti and Mr. Palmisano advised respondents Canal Street was a good location as it was on a major bus line and near medical offices. Of course, Canal Street later became infamous as the home of the "Canal Street Cartel,” a reference to the numerous attorneys with offices on that street who engaged in runner-based solicitation activities.

      . Ironically, at the meeting, respondent Mann disrobed to demonstrate that he was not wearing a recording device. The other men voluntarily followed suit, but the recording devices were apparently not detected.

      . Specifically, respondent Mann made the statement: "[l]et me tell you, how about if you said something like this, tell ’em [the grand jury] you paid runners to bring in cases but don't tell 'em that the lawyers knew anything about it.” Likewise, respondent Laudu-miey instructed Mr. Aiavolasiti and Mr. Pal-misano to tell the grand jury that they had paid runners while working for another lawyer’s office, but not while working for respondents.

      .Rule 8.4(b) provides:
      It is professional misconduct for a lawyer to:

        (b) Commit a criminal act, especially one that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.

      . Respondent Laudumiey was admitted to the practice of law in Louisiana in 1974. Respondent Mann was admitted in 1981.

      . Respondent Mann was publicly reprimanded in 1999 based on disciplinary complaints alleging failure to timely satisfy a debt owed to a third party medical provider, and neglect of a legal matter and failure to supervise an employee resulting in prescription of a client's case. He was admonished for failing to account for and promptly deliver funds or property owed to a client or third party, as well as failing to place the property subject of the dispute in trust.

      . Supreme Court Rule XIX, § 10(A) was amended to add the highlighted language:
      (1) Disbarment by the court. In any order or judgment of the court in which a lawyer is disbarred, the court retains the discretion to permanently disbar the lawyer and permanently prohibit any such lawyer from being readmitted to the practice of law.

      . Supreme Court Rule XIX, § 24(A) was amended to add the highlighted language:
      A disbarred lawyer or a suspended lawyer who has served a suspension period of more than one year, exclusive of any waivers or periods of deferral, shall be reinstated or readmitted only upon order of the court. No lawyer may petition for reinstatement until six months before the period of suspension has expired. No lawyer may petition for readmission until five years after the effective date of disbarment. A lawyer who has been placed on interim suspension and is then disbarred for the same misconduct that was the ground for the interim suspension may petition for readmission at the expiration of five years from the time of the effective date of the interim suspension. The court retains the discretion, in accordance with Section 10A of this rule, to permanently disbar a lawyer and permanently prohibit any such lawyer from being readmitted to the practice of law.

      . Respondents have cited no jurisprudential authority from this court holding that a change in a bar disciplinary rule can result in an ex post facto law. In Louisiana State Bar Ass’n v. Loridans, 338 So.2d 1338 (La.1976), the respondent argued that application of the 1971 amendments to the Articles of Incorporation could not apply to a crime committed prior to its effective date, as the increased penalties would be an ex post facto law. However, we did not reach the respondent’s ex post facto arguments, as we found his conviction occurred after the amendment. See also Louisiana State Bar Ass’n v. Ponder, 340 So.2d 134 (La.1976) (on rehearing).

      . It is noteworthy that respondents were aware of the possibility of permanent disbarment at the time they committed their crimes. In the transcript of the wiretapped conversation of June 15, 2000, respondent Mann observes "they just passed a new thing now that they can disbar you for life.” Ironically, when Mr. Aiavolasiti questions whether permanent disbarment would apply to respondents, respondent Mann replies, "I sure wouldn't like to be the one f* * *ing challenging it.”

      . Respondents attempt to distinguish these cases, on the ground they were decided under Article VII, § 10 of the Louisiana Constitution of 1921, which provided this court had "exclusive original jurisdiction in all disbarment cases involving misconduct of members of the bar under such rules as the court may adopt ..." Respondents maintain that the current article, Article V, § 5(B) of the Louisiana Constitution of 1974, does not contain the language "under such rules as the court may adopt,” suggesting this court does not have the power to make rules for the disposition of disciplinary matters. However, respondents fail to recognize Article V, § 5(A) of the 1974 Constitution, which provides this court "may establish procedural and administrative rules

      . We note that respondents have produced no evidence of an actual commingling of functions; instead, their argument is confined to the structure of the rule.

      . Supreme Court Rule XIX, § 2(A) provides, in pertinent part:
      The agency [the disciplinary board] is a unitary entity. While it performs both pros-ecutorial and adjudicative functions, these functions should be separated within the agency insofar as practical in order to avoid unfairness.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re George A. GUIDRY, Sr.
    No. 2002-B-3006.
    Supreme Court of Louisiana.
    June 27, 2003.

      Charles B. Plattsmier, Baton Rouge, Julie B. White, for Applicant.
    George A. Guidry, New Orleans, for Respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS.

PER CURIAM.

This disciplinary matter involves numerous counts of misconduct filed by the Office of Disciplinary Counsel (“ODC”) against respondent, George A. Guidry, Sr., an attorney licensed to practice law in the State of Louisiana, but who is currently disbarred.

PRIOR DISCIPLINARY HISTORY

Prior to addressing the instant misconduct, we find it helpful to review respondent’s prior disciplinary history.

In In re: Guidry, 96-0990 (La.7/1/96), 677 So.2d 116 (“Guidry I”), respondent was charged with commingling his own funds with client funds between February 1, 1992 and July 31, 1994. Among the mitigating factors asserted by respondent was that he had been diagnosed with manic depression, a recurring psychological disorder. We imposed a fully-deferred six-month suspension and placed respondent on probation for two years. As a condition of probation, we directed that respondent provide reports from his therapist to the ODC to demonstrate he was maintaining his medication for his manic depression condition.

Thereafter, seven complaints were filed against respondent alleging between April and December 1996, he commingled and converted client funds, failed to act with diligence, misled a client and aided and abetted a non-lawyer in the unauthorized practice of law. Prior to the filing of formal charges, respondent acknowledged this | ¡.misconduct and tendered a petition for consent discipline, seeking disbarment. We approved the petition for consent discipline and disbarred respondent effective August 30, 1997. In re: Guidry, 97-3219 (La.2/20/98), 706 So.2d 966 (“Guidry II”).

