author: hAMY, Judge.

text:
    Trent HOLLOWAY, et al. v. SHELTER MUTUAL INS. CO.
    No. CA 03-896.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2003.

      Thomas R. Hightower, Jr., Lafayette, LA, for Defendant/Appellee, Shelter Mutual Ins. Co.
    John Carl Davidson, Alexandria, LA, for Plaintiffs/Appellants, Trent Holloway, Charlene Holloway Willis, Elizabeth Jeter.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   hAMY, Judge.

The plaintiffs, the children of Donnie Holloway, filed suit against their father’s automobile liability insurer, seeking damages under the uninsured/underinsured motorist (UM) coverage of the policy. The insurer filed a motion for summary judgment, alleging that their father had waived UM coverage. The insurer alleges the waiver was made by his mother, who signed the policy and waiver on behalf of Mr. Holloway. The insurer contends this constitutes an effective waiver under La. R.S. 22:1406(D)(l)(a)(ii). The trial court granted the summary judgment. The plaintiffs appeal. For the following reasons, we reverse and remand.

Factual and Procedural Background

This case involves the automobile liability policy of Donnie Holloway. The record reveals that Mr. Holloway was killed in an automobile accident on March 26, 2001. Mr. Holloway’s children filed suit against Shelter Mutual Insurance Company, Mr. Holloway’s insurer, alleging entitlement to UM benefits under the policy. The insurer filed a motion for summary judgment, asserting that the policy contained an effective UM waiver. The insurer therefore sought dismissal of the UM claim against it.

In support of its motion for summary judgment, Shelter submitted affidavits of Bennie Poe, the Shelter agent who wrote the policy, and Janet Holloway, Donnie Holloway’s mother. The affidavits indicate that Donnie Holloway purchased a vehicle in September 2000 and contacted Mr. Poe, his existing insurance agent. According to Mr. Poe’s affidavit, Mr. Holloway informed him that “he did not wish to carry uninsured motorist coverage, but rather requested that the type of coverage in effect at the time he purchased the vehicle remain in effect on the newly purchased 1985 Mercury Cougar.” Mr. Poe further stated in the affidavit that Mr. Holloway | ¿‘informed him that his mother, Janet Holloway, with whom he is personally familiar as she has handled numerous insurance transactions on behalf of her son in the past, would be executing the necessary documentation to procure liability insurance and reject uninsured motorist coverage.” He also stated that Ms. Holloway, did, in fact, arrive at his office and execute the documents.

In her affidavit, Ms. Holloway reported that due to Mr. Holloway’s out-of-town employment, she often handled her son’s automobile insurance affairs. She stated that he contacted her, giving her “express authorization ... to sign any and all documents pertaining to automobile insurance on the 1985 Mercury Cougar.... ” Ms. Holloway specifically stated that she “had full and complete authority, as well as express authorization, pursuant to the instructions of her son, Donnie Holloway, to reject uninsured motorist coverage on the 1985 Mercury Cougar.” Finally, she explained that, pursuant to the instructions/authorization of Mr. Holloway, she “placed his initials on the uninsured/under-insured motorist bodily injury coverage form, rejecting uninsured motorist coverage.”

The plaintiffs opposed the motion for summary judgment, filing the depositions of Mr. Poe and Ms. Holloway. The plaintiffs urge that these depositions are more equivocal as to whether Mr. Holloway provided Ms. Holloway with specific authority to waive UM coverage. Furthermore, the plaintiffs point out, there is no indication of a written mandate. These factors, the plaintiffs contend, indicate that genuine issues of material fact exist.

The trial court granted the summary judgment, dismissing the plaintiffs’ complaint against Shelter. The plaintiffs appeal, assigning the following as error:

A. The Trial Court erred in refusing to find that pursuant to LA Civil Code art. 2998, an uninsured/underin-sured motorist coverage be |avalidly rejected by an agent of a principal without written authority for the agent to do so.
B. The Trial Court erred by granting the Motion for Summary Judgment when contradictory and unclear testimony of Bennie Poe and Janet Holloway created genuine issues of material fact which preclude granting the defendant’s Motion for Summary Judgment.
C. The Trial Court erred in concluding that Janet Holloway’s signing of Donnie Holloway’s name to an uninsured/underinsured motorist rejection form was a valid rejection of uninsured/underinsured motorist coverage.

Discussion

Louisiana Code of Civil Procedure Article 966(C)(1) provides that “a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.” Subparagraph (2) further 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 his evidentiary burden of proof at trial, there is no genuine issue of material fact.

On review, an appellate panel considers a ruling on a motion for summary judgment de novo and does so under the same criteria employed by the district court. Louisiana Horsemen’s Ass’n v. Fair Grounds, 02-1928 (La.4/9/03), 845 So.2d 1039.

Representation and Mandate

The question at issue is whether, based on the submissions, Ms. Holloway executed an effective waiver of her son’s UM coverage. We resolve this question by reference to the statute regarding UM coverage and the requirements for its waiver |4as well as those articles of the Louisiana Civil Code addressing Representation and Mandate, Title XV.

Louisiana Revised Statute 22:1406(D) addresses UM coverage and its waiver, providing, in part:

(l)(a)(i) No automobile liability insurance covering liability arising out of ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle designed for use on public highways and required to be registered in this state or as provided in this Subsection unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover nonpunitive damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death resulting therefrom; however, the coverage required under this Subsection is not applicable when any insured named in the policy either rejects coverage, selects lower limits, or selects economic-only coverage, in the manner provided in Item D(l)(a)(ii) of this Subsection. ... Such coverage need not be provided in or supplemental to a renewal, reinstatement, or substitute policy when the named insured has rejected the coverage or selected lower limits in connection with a policy previously issued to him by the same insurer or any of its affiliates....
(ii) After September 1, 1987, such rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance. The prescribed form shall be provided by the inswrer and signed by the named insured or his legal representative. The form signed by the named insured or his legal representative which initially rejects such coverage, selects lower limits, or selects economic-only coverage shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto. A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage....

(Emphasis added.)

Several aspects of La.R.S. 22:1406(D) are important to resolution of this case. First, La.R.S. 22:1406(D)(1)(a)(i) indicates that a named insured on the policy can reject UM coverage. See also Odom v. Johnson, 97-546 (La.App. 3 Cir. 12/10/97), 704 So.2d 1254, writs denied, 98-0778 (La.5/1/98), 718 So.2d 419, 98-0826 (La.5/1/98), 718 So.2d 420, 98-0876 (La.5/1/98), 718 So.2d 421. There has been no allegation that Ms. Holloway is a named insured under the policy. Accordingly, the statute does not permit a finding that she, as a named insured, waived the UM coverage.

Next, La.R.S. 22:1406(D)(l)(a)(ii) (emphasis added) indicates that a form of waiver may be “signed by the named insured or his legal representative.... ” Thus, we must resolve the question of whether Ms. Holloway was acting as her son’s legal representative when she entered Mr. Poe’s office and signed Mr. Holloway’s name to the UM waiver. The insurer argues that its affidavits indicating oral authorization from Mr. Holloway to both Mr. Poe and Ms. Holloway are sufficient to satisfy the requirement, pointing in particular to principles of actual and apparent authority. The plaintiffs contend that she was not a “legal representative” under La.R.S. 22:1406(D)(l)(a) as the statute requires that a UM waiver be made on an approved waiver form and La.Civ.Code art. 2993 indicates that if a law prescribes a certain form for an act, a related mandate must be in the same form.

With regard to the question of representation, Title XV of the Louisiana Civil Code, entitled Representation and Mandate, provides guidance as to whether Ms. Holloway could be considered a “legal representative” as described by the statute. Title XV is further divided into two sections, Chapter 1, which addresses Representation, and Chapter 2, which addresses Mandate. La.Civ.Code art. 2985 broadly defines the principle of representation, providing: “A person may represent another person in legal relations as provided by law or by juridical act. This is called 1 ^representation.” Furthermore, La.Civ. Code art. 2986 sets forth the methods by which authority may be conferred, providing:

The authority of the representative may be conferred by law, by contract, such as mandate or partnership, or by the unilateral juridical act of procuration.

We address each of these methods of representation in turn.

With regard to procuration, La.Civ.Code art. 2987 states:

A procuration is a unilateral juridical act by which a person, the principal, confers authority on another person, the representative, to represent the principal in legal relations.
The procuration may be addressed to the representative or to a person with whom the representative is authorized to represent the principal in legal relations.

With regard to the form of a procuration, Comment (c) of Article 2987 advises that: “The procuration is not required to be in a particular form. Nevertheless, when the law prescribes a certain form for the authorized act, a procuration authorizing the act must be in the same form.” The comment then references La.Civ.Code art. 2993, which will be discussed below. Finally, La.Civ.Code art. 2988 provides: “A procuration is subject to the rules governing mandate to the extent that the application of those rules is compatible with the nature of the procuration.”

Importantly, if we were to find that the authority of representation in this case was conferred by procuration, we would look to the form of the procuration. In this case, a procuration would necessarily have to be in the same form as the authorized act. The authorized act in this case is waiver of UM coverage, which, according to La.R.S. 22:1406(D)(l)(a)(ii) “shall be made only on a form prescribed by the commissioner of insurance.” Thus, the statute envisions the presence of a writing to waive UM coverage. Similarly, a procu-ration conferring authority to waive UM 17coverage would require that the authority be given in writing. We do not have such a writing in the present case and, accordingly, no valid procuration.

Thus, we turn to another form of representation described by La.Civ.Code art. 2986, that conferred by contract. Examples of contract provided by Article 2986 are partnership or mandate. In this case, the only type of contract arguably present is that of mandate, which is defined by La.Civ.Code art. 2989, as follows:

A mandate is a contract by which a person, the principal, confers authority on another person, the mandatary, to transact one or more affairs of the principal.

