author: |,THOMAS F. DALEY, Judge.

text:
    Jimmy McGUIRE v. ENVIRONMENTAL MONITORING SERVICE, INC., Shell Oil Company and Shell Chemical L.P.
    No. OS-CA-497.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 30, 2003.
    Stuart H. Smith, Michael G. Stag, Smith Stag, L.L.C., New Orleans, LA, for Plaintiff/Appellant.
    Mark A. Marino, Destrehan, LA, for Defendants/Appellees, Shell Oil Company and Shell Chemical L.P.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY, and SUSAN M. CHEHARDY.
   |,THOMAS F. DALEY, Judge.

The plaintiff, Jimmy McGuire, has appealed the trial court’s judgment granting the defendants’ Exception of Prescription. For the reasons that follow, we reverse the judgment of the trial court.

FACTS:

On February 6, 2001, plaintiff was injured during the course and scope of his employment with Brown & Root when he was struck by a vehicle owned by Shell Oil Company and Shell Chemical LP (hereinafter referred to as the Shell defendants). On February 6, 2002, plaintiff filed suit against the employer of the driver of the truck, Environmental Monitoring Service, Inc., and the Shell defendants. Plaintiff requested service be held on all defendants. On May 17, 2002, plaintiff filed an amending petition naming Environmental Management Service, Inc. as an additional defendant. The plaintiff requested that this additional defendant, as well as the Shell defendants, be served with a copy of the petition. |3 The Shell defendants responded with a Motion to Dismiss for failure to serve within 90 days of the filing of the petition in accordance with C.C.P. art. 1201. On August 8, 2002 the trial court granted the Shell defendants’ motion and dismissed plaintiffs suit against the Shell defendants without prejudice. On August 26, 2002, plaintiff filed a Third Supplemental and Amended Petition naming the Shell defendants and realleging all allegations of the previous petitions. Service of this petition was requested on the Shell defendants.

On October 25, 2002, the Shell defendants responded with an Exception of Prescription. The trial court granted the Shell defendants’ exception following a hearing. This appeal followed.

LAW AND DISCUSSION:

On appeal, plaintiff contends the trial court erred in granting defendant’s Exception of Prescription alleging several Assignments of Error. We agree that the trial court erred in granting the Exception of Prescription because the suit against a joint tortfeasor was still pending and there was no evidence of bad faith on the part of plaintiff. Accordingly, we will not discuss plaintiffs remaining Assignments of Error.

Code of Civil Procedure Article 1201 provides in pertinent part:

C. Service of the citation shall be requested on all named defendants within ninety days of commencement of the action. When a supplemental or amended petition is filed naming any additional defendant, service of citation shall be requested within ninety days of its filing ...

Code of Civil Procedure Article 1672 C provides for involuntary dismissal without prejudice for failure to serve a defendant within the time prescribed by article 1201. Because the dismissal on August 8, 2002 was without prejudice, the Lplaintiff was free to file another suit against the Shell defendants. Plaintiff did so on August 26, 2002.

Civil Code Article 3462 provides that prescription is interrupted by filing of suit, stating in pertinent part:

Prescription is interrupted when the ... obligee commences action against the obligor, in a court of competent jurisdiction and venue.

La. Civil Code Article 3463 states in pertinent part as follows:

An interruption of prescription resulting from the filing of a suit in a competent court and in the proper venue ... within the prescriptive period continues as long as the suit is pending.

In discussing prescription against joint tortfeasors, Civil Code Article 2324 states in pertinent part as follows:

C. Interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors.

Civil Code Article 3503 provides:

When prescription is interrupted against a solidary obligor, the interruption is effective against all solidary obligors and their successors.

In the original petition, plaintiff alleged that Environmental Monitoring Service, Inc. and the Shell defendants are “hable joint, severally and in solido” for his damages. When the suit was dismissed without prejudice against the Shell defendants on August 8, 2002, the suit against a joint tortfeasor, Environmental Monitoring Service, Inc., was still pending. The above cited Code articles provide that prescription against a joint tortfeasor is interrupted when there is a suit pending against another joint tortfeasor. Glover v. Ryder Truck Rental, Inc., 99-3080 (La.App. 4 Cir. 9/13/00), 769 So.2d 1224, writ denied, 2000-2841 (La.12/8/00), 776 So.2d 462. However, R.S. 9:5801 provides that there will be no interruption of prescription

Las to a person named as a defendant who is dismissed from a suit because service of citation was not timely requested and the court finds that the failure to timely request service of citation was due to bad faith.

