author: |,SOL GOTHARD, Judge.

text:
    Joseph M. VENTOLA, III v. Roger P. HALL, Interstate Trucking, Inc., Insurance Corporation of Hanover, ABC Insurance Company and Def Insurance Company.
    No. 03-CA-0703.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 12, 2003.

      Nelson W. Wagar, III, Chopin, Wagar, Cole, Richard Reboul & Kutcher, LLP, Metairie, LA, for Defendant/Appellant (Insurance Corporation of Hanover).
    Arthur I. Robison, Allen & Gooch, Lafayette, LA, for Defendant/Appellant, (Interstate Trucking, Inc.).
    Jack E. Morris, David J. Maraldo, Me-tairie, LA, for Plaintiff/Appellee.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and CLARENCE E. McMANUS.
   |,SOL GOTHARD, Judge.

Defendants, Interstate Trucking Inc. and Insurance Corporation of Hanover appeal from a judgment confirming a preliminary default in favor of plaintiff, and awarding damages of $125,000.00 plus legal interests and costs. For the reasons that follow, we annul and set aside the judgment of the trial court confirming the preliminary default, and we remand this matter for further proceedings.

On July 25, 2001, plaintiff, Joseph M. Ventola, III, filed a petition for damages against Roger P. Hall, Interstate Trucking Inc. (“Interstate”), and Insurance Corporation of Hanover (“Hanover”). In his petition Ventola alleged that on July 8, 2001, while he was in his vehicle and stopped in traffic with his window rolled down, Hall exited Interstate’s tractor trailer truck, approached his automobile on the driver’s side, and without provocation punched him several times in the face and head through the open driver’s side window. Ventola further alleged that, as a result of Hall’s battery, he suffered and continued to suffer serious bodily injuries including severe concussion with memory and cognitive loss, a broken nose, fractured septum, and facial lacerations which require | ¡^reconstructive surgery, as well as severe pain and suffering, mental anguish, emotional distress, embarrassment and humiliation, and loss of enjoyment of life. Ven-tola alleges that Interstate and Hanover are jointly and solidarily liable with Hall for the damages caused by Hall’s battery.

On September 18, 2001, Ventola took a preliminary default against the defendants. A confirmation hearing was conducted On October 22, 2002. Entered into evidence at the hearing was live testimony from the plaintiff, documents from the Mississippi Secretary of State and The United States Department of Transportation, the police report of Hall’s arrest, Hall’s affidavit admitting his actions, medical records and bills and photographs of plaintiff. Thereafter the trial court rendered judgment confirming the default against all defendants.

In its appeal, Hanover argues that the trial court erred in rendering a default judgment without proof of insurance coverage. It further argues that the trial court committed manifest error in awarding damages which were not. supported by competent evidence. Interstate argues that the trial court erred in finding it vicariously liable for the acts of Hall, and in awarding damages absent competent evidence.

A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie ease. La. C.C.P. art. 1702 A. For a plaintiff to obtain a default judgment, he must establish the elements of a prima facie case with competent evidence, as fully as though the defendants denied each of the allegations in the petition. The plaintiff must present competent evidence that convinces the court that it is probable that he would prevail on a trial on the merits. Schaff v. Cardinal Services, Inc., 00-1164 (La.App. 5 Cir. 2/14/01), 778 So.2d 1278, 1280; writ denied 2001-1035 (La.6/1/01) 793 So.2d 196, citing Thibodeaux v. Burton, 538 So.2d 1001, 1004 (La.1989).

|4When a demand is based upon a conventional obligation, affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case shall be admissible, self-authenticating, and sufficient proof of such demand. The court may, under the circumstances of the case, require additional evidence in the form of oral testimony before entering judgment. La. C.C.P. art. 1702(B)(1).

The determination of whether there is sufficient proof is a question of fact and should not be disturbed on appeal unless it is manifestly erroneous. Schaff, supra.

PROOF OF INSURANCE

Hanover argues that the insurance contract is an essential element of the prima facie case. Because plaintiff failed to introduce the insurance contract into evidence, the trial court erred in rendering a default judgment against it. Plaintiff concedes in brief that because the record contains no copy of the insurance policy Hanover issued to Interstate, the issue of insurance coverage may be subject to remand.

No valid default judgment can be rendered against an insurer without the introduction of the insurance contract, except where the plaintiff files requests for admissions and the insured fails to reply timely. Arias v. State Farm Mut. Auto. Ins. Co., 98-978 (La.App. 5 Cir. 3/10/99), 734 So.2d 730; Campbell v. Kendrick, 556 So.2d 140 (La.App. 5 Cir.1990). No requests for admission were filed in the record in this case. Accordingly, plaintiff failed to meet his burden of proof and the trial court erred in granting a default judgment on this issue.

COURSE AND SCOPE OF EMPLOYMENT

Interstate argues that the plaintiff failed to present prima facie evidence to prove that Hall was acting in the course and scope of his employment in striking the plaintiff.

IsThe Louisiana Supreme Court has said that:

The law in this area is clear that an employer is liable for a tort committed by his employee if, at the time, the employee was acting within the course and scope of his employment. The course of employment test refers to time and place. The scope of employment test examines the employment-related risk of injury.
According to Louisiana Civil Code article 2320, “masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.” In fact, this Court has held that in order for an employer to be vicariously liable for the tortious acts of its employee the “tortious conduct of the [employee must be] so closely connected in time, place, and causation to his employment duties as to be regarded as a risk of harm fairly attributable to the employer’s business, as compared with conduct instituted by purely personal considerations entirely extraneous to the employer’s interest.”
An employer is not vicariously liable merely because his employee commits an intentional tort on the business premises during working hours. Vicarious liability will attach in such a case only if the employee is acting within the ambit of his assigned duties and also in furtherance of his employer’s objective. (Citations omitted.)

Baumeister v. Plunkett, et al., 95-2270 (La.5/21/96), 673 So.2d 994, 996.

In the case of Lee v. Delta Air Lines, 00-1034 (La.App. 5 Cir. 1/30/01), 778 So.2d 1169,1174, this court said:

Generally speaking, an employee’s conduct is within the course and scope of his employment if the conduct is of the kind that he is employed to perform, occurs substantially within the authorized limits of time and space, and is activated at least in part by a purpose to serve the employer. The factors to be considered in determining whether an employer may be liable for an intentional tort of an employee are whether the tortious act was primarily employment rooted, reasonably incidental to the performance of the employee’s duties, occurred on the employer s premises, and occurred during the hours of employment. Only tortious conduct so closely connected in time, place, and causation to the employment duties as to be regarded as a risk of harm fairly attributable to the employer “business imposes vicarious liability on an employer. Conduct motivated by purely personal considerations entirely extraneous to the employer” interests does not. (Citations omitted.)

In support of his claim against Interstate, plaintiff introduced the affidavit of Hall, wherein he stated that “... while acting in the course and scope of my employment with Interstate Trucking, Inc., I was driving Interstate Trucking Inc.’s [ fiblue 1998 Volvo tractor-trailer truck ... while in stop-and-go traffic, I exited Interstate Trucking Inc.’s tractor-trailer truck, approached a Ford Mustang which was stopped in traffic in front of the tractor-trailer truck, and punched the driver of the Ford Mustang several times in the face and head through the open driver’s side window.” Although Hall, in his affidavit, states that he was in the course and scope of his employment, he does not explain how his actions in exiting his truck and punching a motorist in the face was employment rooted, or incidental to his job. Furthermore, striking an unrelated motorist in the face while stopped in traffic cannot be regarded as a risk of harm fairly attributable to the employer’s business. Accordingly, we find that the trial court was manifestly erroneous in finding that plaintiff presented a prima facie showing that driver’s actions were in the course and scope of his employment so as to hold company liable for his actions.

DAMAGES

Both Interstate and Hanover argue that the plaintiff did not present sufficient evidence to support the award of damages in this case. Again, plaintiff concedes in brief that the evidence in the record may be insufficient to support the award of damages.

La. C.C.P. art. 1702(D) provides that “When the demand is based upon a claim for personal injury a sworn narrative report of the treating physician or dentist may be offered in lieu of his testimony.”