UNDERLYING FACTS

The charges against respondent involve a total of fourteen separate matters. We summarize these matters as follows:

Bernard, Jones and Lopez Matters

Barbara Bernard and Anita Veronica Lopez retained respondent to represent their interests in legal matters. Additionally, John Penny retained respondent to represent Dale Jones in criminal proceedings. Subsequently, respondent neglected to take any action on behalf of his clients, as well as refused to communicate with and/or misrepresented facts to his clients relative to the status of their proceedings. Ms. Bernard, Mr. Penny and Ms. Lopez requested a return of the unearned fees paid to respondent in the amounts of $317.50, $700 and $360, respectively. However, respondent failed to comply. Ultimately, Ms. Bernard retained other counsel to handle her case. As to the Jones matter, respondent neglected to respond to the ODC’s requests for information in the matter, as well as failed to comply with a subpoena compelling his cooperation.

| ^Dobbins-Craig Matter

In April 1996, Dorothy Dobbins-Craig, an Illinois resident, retained respondent for $350 to represent her interests relative to a real estate closing. Specifically, she requested he transfer the title on the immovable property and entrusted him with funds to pay the back taxes. For more than one year, respondent failed to comply with his client's requests and, as a result, Ms. Craig’s property was placed in adjudication. Ultimately, he took measures to have the title transferred, but neglected to ever pay the back taxes. As a result, Ms. Dobbins-Craig had to travel from Illinois to resolve the matter. She paid the taxes with penalties. Respondent has not made restitution to his client, in the amount of approximately $2,920 with interest and penalties.

Gaudin Firm Matter

The law firm of Gaudin and Gaudin had represented Larry Burrell in a personal injury suit. When respondent advised the Gaudin firm that he was taking over the representation at the request of Mr. Bur-rell, respondent agreed in writing in March 1997 to protect the firm’s interest in the settlement of the case. Respondent negotiated a settlement and, in May 1997, he forwarded a cheek in the amount of $3,941.36 to the Gaudin firm representing the amount owed. The check was returned for insufficient funds. The Gaudin Firm’s efforts to amicably resolve the matter were to no avail.

Jones and Williams Matters

Prior to 1997, respondent settled the personal injury cases of two of his clients, Bernadette Jones and Ronald Williams. Respondent withheld $1,039 from Ms. Jones’ settlement and $1,542 from Mr. Williams’ settlement for payment of their respective- medical expenses. In both cases, respondent neglected to provide reimbursement to |4the medical provider. The provider referred the matters to a collection agency, which adversely reflected on the respective credit record of respondent’s clients.

Bailey Matter

In the course of investigating a complaint filed by Lynette Bailey, the ODC served a subpoena on respondent requesting him to appear for a deposition and produce documents. Respondent failed to comply with the subpoena.

Louisiana Association of Educators Matter

From October 1, 1996 to March 1, 1997, respondent was ineligible to practice law stemming from his failure to pay his bar dues and comply with his mandatory continuing legal education requirements. Nonetheless, during that period, respondent represented two clients in a suit against the Louisiana Association of Educators (“LAE”). During the course of the litigation, he also propounded discovery and responded to discovery requests.

The LAE subsequently filed a complaint with the ODC. In connection with its investigation of the complaint, the ODC served a subpoena on respondent requesting him to appear for a deposition and produce documents. Respondent failed to comply with the subpoena.

Young Matter

In February 1997, during the period when he was ineligible to practice law, respondent permitted his paralegal, Oliver Coleman, to negotiate and settle the personal [¡¡injury claim of respondent’s client, Oscar Young. The settlement draft was issued to Mr. Young and Mr. Coleman, as representing counsel. Although respondent withheld funds in the amount of $2,232.95 from the settlement to satisfy the outstanding medical lien of the England-Masse Chiropractic Clinic, the funds were never forwarded to the medical provider, despite numerous requests over a period of fifteen months.

Subsequently, respondent failed to comply with the ODC’s requests for information regarding the disciplinary complaint involving the Young matter. He also failed to comply with a subpoena issued by the ODC seeking respondent’s appearance and production of documents at a scheduled deposition in May 1998.

Smith Matter

In July 1996, Derrick Smith retained respondent to represent him in a personal injury matter, Thereafter, respondent negotiated a settlement on behalf of his client. Although respondént withheld $1,683 from the settlement funds to pay his client’s medical provider, he failed to do so. After a period of two years, the matter was referred to a credit agency, adversely reflecting on Mr. Smith’s credit record.

Ultimately, Mr. Smith filed á complaint ■with the ODC. In connection with its investigation of the complaint, the ODC served a subpoena on respondent requesting him to appear for a deposition and produce documents. Respondent failed to comply with the subpoena.

Lodge and Banks Matters

Leroy Lodge and Linda and Julie Banks retained respondent to represent them in their respective personal injury matters. Subsequently, respondent negotiated settlements on behalf of his clients. Although respondent withheld $1,712 from Mr. | (¡Lodge’s settlement funds and $1,210 from the Banks’ settlement funds to pay his clients’ medical providers, he failed to do so. Approximately three years following the settlements, the unpaid medical bills were turned over to a collection agency, adversely reflecting on the credit records of respondent’s clients.

Eventually, the clients filed disciplinary complaints with the ODC. In connection with its investigation of the complaints, the ODC served a subpoena on respondent requesting him to appear for a deposition and produce documents. Respondent failed to comply with the subpoena.

Mercadel Matter

Arthur Mercadel retained respondent to represent him in an employment discrimination matter. Respondent filed the suit on behalf of his client. However, the court granted the defendant’s exception of prematurity on the basis that an arbitration proceeding, at plaintiffs costs, was required before suit could be filed. Respondent did not want to advance the costs for the arbitration proceeding, and neglected to advise his client of the status of the case. After he was disbarred in Guidry II, respondent did not properly withdraw from the representation, nor did respondent notify his client of his discipline.

DISCIPLINARY PROCEEDINGS

Formal Charges

Between May 1999 and September 2000, the ODC filed three consolidated sets of formal charges against respondent alleging violations of Rules 1.1(a) (incompetence), 1.3 (lack of diligence), 1.4(a) (failure to keep client reasonably informed about the status of legal matter and failure to comply with reasonable |7requests for information), 1.15 (failure to keep client and third party funds separate from the lawyer’s own property, promptly deliver funds or property owed to a client or third party and render a full accounting upon request, and failure to place property subject to a dispute with another party in trust), 1.15(a) (failure to keep client and third party funds separate from the lawyer’s own property), 1.15(b) (failure to promptly account for and deliver funds or property owed to a client or third party), 1.16(d) (failure to protect client interests upon termination of representation), 8.1(b) (failure to respond to a lawful demand for information from a disciplinary authority), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violating the Rules of Professional Conduct), 8.4(b) (commission of a criminal act adversely reflecting on a lawyer’s honesty, trustworthiness, or fitness as a lawyer), 8.4(c) (engaging in conduct involving deceit, dishonesty, fraud, or misrepresentation), 8.4(d) (engaging in conduct prejudicial to the administration of justice) and 8.4(g) (failure to cooperate with the ODC) of the Louisiana Rules of Professional Conduct, as well as Supreme Court Rule XIX, § 26(A) (failure to notify clients of disbarment).