Importantly, La.Civ.Code art. 2993 indicates that:

The contract of mandate is not required to be in any particular form.
Nevertheless, when the law prescribes a certain form for an act, a mandate authorizing the act must be in that form.

As we discussed above, the UM waiver is required to be in writing. According to Article 2993, a contract of mandate authorizing a waiver of UM coverage must be in writing as well. As we do not have a writing between Mr. Holloway and his mother, any contract of waiver for the UM waiver is invalid.

We turn to the final method of conferring representation described in Article 2986, that conferred by law. The “Expos des Motifs” attached to the Act amending | «Title XV, 1997 La. Acts No. 261, § 1, cites the parent/minor child and curator/absent person relationships as examples of those relationships through which representation can arise. We do not have any of those relationships that have been created by law. Here, the mother/son relationship was that of a mother and a major child. Neither is this a case in which the legal relationship is that of a spouse acting alone to manage community property. See La.Civ.Code art. 2346. See also Simpson v. Grimes, 02-0869 (La.App. 3 Cir. 5/21/03), 849 So.2d 740.

As no writing exists that permits a finding of an act of procuration- or mandate, and finding no representation arising through law, we conclude that, in this case, Ms. Holloway could not, without written authorization, confect a UM waiver on behalf of her son. We reach this conclusion based on the dictates of the relevant revised statute and the Civil Code, as amended, by 1997 La. Acts No. 261, §. 1.

Agency and Apparent Authority

We also address the insurer’s assertion that the submissions establish that Ms. Holloway had the authority as an “agent” of her son to represent her son in waiving UM coverage. The insurer points to McManus v. Southern United Fire Insurance, 00-1456 (La.App. 3 Cir. 3/21/01), 801 So.2d 392, wherein a panel of this court reviewed the principles of “agency” relationships, in particular, agency relationships created through apparent authority.

The concepts of agency and apparent authority were fully addressed by the Louisiana Supreme Court in Tedesco v. Gentry Development, Inc., 540 So.2d 960 (La.1989). The supreme court, explained:

Apparent authority is a doctrine by which an agent is empowered to bind his principal in a transaction with a third person when the principal has made a manifestation to the third person, or to the community of which the third person is a member, that the agent is authorized to engage in the particular transaction, although the principal has not actually delegated his authority to the agent. Restatement (Second) of Agency § 8 (1958); W. Seavey, Law of Agency § 8(D)(1968); F. Mechem, Law of Agency § 84 (4th ed.1952); Comment, Agency Power in Louisiana, 40 Tul.L.Rev. 110 (1965) [hereinafter cited as Comment, Agency Power]. In an actual authority situation the principal makes the manifestation first to the agent; in an apparent authority situation the principal makes this manifestation to a third person. However, the third person has the same rights in relation to the principal under either actual or apparent authority. Further, apparent authority operates only when it is reasonable for the third person to believe the agent is authorized and the third person actually believes this. Restatement, supra § 8, comments a and c.
There is no express codal or statutory authority for the doctrine of apparent authority in Louisiana. This doctrine of unprivileged agency power, however, is an important part of the modern law of agency. A. Yiannopoulos, Civil Law in the Modern World 88 (1965).

Id. at 963 (footnotes omitted) (emphasis added). The doctrine expressed above has been utilized and repeated throughout our jurisprudence, including subsequent cases of the Louisiana Supreme Court. See, e.g., Indep. Fire Ins. v. Able Moving, 94-1982 (La.2/20/95), 650 So.2d 750; Woodlawn Park Ltd. v. Doster Const. Co., 623 So.2d 645 (La.1993). See also Venable v. U.S. Fire Ins. Co., 02-505 (La.App. 3 Cir. 10/30/02), 829 So.2d 1179; McManus, 00-1456; 801 So.2d 392. It is important to note, however, that the most recent supreme court opinion on the use of this common |inlaw doctrine, and reliance on the concept of “agency” predates the 1997 revision to Title XV of the Civil Code.

In fact, comments to the various articles of Title XV indicate that the revision directly affects the concept of “agency” as it has been used in our jurisprudence. As seen above, La.Civ.Code art. 2986 indicates that: “The authority of the representative may be conferred by law, by contract, such as mandate or partnership, or by the unilateral juridical act of procuration.” Comment (a) to Article 2986 advises as follows:

(a) In the Louisiana Civil Code of 1870, the words “power of attorney”, “letter of attorney”, “mandate”, “procu-ration”, and “agency” were used interchangeably. However, each of these words also has a technical meaning that differentiates one from another. Following the legislative technique employed in modern civil codes, in this revision, the word “mandate” applies exclusively to the “contract of mandate” whereby a person, called principal, authorizes another person, called manda-tary, to transact an affair on behalf of the principal. The word “agency” has not been used in this revision, in an effort to prevent confusion with the common-law institution of agency. The words “letter of attorney” and “power of attorney” in the Louisiana Civil Code of 1870 are a translation from the French “procuration”. These words connote a unilateral juridical act whereby a person, called principal, confers authority on another person to represent him in legal relations. Thus, a person may have authority to represent another person by virtue of a contract of mandate or by virtue of a unilateral juridical act.

Since the January 1, 1998 effective date of 1997 La. Acts No. 261, § 1, the Louisiana Supreme Court has not instructed the courts of this state as to whether the apparent authority doctrine of agency continues. However, our reading of the Civil Code as it now exists, and existed at the time of the attempted UM waiver, precludes the application of the apparent authority doctrine. Article 4 of the Louisiana Civil Code mandates that:

|nWhen no rule for a particular situation can be derived from legislation or custom, the court is bound to proceed according to equity. To decide equitably, resort is made to justice, reason, and prevailing usages.

Given the revisions to Title XV and its comprehensive approach to the concepts of representation and mandate, we do not conclude that resort to the principle of apparent authority is appropriate in this case. Instead, as is seen in the discussion above, we find resolution of the case is based on the legislative expression found in the Civil Code, which now sets forth the different methods by which representation can be conferred. As stated, none of those methods were used in this case in the waiver of the UM coverage.

Louisiana Code of Civil Procedure Article 966(C)(1) indicates that summary judgment is required when the motion demonstrates that no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. In the present case, and assuming all factual inferences in favor of the insurer, we conclude that the movant has failed to demonstrate that the UM waiver was effective as a matter of law. Therefore, under Article 966(C)(1), the trial court erred in granting summary judgment in the insurer’s favor. We reverse the summary judgment and remand for further proceedings.

DECREE

For the foregoing reasons, the summary judgment entered in favor of the insurer is reversed. The matter is remanded to the trial court for further proceedings. h?AU costs of this appeal are assigned to the appellee, Shelter Mutual Insurance Company.

REVERSED AND REMANDED.

        . The Expos des Motifs, placed beneath the heading of "Chapter 1. Representation,” provides:
      In Louisiana, as in all developed legal systems, a person may represent another in the making of a juridical act without necessarily deriving his authority from a contract of mandate.
      A person may be authorized by law to represent another person. For example, a parent may represent a minor child and the curator of an absent person may represent that person. Matters of representation under governing provisions of law have not been considered in this revision.
      The following Articles concern situations in which a person is authorized by a juridical act to represent another person.
      Quite apart from a contract of mandate, a person may be authorized to act in the name of or on behalf of another person by a unilateral juridical act, such as a procuration [power of attorney], or by several species of nominate and innominate contracts, such as employment contracts, partnership agreements, or brokerage contracts. It would be a distortion of the law to maintain that when a person authorizes another person to act in his name or on his behalf, the legal relationship between the two is necessarily a contract of mandate. It is analytically preferable to recognize the possibility of representation apart from the contract of mandate and to draft a set of simple provisions establishing principles of representation by virtue of unilateral juridical acts and contracts other than mandate. The detailed rules governing mandate may be made applicable by analogy to unilateral juridical acts and contracts that confer authority of representation. Use of the word "representation” instead of "agency” avoids confusion with common-law institutions.
      A new Chapter has been appended to Title XV of Book III of the Civil Code that contains a set of provisions governing “procuration”. Consistent terminology has been adopted and technical terms have been defined. One may speak of the principal or grantor of the procu-ration and of the representative. The reciprocal rights and duties of their parties in their internal relationship and their rights and duties toward third persons has been determined. The rules governing mandate apply to procurations, to the extent that application of those rules is compatible with procura-tions.
      (Alterations in original.)

      . Although the insurer urges this court to follow this circuit's previous decision in Mc-Manus, reference to the facts of that case do not reveal the date of the actions in question and whether they predate the revision effective January 1, 1998.

      . At oral arguments held on this matter, counsel for the insurer argued that, if written authorization was required for UM waiver, written authorization was also required for the insurance policy as a whole. Since no such writing existed, counsel argued, the entire policy should be found invalid. Counsel further argued that this finding would also require summary judgment and its dismissal from the suit. We note that, as this argument was raised for the first time at oral arguments, the record is incomplete in this regard. Furthermore, the issue has not been briefed. Accordingly, we do not consider this issue, leaving it to the trial court if posed following remand.


source: Caselaw Access Project

author: I,GREMILLION, Judge. | WOODARD, J.,

license: Public Domain

text:
    Willie JACKSON, Plaintiff-Appellant, v. CITY OF WESTLAKE, Defendant-Appellee.
    No. 03-782.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2003.
    J.B. Jones, III, Jones Law Firm, Cameron, LA, for Plaintiff/Appellant, Willie Jackson.
    John Lee Van Norman, III, Lake Charles, LA, for Defendant/Appellee, City of Westlake.
    Court composed of BILLIE COLOMBARO WOODARD, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   I,GREMILLION, Judge.