We find that plaintiff offered his testimony, as well as medical records; however, he failed to offer a sworn narrative report of his treating physician. This court has found such evidence to be insufficient to comply with the codal requirements for a default judgment. Arias v. State Farm, supra; Campbell v. Kendrick, supra.

In this case, plaintiff failed to provide sufficient evidence to support a default judgment pursuant to La. C.C.P. art. 1702. Accordingly, the judgment of |7the trial court granting plaintiffs confirmation of a default judgment against Interstate Trucking Inc. and Insurance Corporation of Hanover is annulled and set aside and the matter is remanded to the district court for further proceedings. All costs are assessed against plaintifl/appellee.

DEFAULT JUDGMENT ANNULLED AND SET ASIDE; CASE REMANDED.


source: Caselaw Access Project

license: Public Domain

text:
    In re J.R.C., III and A.K.C. Applying for Intra-Family Adoption of C.S.K.
    No. 03-CA-0761.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 12, 2003.

      Wayne E. Garrett, New Orleans, LA, for Appellant, C.N.
    F. Henri Lapeyre, Jr., Etienne C. La-peyre, Lapeyre and Lapeyre, L.L.P., New Orleans, LA, for Appellees, J.R.C., III and A.C.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and CLARENCE E. McMANUS.
   |,SOL GOTHARD, Judge.

This is an appeal from a judgment of the Juvenile Court, Parish of Jefferson, granting an intra-family adoption. For reasons that follow, we affirm.

On July 9, 2002, J.C. Ill filed a petition for intra-family adoption of five-year-old C.S.K. In the petition it is alleged that J.C. Ill is the step-father of C.S.K., and is currently married to C.S.K.’s mother, A.C. On July 17, 2002, C.N., the alleged biological father, filed an Exception of Lis Pen-dens and Lack of Joinder, alleging that the adoption petition was filed in response to a petition C.N. filed in Orleans Parish Civil District Court, which requested a declaration of paternity and a plan for visitation.

The juvenile court denied the exceptions, and ordered that the matter would proceed pursuant to La.Ch.C. art. 1247(C), which provides that:

If the adoption petition names an alleged or adjudicated father and his parental rights have not been terminated by a court of competent jurisdiction, he shall be served with notice of the filing of the petition in accordance with Articles 1133, 1134, and 1136 and thereafter, his rights shall be determined in accordance with the provisions of Articles 1137 through 1143.

After a full hearing on the merits, the juvenile court terminated C.N/s parental rights. Subsequently, C.N. moved for, and was granted a new trial at which he presented new documentary evidence of support. After considering the new ^evidence, the juvenile court entered a new judgment terminating C.N.’s parental rights. A second motion for new trial was denied by the court and C.N. brought this appeal.

The first issue for our consideration is an exception of no cause/no right of action filed in this court by C.N., which alleges that La.Ch.C. article 1243 does not allow the child’s mother as a party petitioner. The persons who may petition for intra-family adoption enumerated in article 1243 do not include the parent of a child. However, the consent of a parent whose parental rights have not been terminated must be obtained in an intra-family adoption. A parent of an illegitimate child who is married to the petitioning spouse shall join in the petition. La.Ch.C. article 1244 C. The child’s mother herein is married to the petitioning spouse. Accordingly, we find no merit in C.N.’s exception of no cause/no right of action.

The facts alleged in the petition for in-tra-family adoption that are not disputed are that the child, C.S.K. was born out of wedlock on June 14, 1997 to A.C. and C.N. C.N., the natural father, is not named on the birth certificate and has never executed a legitimation by authentic act. Further, C.N. had not established his parental rights in accordance with the Louisiana Children’s Code or had his paternity determined by a judgment of filiation.

The petition further alleges that petitioners, J.C. Ill and A.C., were legally married on December 27, 2000, and that C.S.K. has lived with them continuously since that date.

It is apparent from the extensive and well-crafted reasons for judgment that accompany the judgment, that the juvenile court judge took many factors into consideration before making the decision to ter-mínate C.N.’s parental rights. The | /actual findings outlined in the reasons for judgment are supported by the record, and are summarized below.

The record shows that C.N. and A.C. lived together in 1996 and that A.C. became pregnant during the couple’s co-habitation. They lived together for part of the pregnancy. From September to December of 1996, the two shared living expenses. C.N. began paying all living expenses in January 1997, when A.C. began nursing school. Near the end of her term of pregnancy, A.C. left the residence she shared with C.N. and moved in with her mother. While the testimony of the parties vary as to the amount of support C.N. supplied during the later part of the pregnancy and birth, it is clear that C.N. made some contribution.

On June 14, 1997, C.S.K. was born. The costs of the birth were paid by Medicaid. A.C. and the baby returned to the home of A.C.’s mother after release from the hospital. A nursery was set up for the baby, to which C.N. contributed a changing table. C.N.’s name was not put on the birth certificate, and he testified that he did not seek legal advice, execute an Act of Acknowledgment, or register with the Punitive Father Registry. C.N. testified that he was seeing his daughter and he didn’t think the legalities mattered.

Shortly after C.S.K. was born, C.N. visited daily. However, after a few weeks the visits became more sporadic. Then in March, 1998, A.C. and the baby moved back into the apartment with C.N. and it is undisputed that C.N. paid for all household expenses. A.C. left C.S.K. in the care of her maternal grandmother and attended nursing school during the day. There is a dispute over whether C.N. paid the grandmother for the babysitting services. C.N. alleges he did, but the grandmother denies any payment.

In June of 1998, the couple broke up again and A.C. left the apartment. On August 8, 1998, C.N. was arrested on drug charges and possession of an automatic handgun. At the hearing in juvenile court, C.N. admitted he was engaged in drug 1 strafficking, but denied any personal use of drugs. After C.N. posted bond and was released from prison, he lived with A.C. temporarily while he looked for his own apartment. There is some disagreement between the parties as to the amount of time actually spent in the apartment with A.C. and the baby. Throughout this period A.C. maintains that she received no financial help from C.N. for household expenses or child support. A.C. further testified that C.N. spent little time with the child and did not spend Christmas with C.S.K. or give her any gifts. A.C. stated that she was forced to apply for welfare to help cover the cost of C.S.K’s daycare.

In the summer of 1999, C.N. moved out of the apartment and A.C. and the child moved in with A.C.’s sister. At that time C.N. gave A.C. one child support payment of $600.00. The parties do not agree on the amount of time C.N. spent with C.S.K. during this period. They agree that he visited on Fathers’s Day, took the child to Chuck E Cheese once that month, and took C.S.K. once for an overnight visit. A.C. testified that, although C.N. was listed as a person to whom the daycare center could release the child, C.N. never took advantage of that privilege. However, C.N. testified that he often picked C.S.K. up from daycare and visited often.

In November 1999, C.N. was again arrested on drug charges in Texas. At some point in 1999, a friend of C.N.’s brought an envelope with about $1,000.00 in cash to A.C. at C.N.’s direction. On January 8, 2000, C.N. gave A.C. $500.00 in child support.

The last time C.N. visited with C.S.K. was during the Christmas season in 1999. C.N. pled guilty to possession with intent to distribute marijuana on January 25, 2000, and was sentenced to serve a 30-month term in Federal Court. On May 21, 2001, he pled guilty in St. Charles Parish for possession with intent to distribute marijuana, and was sentenced to serve a four-year sentence to be concurrent with the sentence imposed in Federal Court.

| ^Except for some testimony that C.N. called A.C. to request photographs of C.S.K., and a request that she visit him in prison on Father’s Day 2001, there is no evidence that he made any attempt to contact his daughter while in prison. Further, while C.N. admits earning $3,000.00 while in prison in connection with a stock trading deal, he did not send any payments of child support. C.N. was released from prison in April of 2002, and is expected to be employed as a stock broker.

In December of 2000, A.C. married J.C. III. The couple had a child in November, 2001. C.S.K. is living in this family and is bonded to her stepfather whom she calls “Daddy.” A.C. testified that J.C. Ill treats both children the same and that C.S.K. has no memory of C.N. She further testified that C.N. was released from prison in April of 2002 and called her once shortly afterward. In June of 2002 C.N. filed the action in district court, and J.C. Ill and A.C. filed this juvenile action.

Other evidence considered by the juvenile court is a confidential report submitted to the Court by the Office of Community of Services that shows C.S.K. to be a happy, well-adjusted five-year-old who understands that J.C. Ill is not her biological father, but has no memory of C.N.