Respondent filed an answer to the formal charges. A formal hearing was held before the committee. The ODC presented the testimony of the complainants, as well as documentary evidence. Respondent, who was represented by counsel, appeared at the hearing and testified.

Recommendation of the Hearing Committee

Following a formal hearing, the hearing committee concluded there was clear and convincing evidence to support the formal charges at issue. Addressing the issue of sanctions, the committee recognized aggravating factors of prior disciplinary offenses, pattern of misconduct, multiple offenses, bad faith obstruction of the ^disciplinary process by intentionally failing to comply with rules or orders of the disciplinary agency, vulnerability of the victims, substantial experience in the practice of law and indifference to making restitution. As mitigating factors, the committee recognized personal or emotional problems stemming from respondent’s history of substance abuse concerns.

Finding the misconduct took place during the same time frame as the misconduct subject of Guidry II, the committee recommended the disbarment run concurrent with the disbarment imposed in Guidry II. Additionally, the committee proposed respondent .be ordered to make restitution in excess of $17,158 prior to any application for readmission.

The ODC filed an objection to the committee’s finding that the misconduct occurred during the same time frame as respondent’s prior discipline. It argued permanent disbarment or, in the alternative, a consecutive disbarment is appropriate under the facts.

Recommendation of the Disciplinary Board

The board adopted the committee’s factual and legal findings, with minor modifications. The board concurred with the committee that disbarment is appropriate under the facts. However, the board concluded much of the misconduct at issue in the instant proceedings occurred after the misconduct at issue in Guidry I and Gui-dry II, rather than during the same time period, as the committee suggested. | (Accordingly, the board recommended the disbarment imposed in the instant proceedings run consecutive to the disbarment imposed in Guidry II. The board also recommended respondent be required to account for the funds and provide payment of restitution.

Both respondent and the ODC filed an objection to the board’s findings and recommendation. Accordingly, the matter was docketed for briefing and argument in accordance with Supreme Court Rule XIX, § 11(G).

DISCUSSION

Validity of Prior Proceedings in Guidry II

In the course of oral argument before this court in the instant proceedings, respondent, for the first time, contested the validity of his prior consent disbarment in Guidry II. Essentially, respondent asserts that the ODC should have known he was incapable of consenting to disbarment due to his obvious psychological and substance abuse problems. As a result, respondent maintains the ODC should have moved to transfer him to disability inactive status pursuant to Supreme Court Rule XIX, § 22, rather than pursuing discipline.

Because this issue had not been raised previously, we directed respondent and the ODC to file supplemental briefs addressing the issue of whether respondent’s consent was vitiated at the time his consent disbarment was imposed in 1998. Upon review of those briefs, we find no support for respondent’s contentions.

The ODC points out that it was well aware of respondent’s mental state as a result of the monitoring requirements we imposed in Guidry I. The ODC relies on a letter from respondent’s treating physician in March 1997, during the period of the consent discipline negotiations, which indicates respondent was taking his medication | mfor bipolar disorder regularly and attending Alcoholics Anonymous meetings regularly. The letter further indicated respondent had been sober for approximately one year.

All of the objective evidence establishes that respondent was competent during the period he consented to disbarment in Gui-dry II and that he was aware of the consequences of entering into consent discipline. Accordingly, we reject respondent’s argument that his disbarment in Guidry II should be set aside.

Analysis of Respondent’s Misconduct

Finding no merit to respondent’s procedural arguments, we now turn to an analysis of the record. Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/80/94), 646 So.2d 343, 348; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444, 445 (La.1992).

Our review of the record demonstrates the ODC proved by clear and convincing evidence the allegations of professional misconduct. Respondent engaged in a pattern of accepting legal fees from his clients and taking no action in their legal matters. He refused to communicate 'with his clients, as well as intentionally failed to account for or refund their fees. Respondent converted the funds owed to third parties pursuant to attorney and medical liens, as well as converted the funds entrusted to him by Ms. Dobbins-Craig. He has engaged in the unauthorized practice of law on two occasions. Finally, he has consistently failed to cooperate with the ODC.

\uAppropriate Discipline

Having found evidence of professional misconduct, we now turn to the issue of an appropriate sanction. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

Respondent’s misconduct is serious. His actions have jeopardized his clients’ legal matters, and the record is replete with evidence of the actual harm his actions have caused to his clients, as well as third parties. Under such circumstances, it is clear the baseline sanction for respondent’s misconduct is disbarment.

Numerous aggravating factors are present: prior disciplinary offenses, pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary process by intentionally failing to comply with rules or orders of the disciplinary agency, vulnerability of the victims, substantial experience in the practice of law and indifference to making restitution. The only significant mitigating factor advanced by respondent is his personal or emotional problems. However, as stated earlier, the reports submitted in connection with Guidry I reveal that respondent’s psychological and substance abuse problems were largely under control at the time of the instant misconduct. Thus, while we acknowledge the existence of respondent’s pre-existing personal and emotional problems, we find little or no causal relationship between these problems and the misconduct of these proceedings.

haBased on our consideration of the aggravating and mitigating factors, we see absolutely no basis to deviate from the baseline sanction of disbarment. The only remaining question is whether respondent’s misconduct is so egregious that he should be permanently prohibited from seeking readmission.

In Appendix E to Supreme Court Rule XIX, we set forth guidelines of the type of conduct which might result in permanent disbarment. Respondent’s conduct falls under at least three of these guidelines: Guideline 1 (repeated or multiple instances of intentional conversion of client funds with substantial harm); Guideline 8 (engaging in the authorized practice of law); and Guideline 9 (instances of serious attorney when the misconduct or conviction is preceded by suspension or disbarment for prior instances of serious attorney misconduct).

Guideline 9 applies with particular force in the instant case. We gave respondent the benefit of the doubt in Guidry I when we imposed a fully-deferred suspension. Rather than learning from that experience, respondent proceeded to commit additional misconduct, which formed the basis for his disbarment in Guidry II. Even after he was disbarred in Guidry II, respondent continued to commit new misconduct.

The nature of the instant misconduct, coupled with respondent’s prior disciplinary record and lack of remorse, convincingly demonstrate he lacks the good moral character and fitness necessary to practice law in this state. Supreme Court Rule XVII, § 8(C). Respondent has exhibited a blatant disregard for the welfare of his clients and ignored the obligations he assumed when he took the oath as member ofjjothe bar of this state. In the face of this indisputable evidence of a fundamental lack of moral fitness, we can conceive of no circumstance under which we would grant readmission to respondent. Accordingly, he must be permanently disbarred.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that the name of George A. Gui-dry, Sr., Louisiana Bar Roll No. 6478, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . Three other matters were also charged by the ODC, but the hearing committee found insufficient evidence to support these charges. We find no error in the dismissal of these charges. Accordingly, we will not address these matters further.