In the hearing on this motion, plaintiffs attorney explained that the failure to timely serve the Shell defendants was due to a “mix-up” in his office.

Bad faith has been defined as acts intended to “mislead or deceive another, not prompted by an honest mistake, but by some interested or sinister motive.” Lopez v. Lopez, 2000-00660 (La.App. 3 Cir. 11/2/00), 772 So.2d 364, 366. A “mix-up” in plaintiffs attorney’s office does not meet the definition of bad faith and the record does not reveal any evidence of bad faith on the part of plaintiff in failing to timely serve the Shell defendants. The record reflects that the trial judge granted the exception solely on the basis of C.C.P. art. 1201; there was no discussion of R.S. 9:5801.

Absent bad faith, the pending suit against joint tortfeasor, Environmental Monitoring Service, Inc., interrupted prescription against another joint tortfeasor, the Shell defendants; therefore, suit filed against the Shell defendants on August 26, 2002 had not prescribed. Accordingly, the trial court erred in granting the Exception of Prescription.

For the foregoing reasons, the judgment of the trial court is reversed. This matter is remanded to the trial court for further proceedings.

REVERSED; MATTER REMANDED.

      . We note however, that filing suit against a party who is later found to be without liability to the plaintiff or dismissed on procedural grounds does not interrupt prescription against a solidary obligor who was not timely sued. Etienne v. National Auto. Ins. Co., 99-2610 (La.4/25/00), 759 So.2d 51.


source: Caselaw Access Project

author: SAUNDERS, J.,

license: Public Domain

text:
    STATE in the Interest of D.W.
    No. JWK 03-01356.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 2003.
    Walter Marshall Sanchez, Lake Charles, David Jeffrey Utter, New Orleans, Christopher Eades, for D.W.

      Robert Richard Bryant Jr., Lake Charles, for State of Louisiana.
    Mary Holly Hammett, River Ridge, Martha Morgan, Baton Rouge, for Department of Public Safety.
   SAUNDERS, J.,

dissents and assigns reasons.

I would grant the writ. This court is called upon to weigh the rights of the Juvenile against the rights of the public to have open access to the courts. The Juvenile is attempting to waive his rights to privacy and the victim of his crime is not a party to the hearing. Under these circumstances, I feel the need for open access and the Juvenile’s right to self determination far outweigh any other consideration before the court and I would allow the Juvenile to waive his right to a confidential hearing.


author: J^EtOTHSCHILD, J.

text:
    Penny Crowell LEDET v. Evans C. LEDET, Jr.
    No. 03-CA-537.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 8, 2003.
    Richard L. Ducote, Jeannine A. Pro-vencher, New Orleans, Counsel for Penny Crowell Ledet, Plaintiff-Appellant.
    Catherine J. Soutullo, Gretna, Counsel for Evans C. Ledet, Jr., Defendant-Appel-lee.
    Panel composed of Judges THOMAS F. DALEY, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   J^EtOTHSCHILD, J.

Penny and Evans Ledet were married on December 1, 1987. Two children were born of this marriage. On June 21, 2000, Ms. Ledet filed a petition for divorce in which she alleged that Mr. Ledet had sexually abused both children, and she sought relief under the PosNSeparation Family Violence Relief Act, pursuant to LSA-R.S. 9:361, et seq., and the Domestic Abuse Assistance Act, per LSA-R.S. 46:2131, et seq. Ms. Ledet was granted temporary sole custody of the minor children and Mr. Ledet was granted unsupervised visitation, pending a formal hearing on the issues of abuse. Ms. Ledet sought writs from this visitation order. This Court granted Mrs. Ledet’s writ application on August 25, 2000, reversed the visitation order, and ordered the trial court to conduct a hearing on the allegations of sexual abuse within ten days. Ledet v. Ledet, 00-C-1423 (unpublished). However, the trial court did not hold a hearing as ordered by this Court.