After this trial, the juvenile court rendered judgment on October 25, 2002, terminating C.N.’s parental rights.

As previously stated, C.N. moved for and was granted a new trial. His new trial motion asserted that he had additional receipts for child support payments and two additional witnesses who were previously unavailable. At the new trial hearing, however, C.N. did not produce any new witnesses. He did introduce various documentary evidence including cancelled checks and receipts for child support. The juvenile court again gave extensive written reasons for judgment that show findings of fact which are consistent with the evidence produced. The court found that C.N. showed an additional $1,500.00 to $2,000.00 paid in child support |7between late 1999 and early 2000. The court also accepted C.N.’s testimony that he contributed more child support than he could document during that time. However, the court noted that the financial support ended in 2000 when C.N. was in prison, even though he earned about $3,000.00 during his imprisonment.

The juvenile court also took into consideration the fact that C.N. did not send letters, cards or make phone calls to his daughter during his period of incarceration in making the decision again to terminate C.N.’s parental rights.

After that decision, a second motion for new trial filed by C.N. was denied and this appeal followed.

In brief to this court, C.N. assigns four errors. In the first, he asserts that the trial court erred in denying the Exception of Lis Pendens. C.N. argues that the petition to establish paternity and for visitation filed in Orleans Parish Civil District Court, which preceded the filing of the petition for intra-family adoption, had the same goal. Although C.N. admits he could find no law to support his exception, he proposes that La. C.C. article 1243, which names those who may petition for an intra-family adoption, was never intended as a defense to a petition for paternity.

The juvenile court denied the Exception of Lis Pendens stating, “court will proceed in accordance with Children’s Code art. 1247(C).” La.Ch.C. art. 1247(C) provides as follows:

If the adoption petition names an alleged or adjudicated father and his parental rights have not been terminated by a court of competent jurisdiction, he shall be served with notice of the filing of the petition in accordance with Articles 1133, 1134, and 1136 and thereafter, his rights shall be. determined in accordance with the provisions of Articles 1137 through 1143.
La.C.C.P. art. 531 provides:
When two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925. When |Rthe defendant does not so except, the plaintiff may continue the prosecution of any of the suits, but the first final judgment rendered shall be conclusive of all.
As recently stated by this court:
The test for whether an exception of lis pendens should be granted is to inquire whether a final judgment in the first suit would be res judicata in the subsequently filed suit. The exception of lis pen-dens has the same requirements as the exception of res judicata; it is properly granted when the suits involve the same transaction or occurrence between the same parties in the same capacities, (citations omitted)
United General Title Ins. Co. v. Casey Title, Ltd., 01-600 (La.App. 5 Cir. 10/30/01), 800 So.2d 1061,1065.

As C.N. acknowledges, the purpose of Kis petition was to establish paternity and to set visitation. However, paternity was not at issue herein. It was asserted in the petition for intra-family adoption that C.N. is the biological father. Thus, we find no error in the denial of the Exception of Lis Pendens. Further, we find that the juvenile court’s use of art. 1247(C) afforded to C.N. all the rights of a father in his opposition to the adoption.

In two of the assignments of error, C.N. questions the Children’s Code articles used by the juvenile court to terminate his parental rights. C.N. argues that the use of article 1138, which is contained in the section entitled “Surrender Procedure in General”, was incorrect and put the burden on him to prove his parental rights. C.N. argues that, since this is an intra-family adoption, article 1245, which places the burden on the petitioner, should have been used in the adjudication of this case. C.N. reasons that the provisions of article 1245 make the decision the parental consent is not necessary for the adoption discretionary, as opposed to the more stringent article 1138, which requires a mandatory termination of parental rights. Thus, C.N. argues the juvenile court erred in applying article 1138.

|aWe are not persuaded by C.N.’s argument. La.Ch.C. article 1245 provides in pertinent part that “(t)he consent of a parent as required by Article 1193 may be dispensed with upon proof of the required elements of either Paragraph B or C of this Article.” However, C.N. does not meet the criteria for a person “whose consent or relinquishment is required” under article 1193, which provides as follows:

Unless rights have been terminated in accordance with Title X, XI, or XVII, consent to the adoption of a child or relinquishment of parental rights shall be required of the following:
(1) The mother of the child.
(2) The father of the child, regardless of the child’s actual paternity, if any of the following apply:
(a) The child is legitimate in accordance with Article 179 or Article 198 of the Louisiana Civil Code or their legal equivalents in another state.
(b) The father has executed a legitimation by authentic act as authorized by Article 200 of the Louisiana Civil Code or its legal equivalent in another state and has further recorded the act of legitimation in the parish of the child’s birth or on the child’s birth certificate.
(c) The father is presumed to be the father of the child in accordance with Articles 184 through 186 of the Louisiana Civil Code or their legal equivalents in another state.
(3) The alleged father of the child who has established his parental rights in accordance with Chapter 10 of Title XI.
(4) The biological father of the child whose paternity has been determined by a judgment of filiation in accordance with Civil Code Article 209 and who has established his parental rights in accordance with Chapter 10 of Title XI.
(5) The custodial agency which has placed the child for adoption, except that the court may grant the adoption without the consent of the agency if the adoption is in the best interest of the child and there is a finding that the agency has unreasonably withheld its consent.

Therefore, we find the trial court correctly used article 1138 as provided for in article 1247 C which requires notice to C.N. and provides that “the rights shall be determined in accordance with the provisions of Articles 1137 through 1143.”

hnArticle 1138 provides for an adversarial hearing in the opposition to the adoption and a determination of the establishment of parental rights. That article provides as follows:

A. At the hearing of the opposition, the alleged or adjudicated father must establish his parental rights by acknowledging that he is the father of the child and by proving that he has manifested a substantial commitment to his parental responsibilities and that he is a fit parent of his child.
B. Proof of the father’s substantial commitment to his parental responsibilities requires a showing, in accordance with his means and knowledge of the mother’s pregnancy or the child’s birth, that he either:
(1) Provided financial support, including but not limited to the payment of consistent support to the mother during her pregnancy, contributions to the payment of the medical expenses of pregnancy and birth, or contributions of consistent support of the child after birth; that he frequently and consistently visited the child after birth; and that he is now willing and able to assume legal and physical care of the child.
(2) Was willing to .provide such support and to visit the child and that he made reasonable attempts to manifest such a parental commitment, but was thwarted in his efforts by the mother or her agents, and that he is now willing and able to assume legal and physical care of the child.
C. The child, the mother of the child, and the legal custodian may offer rebuttal evidence limited to the issues enumerated in Paragraphs A and B of this Article. However, the primary consideration shall be, and the court shall accept evidence concerning, the best interests of the child.
D.If the court finds that the alleged or adjudicated father has failed to establish his parental rights, it shall decree that his rights are terminated.
’ E. If the court finds that the alleged or adjudicated father has established his parental rights, the court shall declare that no adoption may be granted without his consent. The court may also order the alleged or adjudicated father to reimburse the department, or the licensed private adoption agency, or other agency, or whoever has assumed liability for such costs, all or part of the medical expenses incurred for the mother and the child in connection with the birth of the child.

Having found that the juvenile court applied the correct provisions of the Children’s Code, we now review the decision to terminate C.N.’s parental rights by InQur standard of review. This court cannot set aside a juvenile court’s findings of fact in the absence of manifest error or clear error. Further, when the conflicting evidence is presented to the trial court, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. In re the Adoption of A.P.C., 00-1381 (La.App. 5 Cir. 12/13/00), 776 So.2d 567, 573; mi denied, 01-0319 (La.2/14/01), 785 So.2d 835.

Given the extensive reasons for judgment, based on findings of fact supported by the record, we can find neither manifest error nor clear error. The juvenile court considered that C.N. did not send cards, letters or other correspondence to C.S.K. during his imprisonment. Further, although C.N. earned $3,000.00 during that time, he sent no child support.