      . The ODC also charged respondent with substantive misconduct arising from his representation of Ms. Bailey; however, the hearing committee found no evidence to support the allégations of substantive misconduct.

      . Respondent was admitted to the practice of law in 1974, approximately twenty-three years at the time his misconduct subject of these proceedings first began.

      . The board observed the committee erred in finding a violation of Rule 1.15(c), as respondent had not been charged with a violation of that rule. However, it found respondent was charged with and violated Rule 1.15(b) in connection with his failure to provide payment to the Gaudin firm and the medical providers of Mr. Jones and Mr. Williams. The board also found respondent violated Rule 8.4(c) because his actions were dishonest.

      . The hearing committee found that respondent’s instant misconduct occurred during the same time frame as the misconduct in Guidry II. The disciplinary board correctly rejected this finding, and properly concluded that the majority of the instant misconduct occurred outside of the time frame at issue in Guidry II. Accordingly, we decline to apply to the analysis of Louisiana State Bar Ass'n v. Chateiain, 573 So.2d 470 (La.1991).


text:
    MORSE HOMES, INC. v. Johnette MARTIN.
    No. 2003-CC-1869.
    Supreme Court of Louisiana.
    July 18, 2003.
   In re Martin, Johnette; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. K, No. 586-141; to the Court of Appeal, Fifth Circuit, No. 03 — C-307.

Denied.


text:
    STATE of Louisiana v. Mark ST. JULIEN.
    No. 2003-KK-1981.
    Supreme Court of Louisiana.
    July 18, 2003.
   In re St. Julien, Mark; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. F, No. 95100; to the Court of Appeal, Third Circuit, No. KW 03-00384.

Denied.


text:
    Wanda Baker SMITH v. Terrance A. WILLIAMS, et al. Eddie Whithead, et al. v. The Municipal of Ferriday, et al.
    No. 2003-CC-1813.
    Supreme Court of Louisiana.
    July 22, 2003.
   In re Williams, Terrance et al.; Ferri-day, Town of; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Concordia, 7th Judicial District Court Div. A, Nos. 36,263-A, 36,348-B; to the Court of Appeal, Third Circuit, No. CW 03-00582.

Denied.


text:
    CHRISTIAN METHODIST EPISCOPAL CHURCH v. NEW ORLEANS MARRIOTT HOTEL VENTURE LIMITED PARTNERSHIP, et al.
    No. 2003-CC-2033.
    Supreme Court of Louisiana.
    July 24, 2003.
   In re Christian Methodist Episcopal Church; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. M, No. 03-10115; to the Court of Appeal, Fourth Circuit, No. 2003-C-1273.

Denied.

JOHNSON, J., would grant the writ.


text:
    TOWN OF CHURCH POINT, et al. v. ACADIA PARISH POLICE JURY, et al.
    No. 2003-C-2102.
    Supreme Court of Louisiana.
    July 29, 2003.
   In re Town of Church Point et al.; Boudreaux, Roger Mayor; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Acadia, 15th Judicial District Court Div. F, No. 80456-F; to the Court of Appeal, Third Circuit, No. 03-890.

Not considered. Not timely filed.


text:
    Michael WHITE v. Tabitha KIMREY.
    No. 2003-C-1943.
    Supreme Court of Louisiana.
    Aug. 1, 2003.
   In re Kimrey, Tabitha; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Lincoln, 3rd Judicial District Court Div. B, No. 45,579; to the Court of Appeal, Second Circuit, No. 37,-408-CA.

Not considered. Not timely filed.


author: THIBODEAUX, Judge.

text:
    The ESTATE OF Gaston PATOUT and Roy Patout v. The CITY OF NEW IBERIA, Louisiana.
    No. 02-278.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 27, 2002.
    Opinion on Rehearing March 19, 2003.

      Porteus R. Burke, Burke and Cestia, New Iberia, LA, for Plaintiffs/Appellants/Appellees, The Estate of Gaston Pat-out and Roy Patout and Squirrel Run Investment Group, Inc.
    Charles L. Foret, Carol S. Hunter, Bri-ney & Foret, Lafayette, LA, for Defen-danVAppellee/Appellant, The City of New Iberia, Louisiana.

      S. Dwight Stephens, Melito & Adoflsen PC, New York, NY, for Defendant/Appel-lee, Twin City Fire Insurance Company.
    H. Lee Leonard, Leonard & Leonard, Lafayette, LA, for DefendanVAppellee, Twin City Fire Insurance Company, (Hartford).
    Martin E. Golden, Kantrow, Spaht, Weaver & Blitzer, Baton Rouge, LA, for DefendanVAppellee, Twin City Fire Insurance Company.
    James R. Sutterfield, Sutterfield Webb, LLC, New Orleans, LA, for DefendanVAp-pellee, Insurers Indemnity & Insurance.
    Ralph S. Hubbard, III, Rankin & Hubbard, New Orleans, LA, for Defendants/Appellees, The Travelers Insurance Company, The Travelers Indemnity Company, Rhode Island.
    Gary M. Zwain, Duplass, Witman, Zwain & Williams, Metairie, LA, for Defen-danVAppellee, Continental Insurance Company.
    Craig E. Caesar, McGlinchey Stafford, New Orleans, LA, for Defendants/Appel-lees, Century Indemnity Company & Pacific Employers Insurance Company.
    James M. Garner, Keith A. Kornman, Emma E. Daschbach, Sher Garner Cahill Richter, Klein McAlister & Hilbert L.L.C., New Orleans, LA, for Defendants/Appel-lees, Century Indemnity Company & Pacific Employers Insurance Company.
    Samuel Rosamond, III, Boggs, Leohn & Rodrigue, New Orleans, LA, for Defen-danVAppellee, Commercial Union Insurance Company.
    Scott R. Hoyt, Gibson, Dunn & Cretcher, LLP, Dallas, TX, for Defendants/Ap-pellees, Century Indemnity Company & Pacific Employers Insurance Company.
    C. Burwick Duval, II, Duval, Funder-burk, Sundbery and Lovell, L.L.P., Hou-ma, LA, for DefendanVAppellee, United Community Insurance Company.
    Kelly Cambre Bogart, Andrew D. Wein-stock, Kathleen C. Marksbury, Duplass, Zwain, Bourgeois & Morton, Metairie, LA, for DefendanVAppellee, Twin City Fire Insurance Company.
    Court composed of ULYSSES GENE THIBODEAUX, SYLVIA R. COOKS and JIMMIE C. PETERS, Judges.
   THIBODEAUX, Judge.