Prior to the issuance of this Court’s August 25, 2000 order, Judge Charles Cu-simano, II, to whom the case was allotted, recused himself and the matter was re-allotted to another trial judge of the 24th Judicial District Court, Judge Martha Sas-sone. When the matter was initially taken up by Judge Sassone, she ordered an evaluation of the parties and the children to be performed by Tulane University 13Medical Center’s Psychiatry Department. Thereafter, Ms. Ledet filed a Motion to Set Evidentiary Hearing on the. issue of whether or not the defendant is a perpetrator of domestic violence and sexual abuse, pursuant to LSA-R.S. 9:361, et seq., and whether the evaluation conducted by Tulane should be terminated due to lack of experience of the evaluator. This motion was denied by Judge Sassone on March 27, 2001, and Ms. Ledet sought writs from this Court. On May 23, 2001, this Court granted the writ in part and denied it in part, stating in pertinent part as follows:

As stated in this Court’s previous order, the purpose of the Domestic Abuse Assistance Act, LSA-R.S. 46:2131 et seq., is to “afford the victim immediate and easily accessible protection.” LSA-R.S. 46:2135 provides that upon good cause shown, the petitioner is entitled to a temporary restraining order with ' a hearing within ten days to consider the issuance of a protective order. The petitioner is also entitled to a hearing within ten days if the temporary restraining order is not granted. ■ Further, this Court has already considered the plaintiffs argument regarding her entitlement to a hearing on the issue of abuse and has ordered that such a hearing be held. Accordingly, the trial court is . ordered to hold a hearing within ten days of the rendition of this order to allow the plaintiff the opportunity to present evidence regarding her allegations of abuse by the defendant. The trial court is further ordered to notify this Court when a hearing has been conducted in accordance with this order.
Regarding the plaintiffs request for a hearing on whether the evaluation being conducted by Tulane Medical Center should be terminated, the plaintiffs writ application is denied. However, the parties are entitled to question the qualifications or competency of the tendered expert prior to the admission of her testimony at any hearing or trial in which she is called as an expert witness.

Ledet v. Ledet, 01-C-486 (unpublished).

The record indicates that a hearing was not held within ten days of this Court’s order. However, the parties appeared in court on June 15, 2001, and Judge Sassone stated that “[t]he other thing the Fifth Circuit indicated is that testimony will be taken on the issue of abuse. So we’re going to start that testimony today.” | ¿Although a brief videotape was played and Ms. Ledet testified regarding how she found the videotape, testimony on the issue of abuse was not taken on this date. The hearing was continued in order to allow the evaluator to interview Ms. Le-det’s oldest child from a previous marriage. At this hearing, counsel for Ms. Ledet argued that the evaluator did not have the requisite qualifications to perform an evaluation in this case, but Judge Sas-sone indicated that she would not consider Ms. Ledet’s objections to the evaluator’s qualifications until the evaluator was present in court and could be questioned on the stand about her expertise or lack thereof in cases involving sexual abuse.

On June 26, 2001, the parties again appeared in court. The record indicates that the evaluator’s report had been completed and received, but the report was not offered or admitted into evidence. Judge Sassone heard testimony on this date from Ms. Ledet’s 19-year old daughter from her previous marriage. At the conclusion of her testimony, Judge Sassone stated, “[wje’re going to stop for today,” and continued the matter to July 23, 2001.

When the parties appeared before the trial court on July 23, 2001, counsel for Ms. Ledet indicated that the deposition of the custody evaluator had been taken and that Ms. Ledet had retained her own expert to oppose the evaluator’s report. Plaintiffs counsel indicated that he intended to call Ms. Ledet, Mr. Ledet, the custody evaluator, and the plaintiffs expert to testify at the hearing. Thereafter, Judge Sassone stated that court was in recess for a lunch break.