The legal analysis used by the juvenile court in making this decision is correctly set forth in the reasons for judgment. Because we cannot improve on this analysis, we again incorporate and adopt the legal analysis used by the juvenile court in this opinion as follows:

Children’s Code article 1193 identifies the persons whose consent to adoption is necessary. Consent is required of the father who:
a) is considered by law to be a “legal” father under paragraph (2);
b) is an alleged or adjudicated father who has established is parental rights in accordance with Chapter 10 of Title XI.
As C.N. is not considered a “legal father” under paragraph (2) of this article, he falls into the second category. Thus, before his consent to adoption is deemed to be required, he must first establish his parental rights in accordance with Chapter 10 of Title XI of the Children’s Code. This chapter provides that to establish his parental rights, the alleged father must demonstrate to the court his affirmative efforts to establish or maintain a parental relationship with the child. The court is mandated to consider the father’s fitness and his commitment to parental responsibilities.
Children’s Code article 1138, sets forth a three-part test for the establishment of parental rights by the opposing father. This article provides in part:
hiN. At the opposition hearing, the alleged or adjudicated father must establish his parental rights by acknowledging that he is the father of the child and by proving that he has manifested a substantial commitment to his parental responsibilities and that he is a fit parent of his child.
B. Proof of the father’s substantial commitment to his parental responsibilities requires a showing, in accordance with his means and knowledge of the mother’s pregnancy or the child’s birth, that he either:
1) Provided financial support, including during pregnancy, contributions to the payment of the medical expenses of pregnancy or birth, or contributions of consistent support of the child after birth; that he frequently and consistently visited the child after birth; and that he is now willing and able to assume legal and physical care of the child.
2) Was willing to provide such support and to visit, and that he made reasonable attempts to manifest such a parental commitment, but was thwarted in his efforts by the mother or her agents, and that he is now willing and able to assume legal and physical care of the child.
Louisiana Children’s Code article 1138(A) and (B) (West, 2002.) (emphasis added.)
“Fit parent” is defined by art. 1103(5), which states:
“Parental fitness” means:
(a) That a parent has not abused the child. For purposes of this Subparagraph, abuse means the infliction of physical or mental injury which causes deterioration to the child, sexual abuse, exploitation, or overworking of a child to such an extent that his health or moral or emotional well-being is endangered.
(b) That a parent has consistently offered to provide reasonably necessary food, clothing, appropriate shelter, or treatment for the child. For purposes of this Subparagraph, treatment means medical care or other health services provided in accordance with the tenets of a well-recognized religious method of healing with a reasonable, proven record of success.
(c) That a parent suffers from no medical or emotional illness, mental deficiency, behavior or conduct disorder, severe physical disability, substance | iaabuse, or chemical dependency which makes him unable or unwilling to provide an adequate permanent home for the child at the present time or in the reasonably near future based upon expert opinion or based upon an established pattern of behavior.
(d) Viewed in its entirety, the parent’s past or present conduct, including his criminal convictions, would not pose a risk of substantial harm to the physical, mental, or emotional health of the child.
Louisiana Children’s Code article 1103(5) (West, 2002.) (emphasis added.)
The alleged father bears the burden of proof under article 1138. Article 1138(C) allows the child and the legal custodian to offer rebuttal evidence of the issues enumerated in paragraphs (A) and (B) of this article. Further, section (C) specifies that the primary consideration shall be the best interests of the child.

In applying the above law to the facts herein, the juvenile court found that paternity was established. However, the court also found that C.N. did not prove that he had “manifested a substantial commitment to his parental responsibilities” or that he is a “fit parent.” The juvenile court noted that his inconsistent visits and sporadic financial support did not show a substantial commitment to his parental responsibilities. The court further noted that C.N. took no legal action to establish paternity until the child was five years old and living in a stable home with her mother and stepfather.

Regarding his failure to prove his fitness as a parent, the court again reiterated the definition of fitness in La.Ch.C. article 1103(5), and found that his “meager amounts of child support” are a “pittance in comparison to the needs of a young child”. Further, the court recognized that C.N. admitted his mistakes concerning the lifestyle choices he has made and appeared sincere in his intent to “turn over a new leaf’. However, the court concluded that his past conduct of criminal activity and drug dealing does not quality him as a fit parent. As the hJuvenile court noted, “Fortunately for C.S.K., her mother marries a man who stepped into the role of father, and' has evidently performed the duties of that role extremely well. Otherwise, the child would have essentially been without any father from the age of 2]é years to almost five years old. Even setting aside any other implications of C.N.’s criminal lifestyle, the impact of this lengthy absence on his daughter’s emotional health cannot be understated.”

Because we find the finding of facts are supported by the record, the legal analysis is correct and the facts are correctly applied to the law, we affirm the juvenile court’s termination of parental rights.

AFFIRMED.

      . La.C.C.P. article 2164 allows the peremptory exception of no cause of action to be filed for the first time in the appellate court if filed before the case is submitted for a decision. Therefore, the exception was accepted by this court and referred to the merits of the appeal for consideration.


author: 1 ¡.SUSAN M. CHEHARDY, Judge.

text:
    Lester GARDNER, Sr., et al. v. ACOSTA SALES, et al. Theresa Washington, et al. v. Acosta Sales, et al. James L. Langley, Jr. v. Kelon Thomas, et al.
    Nos. 03-CA-573, 03-CA-574, 03-CA-575.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 12, 2003.
    Fred R. DeFrancesch, Laplace, LA, for Plaintiff-Appellant, Lester Gardner et al.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and SUSAN M. CHEHARDY.
   1 ¡.SUSAN M. CHEHARDY, Judge.

In this appeal, plaintiff appeals the trial court’s award to the lienholder, Healthcare Recoveries. For the following reasons, we affirm the trial court’s judgment.

On June 18, 1998, plaintiff, Lester Gardner, Jr., was a guest passenger in a vehicle driven by Kelon Thomas, owned by Theresa Washington, and insured under a policy owned by Claude Washington. After experiencing a blowout in the left front tire while riding on the elevated portion of I — 10 in St. Charles Parish, Thomas parked the vehicle on the left shoulder of the interstate and attempted, with Gardner and another guest passenger, to change the flat tire.

While they were attempting to change the tire, their vehicle was struck by another vehicle driven by James Langley, who was within the course and scope of his employment with Acosta Sales Company. As a result of this collision, Gardner suffered a broken ankle, which eventually required surgery, and other injuries requiring medical attention. Healthcare Recoveries was the plaintiffs healthcare provider at that time and provided services after the accident totaling $10,077.27.

LOn May 10, 1999, Gardner filed suit against Kelon Thomas, Theresa Washington, James Langley, Acosta Sales, and their insurers. On October 1, 2001, Thomas’s and Washington’s insurer tendered a settlement check to Gardner for $10,000.00, the limit of their liability policy. According to the record, the settlement was later refused.

On May 14, 2002, trial commenced and the trial judge found in favor of Gardner against the defendants and apportioned fault 60% to Thomas, 20% to Langley, and 20% to plaintiff. The trial judge awarded damages of $10,077.27 for medical expenses and $30,000.00 for “all other general and special damages” to plaintiff. The trial judge specifically cast defendants Langley, Acosta Sales, and their insurer in judgment for $8,154.00 with legal interest. Finally, the judge assessed all court costs to defendant Thomas. Judgment to that effect was signed on May 31, 2002.

On July 18, 2002, Thomas and Washington’s insurer moved to enforce the settlement seeking a determination from the trial court of the amount owed to the lienholder, Healthcare Recoveries, and permission to deposit the settlement funds into the registry of the court. On July 23, 2002, the remaining defendants, Langley, Acosta Sales and their insurer, moved to deposit their judgment funds into the registry of the court alleging that the plaintiff has refused to accept their tender of $10,036.85 in satisfaction of the judgment against them. The trial judge granted this motion. On October 14, 2002, after a hearing, the trial judge permitted Thomas and Washington’s insurer to deposit $10,000.00 into the registry of the court and ordered that, upon deposit, the matter was dismissed in its entirety with prejudice.

|40n November 19, 2002, plaintiffs counsel filed a motion to determine lienholder’s interest, in which counsel “argues that Healthcare Recoveries has waived or abandoned its lien by failing to appear for the ... hearing after having been served with notice to appear.” In its judgment dated January 22, 2003, the trial judge recognized that the lien by Healthcare Recoveries is a “statutorily created privilege in favor of medical providers that furnish services to injured persons as codified at La. R.S. 9:4751 ... which is effective if the lienholder provides written notice of its lien prior to the payment of any judgment, settlement, or compromise ... to an injured person.”