In this suit for trespass, plaintiffs, the heirs of Gaston and Roy Patout (“Patout”) and Squirrel Run Investment Group, Inc. (“Squirrel Run”), and defendant-appellant, the City of New Iberia (“City”), appeal the judgment of the trial court which granted defendants’, Century Indemnity Company (“Century”) and Pacific Employers Insurance Company (“PEIC”), motions for summary judgment on the basis of assumed or contractual liability and on the “sudden and accidental pollution” exclusions contained in the insurers’ policies. The trial court concluded that the City assumed liability for the negligent dumping of waste and garbage materials onto the plaintiffs’ property when it signed a Memorandum of Agreement acknowledging its negligent conduct and future efforts to cleanup the site. Further, the court held that defendant insurers were not required to provide coverage for the City’s negligent acts based on “pollution exclusion” clauses in their policies.

Additionally, plaintiffs appeal defendant-appellee’s, Twin City Fire Insurance Company (“Twin City”), exception of prescription. According to the plaintiffs, the trial court improperly applied the court’s holding in Ducote v. Koch Pipeline Co., 98-942 (La.1/20/99); 730 So.2d 432 as authority, when Ducote had been overruled by Doerr v. Mobil Oil Corporation, 00-947 (La.12/19/00); 774 So.2d 119. As a result, plaintiffs assert that the court’s application of Ducote wrongfully permitted the trial court to render a judgment granting defendant’s exception of prescription.

Defendant, Twin City, appeals the trial court’s denial of summary judgment concerning the “known loss” doctrine. Twin City alleges that the trial court relied on an inapplicable section of the Louisiana Insurance Code rendering the “known loss” doctrine void. Twin City asserts that the City was fully aware of its | ^wrongful dumping and under current insurance law, coverage for known losses is denied.

After a review of the facts and evidence, we find that the trial court erred in granting defendants’ motions for summary judgment on assumed liability and the “pollution exclusion” clause. We affirm our previous judgment finding that the City’s negligent dumping was a continuing trespass of the plaintiffs’ property, and prescription had not run. Estate of Patout v. City of New Iberia, 01-0151 (La. App. 3 Cir. 4/3/02); 813 So.2d 1248. Further, we affirm the trial courts’ denial of summary judgment based on the “known loss” doctrine.

I.

ISSUES

Issues of Estate of Patout, Squirrel Run, and the City of New Iberia as Appellants

We have determined that the following issues encompass both plaintiffs-appellants’ and defendant-appellant’s assignments of error on appeal:

1)whether the City of New Iberia assumed liability for the negligent dumping of waste materials on the Patout and Squirrel Run properties?
2) whether the trial court erred in denying coverage under the pollution exclusion clause?
3) whether the trial court erroneously granted defendant’s exception of prescription?

Issue of Twin City Fire Insurance Company as Appellee

Whether the trial court erroneously denied Twin City’s motion for summary judgment based on the “known loss” doctrine?

Ja?.

FACTS

The material facts of this dispute remain consistent with the facts stated in Estate of Patout v. City of New Iberia, 01-015, p. 1 (La.App. 3 Cir. 4/3/02); 813 So.2d 1248, 1249-1250, and are provided below:

The pertinent facts are not in dispute. The City operated a landfill on immovable property adjacent to the plaintiffs’ land from the early 1970’s through October of 1989[], and during the years of operation, the City pushed garbage beyond the borders of its property onto the plaintiffs’ land. On numerous occasions, the City acknowledged its wrongful conduct and informed the landowners that the garbage would be removed. In fact, in February of 1982, the City’s mayor executed a document entitled “Memorandum of Agreement” whereby he agreed, on behalf of the City, that certain corrective measures would be taken to clean up the adjacent property. However, the City failed to honor this agreement.

III.

PROCEDURAL HISTORY

After years of continuous dumping and little, if any, cleanup efforts by the City, plaintiff landowners brought suit “seeking general damages for mental anguish and other claims of injury to the person, as well as special or property damages related to diminution in value to their immovable property, cost of restoration and remediation.” Estate of Patout v. City of New Iberia, 97-1097, p. 3 (La.App. 3 Cir. 3/6/98); 708 So.2d 526, 527. In response, defendants filed peremptory exceptions of prescription pursuant to La.R.S. 9:5624, alleging that plaintiffs’ claims had prescribed under the statute’s two-year prescription period for damages on private property for public works. Finding that La.R.S. 9:5624 was | ¿inapplicable based on defendant’s failure to show that the dumping of garbage was a “necessary consequence” of the City’s operation of the landfill, the defendants’ exception was denied. However, the trial court found that La.Civ. Code arts. 3492 and 3493, delictual actions and damage to immovable property respectively, were applicable, and one-year prescription began to run from the date plaintiffs became aware of the injury. In light of these statutes, the trial court also took into consideration the February 1982 Memorandum of Agreement signed by the mayor of the City and found that this agreement effectively renounced prescription. Further, the trial court found that claims after February 23, 1981 had prescribed pursuant to the Memorandum, and those before that date were still actionable.

On March 6, 1998, we affirmed the trial court judgment that La.R.S. 9:5624 was inapplicable, and one-year prescription for damage to immovable property under La. Civ.Code arts. 3492 and 3493 was proper. However, since the trespass continued well beyond 1982, prescription had not begun to run. As a result, we reversed the trial court’s judgment “holding that plaintiffs’ claims arising after February 23, 1981, have prescribed. Instead, we [found] all claims on behalf of the plaintiffs to be viable.” Id. at 531.

On July 2, 1998, the City, Century, & PEIC sought writs to the Louisiana Supreme Court based on the Third Circuit’s decision in Estate of Patout v. City of New Iberia, 97-1097 (La.App. 3 Cir. 3/6/98); 708 So.2d 526. Upon review, the supreme court granted 'writ of certiorari to determine “whether lawsuits filed by the plaintiffs ... for damages arising from the unauthorized dumping of trash on their land by the City of New Iberia, are governed by the two year prescriptive period of La.R.S. 9:5624, the three year prescriptive period of R.S. 13:5111, or some other prescriptive period.” Estate of Patout v. City of New Iberia, 98-0961, p. 1 (La. [7/7/99); 738 So.2d 544, 546. The supreme court agreed that La.R.S. 9:5624 was inapplicable. It also concluded that the three-year prescriptive period of La.R.S. 13:5111, asserted for the first time before the supreme court, was also inapplicable because plaintiffs’ damages were not incurred for a public purpose constituting a taking. Since the plaintiffs raised no other issues on writ, specifically whether the actions of the City were a continuing tort, the supreme court declined to address other issues and affirmed the lower court’s judgment that La.Civ.Code articles 3492 and 3493 were applicable, remanding this case to the trial court for further proceedings.