After the recess, counsel for the parties met in chambers with the trial judge, with the court reporter present, and Judge Sas-sone indicated that it was a settlement conference. She discussed the matter with the attorneys and indicated that certain orders would be put in effect for 60 days and that the court would 1 (¡revisit the matter at that time. Thereafter, the provisions of the trial court’s order were recited on the record in open court. Judge Sassone ordered, among other things, that Ms. Ledet would have temporary sole custody of the children, and Mr. Ledet would have supervised visitation, with Mr. Le-det’s sister to serve as the supervisor. She further stated that the orders set forth on the record that date would remain in effect until the next hearing on October 2, 2001. Ms. Ledet specifically objected to several things in the trial court’s order, including the appointment of Mr. Ledet’s sister as a supervisor for visitation, and the issuance of mutual restraining orders against physical abuse, verbal abuse, or harassment. A judgment reflecting the orders of the trial court was signed on October 4, 2001. It is from this judgment that Ms. Ledet appeals.

DISCUSSION

On appeal, Ms. Ledet asserts six assignments of error:

1) The trial court manifestly erred and abused her discretion in refusing to allow evidence to be proffered and/or admitted regarding the qualifications of the court-appointed custody evaluator.
2) The trial judge manifestly erred and abused her discretion in disallowing counsel to traverse or contest the qualifications of the custody evaluator.
3) The trial judge manifestly erred and abused her discretion in insisting that the information and recommendations regarding the therapist be submitted to the court ex 'parte.
4) The trial judge manifestly erred and abused her discretion in her refusal to mandate that the visitation supervisor be a paid professional who would be impartial and without bias as to the children’s best interests.
5) The trial judge manifestly erred and abused her discretion in issuing mutual restraining orders where there was no evidence of the plaintiff harassing the defendant.
6) The trial judge manifestly erred and abused her discretion in refusing to allow an evidentiary hearing concerning the allegations of abuse in the underlying petition.

| fiHowever, before we can address the arguments set forth by Ms. Ledet, we note that, by orders dated August 25, 2000, and May 23, 2001, this Court ordered the trial court to conduct a hearing on the allegations of abuse in this case. Although a hearing on these issues commenced, it was never completed. The October 4, 2001 judgment is entitled, “Consent Judgment.” However, the transcript of the proceedings and page 3 of the judgment reveal that a settlement was not in fact reached by the parties. Therefore, being a contested matter, Judge Sassone should have completed the hearing and then ruled on the issues before her.

The provisions of the Post-Separation Family Violence Relief Act become operative if the court finds that there has been family violence and that there is a history of family violence. Michelli v. Michelli 93-2128 (La.App. 1 Cir. 5/5/95), 655 So.2d 1342, 1346. “Family violence” includes but is not limited to physical or sexual abuse committed by one parent against the other parent or against any of the children. LSA-R.S. 9:362(3). In order to determine what protections, if any, the children and Ms. Ledet are entitled to, pursuant to the Post-Separation Family Violence Act, per LSA-R.S. 9:361 et seq., or the Domestic Abuse Assistance Act, per LSA-46:2131, specifically, what custody and visitation arrangement is appropriate, the trial judge must make a finding as to whether or not Mr. Ledet is a perpetrator of family violence and/or sexual abuser. According to the record before us, such a finding has not been made in this case to date.

Accordingly, we set aside the trial court’s October 4, 2001 judgment, and we remand the matter to the trial court to complete the hearing on Ms. Ledet’s allegations of abuse against Mr. Ledet. We order that this hearing be held and completed within 15 days of the rendition of this opinion, which should give both parties sufficient time to subpoena their witnesses and finish preparing their case. |7At this hearing, the parties may call the evaluator to testify and question her on her qualifications, if either party so chooses. At the conclusion of the hearing, Judge Sassone must state her findings on the record and set custody and visitation in accordance with those findings and the law. Pending completion of the hearing, the provisions of the October 4, 2001 judgment pertaining to custody and visitation, as well as the mutual restraining orders, will remain in effect. We pretermit ruling on the other issues presented in this appeal due to the fact that the hearing on the allegations of abuse has not been completed.

JUDGMENT VACATED; CASE REMANDED.

      . The trial court also briefly heard testimony from Mr. Ledet on the issue of divorce only. At the conclusion of his testimony, the trial court granted the parties a judgment of divorce.

      . Plaintiff's counsel also indicated that he wanted to call the parties' 13-year old daughter to the stand, but the trial judge stated that she would not permit the child to testify in court.