The trial judge denied the plaintiffs motion to release Healthcare Recoveries lien and disbursed the $20,036.85, which had been deposited into the Court’s registry, as follows: $10,077.27 to Healthcare Recoveries and the remainder to be divided between the plaintiff and his attorney in accordance with their contract. The plaintiff appeals the denial of his motion to release the lien.

On appeal, plaintiff argues that the trial court erred in denying his motion to release the lien on the grounds that “the law concerning lien holders[sie] is only a device of protection when a case is settled.” The plaintiff contends that La. R.S. 9:4751 et seq. do not apply when a case goes to trial because, in a trial scenario unlike a settlement, the lienholder can intervene and protect its interest. We disagree.

La. R.S. 9:4752, which allows for a privilege in favor of an injured party’s medical providers on proceeds collected from a third party, reads, in part:

A health care provider ... that furnishes services or supplies to any injured person shall have a privilege for the reasonable charges or fees of such health care provider ... on the net amount payable to the injured person ..., out of the total amount of any recovery ... whether by judgment or by settlement ... from another person on account of | Bsuch injuries, and on the net amount payable by any insurance company under any contract providing for indemnity or compensation to the injured person.

We find, therefore, that plaintiffs argument that the statutorily-created privilege for healthcare providers “is only a device of protection when a case is settled” is flawed. The statute at issue clearly provides a privilege on the total amount of any recovery by judgment, settlement, or compromise.

We conclude, therefore, that the trial judge’s well-reasoned ruling on the plaintiffs motion to determine lienholder’s interest is without error. Costs of this appeal are assessed to plaintiff.

AFFIRMED.

      . James Gardner, Jr. was a minor at the time the lawsuit was filed so his father, Lester Gardner, Sr., was the named plaintiff. By the time of trial, Mr. Gardner, Jr. had reached the age of majority and was substituted as proper party plaintiff at trial.

      . Both plaintiff's counsel and Thomas and Washington's counsel acknowledged at the hearing on the motion to determine the lien-holder's interest that their clients had been notified in writing by Healthcare Recoveries of its privilege on any recovery that plaintiff received. See La. R.S. 9:4752 et seq.


author: J^CLARENCE E. McMANUS, Judge. pDALEY, J.

text:
    Janoi ROSE v. TRAVELERS INSURANCE COMPANY, Research Fumigation Co. and Jack Coleman.
    No. 03-CA-606.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 12, 2003.

      Frank M. Buck, Jr., New Orleans, LA, for Plaintiff-Appellant.
    Scott G. Jones, Hulse & Wanek, New Orleans, LA, for Defendants-Appellees.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and CLARENCE E. McMANUS.
   J^CLARENCE E. McMANUS, Judge.

On April 13, 1999, plaintiff/appellant, Ja-noi Rose, was driving home on Airline Highway in St. John the Baptist Parish when his vehicle was struck head-on by a vehicle driven by an intoxicated driver, Jack Coleman, and owned by Research Fumigation, L.L.C. As a result of the accident, Rose suffered a severe injury to the joint between his hand and wrist for which he has undergone three separate surgical procedures.

On January 2, 2000, Rose filed suit against defendants Jack Coleman, Research Fumigation, and Travelers Insurance Company as the insurer for Research Fumigation. Additionally, Rose named Continental Insurance Company as a defendant in its capacity as the personal liability insurer for Coleman. Prior to trial, the trial court ordered that the policy of insurance issued by Travelers Insurance Company to Research Fumigation, providing $1,000,000.00 in liability coverage, constituted the primary liability insurance coverage for Coleman and the insurance policy issued to Coleman by Continental Insurance Company would be considered excess insurance coverage.

|3Subsequent to the trial court’s order, Rose settled his claims with Research Fumigation and Travelers Insurance Company. On January 3, 2000, a partial motion and order to dismiss with prejudice all claims against Jack Coleman, Research Fumigation, and Travelers Insurance Company with reservation of plaintiffs claims against Continental Insurance Company was filed into the record. Thereafter, on November 26, 2001 the case proceeded to a jury trial. Continental Insurance Company stipulated to liability and intoxication and that Coleman’s intoxication was the legal cause of the accident leaving damages as the sole issue at trial.

Following trial, the jury rendered a verdict awarding damages in favor of Rose in the amount of $901,910.19. On January 7, 2002, Continental Insurance Company filed peremptory exceptions of no right of action and res judicata. On February 28, 2002, the trial judge denied Continental Insurance Company’s peremptory exceptions and signed a judgment in favor of plaintiff in the amount of $901,910.19 plus court costs and expert fees. The judgment further dismissed defendants, Jack Coleman and Continental Insurance Company, with prejudice on finding that the amount of damages awarded was less than the $1,000,000.00 credited to Continental Insurance Company by Travelers Insurance Company’s policy. The judgment further denied plaintiffs request to cast Continental Insurance Company in judgment for judicial interest on the judgment.

On March 18, 2002, Rose filed a Motion for Judgment Notwithstanding the Verdict and Motion for New Trial which were denied. On March 22, 2002, Continental Insurance Company filed a Rule to Tax Costs. Thereafter, in an order signed April 22, 2002, the trial court granted Continental Insurance Company’s rule, taxing plaintiff with all costs. Rose now files this timely appeal.

|4In his first two assignments of error, Rose argues that the trial court erred when it denied him the right to recover legal interest on the full amount of the judgment or on any amount when he specifically reserved his rights to pursue his claim of judicial interest on the entire amount of damages against Continental Insurance Company. Continental Insurance Company responds that the trial court correctly denied Rose the right to recover judicial interest because it was not cast in judgment.

In support of his contention, Rose cites Sutton v. Oncale, 99-967 (La.App. 5 Cir. 3/29/00), 765 So.2d 1072, which addressed the issue of whether a UM/UIM insurer was liable for the payment of judicial interest on the amount paid to a plaintiff by the tortfeasor’s insurer when the plaintiff reserves her right to judicial interest pursuant to LSA-C.C. art. 2925. In Sutton, a personal injury claimant settled her claims against the tortfeasor and his liability insurer, reserving her right to pursue legal interest from her UM/UIM insurer.

After trial, the trial court entered a judgment in favor of the plaintiff for $43,595.90 and against the UM/UIM insurer for $15,535.81, the amount exceeding the amount tendered pursuant to the tort-feasor’s liability insurance policy. The trial court additionally awarded judicial interest to plaintiff and against her UM/UIM insurer on the $15,535.81 judgment. On appeal, plaintiff alleged the trial court erred in failing to assess against her UM/ UIM insurer judicial interest on the entire amount of the judgment. This Court agreed, holding that the UM/UIM insurer was liable for judicial interest on the entire judgment because the object of the UM/ UIM statute is to promote full recovery of damages by automobile accident victims and the plaintiff expressly reserved her rights to judicial interest under LSA-C.C. art. 2925.

The instant case is distinguishable from Sutton. Although Rose specifically and expressly reserved his right to pursue his claim for judicial interest on the ^entire amount of his damages against Continental Insurance Company in his release of Research Fumigation and Travelers Insur-anee Company, the jury returned a verdict awarding Rose $901,910.34, an amount less than the $1,000,000.00 policy limit contained in Travelers Insurance Company’s policy issued to Research Fumigation. As a result, Continental Insurance Company was not liable for any amount of damages and was subsequently dismissed with prejudice.

Any person cast in judgment in an action ex delicto is liable for judicial interest at the prevailing rate set forth in LSA-R.S. 13:4203. See, Seagers v. Pailet, 95-924 (La.App. 5 Cir. 5/15/96), 680 So.2d 46, 49, writ denied, 96-2730 (La.1/6/97), 685 So.2d 117. Continental was not cast in judgment and therefore is not liable for any amount of judicial interest. Accordingly, these assignments of error are without merit.

In his third assignment of error, Rose argues that after issuing an original judgment awarding expert fees and court costs in his favor, the trial court erred by granting Continental Insurance Company’s Rule to Tax Costs, reversing its previous judgment and taxing Rose with all costs. Continental Insurance Company responds that the trial court properly retained jurisdiction over the issue of court costs pursuant to Article 2088 of the Louisiana Code of Civil Procedure and properly taxed Rose with court costs.