On its second appeal, plaintiffs appeal the judgment of the trial court, which upheld its previous judgment, that claims after February 1981 had prescribed, releasing the City and all other insurers from liability on those claims. Estate of Patout v. City of New Iberia, 01-0151 (La.App. 3 Cir. 6/27/01); 791 So.2d 741. On this appeal, we found that the law of the case doctrine applied despite defendants’ assertion that peremptory exceptions may be raised more than once. The trial court’s judgment was final and considered the law of the case. We reviewed this final judgment and found that the trial court was correct in its application of the one-year prescriptive period; however, claims after February 1981 had not prescribed. Again, we reversed the trial court’s judgment and remanded for further proceedings.

On December 14, 2001, defendants applied for writs to the supreme court. The supreme court granted writs and remanded the case to this court to reconsider defendants’ exceptions of prescription in light of its decision in Crump v. Sabine River Authority, 98-2826 (La.6/29/99); 737 So.2d 720.

On April 3, 2002, this court addressed the issue of prescription a third time to consider the supreme court’s decision in Crump, which was rendered “only eight days before its decision in this case.” Estate of Patout v. City of New Iberia, 01-10151, p. 4 (La.App. 3 Cir. 4/3/02); 813 So.2d 1248, 1251. Specifically, Crump addressed the issue of whether the digging of a canal causing water to flow over the owner’s property was a continuing tort. Crump, 737 So.2d at 720. We found after a careful review of the analysis employed in Crump that the present case was distinguishable, and as a result, “the City’s trespass continue[d] and that prescription ha[d] not begun to run.” Id. at 1253. Further, “we reverse[d] the trial court’s judgment granting the exceptions of prescription as to claims arising after February 23, 1981, and remand[ed] this matter for further proceedings consistent with [the] opinion.” Id. On June 12, 2002, defendants sought writs to the supreme court, which it denied. Estate of Patout v. City of New Iberia, 02-1172 (La.6/12/02); 819 So.2d 335.

While this court and the supreme court were addressing the issue of prescription, the Sixteenth Judicial District Court of Iberia Parish rendered a judgment on June 29, 2001, “granting in part and denying in part defendants’ exceptions and motions based on the court’s prior written reasons for judgment issued December 19, 2000.” This court also denied the defendants’ motion for summary judgment based on the known loss doctrine, timely notice, claims for mental anguish, and expected and intended property damage exclusions. However, the court granted defendants’ summary judgment motions seeking dismissal on the basis of assumed and contractual liability, the “sudden and accidental” pollution exclusion, and its exception of prescription.

Plaintiffs, along with defendant-appellant, the City of New Iberia, now appeal defendants’ motions and exceptions that were granted by the trial court. Defendant-appellee, Twin City, appeals the court’s denial of summary judgment based on the “known loss” doctrine.

_b.iv.

STANDARD OF REVIEW

Summary judgments are reviewed de novo. “Thus, the appellate court asks the same questions the trial court asks in determining whether summary judgment is appropriate. This inquiry seeks to determine whether any genuine issues of material fact exist and whether the movant is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B).... In this case, there are no factual matters in dispute. Rather, the case involves the interpretation of an insurance policy, a question of law, and we have authority to construe the provisions of the policy in order to resolve questions of coverage.” (Citations omitted). Thompson v. McKnight, 01-0190, p. 2 (La.App. 3 Cir. 6/6/01); 787 So.2d 620, 621.

V.

LAW AND DISCUSSION

Assumption of Liability

Patout, Squirrel Run, and the City assert that trial court erred in granting summary judgment in favor of the defendants on the basis of assumed liability. We agree.

According to the City’s insurers, the February 1982 Memorandum of Agreement proved that the City assumed liability for dumping garbage materials on the plaintiffs’ property, thereby releasing them from liability. Insurers rely on the following provision, which prohibits an insured from assuming liability without foregoing insurance coverage.

|sThis insurance does not apply:

to liability assumed by the Insured under any contract or agreement except an incidental contract; but this exclusion does not apply to a warranty of fitness or quality of the named insured’s products or a warranty that work performed by or on behalf of the named insured will be done in a workmanlike manner.

After reading the above exclusion in conjunction with the City’s Memorandum, we find that the February 1982 Memorandum of Agreement serves as a mere acknowledgment of the City’s wrongful dumping rather than an assumption of its liability. The Memorandum of Agreement states that the meeting was held to address a “solution to the garbage and drainage problems,” on plaintiffs’ properties, not the damage done on their land. On or about October 25, 1977, the mayor of the City received a letter from Perry Segura, one of the owners of the Darby Estate, which is now Squirrel Run, inquiring specifically whether the City intended to make recompense or repairs for the damage done to the owners’ land. In his letter, Segura stated that he was “willing to accept certain work to be done by the City in lieu of the damages done to their property.” Though Segura specifically raises the issue of damages, the Memorandum makes no reference to damages nor that the City would assume liability for those damages.

“Under a duty-risk analysis for liability, five basic factors must be met: ... (1) duty; (2) breach of duty; (3) cause-in-fact; (4) scope of liability or scope of protection; and (5) damages.” Bullara v. Checker’s Drive-In Restaurant, Inc., 98-1331, p. 3 (La.App. 3 Cir. 3/3/99); 736 So.2d 936, 938. The February 1982 Memorandum of Agreement indicates no liability for damages. Additionally, we cannot find any evidence that the plaintiffs agreed to forgo litigation in lieu of repair to the site. As a result, the City did not assume liability for damages to. the Patout and | nSquirrel Run properties. Further, defendant insurers could not eliminate their liability for the City’s negligent dumping since failure to remove the garbage would violate the warranty of workmanlike performance. Consequently, we reverse the trial court’s judgment that the City assumed liability for damages on the plaintiffs’ properties pursuant to the February 1982 Memorandum of Agreement and that the insurers were released from liability.

Pollution Exclusion

Patout, Squirrel Run, and the City argue that the “pollution exclusion” clauses contained in the City’s insurance policies do not exempt from coverage negligent dumping of garbage on the plaintiffs’ properties when one of the City’s services is garbage collection. We agree with their contention, albeit, on different grounds.