The plaintiff, Willie Jackson, appeals the ruling of the trial court denying his motion for a new trial. For the following reasons, we vacate the judgment of the trial court and remand the matter for further proceedings.

FACTS

Jackson filed suit against the defendant, the City of Westlake, seeking damages as a result of various acts of racial discrimination he experienced while employed in Westlake’s Water Department. After various motions were filed by Westlake, this matter proceeded to trial. On the day of the trial, Jackson failed to appear in court, although his counsel was present. Upon Westlake’s motion for involuntary dismissal, the trial court dismissed Jackson’s claim against it with prejudice. Jackson then filed a motion for a new trial arguing that he did not intentionally fail to appear for court, thus, his claim should not have been dismissed with prejudice. Following a hearing, the trial court denied Jackson’s motion for a new trial. This appeal by Jackson followed.

ISSUE

On appeal, Jackson argues that the trial court abused its discretion in denying his motion for a new trial since evidence was presented that his failure to appeal- for trial was inadvertent, rather than intentional.

DISCUSSION

Although Jackson bases his argument on the trial court’s denial of his motion for a new trial, we find that the trial court erred in granting Westlake’s motion for an involuntary dismissal. Pursuant to La.Code Civ.P. art. 2164, an appellate court 12“shall render any judgment which is just, legal, and proper upon the record on appeal.” In this instance, we find that the trial court erred in granting Westlake’s motion for an involuntary dismissal based on Jackson’s failure to appear on the day of trial.

Louisiana Code of Civil Procedure Article 1672(A)(1) provides that “[a] judgment dismissing an action shall be rendered upon application of any party, when the plaintiff fails to appear on the day set for trial.” A party represented by counsel at a proceeding before the court is not considered absent. See La.Code Civ.P. art. 1672, comment (g); Spencer v. Children’s Hosp., 432 So.2d 823 (La.1983); Dickens v. Commercial Union Ins. Co., 99-698 (La.App. 1 Cir. 6/23/00), 762 So.2d 1193. A trial court’s dismissal pursuant to La.Code Civ.P. art. 1672 is reviewed pursuant to the manifest error — clearly wrong standard. Id.

Westlake moved for an involuntary dismissal at the hearing based on Jackson’s absence, and the trial court dismissed his claim with prejudice due to that absence. However, Jackson was not absent, since his appearance was made through his counsel. Moreover, the trial court failed to inquire as to his counsel’s readiness to proceed with the hearing despite his absence. Accordingly, the trial court’s grant of Westlake’s motion for an involuntary dismissal pursuant to La.Code Civ.P. art. 1672(A)(1) was in error.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting an involuntary dismissal in favor of Westlake is vacated, and the matter is remanded for further proceedings. The costs of this appeal are assessed to the defendant-appellee, [sCity of Westlake, in the amount of $345.50.

JUDGMENT VACATED; REMANDED.

WOODARD, J., concurs and assigns written reasons.

| WOODARD, J.,

concurring.

I respectfully concur in the majority’s opinion.

However, I believe that La.Code Civ.P. art.1972, which addresses the granting of a new trial, governs. Louisiana Code of Civil Procedure Article 1972(1) provides that a court shall grant a new trial “when the verdict or judgment appears clearly contrary to the law and the evidence.”

As I appreciate it, the majority’s analysis finds that the judgment is clearly contrary to La. Code Civ.P. art. 1672, the law governing involuntary dismissal. Given that Mr. Jackson, through his counsel, did appear at trial, La.Code Civ.P. art. 1672 does not allow dismissal of his case. Accordingly, I find that La.Code Civ.P. art. 1972(1), rather than La.Code Civ.P. art. 2164, should govern our analysis. Thus, the trial court erred in refusing to grant Mr. Jackson a new trial.


author: JjWOODARD, Judge.

text:
    Mary L. BROWN, et al. v. AVOYELLES PARISH SCHOOL BOARD.
    No. 03-796.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2003.
    J. Isaac Funderburk, Funderburk & Herpin, Abbeville, LA, for Plaintiffs/Appellants: Mary L. Brown, Walter M. Brown, Philip J. Coco, Samuel Curtís Conner, Adam Desselle, Estate of Irvin Dubroc, Lynn Pogleman, Willis Leo Fuqua, Billy R. Hendrix, Roosevelt Joshua, Linus M. Juneau, Burnell F. Lemoine, Ronald J. Lemoine, Lamar R. Marcotte, Jr., and George G. Voinche.
    James T. Lee, Assistant District Attorney, Bunkie, LA for Defendant/Appellee: Avoyelles Parish School Board.
    Court composed of BILLIE COLOMBARO WOODARD, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   JjWOODARD, Judge.

Former employees of the Avoyelles Parish School Board appeal the trial court’s grant of an exception of prescription, dismissing their suit. We affirm.

Fifteen former employees of the Avo-yelles Parish School Board (Board) filed an action individually and on behalf of other former employees similarly situated against the Board. The Board filed an exception of prescription before class certification.

The Plaintiffs claim entitlement to back wages and penalty wages. Specifically, they maintain that they are entitled to be compensated for accrued “annual leave” that they had not taken by the time they retired.

The trial court granted the Board’s exception of prescription and dismissed the Plaintiffs’ claims. They appeal this ruling.

* * *

Standard op Review

Where the parties introduce evidence to support or controvert an exception, the trial court’s factual determinations based on such evidence are subject to the manifest error standard of review. However, if the trial court made a legal error which interdicted the fact-finding process, we conduct an independent review of the record.

We find that the trial court made a legal error which not only interdicted the fact-finding process but eliminated it, altogether. It determined that Wyatt v. Avoyelles Parish School Board precluded its consideration of the doctrine of contra non va-lentum in the instant case. Specifically, it stated:

|.J disagree with the ruling of The Supreme Court in the Marcotte, Wyatt and Seiss [consolidated] cases, as to the issues that were reversed....
However it is the higher court, the court of last opinion, and I must follow their ruling.
ALSO, I must follow their ruling on the PRESCRIPTION ISSUE. The current state of the law, as announced by The Supreme Court, says it’s a three (3) year date, which becomes exigible or due upon the date of retirement, period.

We agree that the facts in Wyatt were strikingly similar to the facts in the case at bar. However, the issues were not; therefore, Wyatt does not govern. In Wyatt, the plaintiffs, also, were former employees of Avoyelles Parish School Board. They, too, claimed back wages for unused and uncompensated “annual leave” at the time of their retirements. The supreme court found that “the annual leave earned during the last year of employment was exigible or due upon the date of each plaintiffs retirement.”

Notwithstanding, the plaintiffs in Wyatt filed their suit within three years of their retirements. Thus, the supreme court did not have to address whether contra non valentum applied. The trial court erred in finding that Wyatt mandated that it grant the exception. Accordingly, we decide the prescription issue de novo.

PrescRiptive Period

Normally, the party pleading the exception of prescription bears the burden of proving it. However, when a claim is prescribed on its face, the burden shifts to the relator to show that the exception should not be maintained.

Louisiana Civil Code Article 3494 provides a three-year prescriptive period for wages claims. The Plaintiffs retired between June 30, 1982 and June 30, 1995. Thus, the wages were due on the dates of their retirements, respectively. They filed this claim on December 9, 2000, more than three years after their claimed wages became |sdue. Accordingly, the Plaintiffs’ claims are prescribed on the face of their petition, shifting the burden to them to show otherwise.

At the trial on the exception, Plaintiffs’ counsel attempted to introduce some of the Plaintiffs’ affidavits in which each stated that s/he did not know s/he might have a claim against the board until April of 1998. The trial court admitted this evidence subject to the Board’s counsel’s objection. It questioned the admissibility of these affidavits through which the Plaintiffs sought to enter new evidence, since in their original petition, Plaintiffs did not make any assertions regarding the suspension of prescription or their inability to bring their claims within the prescriptive period. We need not determine the correctness of this admission, as we find below, that the application of contra non valenttm cannot save Plaintiffs’ claims from prescription. Thus, even with the benefit of this evidence, Plaintiffs did not adequately rebut the presumption that their claims had prescribed.

Contra Non Valentum

Contra non valentem agere nulla currit praescripto is a suspensive theory, meaning “prescription does not run against a party unable to act.” There are four general instances in which we apply the doctrine:

(1) when there is a legal cause that prevented courts or their officers from taking cognizance of or acting on the plaintiffs action; ■
(2) when there is a condition coupled with the contract or connected with the proceeding that prevent the creditor from suing or acting;
(3) when the debtor himself did some act that effectually prevented the creditor from availing himself of his cause of action; and
|4(4) when the cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant.

Plaintiffs urge that this last instance applies to them. Under this theory, prescription does not begin to run until a plaintiff has a reasonable basis to pursue a claim against a specific defendant. Even though the Plaintiffs were aware that they had accrued annual leave, which they had yet to take when they retired, they assert that they had no reason to question the lawfulness of the Board’s policy not to compensate them for such unused annual leave. However, in April of 1998, Forethought Consulting, Inc., issued a “policy alert,” apprizing employers of a 1997 amendment to La.R.S. 23:631. This statute provides, in pertinent part:

A(l)(b) Upon the resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terns of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday or no later than fifteen days following the date of resignation, whichever occurs first.

(Emphasis added.)

The 1997 amendment added section (D) which states:

D(l) For purposes of this Section, vacation pay will be considered an amount then due only if, in accordance with the stated vacation policy of the person employing such laborer or other employee, both of the following apply:
(a) The laborer or other employee is deemed eligible for and has accrued the right to take vacation time with pay.
(b) The laborer or other employee has not taken or been compensated for the vacation time as of the date of the discharge or resignation.
| k(2) The provisions of this Subsection shall not be interpreted to allow the forfeiture of any vacation pay actually earned by an employee pursuant to the employer’s policy.