LSA-C.C.P. art. 2088(10) provides that the trial court retains jurisdiction to tax costs. However, the jurisdiction is limited to taxing costs consistent with the judgment. Madison v. Ernest Mortal Convention Center-New Orleans, 00-1929 (La.App. 4 Cir. 12/4/02), 834 So.2d 578, 582, writs denied, 00-0028 (La.1/20/03), 847 So.2d 1241 and 00-0030 (La.1/20/03), 847 So.2d 1241. In the instant case, the judgment signed by the trial judge on February 28, 2002 provided as follows:

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the defendant’s Post-Trial Peremptory Exception of No Right of Action or Res Judicata is hereby DENIED. Judgment is granted in favor of the plaintiff, Janoi Rose in the amount of $901,910.32 plus court costs and expert fees.

Thereafter, on April 22, 2002, following a rule to tax costs filed by Continental Insurance Company, the trial court signed an order amending its original judgment and taxing all costs against Rose.

LSA-C.C.P. art. 1951 permits the amending of a final judgment of the trial court only to alter the phraseology, but not the substance, or to correct errors of calculation. Here, the trial court originally awarded Rose all costs. The subsequent judgment taxing all costs against Rose amounts to a substantive amendment to the original judgment. Therefore, the subsequent judgment, as it amounts to a partial reversal of the original judgment is null for lack of jurisdiction. See, Madison v. Ernest Mortal Convention Center-New Orleans, supra. Accordingly, we vacate the order signed April 22, 2002 and reinstate the original judgment.

Conclusion

For the above reasons, we affirm the ruling of the trial court denying appellant’s request to award judicial interest on the amount of judgment, vacate the order signed April 22, 2002, and reinstate the original judgment. Additionally, because the original judgment does not east any party in judgment, each party is ordered to bear its own costs.

AFFIRMED IN PART; JUDGMENT VACATED IN PART

DALEY, J., concurs.

pDALEY, J.

Concurs.

Plaintiff asserts that as of the time of the Trial Court’s judgment of February 28, 2002 legal interest had accumulated, which when added to the jury award of $901,910.19 created a total judgment value of $1,046,937.30. The parties had stipulated that defendants, Jack Coleman and Continental, would be entitled to a credit of $1 million due to the settlement between plaintiff and Travelers Insurance Company. Plaintiff argues that judgment should have been rendered in favor of plaintiff for $46,937.30 against Jack Coleman and the Continental Insurance Company relying on Sutton v. Oncale, 99-967 (La.App. 5th Cir. 3/29/00), 765 So.2d 1072.

Sutton v. Oncale, supra, held that a UM/UIM insurer is liable for the judicial interest on the amount paid to plaintiff by the tortfeasor’s insurer when the plaintiff settles his claim against one solidary obli-gor and he either simultaneously asserts his claim to judicial interest or expressly reserves his rights to judicial interest. The record before us contains one complete unsigned copy of a release that did not specifically reserve the right to pursue a claim for interest and a portion of a release in which plaintiff specifically reserved his right to pursue his claim for judicial interest on the entire amount of his damages. Neither release document is signed by either party. I, therefore, agree with the majority that the trial judgment dismissing Continental Insurance Company be affirmed, but for a different reason then the one set forth in the majority opinion.

|2The Sutton case establishes that plaintiff could pursue a claim for judicial interest provided that the necessary reservation of rights to collect interest was included in any previously executed releases. The trial court and the majority opinion suggests that since the jury award did not exhaust the underlying policy limits plaintiff could not recover judicial interest from Continental Insurance Company because Continental’s coverage only applied to damages exceeding $1 million. I write separately to clarify that under the case law as set forth in Sutton v. Oncale, supra and Martin v. Champion Ins. Co., 95-0030 (La. 6/30/95), 656 So.2d 991, an excess or UM carrier can be held liable for the payment of judicial interest on the amount paid to the plaintiff by the tortfeasor’s underlying insurer in settlement. In this case since the judgment value of the jury award exceeded $1 million plaintiff may have been entitled to a judgment against Continental Insurance Company for any judgment that exceeded $1 million in value. I affirm the trial court denial of the interest award because as was the case in Martin v. Champion Ins. Co., supra, the release between plaintiff and Travelers, the underlying carrier, was not made part of the record. “Where the injured party elects to compromise his claim against one solidary obligor, he must either simultaneously assert his rights thereto.” Martin v. Champion Ins. Co., supra at p. 999. Absent evidence of an express reservation by plaintiff as to interest on the amount paid by the underlying liability insurer under the provisions of La. Civ. Code art. 2925 any rights plaintiff may have had to recover interest were released with the underlying insurer. Since an executed release was not made a part of the record plaintiffs claim for interest was correctly denied.

      . The record does not indicate when Continental Insurance Company was added as a defendant in the instant matter.

      . Jack Coleman remained a nominal party to the litigation enabling Rose to pursue his claims against Continental Insurance Company.

      . The record contains one complete, but unsigned, copy of the Receipt, Release, Hold Harmless Defense, and Indemnity Agreement. In that copy, although Rose reserved all rights and claims against Continental Insurance Company, there is no specific reservation of rights to pursue his claims for judicial interest against Continental. However, the record also contains a portion of a release, attached to Rose’s Proposed Judgment and Memorandum in Support of Proposed Judgment, wherein Rose specifically reserved his right to pursue his claim for judicial interest on the entire amount of his damages against Continental.


author: I,SYLVIA R. COOKS, Judge. | THIBODEAUX, J.,

text:
    Anthony DESHOTEL, et al. v. GUICHARD OPERATING COMPANY, INC.
    No. 03-303.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 19, 2003.
    J. Bryan Jones, III, Cameron, LA, for Plaintiffs/Appellants, Anthony Deshotel, et al.
    Joel E. Gooch, Mr. Raymond C. Jackson, III, Allen & Gooch, Lafayette, LA, for Defendant/Appellee, Guichard Operating Company, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, SYLVIA R. COOKS, and BILLY H. EZELL, Judges.
   I,SYLVIA R. COOKS, Judge.

STATEMENT OF THE CASE

On February 26, 2001, Ray Deshotel was killed while engaged in the course and scope of his employment with Guichard Operating Company, Inc. (Guichard). Mr. Deshotel was a passenger in a vehicle owned by Guichard and driven by an employee of Guichard. While driving in the parking lot of Guichard, the brakes on the vehicle failed. Mr. Deshotel jumped out of the vehicle. The vehicle subsequently ran over him and he died as a result of the injuries received in the accident. The Plaintiffs are all major non-dependent children of Mr. Deshotel. They filed a wrongful death claim against Guichard, Mr. Des-hotel’s employer, under La.Civ.Code art. 2315.2. Guichard filed a Motion for Summary Judgment alleging the Plaintiffs’ claim is barred by provisions La.R.S. 23:1032, La.R.S. 23:1231, and La.R.S. 23:1251 of the Louisiana Workers’ Compensation Act (the Act). The trial court granted Guichard’s Motion for Summary Judgment and dismissed the claim. Plaintiffs contend the recent Louisiana Supreme Court case of O’Regan v. Preferred Enterprises, Inc., 98-1602 (La.3/17/00), 758 So.2d 124, permits a wrongful death claim, under Louisiana Civil Code Article 2315.2, by the non-dependent children of an employee against the employer. We disagree. For the reasons assigned below, we affirm the judgment of the trial court.

LAW AND DISCUSSION

The Louisiana Workers’ Compensation Act provides the exclusive remedy against an employer for injury or death of an employee. La.R.S. 23:1032 provides in relevant part:

A. (l)(a) Except for intentional acts provided for in Subsection B, 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 | nail other rights, remedies, and claims for damages, including but not limited to punitive or exemplary damages, unless such rights, remedies, and damages are created by a statute, whether now existing or created in the future, expressly establishing same as available to such employee, his personal representatives, dependents, or relations, as against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal, for said injury, or compensable sickness or disease.

(Emphasis added.)