      . We note that Rule 9.15 of the Louisiana District Court Rules provides that in civil, non-domestic cases, a request for issuance of a subpoena must be issued and filed with the clerk of court at least 10 days before the desired appearance date. Although this is a domestic matter, in an abundance of caution, we give the parties and the trial court up to 15 days to complete the hearing, in order to avoid any problems with subpoenas or contacting witnesses.


author: hAMY, Judge.

text:
    Amy CHESNE v. Mark M. MAYEAUX, et al.
    No. 03-0570.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2003.

      Russell L. Potter, Stafford, Stewart & Potter, Alexandria, LA, for Defendants/Appellants, Lafayette Insurance Company, Mark M. Mayeaux.
    Larry A. Stewart, Mark D. Pearce, Stafford, Stewart & Potter, Alexandria, LA, for Defendants/Appellants, State Farm Mutual Automobile Insurance.
    Kirk L. Landry, Keogh, Cox & Wilson, Ltd., Baton Rouge, LA, for Defendant/Ap-pellee, Valley Forge Insurance Company.
    Brian M. Caubarreaux, Brian Caubar-reaux and Associates, Marksville, LA, for Plaintiff/Appellee, Amy Chesne.
    Court composed of NED E. DOUCET, JR., Chief Judge, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   hAMY, Judge.

Plaintiff seeks damages for injuries arising from an automobile accident in Rap-ides Parish in which her vehicle was struck by a vehicle driven by Defendant Mark Mayeaux. Plaintiff filed suit in Avoyelles Parish, the parish of her domicile, against Mayeaux, his employer, and his employer’s insurer, against Plaintiffs employer’s insurer, and against Plaintiffs own uninsured motorist carrier. She then voluntarily dismissed her uninsured motorist carrier, and, eight months later, Defendants filed a declinatory exception of improper venue. Before the hearing on the exception took place, Plaintiff filed an amended and supplemental petition in which she renamed her uninsured motorist carrier as a defendant. The hearing on the exception occurred thereafter, and the trial judge found that venue was proper in Avoyelles Parish. Defendants Mark May-eaux and Lafayette Insurance Company appeal the trial judge’s ruling. For the following reasons, we affirm.

Factual and Procedural Background

This appeal comes to us from an ongoing personal injury suit in the District Court for Avoyelles Parish. The accident from which the instant matter arose occurred on or about May 22, 2001, in the South Traffic Circle in Alexandria, Louisiana. Ms. Amy Chesne, Plaintiff herein, alleges that she was proceeding around the South Traffic Circle on her way to purchase office supplies, when Defendant, Mark Mayeaux, entered the traffic circle and struck Ms. Chesne’s vehicle with his van. Mr. May-eaux, a resident and domiciliary of New Orleans, was in Alexandria on business and was in the course and scope of his employment when the accident occurred. Custom Cabinets, Mr. Mayeaux’s employer and the owner of the van, had its principal place of business in Harahan, Jefferson Parish, Louisiana.

I ¡¿Ms. Chesne filed a personal injury claim on February 5, 2002, in Avoyelles Parish, the parish of her domicile. Named defendants were Mr. Mayeaux, Custom Cabinets, ABC Insurance Company (Ms. Chesne’s employer’s uninsured motorist carrier), Lafayette Insurance Company (Custom Cabinets’ insurer), and State Farm, Ms. Chesne’s uninsured motorist carrier.

The record contains scant evidence of discovery over the following months. There is no evidence that Custom Cabinets was served; likewise, it appears that ABC Insurance Company’s identity was never ascertained, and Plaintiffs claims against it were not pursued. On June 5, 2002, Ms. Chesne requested a partial judgment of voluntary dismissal without prejudice -in favor of State Farm. This dismissal ■ was granted by the trial judge.

The record indicates that between May 22, 2002, and January 15, 2003, Ms. Chesne’s attorney sent two requests for production to Lafayette Insurance in New Orleans in an effort to detex-mine the limits of Custom Cabinets’ employee policy. The record reflects that Plaintiffs counsel had been advised informally that Custom Cabinets had a $500,000 policy, but no information was forthcoming about the coverage provided by an umbrella policy.