(Emphasis added.)

Plaintiffs allege that the policy alert was the first indication to them that they may have a cause of action against the Board, and its issuance date should, therefore, serve as the date prescription began to run against them. We do not agree.

Louisiana Revised Statutes 23:634(A) provides:

No person, acting either for himself or as agent or otherwise, shall require any of his employees to sign contracts by which the employees shall forfeit their wages if discharged before the contract is completed or if the employees resign their employment before the contract is completed; but in all such cases the employees shall be entitled to the wages actually earned up to the time of their discharge or resignation.

(Emphasis added).

Even before the 1997 amendments to La.R.S. 23:631, there was a long history of jurisprudence which considered accrued vacation time to be equivalent to wages. As the policy alert recognized, the “added statutory provision [La.R.S. 23:631(D) ] is apparently in keeping with recent court cases, stating that unused vacation pay is considered wages and equivalent to amount then due under terms of employment..” Arguably, this jurisprudence, alone, called into question whether certain vacation policies such as “use it or lose it” policies were lawful or, instead, amounted to an impermissible forfeiture of wages under La.R.S. 23:634.

| ^However, in Picard, this court found no manifest error in the trial court’s decision that such jurisprudence was not sufficient to put the plaintiffs on notice that they had a claim. Rather, we found that the plaintiffs’ inaction in Picard was reasonable because neither the supreme court nor this circuit had squarely addressed “whether an employer may refuse to give compensation for accrued but unused vacation time,” until we rendered Baudoin v. Vermilion Parish School Board. In that case, we found that a retired employee may be entitled to compensation for accrued unused leave upon retirement, despite the employer’s unwritten policy not to do so.

In Picard, we upheld the trial court’s finding that the employees were reasonably prevented from realizing that they had a reasonable basis for pursuing their claims until we decided Baudoin. However, implicit in this holding is that the Bau-doin decision did provide sufficient notice to the plaintiffs. Likewise, the Baudoin decision provided sufficient notice to the Plaintiffs in the instant case; it provided them with a reasonable basis to pursue their claims for wages. We rendered Bau-doin in April of 1997 and the supreme court denied writs in June of 1997. Thus, even under contra non valentum, prescription began to run against the Plaintiffs in June of 1997 and ended in June of 2000.

“Louisiana jurisprudence considers contra non valentum to be ‘an exceptional remedy ... in direct contradiction to the articles in the Civil Code’ which must be strictly construed.” Thus, we decline to stretch its application to the extent that it would encompass the Plaintiffs’ claims in the instant case.

^CONCLUSION

We find that the trial court erred by not considering whether contra non valentum prevented the prescription of the Plaintiffs’ claims. However, our independent analysis of the doctrine’s application leads us to the same conclusion. Thus, we affirm the trial court’s dismissal of Plaintiffs’ claims because they have prescribed. We cast the costs of this appeal on the Plaintiffs/Appellants.

AFFIRMED.

      . Parker v. Buteau, 99-519 (La.App. 3 Cir. 10/13/99), 746 So.2d 127.

      . Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742, rev’d in part, on other grounds, 96-3028 (La.7/1/97), 696 So.2d 569.

      .01-3180 (La. 12/4/02), 831 So.2d 906.

      . Id. at 915.

      . Spott v. Otis Elevator Co., 601 So.2d 1355 (La.1992).

      . Id.

      . See La.R.S. 23:631. See also Wyatt, 831 So.2d 906.

      . See Spott, 601 So.2d 1355.

      . Picard v. Vermilion Parish Sch. Bd., 00-1222, p. 3 (La.App. 3 Cir. 4/4/01), 783 So.2d 590, 594, writ denied, 01-1346 (La.6/22/01), 794 So.2d 794 (quoting Wimberly v. Gatch, 93-2361, p. 4 (La.4/11/94), 635 So.2d 206, 211).

      . Hendrick v. ABC Ins. Co., 00-2403, p. 10 (La.5/15/01), 787 So.2d 283, 290 (quoting Corsey v. State, Through Dep't of Corr., 375 So.2d 1319, 1321-22 (La.1979)).

      . Picard, 783 So.2d 590.

      . See, e.g., Barrilleaux v. Franklin Found. Hosp., 96-343 (La.App. 1 Cir. 11/8/96), 683 So.2d 348, writ denied, 96-2885 (La. 1/24/97), 686 So.2d 864; Macrellis v. S.W. La. Ind. Ctr., 94-1155 (La.App. 3 Cir. 5/3/95), 657 So.2d 135; Lambert v. Usry & Weeks, 94-216 (La.App. 5 Cir. 9/14/94), 643 So.2d 1280; Potvin

        v. Wright's Sound Gallery, Inc., 568 So.2d 623 (La.App. 2 Cir.1990); Garrison v. Burger King Corp., 537 So.2d 834 (La.App. 5 Cir.1989); Blankenship v. S. Beverage Co., Inc., 520 So.2d 440 (La.App. 1 Cir.1988); Pohl v. Domesticom, Inc., 503 So.2d 125 (La.App. 5 Cir.), writ denied, 505 So.2d 1148 (La.1987); Lee v. Katz & Bestoff, Inc., 479 So.2d 459 (La.App. 1 Cir. 1985); Howser v. Carruth Mortg. Corp., 476 So.2d 830 (La.App. 5 Cir.1985).

        .See Picard, 783 So.2d 590.

      . Id.

      . 96-1604 (La.App. 3 Cir. 4/2/97), 692 So.2d 1316, writ denied, 97-1169 (La.6/20/97), 695 So.2d 1358.

      . Id.

      . Picard, 783 So.2d at 594 (quoting Harsh v. Calogero, 615 So.2d 420, 422 (La.App. 4 Cir. 1993)).


author: | .PETERS, J.

text:
    Opel P. TEASLEY v. Charles K. ATES.
    No. CA 03-824.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2003.
    Kenneth A. Doggett, Alexandria, LA, for Plaintifí/Appellee, Opel P. Teasley.
    J. Albert Ellis, Louisiana Department of Justice, AAG, Alexandria, LA, for Defendant/Appellant, Charles K. Ates.
    Court composed of ULYSSES GENE THIBODEAUX, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   | .PETERS, J.

This litigation arises from a November 19, 1996 automobile accident involving vehicles driven by the plaintiff, Opel P. Teas-ley, and the defendant, Charles K. Ates. Mr. Ates has appealed a judgment rendered against him, claiming that he was statutorily immune from suit in tort by Ms. Teasley. Ms. Teasley has answered Mr. Ates’s appeal, seeking additional damages. For the following reasons, we affirm the district court judgment.

DISCUSSION OF THE RECORD

On November 19,1996, at approximately 5:30 a.m., Ms. Teasley, an employee of the State of Louisiana, was attempting to park her vehicle at her place of employment, the Work Training Facility North Correctional Institution, located on the premises of Camp Beauregard in Rapides Parish, Louisiana. At the same time, Mr. Ates, employed by the State of Louisiana as a security guard at Camp Beauregard, was attempting to back a state-owned vehicle past the parking area onto the highway in order to transport an inmate to a work location. In the process, Mr. Ates collided with Ms. Teasley.

Ms. Teasley initially filed suit against Mr. Ates in Pineville City Court on March 14, 1997, seeking to recover the damages she sustained in the accident. Mr. Ates responded to that suit by filing declinatory exceptions of lack of subject matter jurisdiction, lack of personal jurisdiction, and improper venue. He alleged therein that (1) both he and Ms. Teasley were state employees acting in the course and scope of their employment such that jurisdiction was proper only in the Office of Workers’ Compensation Administration; (2) the city court also did not have jurisdiction because the state was a defendant; and, (3) concomitantly, venue was not proper | ¡.because the city court did not have jurisdiction. The record does not contain a minute entry or a transcript of any hearing on the exceptions nor does it contain any evidence presented in support of the exceptions. The city court denied the exceptions by a judgment rendered on March 26,1998, and signed on April 16, 1998. Thereafter, on May 11, 1998, Mr. Ates filed a general denial answer to Ms. Teasley’s suit and raised as an alternative defense the affirmative defense of comparative fault.

Subsequently, on joint motion of the parties, the city court transferred the case to the Ninth Judicial District Court in Rapides Parish. The city court executed the transfer order on October 26, 1998. Neither party amended the pleadings prior to the January 15, 2003 trial.

At trial, Ms. Teasley offered evidence in support of her claim. Immediately after resting her case, Mr. Ates filed a peremptory exception of no cause of action, asserting the exclusive remedy provisions of the Workers’ Compensation Act, namely La. R.S. 23:1032 and 23:1034. Ms. Teasley objected to the filing of the exception, and the district court denied the exception on the record. Mr. Ates then proceeded to present evidence in his defense. After completion of the evidence, the district court issued its ruling finding that the accident was caused by Mr. Ates’s negligence. The district court then awarded Ms. Teasley $5,000.00 in general damages, $2,038.77 in property damages, $1,438.79 in medical expenses, and $689.08 in lost wages. The district court signed a written judgment on January 31, 2003. Mr. Ates filed a motion for new trial, which the district court denied.

Mr. Ates has timely filed this appeal, asserting four assignments of error:

1. The Pineville City Court erred in denying the Exception of Lack of Subject Matter Jurisdiction, Lack of Jurisdiction over the Person, and Improper Venue.
2. The District Court erred in denying the State’s Exception of No | .¡Cause of Action.
3. The District Court erred in finding the plaintiff was a “statutory employee.”
4. The District Court erred in finding the Exclusive Remedy Defense was unfair surprise.