If an injury falls within the scope of the Act, the amount of recovery due to an employee or “his personal representatives, dependents, or relations”, is determined by its provisions. Atchison v. May, 201 La. 1003, 10 So.2d 785 (1942). Death benefits to “personal representatives, dependents, or relations” of an employee are governed by La.R.S. 23:1231 of the Act which provides in relevant part:

A. For injury causing death within two years after the last treatment resulting from the accident, there shall be paid to the legal dependent of the employee, actually and wholly dependent upon his earnings for support at the time of the accident and death, a weekly sum as provided in this Subpart.

Legal dependents of an employee are defined in La.R.S. 23:1251, which provides in relevant part:

The following persons shall be conclusively presumed to be wholly and actually dependent upon the deceased employee:
(1) A surviving spouse upon a deceased spouse with whom he or she is living at the time of the accident or death.
(2) A child under the age of eighteen years (or over eighteen years of age, if physically or mentally incapacitated from earning) upon the parent with whom he is living at the time of the injury of the parent, or until the age of twenty-three if enrolled and attending as a full-time student in any accredited educational institution.

(Emphasis added)

Those claimants not conclusively presumed to be dependent on the employee must prove dependency by a preponderance of the evidence before recovery is allowed. See, Ceco Concrete Constr., L.L.C. v. Pennington, 01-1945 (La.App. 1 Cir. 1410/2/02), 836 So.2d 164.

The case before us highlights a potential anomaly in the law. Under the express provisions of the Act, if an employee is killed on the job, has no surviving spouse and no legal dependents, there is no recovery for wrongful death against his employer. The early Louisiana Supreme Court case of Atchison, 10 So.2d 785, is illustrative.

In Atchison, Henry Knight was killed while engaged in “an admittedly hazardous occupation” in the course and scope of his employment as a result of being burned by steam which escaped from a defective stationary engine. He had no wife and no legal dependents. Plaintiffs, Ethel Atchi-son and Edman Knight, were the surviving sister and brother of Henry Knight and brought suit, under La. Civ.Code art. 2315, against Henry’s employer to recover for the wrongful death of their brother. It was undisputed they were not financially dependent on Henry for support. The district court dismissed the suit holding the Workers’ Compensation Act was the exclusive remedy for death benefits against the employer. The appellate and supreme court affirmed. The court cited the exclusivity provision of the Act and reasoned as follows:

The foregoing mandate of the Legislature is explicit and affords a full answer to the proposition advanced by the Plaintiffs in this case. It is conceded by the Plaintiffs that their deceased brother was employed by the defendant in a hazardous occupation and that he met his death as a direct result of an accident which occurred while he was engaged in the course and scope of his employment. Therefore, it follows that, as to the employee, the provisions of the compensation law were applicable since, in the absence of a special agreement of employment to the contrary, it was presumed under the law that the parties to the contract of employment were to be governed by the provisions of the act. This contract of employment became binding not only upon the employer and employee but equally so upon ‘his widow, and relatives, personal representatives, heirs, and dependents * * * ’ as stated in paragraph 1 of |Bsection 3 of the above-quoted statute and operated as a complete surrender by those persons of all their rights against the employer for compensation or damages other than that provided by the act. The restriction of the rights and remedies to those granted under the compensation law is made absolute by the provisions of section 34 of the act with respect to the employee, his personal representatives, dependents, ‘relations, or otherwise.’

Id. at 787.

Once the injury falls within the purview of the Act, its provisions become binding not only upon the employer and employee, but equally binding on the employee’s “personal representatives, dependents, or relations.” See La.R.S. 23:1032(A)(l)(a). Since the Plaintiffs in Atchison could not establish dependency, there was no recovery under the Act.

We note the legislature did effect a change in the law with respect to recovery by non-dependent parents of an employee. Prior to 1980, Miller v. Lambert, 380 So.2d 695 (La.App. 4 Cir.1980), represented the state of the law.

In Miller, an eighteen-year old maintenance worker was electrocuted when he cut into a high voltage wire when attempting to repair an air conditioning vent. His parents filed a wrongful death and surviv-orship action against their son’s employer. The appellate court held the parents’ exclusive remedy against the employer is under the Workers’ Compensation Act. However, the court found his parents failed to establish actual dependency and were not entitled to death benefits under the Act as it existed at the time. In 1980, the Louisiana legislature amended the Workers’ Compensation Act to specifically provide for the recovery by non-dependent parents . of an employee. La.R.S. 23:1231(B)(2) now provides in relevant part:

[I]f the employee leaves no legal dependents entitled to benefits under any state or federal compensation system, the sum of seventy-five thousand dollars shall be paid to each surviving parent of the deceased employee, in a lump sum, which shall constitute the sole and exclusive compensation in such cases.

[¿The rationale for this change was articulated by the Louisiana Supreme Court in Sherman v. Cabildo Constr. Co., 490 So.2d 1386 (La.1986), as follows:

Because compensation is an exclusive benefit which bars recovery in tort, Act 509 of 1980 was enacted to give a lump sum benefit to surviving nondependent parents. The legislation resulted from the inequity of denying death benefits for a worker without dependents, despite his or her parents’ substantial economic investment in upbringing and education and the windfall to the employer and/or insurer.

Id. at 1388.

We recognize the same windfall exists to the employer and/or insurer for the death of an older widowed employee with grown non-dependent children. The Plaintiffs contend O’Regan v. Preferred Enterprises, Inc., 98-1602 (La.3/17/00), 758 So.2d 124, changed the law and now permits a cause of action in tort against the employer when the Act provides no compensation for a class of litigants. We disagree. O’Regan permits an employee to pursue a tort action against the employer only when the injury suffered is not within the scope of the Act. O’Regan recognized a “conceptual distinction” between “injuries which do not come within the Act’s coverage provisions and injuries which are covered, but for which no compensation is payable.” Id. at 137. When the injury or death is within the course of employment, the provisions of the Act preempt an employee’s common law rights. Id. at 137.

The facts in O’Regan are as follows. Michelle O’Regan was employed by Preferred Enterprises, d/b/a Number One Cleaners from July 1990 through November 1990, less than twelve months. Her duties required her to remove spots by rubbing methoxyethanol into the clothing with her bare hands. In 1993, after she left Preferred Enterprises, she was treated for myelodysplasia, a form of aplastic anemia, which causes the bone marrow to produce abnormal cells. The disease is caused by exposure to toxic chemicals and may take several years to manifest itself. She filed |7a workers’ compensation claim against Preferred Enterprises’ contending her exposure to methoxyethanol caused her anemia. The hearing officer denied Ms. O’Regan’s claim finding she did not meet the heightened burden of proof (overwhelming preponderance of the evidence) under the Act and therefore failed to overcome the statutory presumption that her disease was non-occupational because she was employed by Preferred Enterprises’ for less than twelve months. Ms. O’Regan then filed a tort action against her employer. The district and appellate court denied Preferred Enterprises motion to dismiss the plaintiffs case. The Louisiana Supreme Court affirmed. The court found since Ms. O’Re-gan was employed for less than twelve months and her illness was presumed to be outside the scope of the Act, she was permitted to pursue a claim in tort against her employer.

Plaintiffs also rely on Walls v. American Optical Corp, 98-0455 (La.9/8/99), 740 So.2d 1262. In Walls, George Walls was employed as a sandblaster for Land & Marine and Coastal from 1964 to 1970 where he was exposed to silica dust. Mr. Walls contracted silicosis and died on March 17, 1995. His survivors filed a survival and wrongful death suit against the executive officers of his employer. The executive officers of Land & Marine filed a motion for summary judgment asserting the Plaintiffs exclusive remedy for wrongful death was under the Workers’ Compensation Act. Prior to the 1976 amendment to the Workers’ Compensation Act, the survivors of an injured worker could bring a survival action and a wrongful death action against the executive officers of a company. The amendment provided compensation under the Act was the exclusive remedy not only against the employer but also against any “principal, officer, director, stockholder, partner or employee of the employer or principal.” La.R.S. 23:1032(A)(l)(a). The purpose of the 1976 amendment was to broaden the class of defendants who were immune from tort suits. Is The Supreme Court held since the Plaintiffs wrongful death action arose upon the death of the employee, after the effective date of the amendment, Plaintiffs wrongful death action was barred. We fail to see how Walls supports the position of the Plaintiffs.