On January 15, 2003, some eight months after the conditions for the exception became ripe, Defendants Mayeaux and Lafayette Insurance Company filed a declinatory exception of improper venue, asserting that when Ms. Chesne voluntarily dismissed State Farm, her uninsured motorist carrier, from the suit, venue in Avoyelles Parish was no longer proper. Defendants asked that the case be dismissed, or, in the alternative, that it be transferred to Rapides Parish by operation of La.Code Civ.P. art. 121.

|3On January 22, 2003, seven days after the exception of improper venue was filed, Ms. Chesne filed a pleading styled “First Amended and Supplemental Petition for Damages,” in which she added State Farm as a defendant without providing any supporting allegations. Ms. Chesne also filed a Motion to Compel, asking the trial judge to order Lafayette Insurance to respond to inquiries regarding Custom Cabinets’ insurance policy. The trial judge signed an order allowing Ms. Chesne’s amended and supplemental petition on January 23, 2003.

The transcript of the March 2003 hearing on the exception evinces the defendants’ concession that venue was proper in Avoyelles Parish when Ms. Chesne’s suit was originally filed pursuant to La.Code Civ.P. art. 76 and the interpretive jurisprudence. However, the defendants argued, when Ms. Chesne voluntarily dismissed State Farm without prejudice and subsequently brought it back into the suit as a defendant, it was done solely for the purpose of establishing venue, and, pursuant to La.Code Civ.P. art. 73(B), venue established in this manner is improper. The defendants contended that the only way that venue would remain viable in Avo-yelles Parish would be if Ms. Chesne’s dismissal of State Farm constituted a settlement or compromise under La.Code Civ.P. art. 73(B). The defendants insisted that Ms. Chesne’s dismissal of State Farm did not constitute such a compromise. Furthermore, the defendants contended, the timing of Ms. Chesne’s amended and supplemental petition — a mere seven days after the exception of improper venue was filed — gave rise to a reasonable assumption that State Farm had been added solely for the purpose of establishing venue in Avoyelles Parish. The defendants pointed out that Ms. Chesne’s uninsured motorist coverage through State Farm only provided benefits of $10,000, compared to the $1.5 million in total [ coverage provided by the Lafayette Insurance policy ($500,000 accident coverage with a $1,000,000 umbrella policy), and that the record was devoid of any evidence that would prompt Ms. Chesne to reinstitute litigation against State Farm out of concern that Mr. May-eaux was an underinsured motorist.

Ms. Chesne’s attorney explained at the hearing on the exception that State Farm was dismissed out of concern for judicial economy and because the Lafayette Insurance policy coverage appealed to be sufficient. However, he noted, it became necessary to bring State Farm back into the suit because Ms. Chesne’s injuries were still being treated, and he was uncertain as to whether Custom Cabinets’ insurance policy would be sufficient to cover Ms. Chesne’s medical expenses. The hearing transcript indicates that Ms. Chesne’s attorney acknowledged that he knew of the $500,000 policy but had not yet been informed of the full amount of coverage available (the umbrella policy); as a result, he felt it would be prudent to bring State Farm back into the suit.

The record reflects that the defendants called the attorney for State Farm who had discussed the voluntary dismissal with Ms. Chesne’s attorney to testify as to the monetary details of their agreement. The witness explained that as State Farm’s attorney, he obviously desired to have his client dismissed from the suit, but he neither disbursed any funds nor gave any other consideration in exchange for the dismissal. Furthermore, an examination of the record reveals that there was no written memorialization of a settlement or compromise between Ms. Chesne and State Farm — the agreement was made via phone.

After considering the evidence, the trial judge denied the defendants’ exception, stating that he found that State Farm and Ms. Chesne had reached a valid 1 ¡¡compromise leading to State Farm’s dismissal without prejudice. He also noted that Ms. Chesne had named her uninsured motorist carrier as a defendant in her original petition, which, he explained, is customary practice for plaintiffs at the beginning of a suit when discovery hasn’t yet taken place and uncertainty exists as to the adequacy of the defendant’s insurance coverage. Therefore, he concluded, State Farm hadn’t been added solely for the purpose of creating venue, and, pursuant to La.Code Civ.P. art. 73(B), venue was proper in Avoyelles Parish.

Defendants Mark Mayeaux and Lafayette Insurance Company appeal the trial judge’s ruling. In their sole assignment of error, the defendants submit that the trial judge erred in denying their exception of improper venue.