Ms. Teasley answered the appeal, seeking an increase in the award of general damages.

OPINION

Mr. Ates’s Appeal

Louisiana Revised Statutes 23:1032(A)(l)(a) provides in part: “Except for intentional acts ..., the rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights, remedies, and claims for damages. ...” Additionally, La.R.S. 23:1034(A) provides in part: “[F]or [a state] employee and employer the payment of compensation according to and under the terms, conditions, and provisions set out in this Chapter shall be exclusive, compulsory, and obligatory....”

Nevertheless, when construing the pleadings in a given case, “[t]he answer shall set forth affirmatively ... any ... matter constituting an affirmative defense.” La.Code Civ.P. art. 1005. “[T]ort immunity provided by the Act operates as an affirmative defense; it is not a law evaluating conditions of legality of defendant’s conduct but, rather, serves as a vehicle for asserting a substantive defense that defeats an otherwise viable claim.” Brown v. Adair, 02-2028, p. 5 (La.4/9/03), 846 So.2d 687, 690.

Mr. Ates never asserted the tort immunity as an affirmative defense. Instead, he improperly asserted it in city court via exceptions of lack of subject matter [Jurisdiction and/or personal jurisdiction. However, even were we to construe the exceptions as effectively presenting the affirmative defense, the record contains no evidence presented on the city court exceptions that we may review.

Not until the close of Ms. Teasley’s presentation of evidence at the trial on the merits of the tort action, or almost six years after Ms. Teasley filed her original petition, did Mr. Ates reassert the immunity, this time via an exception of no cause of action. In Everything on Wheels, Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La.1993), the supreme court instructed:

The function of an exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. Therefore, the court reviews the petition and accepts well pleaded allegations of fact as true, and the issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought.

(Citations omitted.)

In the instant case, the law clearly affords Ms. Teasley a remedy in tort. The fact that the law also affords Mr. Ates an affirmative defense of immunity does not eviscerate Ms. Teasley’s cause of action — the immunity, if proven by Mr. Ates, would simply operate as a defense to it. The immunity “serves as a vehicle for asserting a substantive defense that defeats an otherwise viable claim.” Brown, 846 So.2d at 690 (emphasis added).

Importantly, “[t]he policy behind [La. Code Civ.P. art. 1005] is the prevention of ‘trial by ambush.’ ” Patterson v. State, 95-1668, p. 9 (La.App. 3 Cir. 12/11/96), 685 So.2d 473, 478, units denied, 97-27, 97-108 (La.2/21/97), 688 So.2d 513. In Rider v. Fontenot, 463 So.2d 951, 956 (La.App. 3 Cir.1985), we explained:

The policy behind the requirement that affirmative defenses be [.^raised in answer is sensible and laudable. Because affirmative defenses raise matters for judicial resolution outside of issues raised by plaintiffs petition, plaintiff must be made aware of these matters at an early stage so that plaintiff can prepare an opposition to the defense and adjust his case, if necessary, in light of the new facts and issues raised by the affirmative defense. If the affirmative defense is allowed despite the defense not being raised in answer, the result is a surprise “trial by ambush” that unfairly aids the defendant, who knew about the defense even though plaintiff was kept in ignorance of the defense.

In the instant case, trial by ambush is what occurred. However, Mr. Ates contends that Ms. Teasley was put on notice through the city court exceptions. As set forth above, the record contains neither a transcript of the hearing on those exceptions nor any evidence in support of the exceptions. Additionally, Mr. Ates did not seek supervisory writs from the ruling on the exceptions and gave no other indication apparent on the face of the record that he intended to pursue the issue further, other than his filing of the exception of no cause of action at the close of Ms. Teasley’s evidence. Because Ms. Teasley was in effect ambushed by the late assertion of the defense, we find no error in the district court’s denial of the exception of no cause of action. In reaching this conclusion, we find no merit in any of Mr. Ates’s assignments of error.

Ms. Teasley’s Answer to Appeal

In her answer to the appeal, Ms. Teasley seeks an increase in the general damages award to $7,500.00. Ms. Teasley was diagnosed with trauma to her left shoulder and cervical strain syndrome. She was treated with medication and physical therapy and had a resolution of her symptoms around two months following the accident.

In Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994), the supreme court instructed:

1 fi[T]he discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.

In the instant case, we do not find that the district court abused its great discretion in the amount it awarded for general damages. Thus, we affirm that award.

DISPOSITION

For the foregoing reasons, we affirm the district court judgment in all respects. We assess fifty percent of the costs of this appeal to Charles K. Ates and fifty percent to Opel P. Teasley.

AFFIRMED.

      . We note that, despite the assertions in Mr. Ates’s exceptions, Ms. Teasley did not name the state as a defendant in these proceedings.


author: |,DECUIR, Judge.

text:
    Joseph K. MORROW v. Michael HILDALGO, et al.
    No. 03-0826.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2003.
    Rehearing Denied Jan. 14, 2004.

      Keith M. Borne, Borne & Wilkes, L.L.P., Lafayette, LA, Counsel for Defendant/Appellant, Safeway Insurance Company of Louisiana.
    Gregory J. Laborde, Laborde & La-borde, Lafayette, LA, Counsel for Defendant/Appellee, Michael Hildalgo.
    Michael B. Holmes, Hebert, Holmes & Bertrand, Kinder, LA, Counsel for Plaintiff/Appellee, Joseph K. Morrow.
    Court composed of ULYSSES GENE THIBODEAUX, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   |,DECUIR, Judge.

Safeway Insurance Company of Louisiana appeals a trial court judgment finding that its insured, Michael Hildalgo, intentionally caused the automobile accident but did not intend to injure the plaintiff, Joseph Morrow. We reverse.

FACTS

On June 15, 2000, Hildalgo, Larry John, Donna Bazinet, and Anna Fontenot were at a bar in Elton, Louisiana. At 2:00 a.m., they left the bar in Hildalgo’s vehicle and met Morrow in a parking lot in Kinder. Fontenot and Bazinet exited Hildalgo’s vehicle, taking a six or twelve pack of beer and got into Morrow’s vehicle. Hildalgo became angry, and Morrow left with the ladies and the beer. As Morrow proceeded down Highway 165, Hildalgo pursued and rammed Morrow’s vehicle. He continued to follow Morrow onto Green Oaks Road and proceeded to ram Morrow’s vehicle several more times while traveling at speeds in excess of 80 miles per hour. At some point during this ramming, Morrow sustained soft tissue injuries for which he sought medical care and for which he was awarded damages.

Hildalgo was insured by Safeway under a policy that excludes coverage for “bodily injury or property damage caused intentionally by or at the direction of the insured.” The trial court found that coverage existed under the policy because Hildalgo intended to cause the accident but did not intend to cause Morrow’s injuries. Safeway lodged this appeal.

DISCUSSION

Safeway contends that the trial court erred in concluding that coverage existed under the insurance policy because Hildal-go intended to cause the accident but not the injuries. Safeway argues that our decision in Flugence v. A & M Farms, Inc., 02-1054 (La.App. 3 Cir. 4/30/03), 843 So.2d 1279, writ denied, 03-1526 (La.9/26/03), 854 So.2d 364, is on point.

Lin Flugence, the defendant, while driving a tractor pulling a load of sugarcane, became angry at another driver who had cut in line at the scales. The defendant then rammed the offending driver’s tractor and trailer causing injury to the driver. This court, in affirming a grant of summary judgment on the issue of coverage under an intentional act exclusion, found that the defendant intended to injure the plaintiff because he either desired the resulting injuries or that they were substantially certain to follow from his actions. Citing Bazley v. Tortorich, 397 So.2d 475 (La.1981).

Both parties acknowledge that the manifest error standard applies to our review of the trial court’s determination in this case. After careful review, we find that the trial court’s finding that Hildalgo did not intend the plaintiffs injuries is manifestly erroneous. The record before us strongly suggests that Hildalgo actively desired Morrow’s injuries. The most glaring evidence of this is Hildalgo’s inability to deny his intent in clearly self-serving testimony. He testified, that he was “probably hoping” to injure someone in the vehicle. In backtracking from that statement he said he was not hoping to injure Morrow — “I just wanted to kick his ass.” Moreover, we are unable to distinguish this case from our decision in Flugence. Clearly, soft tissue injuries are substantially certain to follow from ramming a vehicle at 80 plus miles per hour in an attempt to force it off the road.

We are likewise unconvinced by appel-lee’s attempt to distinguish Flugence based on Hildalgo’s intoxication and the size of the tractors in Flugence. The record reveals that despite his alleged intoxication, Hildalgo was aware of the cause of his anger and was capable of formulating a plan of action and carrying it out. He clearly knew he wanted to force Morrow off of the road and attempted to do so by ramming his vehicle. With regard to the size difference between a tractor and an automobile, j3we note that any mitigation warranted by this distinction is counterbalanced by the extreme speeds involved in this case.

Under these circumstances, we find that the trial court erred in concluding that Hildalgo did not have the requisite intent to trigger the intentional act exclusion in the Safeway policy.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed. All costs of these proceedings are taxed to appellee, Joseph Morrow.

REVERSED.


author: JjPETERS, J.

text:
    Ronald K. TRAHAN v. COCA COLA BOTTLING COMPANY UNITED, INC.
    No. WCA 03-827.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2003.

      Michael B. Miller, Attorney at Law, Crowley, LA, Counsel for Plaintiff/Appel-lee, Ronald K. Trahan.
    Henry G. Terhoeve, Guglielmo, Marks, Schutte, Terhoeve & Love, Baton Rouge, LA, Counsel for Defendant/Appellant, Coca Cola Bottling Company United, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   JjPETERS, J.