Plaintiffs contend their wrongful death claim is an independent cause of action and not a derivative one, i.e., a survival action. Plaintiffs rely on Theriot v. Damson Drilling Corp., 471 So.2d 757 (La.App. 3 Cir.) writ denied, 472 So.2d 907 (La.1985) to support their position. In Theriot, the wife and children of an injured employee brought an action in tort for loss of consortium against the employer. The Plaintiffs argued that their tort claim for loss of consortium was an independent cause of action, not the injured employee’s claim, and, therefore, not barred by the provisions of the Workers’ Compensation Act. This court held the injury fell within the scope of the Act and, therefore, Plaintiffs claim was barred. This court stated:

Concededly, if Mr. Theriot had died as a result of his injuries, the Plaintiffs could not have recovered under Article 2315 for his wrongful death or the sur-vivorship action provided by that article. They would have been relegated to such rights as they may have under the Worker’s Compensation law. See Malone and Johnson, Louisiana Civil Law Treatise, Worker’s Compensation, Section 366 (Vol.14). On its face, therefore, the legislature did not intend to grant an action for loss of consortium, service and society because of injuries to an employee covered by worker’s compensation. The act explicitly states that such damages “shall be recoverable by the same respective categories of persons who would have had a cause of action for wrongful death of an injured person.”

Id. at p. 758. (emphasis in original).

In this case, Plaintiffs seek to distinguish their wrongful death claim from the loss of consortium claim in Theriot. We cannot make that distinction. Plaintiffs wrongful death claim is based on an “accident arising out of and in the course of’ Mr. Deshotel’s employment with Guichard which brings it squarely within the scope of the Workers’ Compensation Act. La.R.S. 23:1031(A). The Act provides the | ^exclusive remedy against the employer for any claims for damages. La.R.S. 23:1032.

While we recognize the inequity Plaintiffs complain of may result in the potential windfall to the employer or insurer, change in this area must come from the legislature not the judiciary. Therefore, we affirm the decision of the trial court dismissing Plaintiffs’ claim.

DECREE

Based on the foregoing review of the evidence, the decision of the trial court granting Guichard’s Motion for Summary Judgment is affirmed. All costs of this appeal are assessed to Plaintiffs.

AFFIRMED.

THIBODEAUX, J., dissents and assigns written reasons.

| THIBODEAUX, J.,

dissenting.

A basic tenet of statutory interpretation is that laws should be applied as written. Further,

The meaning and intent of a law is determined by considering the law in its entirety and all other laws on the same subject matter and placing a construction on the provision in question that is consistent with the express terms of the law and with the obvious intent of the legislature in enacting it. The statute must therefore be applied [and] interpreted in a manner which is consistent with logic and the presumed fair purpose and intention of the legislature in passing it.

City of Pineville v. American Federation of State, County, and Municipal Employees, AFL-CIO, Local 8352, 00-1983 (La.6/29/01), 791 So.2d 609, 612 (citations omitted).

The structure of the workers’ compensation laws was designed as a trade-off to the employer and employee. Under this quid pro quo arrangement, the employer was afforded the advantage of reduced benefits to the employee and immunity from tort. The employee was relieved of the obligation of proving delictual fault. In this case, the major non-dependent children of the decedent do not have the benefit of this compromise. They are not receiving anything in return for reduced | ^benefits or the freedom from proving negligence or fault. Indeed, they are getting nothing in return. The intent of the legislature is being subverted by the majority’s refusal to allow a tort-based cause of action against the decedent’s employer.

Louisiana Revised Statutes 23:1032(A)(l)(a) specifically provides for “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 statute, shall be exclusive of all other rights, remedies, and claims for damages.... ” The plaintiffs in this case are neither employees nor dependents. Additionally, La.R.S. 23:1231 specifically refers to the “legal dependent” of an employee. The Workers’ Compensation Act does not address major, non-dependent children of a decedent. The Act, therefore, does not apply. The Act does not mention nor does it exclude “non-dependent” major children who have claims for wrongful death and survival damages. Certainly, if this class of major, non-dependent children was excluded under the Act, then their injuries are subject to the exclusivity provisions of the Act itself. That is not the case here. See, e.g., Hunt v. Milton J. Womack, Inc., 616 So.2d 759 (La.App. 1 Cir.), writ denied, 623 So.2d 1309 (La.1993).

Judicial decisions are not intended to be an authoritative source of law in Louisiana; they are secondary to legislation. See A.N. Yiannopoulos, Louisiana Civil Law System, § 35, p. 53 (1977). Since the Workers’ Compensation Act does not foreclose a remedy to major, non-dependent children, we must look elsewhere for an authoritative source permitting such a remedy. Those authoritative sources are La.Civ.Code arts. 2315 and 2316. The Louisiana Supreme Court has eloquently stated:

Under these articles the courts of this state have been given a broad, general principle of legislative will under 13which we are required to determine when the interest of society is best served by allowing the act of man which causes harm to be accepted as a proper standard of conduct or when society is best served by requiring one who harms another to respond in damages for the injury caused. See Malone, Nuisance and Fault, 8 La.L.Rev. 248. Our common law neighbors are required, conversely, to begin with the jurisprudence arising out of specific circumstances and to draw from this jurisprudence a general principle to govern future determinations. It has been said: “ * * * The merit of the civilian general principle lies in the fact that the principle is wider than the eases decided and that hence it has within itself the potentiality of growth.” Stone, Tort Doctrine in Louisiana, 17 Tul.L.Rev. 159,166.

Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133, 137 (1971).

In affirming the trial court and denying a remedy to major, non-dependent children, the majority has unnecessarily foreclosed a legitimate remedy. Indeed, its observation that “change in this area must come from the legislature, not the judiciary” is ironic. It implies that we cannot usurp a legislative function by grafting a judicial remedy for this particular class of denied individuals. However, the legislature has not excluded this class. To the contrary, the majority has judicially excluded the class where the legislature has chosen not to act. The majority should heed the dictate of Article 1, § 22 of our Constitution which provides that “every person shall have an adequate remedy by due process of law and justice.” We should heed the sage advice of Marbury v. Madison, 5 U.S. 137, 147, 2 L.Ed. 60 (1803) that “[i]t is a settled and invariable principle, that every right, when withheld, must have a remedy, and every injury is proper redress,” and that “[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.” Id. at 163. Finally, “[t]he government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.” Id. Our Civil Code has furnished a remedy in this case and the Workers’ Compensation Act has not limited that remedy for this | ¿vested legal right. We should heed the lessons of our Civil Code, our Constitution, and Marbury v. Madison and allow a remedy in tort for major, non-dependent children of a decedent who died in the course and scope of his employment.

For the foregoing reasons, I respectfully dissent.

      . In this case, Mr. Deshotel was survived by his wife, Mary Janise Deshotel, who is currently receiving workers’ compensation benefits from Guichard Operating Company, Inc.


author: JAMES L. CANNELLA, Judge.

text:
    Freddy Malcome FERNANDEZ v. Cynthia Ann Short FERNANDEZ.
    No. 03-CA-749.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 25, 2003.
    Sandra S. Salley, Laurel A. Salley, Sal-ley & Salley, Metairie, LA, for Appellant.
    William M. Detweiler, Metairie, LA, for Appellee.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and CLARENCE E. McMANUS.
   JAMES L. CANNELLA, Judge.

This is an appeal by the Plaintiff, Freddie M. Fernandez, from a child custody judgment. We dismiss the appeal as untimely.

The applicable time delays for taking an appeal from a custody judgment are provided by La.C.C.P. arts. 3943, 3942 and 2087(A)(l)-(3). Under La.C.C.P. art. 3943, an appeal from a judgment of custody must be filed in conformity with C.C.P. art. 3942, which provides for an appeal to be filed within SO days from the applicable date provided in C.C.P. art. 2087(A)(1)-(3). The 30 day limitation is an exception to the 60 days for taking a devolutive appeal set forth in Article 2087(A). The applicable date from which the time is counted is from either the expiration of the delay for applying for a new trial, if no application was applied for, or from notice of the denial of the new trial, if an application was made.

In this case, the judgment was rendered on February 28, 2003, the notice of judgment mailed on March 6, 2003 and the motion for appeal filed on April 29, 2003. To be timely, the notice of appeal had to be filed no later than April 16, 2003. Since the appeal is untimely, we lack jurisdiction over the matter.

Accordingly, the appeal is hereby dismissed.

APPEAL DISMISSED