In Estate of Patout v. City of New Iberia, 01-0151 (La.App. 3 Cir. 4/3/02); 813 So.2d 1248, we held that the illegal dumping of garbage material from approximately 1972 to 1985 on the landowners’ properties constituted a continuing trespass. As we read plaintiffs’ petitions and briefs, we do not find where Patout nor Squirrel Run asserted claims of pollution against the City. Despite plaintiffs’ failure to make a pollution allegation, defendants continue to assert as a defense pollution exclusion to ward off their liability as insurers. We find that defendants insistence on utilizing this exclusion to release them from liability is without merit for this is a case in trespass and there is no necessity for this court to view the City’s dumping as pollution. Nevertheless, even if we were to recognize that defendant’s pollution exclusions are relevant to this case, the supreme court’s analysis in Doerr would prevent defendants’ “pollution exclusion” claims.

|10In Doerr, the supreme court determined that there are three basic factors that must be considered to determine the applicability of a pollution exclusion clause:

1)whether the insured is a polluter within the meaning of the exclusion?
2) whether the injury-causing substance is a pollutant within the meaning of the exclusion; and,
3) whether there was a discharge, dispersal, seepage, migration, release, or escape of a pollutant by the insured within the meaning of the policy?

Id. at 135.

Defendants have failed to meet the factors set out in Doerr. Insurers have not established that the City is a polluter under the exclusion, whether the illegal dumping of garbage is deemed a pollutant, nor whether pushing the garbage constitutes a “discharge, dispersal, seepage, migration, release, or escape of a pollutant” by the City within the meaning of the policy. As a result, defendants’ failure to apply the Doerr factors militates against receiving a judgment from this court that the City is indeed a polluter to which the exclusion applies. Further, we are guided by the language in Doerr that insurance policies are obtained to provide coverage, rather than to deny it. For the above reasons, we find that defendants have not adequately proven that the “pollution exclusion” is applicable in this case nor that it includes garbage pushed onto plaintiffs’ land. Again, we assert that this is a trespass case. We reverse the trial court’s judgment granting the insurers’ motions for summary judgment based on the pollution exclusion clause.

Prescription

Additionally, appellants assert that the trial court erroneously granted defendants’ exception of prescription. We agree.

lnOn April 3, 2002, this court reconsidered the issue of prescription on remand from the supreme court in light of its decision in Crump. We found, after an examination of the facts and law, that our case represents a continuing tort, which was distinguishable from the facts presented in Crump. As a result, the City’s trespass continued due to the City’s failure to remove the garbage, and prescription had not run.

Our decision is final pursuant to La. Code Civ.P. art. 2166, which states: “if an application for certiorari to the supreme court is timely filed, a judgment of the court of appeal becomes final and definitive when the supreme court denies the application for certiorari.” On or about June 21, 2002, defendants, the City, PEIC, and Century, applied for writs to the supreme court based on our decision in Estate of Patout, 813 So.2d at 1248. Writs were denied by the supreme court on this date. As a result, our judgment on April 3, 2002 that this case is a continuing tort for trespass, and prescription has not begun to run stands. We reverse the trial court’s judgment granting the exception of prescription.

“Known Loss” Doctrine

Defendant-appellee, Twin City, asserts that the trial court relied on an inapplicable section of the Louisiana Insurance Code in denying its motion for summary judgment based on the “known loss” doctrine. We agree; however, we rely on different reasoning.

According to Twin City, insurance coverage is prohibited when the insured knowingly damages property or causes bodily injury to a third-party. Under its policy, these are not covered activities. Twin City bases its argument on the fact 11?that the City has been aware of this wrongful dumping in or about 1972, and the potential for claims against the City by the landowners.

In Korossy v. Sunrise Homes, Inc., 94-473 (La.App. 6 Cir. 3/15/95); 653 So.2d 1215, writ denied, 660 So.2d 878 (La.1995), the Louisiana Fifth Circuit Court of Appeal addressed the issue whether “actual or constructive knowledge [that] there was a substantial probability of excessive differential settlement [in homeowners’ foundations] claims, prior to the [insurance] policy’s effective date” is considered a known loss excluding insurance coverage. The fifth circuit chose not to apply the “known loss” doctrine because it had not “[found any] Louisiana cases which have employed it.”

The same holds true for this court. We have found no Louisiana cases that have adopted the “known loss” doctrine. We decline to venture into unchartered waters. As a result, the trial court properly denied application of the “known loss” doctrine. As to the court’s use of an inapplicable section of the Louisiana Insurance Code to deny defendant’s motion for summary judgment, we are not required to address this issue since the “known loss” doctrine has not been recognized in this state and we refuse to acknowledge such a doctrine. As a result, our decision that the “known loss” doctrine is inapplicable pretermits a discussion of the applicability of La.R.S. 22:619(A) in reference to the “known loss” doctrine. Even if La.R.S. 22:619(A) of the Insurance Code, entitled “Warranties and misrepresentations in negotiation; applications”, does apply in this case, defendants have failed to effectively demonstrate that the City issued any warranty or misrepresentation “made in the negotiation of an insurance contract” with an intent to deceive it insurers. Though the City may have failed to inform its insurers of the Memorandum, mere | ^neglect does not equate to an intent to deceive whereby the statute’s requirements would be satisfied. We affirm the trial court’s judgment that the “known loss” doctrine is inapplicable in this case.

VI.

CONCLUSION

For the above reasons, the judgment of the trial court granting Century Indemnity Company’s, Pacific Employers Insurance Company’s, and Twin City Fire Insurance Company’s motions for summary judgment on assumed liability and pollution exclusion as well as Twin City Fire Insurance Company’s exception of prescription is reversed. We affirm the trial court’s judgment denying summary judgment based on the “known loss” doctrine. All costs of this appeal are assessed to Twin City Fire Insurance Company.

REVERSED IN PART; AFFIRMED IN PART; AND REMANDED FOR TRIAL ON THE MERITS.

hON REHEARING

This matter is before this court on rehearing to address the following two issues, which were not considered in our original opinion:

1) whether the City of New Iberia’s (“City”) failure to timely notify Century Indemnity Company (“Century”) and Pacific Employers Insurance Company (“PEIC”) of potential claims precludes coverage under their policies?
2) whether the City’s continued dumping constitutes “expected or intended” property damage, excluding coverage under Century and PEIC’s policies?

After examining the law and evidence, we find that the trial court properly denied Century and PEIC’s motions for summary judgment on the above issues.

I.

FACTS

The material facts of this suit are stated in Estate of Patout v. City of New Iberia, 01-015, p. 1 (La.App. 3 Cir. 4/3/02); 813 So.2d 1248, 1249-1250, writ denied, 02-1172 (La.6/21/02); 819 So.2d 335, 02-1231 (La.6/12/02); 819 So.2d 336, and are provided below:

The pertinent facts are not in dispute. The City operated a landfill on immovable property adjacent to the plaintiffs’ land from the early 1970’s through October of 1989 , and during the years of operation, the City pushed garbage beyond the borders of its property onto the plaintiffs’ land. On numerous occasions, the City acknowledged its wrongful conduct and informed the landowners that the garbage would be removed. In fact, in February of 1982, the City’s mayor executed a document entitled “Memorandum of Agreement” whereby he agreed, on behalf of the City, that certain corrective measures would be taken to clean up the adjacent property. However, the City failed to honor this agreement.