In this workers’ compensation case, the employer, Coca Cola Bottling Company United, Inc. (Coca Cola), appeals a judgment awarding the employee, Ronald K. Trahan, penalties and attorney fees for its failure to pay a purported settlement entered into in open court. Coca Cola also appeals an order allowing Mr. Trahan to file the settlement judgment into the mortgage records of the district court. Mr. Trahan has answered the appeal, seeking additional attorney fees for work done on appeal. For the following reasons, we affirm the judgment and order below and award additional attorney fees in the amount of $2,500.00.

DISCUSSION OF THE RECORD

On October 21, 2002, Coca Cola and Mr. Trahan entered into a settlement, with Coca Cola’s attorney reciting the terms of the settlement in open court as follows:

[M]y client has agreed to pay the following sums to Mr. Trahan at this point. We’ll pay the total sum of $27,500. We’re also agreeing that if there are some copayments that he has made from Ardoin Drugs that we will reimburse him those. We will be responsible for any medical bills that have been — that are unpaid that are related to the incident in accordance with the schedule. Those will be paid to the respective providers in that instance whenever there are bills like that. We don’t know exactly if there are any, and if there are, what they are.
Mr. Trahan has reserved rights to future compensation, future claims hereafter. Mr. Trahan, I believe, will also state on the record that he is unaware of any outstanding medical bills that have not been paid other than those that were discussed at the first part of this trial in July.

Mr. Trahan’s attorney voiced his agreement on the record, and Mr. Trahan personally informed the WCJ at that time that there were in fact no outstanding medicals of which he was aware other than those already presented. The WCJ “accept[ed] and approve[d] the settlement as presented” and stated that she would “sign off on documents once they’re presented.”

By letter dated October 24, 2002, Coca Cola’s attorney informed Mr. Trahan’s attorney that he was forwarding a check in the amount of $27,500.00, a receipt and | ¡.release, and a motion to dismiss without prejudice. Coca Cola’s attorney also stated in the letter: “The check is not to be cashed until the release and motion are signed and returned to me at my office.”

Mr. Trahan’s attorney responded by a letter dated November 12, 2002, that he was “not sure whether or not this Receipt and Release accurately reflects our stipulation.” He requested that Coca Cola’s attorney obtain a copy of the transcript so that he could “be assured that the Receipt and Release accurately reflects our stipulation.” Further, Mr. Trahan’s attorney requested permission to negotiate the check, stating: “As you know, we have the stipulation in the record which is enforceable. A Receipt and Release is not necessary.” Mr. Trahan’s attorney did agree to eventually sign the motion to dismiss.

Thereafter, on several occasions, Coca Cola’s attorney requested that Mr. Tra-han’s attorney advise him about what his objections were to the receipt and release document. Mr. Trahan’s attorney continued to request authorization to negotiate the check. On December 13, 2002, Mr. Trahan’s attorney submitted a copy of a receipt and release which he had prepared and informed Coca Cola’s attorney that this receipt and release would be signed after the settlement check was “put into the bank and clear[ed] the bank.”

On December 27, 2002, Mr. Trahan filed a motion for penalties and attorney fees, alleging that Coca Cola would not allow him to negotiate the settlement check unless he executed the receipt and release. On February 17, 2003, the matter came up for hearing on the merits, at which time the WCJ orally rendered judgment in favor of Mr. Trahan. On April 3, 2003, the WCJ reduced her ruling to a written judgment in favor of Mr. Trahan, stating therein that Coca Cola “did not pay the judgment [¿rendered on October 21, 2002, within thirty days.” The WCJ ordered Coca Cola to pay Mr. Trahan a 24% penalty as well as attorney fees of $2,500.00.

In the meantime, on March 17, 2003, Mr. Trahan additionally filed a Motion and Order to File Judgment into the Mortgage Records of the District Court regarding the settlement entered into on October 21, 2002. On that same date, the WCJ ordered that a certified copy of the transcript of the hearing wherein the award was made be delivered to Mr. Trahan’s attorney for recording purposes.

Coca Cola has appealed the March 17, 2003 order and the April 3, 2003 judgment as follows:

1) The trial court erred in determining that a “final and enforceable” settlement had been reached on October 21, 2002 in its February 17,. 2003 ruling.
2) The trial court erred in determining that a “final and enforceable” settlement had been reached in finding Coke liable for penalties, attorney’s fees and interest in its February 17, 2003 ruling.
3) The trial court erred in awarding penalties, attorney’s fees and interest for Coke’s “failure” to pay the purported settlement in its February 17, 2003 ruling.
4) The trial court erred in failing to admit certain testimony of Ronald K Trahan at the February 17, 2003 hearing.
5) The trial court erred in granting Plaintiffs ex parte “Motion and Order to File Judgment Into Mortgage Records of the District Court” on March 17, 2003.

Mr. Trahan has answered the appeal, seeking additional attorney fees for work done on appeal.

OPINION

Coca Cola’s Appeal

Louisiana Revised Statutes 23:1272(A) provides:

A lump sum or compromise settlement entered into by the parties under R.S. 23:1271 shall be presented to the workers’ compensation judge for approval through a petition signed by all parties and verified by the employee or his dependent, or by recitation of the terms of the settlement and acknowledgment by the parties in open court which is | ¿capable of being transcribed from the record of the proceeding.

(Emphasis added.)

The language permitting recitation of the terms of the settlement in open court was added by 1999 La. Acts No. 776, § 1. In Richard v. Our Lady of Lourdes Regional Medical Center, Inc., 02-0571, p. 3 (La.App. 3 Cir. 10/30/02), 829 So.2d 1147, 1149 (emphasis added), we explained:

The amendment to La.R.S. 23:1272 broadens the available avenues for settling workers’ compensation claims. Clearly the legislature intended the recitation in open court to have the same effect as the previously approved forms of settlement. The settlement of a workers’ compensation claim is substantially the same as a transaction or compromise. An oral recitation of a transaction or compromise in open court which is capable of transcription is judicially enforceable. Likewise, ... the oral recitation of the workers’ compensation settlement agreement by the parties in open court, which was capable of transcription, is a final, non-appealable judgment for the purposes of La.R.S. 28:1201(G).

See also Sedgwick Claims Mgmt. Serv., Inc. v. Cormier, 02-0216 (La.App. 3 Cir. 3/26/03), 841 So.2d 1032, writ denied, OS-1185 (La.6/20/03), 847 So.2d 1234.

Thus, in the instant case, the oral recitation of the October 21, 2002 settlement agreement by Mr. Trahan and Coca Cola in open court is a final, nonappealable judgment for purposes of La.R.S. 23:1201(G). Louisiana Revised Statutes 23:1201(G) provides:

If any award payable under the terms of a final, nonappealable judgment is not paid within thirty days after it becomes due, there shall be added to such award an amount equal to twenty-four percent thereof or one hundred dollars per day together with reasonable attorney fees, for each calendar day after thirty days it remains unpaid, whichever is greater, which shall be paid at the same time as, and in addition to, such award, unless such nonpayment results from conditions over which the employer had no control.... The total one hundred dollar per calendar day penalty provided for in this Subsection shall not exceed three thousand dollars in the aggregate.

Coca Cola did not authorize payment within thirty days after October 21, 2002, |Binstead making such authorization contingent on the signing of the receipt and release. Once the terms of a settlement are recited in open court and approved by the WCJ, the terms of the settlement are enforceable by the parties against each other. Cormier v. Ellender’s Portable Bldg., 00-1595 (La.App. 3 Cir. 2/28/01), 781 So.2d 776.

In Trahan v. John F. Reggie, Inc., 98-295 (La.App. 3 Cir. 10/7/98), 720 So.2d 95, the WCJ signed a consent judgment awarding the employee indemnity and medical benefits, penalties, and attorney fees. Thereafter, the employers’ attorney forwarded a letter to the employee’s attorney, stating in part: “Enclosed please find our client’s settlement drafts ... which represent satisfaction of the Consent Judgment. ... Also enclosed is a Satisfaction of Judgment which we request you sign and return to us for filing.” Id. The employee’s attorney refused to sign the Satisfaction of Judgment and inquired as to whether or not he could still negotiate the settlement checks. The issue progressed, as in the instant case, through correspondence, and the employee’s attorney ultimately filed a motion for penalties and attorney fees. We held that the employers “were obligated to unconditionally pay under the consent judgment,” and we awarded penalties and attorney fees for the employers’ failure to do so. Id. at 97; see also Meche v. Foremost Mgmt. Corp., 95-238 (La.App. 3 Cir. 10/4/95), 663 So.2d 325, writ denied, 96-152 (La.3/15/96), 669 So.2d 429. Likewise, in the instant case, Coca Cola was required to unconditionally pay under the settlement, and it did not do so.

Nevertheless, Coca Cola argues that the October 21, 2002 agreement was not a final and enforceable settlement because La.R.S. 23:1272(A) is not applicable to the October 21, 2002 agreement. Specifically, it is Coca Cola’s position that La.R.S. 23:1272(A) allows for recitation of the terms of a settlement in open court only where there has been “[a] lump sum or compromise settlement entered into by the parties under R.S. 23:1271.”

Louisiana Revised Statutes 23:1271(A) provides:

It is stated policy for the administration of the workers’ compensation system of this state that it is in the best interest of the injured worker to receive benefit payments on a periodic basis. A lump sum payment or compromise settlement in exchange for full and final discharge and release of the employer, his insurer, or both from liability under this Chapter shall be allowed only:
(1) Upon agreement between the parties, including the insurer’s duty to obtain the employer’s consent;
(2) When it can be demonstrated that a lump sum payment is clearly in the best interests of the parties; and
(3) Upon the expiration of six months after termination of temporary total disability. However, such expiration may be waived by consent of the parties.