II.

\?LAW AND DISCUSSION

Timely Notice

Century and PEIC argue that the City’s failure to give timely notice of the Patouts’ claim to its insurers precludes coverage under Century and PEIC’s policies. We disagree.

Century and PEIC assert that the following provisions require prompt notice of potential claims or suits against the insurer from the insured. The City’s failure to timely notify Century and PEIC of the Patouts’ claim precludes any coverage provided under their policies.

4. Insured’s Duties in the Event of Occurrence, Claim or Suit
(a) In the event of an occurrence, written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place, and circumstances thereof, and the names and addresses of the insured and of available witnesses shall be given by or for the insured to its Company or any of its authorized agents as soon as practicable.
(b) If claim is made or suit is brought against the Insured, the Insured shall immediately forward to the Company every demand notice, summons, or other process received by him or his representative ....

In Elrod v. P.J. St. Pierre Marine, Inc., 95-295 (La.App. 5 Cir. 10/31/95); 663 So.2d 859, writ denied, 95-2844 (La.2/2/96); 666 So.2d 1098, the plaintiff appealed the judgment of the trial court, which granted an involuntary dismissal in favor of the defendant, Ocean Marine Indemnity Company (“OMI”), for failure, on the part of P.J. St. Pierre Marine, Inc. (“P.J.”), to timely notify OMI of Mr. El-rod’s suit. OMI’s policy contained a provision, which required the insured to provide “prompt notice ... of any casualty or occurrence which may result in a claim under [its] Policy.” Id. at 861.

On appeal, Mr. Elrod asserted three arguments adverse to the trial court’s judgment. Though the plaintiff failed on its first argument, the court agreed that Mr. | oElrod’s claim against the insurer should not be denied for failure of P.J. to provide timely notice of the potential occurrence and further suit on the action. According to the court, “the tort victim’s claim against the insurer can be maintained despite the insured’s failure to notify the insurer of the filing of suit unless ... the insurer proves sufficient prejudice to defeat the claim.” Id. at 862.

In Elrod, the court held that the insurer properly demonstrated that it had suffered prejudice as a result of the untimely notice. Relying on West v. Monroe Bakery, 217 La. 189, 46 So.2d 122 (1950), the fifth circuit followed the supreme court’s ruling “that an injured third party who is not at fault does not lose his cause of action because of the insured’s breach of the notice provisions in the policy.” Id. at 863, 46 So.2d 122. The supreme court’s decision was- based on the direct action statute, which permits the injured third party to directly bring its action against the insured. Further, the fifth circuit explained:

“[An] injured third party has two avenues of recovery from the insurer, one by virtue of the insurer’s liability to the insured, and the other premised on the insurer’s liability to the injured party in a direct action lawsuit. [An] injured party’s right to recover in both in-stanee[s] may be defeated if the insurer can demonstrate prejudice from the insured’s failure to comply with the policies’ notice provisions.”

Id. at 863, 46 So.2d 122.

Additionally, the fifth circuit found that OMI had proven sufficient prejudice because OMI had not received notice of the occurrence or claim from P.J. or “any other source, and, therefore, the insurer did not have [an] opportunity to appear in the case and present a defense.” Id. at 864, 46 So.2d 122. Thus, OMI’s coverage was not applicable.

We find in the present case that Century and PEIC were not prejudiced. In this case, the insurers were made direct defendants in this dispute by the plaintiffs. Additionally, Century and PEIC relied on several exclusions (i.e., pollution exclusion, | ¿assumption of liability, etc.) contained in their insurance policies to deny coverage. For this reason, we find that defendants had notice of the pending suit and the opportunity to prepare an adequate defense of the plaintiffs’ claims. Therefore, their coverage is not excluded based on the prejudice exception, and Century and PEIC are not entitled to judgment as a matter of law.

Expected or Intended Losses

Century and PEIC assert that any damages related to the City’s dumping of garbage onto plaintiffs’ properties.constitute damage that was expected or intended by the City, therefore, is expressly excluded from coverage by Century and PEIC’s policies. We disagree with Century and PEIC that the dumping of garbage materials by the City was expected or intended. As a result, the trial court properly denied defendants’ motions for summary judgment on this issue.

According to the terms of the policy, “[t]he Company will pay on behalf of the insured all sums which the Insured shall become legally obligated to pay as damages because of a) bodily injury or b) property damage to which this insurance applies, caused by an occurrence ...” “[0]ccurrence means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.”

Previously, this court rendered a judgment in Estate of Patout v. City of New Iberia, 813 So.2d 1248, that the City’s dumping of garbage material was a continuing trespass. There is no evidence that the City intended to pollute the Pat-outs’ properties. Testimony from the bulldozer operator, Mr. Joseph Maturin, proved that he never knew where the property lines between the City and the Patouts’ properties began nor ended. Further, Mr. Maturin stated that he never intended to dump garbage lRonto the plaintiffs’ properties. Garbage was negligently dumped onto the Patouts’ properties when mud made it difficult to reach the back of the property. However, he still did not know that he was dumping on the plaintiffs’ property. At least, this information was not communicated to him. As a result, we find that the City was negligent in their dumping activities, but did not intend to cause property damage to the Patouts’ properties, creating an expected or intended loss, excluded from the insurers’ coverage.

III.

CONCLUSION

For the above reasons, we affirm the trial court’s denial of Century Indemnity Company and Pacific Employers Insurance Company’s motions for summary judgment on the issues of timely notice and expected or intended losses.

AFFIRMED.

      . Based on testimony from the record, it is not clear that the City continued to push garbage beyond its landfill’s borders after 1985, when Waste Management, Inc., a private disposal company, acquired the property.

      . This assumption of liability exclusion is representative of the types of exclusions used in insurance policies. Some exclusions may or may not make reference to exclusions within an exclusion, such as an incidental contract or workmanlike performance. The purpose of the exclusion is to eliminate the insurer's liability when the insured has assumed liability.

      . During oral argument, Twin City agreed that the issue of prescription had been settled. It conceded that the judgment of the trial court regarding prescription should be reversed.

      . See also City of Johnstown, N.Y. v. Bankers Standard Ins. Co., 877 F.2d 1146 (N.Y.1989) (applicability of the "known loss” doctrine).

      . Based on testimony from the record, it is not clear that the City continued to push garbage beyond its landfill’s borders after 1985, when Waste Management, Inc., a private disposal company, acquired the properly.

      . Both insurers’ policy provisions were similarly worded.