(Emphasis added.)

Because the agreement recited in open court was not a “lump sum payment or compromise settlement” for the “full and final discharge and release of the employer” from all past, present, and future liability, but rather was only a partial settlement, Coca Cola asserts that it did not fit within the purview of La.R.S. 23:1271 for purposes of the application of La.R.S. 23:1272 such that the oral recitation was not an enforceable settlement. Coca Cola cites Puchner v. Employers’ Liability Assurance Corp., 198 La. 921, 5 So.2d 288 (1941), in support of its position in this regard. In that case, the supreme court stated: “A lump sum settlement as provided for in the Act means nothing more or less than that the entire amount of compensation due the employee is paid at one and the same time, as distinguished from weekly ^payments provided for in the Act.” Id. at 296.

Initially, we note that Puchner involved a different issue and different version of the Act than that now before us. In Puch-ner, the employee and employer were operating under the erroneous belief that the employee’s disability was temporary and would resolve within a reasonable time. The employer paid the full compensation to which the employee was entitled during the period of his admitted disability, and the employer and employee compromised the remainder of the claim for any future temporary disability. However, later it was determined that the employee was permanently disabled, and he sought to set aside the judgment whereby he compromised his claim. The supreme court concluded that the parties could not settle a compromise claim in contravention of the applicable law. The court explained that (as quoted by Coca Cola) “[a] lump sum settlement as provided for in the Act means nothing more or less than that the entire amount of compensation due the employee is paid at one and the same time, as distinguished from weekly compensation payments provided for in the Act.” Id. In that case, the attempted settlement resulted in the employee receiving less than one-fourth of the amount to which he was entitled, which the court found to be “an ample illustration of just how far the letter and spirit of the Act can be destroyed by the sanction of speculation as to the duration of an employee’s disability.” Id. The court concluded that “it was intended that the injured employee should receive compensation during his disability in an amount with a degree of certainty,” referencing the applicable fee schedule. Id.

The holding in Puchner focused on the employee’s receipt of all benefits to which he was entitled under the then-existing version of the Act; it did not purport to establish a bright-line rule for purposes of our present statute that an employee may |snot partially settle his claim for past-due benefits while reserving to himself his right to claim future benefits to which he might be entitled. In fact, the partial settlement in the case at hand comports with the spirit of Puchner in that Mr. Trahan benefits from having his past-due payments paid out as well as from being able to seek future benefits so that he ultimately receives all benefits which he is due.

“The starting point for the interpretation of any statute is the language of the law itself.” Gregor v. Argenot Great Cent. Ins. Co., 02-1138, p. 6 (La.5/20/03), 851 So.2d 959, 964 (footnote omitted). The first sentence of La.R.S. 23:1271(A), in keeping with the beneficent and humanitarian purposes of the Workers’ Compensation Act, functions to specify and establish that the policy of this state is that it is in the best interest of the injured worker to receive benefit payments on a periodic basis rather than in lump sum or otherwise. Clearly, the legislature was concerned with protecting the worker’s receipt of compensation.

However, in the context of setting forth that policy, the second sentence of La.R.S. 23:1271(A) functions to allow an exception to the stated policy for a “lump sum payment or compromise settlement in exchange for full and final discharge and release of the employer ... from liability” “only ” where the specified conditions are met. (Emphasis added.) Compliance with the specified conditions is necessary so that the best interest of the worker is not disregarded. Importantly, the language of the statute does not make settlement contingent on the full and final discharge and release of the employer, but makes a settlement that grants a full and final discharge and release of the employer from liability contingent on the conditions listed, including that the settlement be in the best interests of the parties and by mutual agreement of the parties. We see nothing in the language of La.R.S. 23:1271 or |c)La.R.S. 23:1272 that even suggests that the legislature intended to preclude partial settlements of workers’ compensation claims.

In fact, the partial settlement in the instant case comports with the stated policy of La.R.S. 23:1271(A) that payments on a periodic basis are in the best interest of the worker in that, under the terms of the settlement in the instant case, Mr. Trahan may continue to receive future benefits on a periodic basis. The partial settlement reduces only Mr. Trahan’s past-due benefits to a lump sum payment. Even so, technically, the settlement effected a full and final release of Coca Cola from all liability for past-due benefits. Thus, we reject Coca Cola’s argument in this regard.

Coca Cola also argues that there was no settlement because there was no “meeting of the minds.” Coca Cola asserts that “[t]he exchange of correspondence [following its forwarding of the check and receipt and release] is a clear indication that from the very beginning, [Coca Cola] (and [Coca Cola’s] counsel) did not believe that a ‘final and enforceable’ settlement had been entered into because they considered the execution of a ‘Receipt and Release’ by [Mr. Trahan] (and the termes [sic] contained therein) to be a condition of the settlement.”

We reject this argument. Coca Cola’s attorney recited the terms of the settlement in open court, and with a great deal of specificity. He could have easily mentioned the receipt and release in the settlement. Even so, Coca Cola misconstrues the nature of its obligation under the settlement. As set forth above, once the settlement was recited in open court, it became a final, nonappealable judgment that was immediately enforceable. Coca Cola could not thereafter unilaterally condition authorization to negotiate the settlement proceeds on the signing of a receipt and release.

| Additionally, Coca Cola argues that there was no settlement because there was no acknowledgment by the parties as required by La.R.S. 23:1272(A). Specifically, Coca Cola asserts: “There is no record of the trial court inquiring of [Mr. Trahan] as to whether his attorney had explained the settlement terms and the effects of the settlement to him and/or that he understood the settlement terms and the effects of the settlement.” Coca Cola additionally asserts that “[t]he purpose of this requirement [acknowledgment by the parties in open court] is apparent on its face: it is to make sure that the settling parties themselves (particularly the employee ) understand the ramifications and outcomes that will result from the terms and conditions recited into the record by their attorneys.”

The attorneys acknowledged on the record the terms of the settlement, but the WCJ did not specifically ask Mr. Trahan, who was present at the recitation, if he agreed to the terms of the settlement. Coca Cola cites Bellanger v. LaSalle Community Action, 02-299 (La.App. 3 Cir. 10/2/02), 827 So.2d 599, for the proposition that the requirement for “acknowledgment” under La.R.S. 23:1272(A) is the same as that under La.R.S. 23:1272(13), which provides:

When the employee or his dependent is represented by counsel, and if attached to the petition presented to the workers’ compensation judge are affidavits of the employee or his dependent and of his counsel certifying each one of the following items: (1) the attorney has explained the rights of the employee or dependent and the consequences of the settlement to him; and, (2) that such employee or dependent understands his rights and the consequences of entering into the settlement, then the workers’ compensation judge shall approve the settlement by order, and the order shall not thereafter be set aside or modified except for fraud or misrepresentation made by any party.

However, La.R.S. 23:1272(B) expressly applies to settlements presented to the WCJ through a petition, not through recitation in open court. Further, while Bel-langer, unlike the instant case, did contain a colloquy between the claimant and In the WCJ, Bellanger dealt specifically with the issue of whether the WCJ’s failure to expressly state that she approved the settlement recited in open court resulted in the settlement not being perfected and therefore final until she actually signed the judgment, thereby memorializing her approval. We concluded in Bellanger: “The colloquy, which we recited above, between Ms. Bellanger and the WCJ in the instant case, reveals that the judge followed this procedure and ascertained all of the pertinent information, which required the judge’s approval and rendered the matter to be legally final. Thus, we find that the subsequent written judgment was simply a formality, evidencing the already existing oral judgment, which the WCJ approved in open court after the settlement’s recitation into the record. This oral judgment became final and nonappealable.” Id. at 602. To the extent that Bellanger stands for the proposition that “acknowledgment” for purposes of La.R.S. 23:1272(A) is the same as that for La.R.S. 23:1272(B), we respectfully disagree.

Importantly, Mr. Trahan has not complained about the terms of the settlement and obviously acknowledged the settlement through his attorney. However, without determining whether for purposes of La.R.S. 23:1272(A) an attorney may acknowledge a settlement in the presence of his client on behalf of his client without further inquiry by the WCJ, we reject Coca Cola’s attempt to break the settlement agreement by interposing Mr. Tra-han’s lack of personal acknowledgment as a defense. Such an attempt by Coca Cola exalts form over substance in this instance and allows a settlement that is obviously in the best interest of Mr. Trahan to be defeated on a mere technicality that has no impact on Coca Cola’s understanding or acknowledgment of the settlement.

In any event, Coca Cola asserts that the failure to pay resulted from conditions 1 ^over which it had no control. Where the “nonpayment results from conditions over which the employer had no control,” the employer is not required to pay penalties and attorney fees. La.R.S. 23:1201(G). Coca Cola points out that, following the recitation of the settlement in open court, the WCJ stated that she would “sign off on documents once they’re presented.” Coca Cola asserts that its delay in authorizing the negotiation of the settlement check was due to its attempts to obtain Mr. Trahan’s signature on settlement documents and Mr. Trahan’s refusal to sign the receipt and release. Coca Cola cites in support of its position Daniel v. Wal-Mart Stores, Inc., 36,451, 36, 673 (La.App. 2 Cir. 12/11/02), 833 So.2d 1047, writs denied, 03-430, 03-431 (La.4/21/03), 841 So.2d 805, 806.

In Daniel, the WCJ approved certain settlements “but also required written documents to be filed within 30 days to ‘maintain the record.’ ” Id. at 1051. The employer thereafter forwarded settlement papers but did not forward the funds. The WCJ assessed penalties and attorney fees under La.R.S. 23:1201(G). The employer appealed, arguing that “because the WCJ ‘clearly contemplated’ the need for settlement papers, there was ambiguity as to when payment was due, thus negating the imposition of penalties and attorney fees.” Id. at 1049-50. The second circuit found that the WCJ’s oral order at the conclusion of the recitation was “not sufficiently clear to warrant imposing penalties and attorney fees.” Id. at 1051. It concluded: “While the compromise was final upon compliance with R.S. 23:1272 A, [the employer] was nevertheless under a court order to prepare a written judgment. This created some ambiguity as to whether the 30-day period of R.S. 23:1201 G was to begin running on [the date of the oral recitation] or when the written compromise was filed. Notably, [the employer] did present written compromises to [the | ^employees] within the 30-day period provided by the WCJ.” Id. (citation omitted).

We respectfully disagree with the holding in Daniel. As stated above, the settlement was a final, nonappealable judgment that was immediately enforceable. The WCJ stated that she “accepted] and approve[d] the settlement as presented.” The fact that the WCJ also stated that she would “sign off on documents once they’re presented” did not make the settlement unenforceable. Furthermore, Coca Cola could have obtained a court order to require compliance with the WCJ’s order. Its nonpayment was not due to conditions beyond its control but due to its misunderstanding of the nature of its obligation.

Coca Cola also urges as error the WCJ’s refusal to permit cross-examination of Mr. Trahan, at the instant trial on the issue of penalties and attorney fees, regarding his objections to the language contained in the receipt and release. Having determined that authorization for the negotiation of the settlement check could not be conditioned upon the signing of a receipt and release, we reject this assignment of error as well.

Finally, Coca Cola contends that in the absence of an “award” of compensation, the trial court erred in granting Mr. Trahan’s Motion and Order to File Judgment into the Mortgage Records of the District Court. Louisiana Revised Statutes 23:1201.3(A) provides in part: “If payment of compensation or an installment payment of compensation due under the terms of an award ... is not made within ten days after the same is due by the employer or insurance carrier liable therefor, the workers’ compensation judge may order a certified copy of the award to be filed in the office of the clerk of court of any parish, which award whether accumulative or lump sum, when recorded in the mortgage records, shall be a judicial mortgage as provided in |14Civil Code Article 3299.” Coca Cola contends that there was no “award” of compensation in this case.

In Trahan, 720 So.2d 95, we found that the “consent judgment” was an “award” for purposes of La.R.S. 23:1201.3(A). Likewise, the settlement was an “award” for purposes of the statute, and the WCJ did not err in granting Mr. Trahan’s motion to file the judgment into the mortgage records.

Mr. Trahan’s Answer to the Appeal

In his answer to Coca Cola’s appeal, Mr. Trahan requests additional attorney fees for work done on appeal. We grant that request and award an additional $2,500.00 for work done on appeal.

DISPOSITION

For the foregoing reasons, we affirm the judgment and order below and award additional attorney fees for work done on appeal in the amount of $2,500.00. We assess costs of this appeal to Coca Cola Bottling Company United, Inc.

AFFIRMED AND RENDERED.

      . Overruled in part on other grounds in Gauthier v. General Accident Fire & Life Assurance Corp., 573 So.2d 462 (La.1991).


author: | THIBODEAUX, Judge.

text:
    SOUTHWEST STEEL OF LOUISIANA, INC. v. VINTON HARBOR AND TERMINAL DISTRICT.
    No. 03-828.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2003.

      David John Calogero, Breaud & Lem-oine, Lafayette, LA, Counsel for Defendant/Appellee, Vinton Harbor & Terminal District.
    Frank C. Miller III, Lake Charles, LA, Counsel for Plaintiff/Appellant, Southwest Steel of Louisiana, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   | THIBODEAUX, Judge.

In this breach of a lease agreement dispute, the plaintiff-lessee, Southwest Steel of Louisiana, Inc., argues that the defendant-lessor, Vinton Harbor and Terminal District, breached its duty to cause the lessee to be in peaceable possession of the leased property, during the continuance of the lease, under La.Civ.Code. art. 2692. The trial court granted Vinton Harbor and Terminal District’s motion for summary judgment, finding that there was no genuine issue of material fact and dismissed the plaintiffs case. We agree and affirm the judgment of the trial court.

I.

ISSUE

We must decide whether genuine issues of material fact exist regarding Vinton Harbor and Terminal District’s alleged breach of its obligation to provide peaceable possession of the property it leased to Southwest Steel of Louisiana, Inc.

II.

FACTS

The plaintiff, Southwest Steel of Louisiana, Inc. (Southwest), and the defendant, Vinton Harbor & Terminal District (Vin-ton), entered into a contract allowing Southwest to occupy a building owned by Vinton, on very favorable terms, for ten years. When the contract was ■ renewed for another ten years in 1994, the parties understood that Vinton would be expanding the building. This was expressed in the lease agreement. The parties also agreed that the business operations of Southwest would not be negatively impacted, that is, its peaceable possession under the lease would not be disturbed.

12Southwest was involved in the preparations for the shop expansion. Southwest submitted plans for a proposed expansion to the Vinton Port Board. Southwest also submitted its proposed plans to the engineering firm assisting with the grant application. When renovations on the building started, several aspects of Southwest’s operation were disturbed. Electrical power to its steel fabrication machinery was cut off and re-routed to enter the building at a different location removed from Southwest’s machinery. Construction was substantially complete on September 22, 1998. On June 18, 1999, Southwest executed a subsequent lease with Vinton reflecting an increased rental for the newly expanded premises. On May 8, 2000, a fire occurred at the Southwest facility resulting in extensive damages to the building owned by Vinton and to equipment, furniture and fixtures owned by Southwest.

Southwest filed suit for breach of contract and for damages resulting from the disturbance of its peaceable possession. Vinton moved for summary judgment. The trial court granted Vinton’s motion for summary judgment. It reasoned that there were no genuine issues of material fact because Southwest consented to the construction. The trial court dismissed Southwest’s claims. Thereafter, this appeal was filed.

III.

LAW AND DISCUSSION

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact in dispute. Sanders v. Ashland Oil, Inc., 96-1751 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, unit denied, 97-1911 (La.10/31/97), 703 So.2d 29. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together Uwith affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966 B. Summary judgment is favored and “is designed to secure the just, speedy, and inexpensive determination of every action.” La.Code Civ.P. art. 966 C(2).

The burden of proof on a motion for summary judgment is set forth in La. Code Civ.P. art. 966 C(2):

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 his evidentiary burden of proof at trial, there is no genuine issue of material fact.

Initially, the burden of proof remains with the moving party and is not shifted to the non-moving party until the moving party has properly supported the motion. Only then must the non-moving party “submit evidence showing the existence of specific facts establishing a genuine issue of material fact.” See Scott v. McDaniel, 96-1509, p. 5 (La.App. 1 Cir. 5/9/97), 694 So.2d 1189, 1191-92, writ denied, 97-1551 (La.9/26/97), 701 So.2d 991. Failure by the non-moving party to submit such evidence, negates the existence of material facts at issue, and summary judgment should be granted. La.Code Civ.P. arts. 966 and 967.

In determining whether summary judgment is appropriate in a case on appeal, appellate courts review evidence de novo under the same criteria that governed the trial court’s determination of whether summary judgment is appropriate. Succession of Granger v. Worthington, 02-433 (La.App. 3 Cir. 10/30/02), 829 So.2d 1108. It is the applicable substantive law that determines materiality of a fact; thus, Lwhether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Rener v. State Farm Mut. Auto Ins. Co., 99-1703, (La.App. 3 Cir. 4/5/00), 759 So.2d 214.

The substantive law applicable to this case is La.Civ.Code art. 2692. Louisiana Civil Code Article 2692 states:

The lessor is bound from the very nature of the contract, and without any clause to that effect:
1. To deliver the thing leased to the lessee.
2. To maintain the thing in a condition such as to serve for the use for which it is hired.
3. To cause the lessee to be in a peaceable possession of the thing during the continuance of the lease.

The trial court granted Vinton’s motion for summary judgment. It reasoned that there were no genuine issues of material fact because Southwest consented to the construction and knew of the construction. Southwest argues that, while it consented to the renovations and was aware of the renovations, the lease agreement specifically guaranteed its peaceable possession of the premises. This argument is without merit. Louisiana Civil Code Article 2692, by law, guarantees the right to peaceable possession. Placing the provision in a contract provides no additional rights to Southwest. Southwest has the right of peaceable possession even without the insertion of this provision in the contract. La.Civ.Code. art. 2692.

Thus, the only issue is whether Southwest consented to the renovations. Generally, alterations by the lessor are prohibited during the lease. La.Civ.Code. art. 2698. However, if a tenant, expressly or tacitly, consented to permit workmen to make alterations during the existence of the lease, the landlord is not responsible for [^damage suffered as a consequence thereof. See Cross v. Breland, 185 So. 542 (La.App.Orl.1939); Rainey v. Pietri, 180 So. 459 (La.App.Orl.1939).

In this case, there is ample evidence that Southwest, at least, tacitly consented to the alterations. As Southwest’s business grew, it asked that Vinton expand its building so that it could generate more revenue. Southwest then located available state economic development grants for Vinton and even assisted in obtaining those funds. Southwest submitted plans for a proposed expansion to the Vinton Port Board. Southwest also submitted its proposed plans to the engineering firm assisting with the grant application.

There is no genuine issue of material fact regarding Southwest’s consent. Southwest did not introduce sufficient evidence to show it could bring forward evidence of lack of consent. It relied only on the argument that it was provided further protection by placing a clause guaranteeing peaceable possession in the lease, a protection already afforded by law under La.Civ.Code art. 2692(3). Failure by the non-moving party (Southwest) to submit such evidence, negates the existence of material facts at issue, and summary judgment was properly granted.

IV.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.