Discussion

Defendants Mark Mayeaux and Lafayette Insurance Company argue on appeal that the trial judge erred in denying the exception of improper venue and request that Ms. Chesne’s suit be dismissed without prejudice. They maintain that when Ms. Chesne dismissed State Farm, venue in Avoyelles Parish was no longer proper. The defendants have enunciated two subparts to this argument, viz., (1) State Farm was not dismissed pursuant to a compromise, and (2) renaming State Farm as a defendant after the defendants excepted to venue has no legal effect.

In her reply, Ms. Chesne asserts that she was unaware of the existence of Custom Cabinets’ umbrella policy prior to filing the supplemental and amended petition that reinstated her uninsured motorist carrier as a defendant. Furthermore, she cites the Louisiana Supreme Court’s decision in Farrar v. Haedicke, 97-2923 (La.12/2/97), 702 So.2d 690, in support of her contention that the defendants must show that Ms. Chesne renamed State Farm as a defendant in bad faith. She suggests that | (¡the defendants are unable to produce such evidence because doing so “would require [them to] show that reasonable information was received by the plaintiff and/or plaintiffs counsel prior to the pleading bringing in the uninsured motorists [sic] carrier into [sic] the suit.” Ms. Chesne claims that her lack of bad faith is proven by the defendants’ failure to respond promptly to discovery regarding the amount of insurance coverage available through Lafayette Insurance.

A trial court’s denial of a declinato-ry exception of improper venue is an interlocutory judgment that may cause irreparable harm and is therefore properly appealable. Hebert v. Mid South Controls and Services, Inc., 96-378 (La.App. 3 Cir. 10/9/96), 688 So.2d 1171, writ denied, 96-2708 (La.2/21/97), 688 So.2d 528; cert.denied, 522 U.S. 814, 118 S.Ct. 61, 139 L.Ed.2d 24 (1997), citing La.Code Civ.P.art. 2083(A); A & P Boat Rentals, Inc. v. American Lloyd’s, 592 So.2d 1361 (La.App. 1 Cir.1991).

The standard of review on appeal of a ruling on an exception is the manifest error — clearly wrong standard. See Guitreau v. Kucharchuk, 99-2570 (La.5/16/00), 763 So.2d 575, citing Stobart v. State of Louisiana, Through Department of Transportation and Development, 92-1328 (La.4/12/93), 617 So.2d 880.

Louisiana Code of Civil Procedure Article 42 sets forth the general venue rules for actions brought in Louisiana. Recognized as exceptions to the general venue rules are, inter alia, La.Code Civ.P. arts. 76 and 73. Louisiana Code of Civil Procedure Article 76 provides, in pertinent part, that “[a]n action on a health and accident insurance policy may be brought in the parish where the insured is domiciled, or in the parish where the accident occurred.” The relevant portion of La. Code Civ.P. art. 73(A) states,

[ A]n action for the recovery of damages ... against joint or solidary obligors may be brought in the parish where the plaintiff is domiciled if [7the parish of plaintiffs domicile would be a parish of proper venue against any defendant under ... [La.Code Civ.P. art.] 76....

In its decision in Kellis v. Farber, 523 So.2d 843 (La.1988), the supreme court reiterated its interpretation of La.Code Civ.P. art. 73 as allowing a plaintiff to file suit against a tortfeasor, the tortfeasor’s insurer, and her own uninsured motorist carrier all in the same venue because the tortfeasor, the tortfeasor’s insurer, and the plaintiffs uninsured motorist carrier are solidary obligors vis-a-vis the plaintiff. See Kellis, 523 So.2d 843, citing Burton v. Foret, 498 So.2d 706 (La.1986), and Hoefly v. Government Employees Insurance Co., 418 So.2d 575 (La.1982). Article 73 venue is therefore proper in the parish of the plaintiffs domicile, regardless of where the accident occurred or where the tortfeasor resides. Laborde v. American Nat. Property & Cas. Companies, 00-01091 (La.App. 3 Cir. 1/31/01), 780 So.2d 501, writ denied, 01-0599 (La.4/27/01), 791 So.2d 634.

In the matter sub judice, the defendants acknowledge that when Ms. Chesne filed her original petition naming as defendants Mr. Mayeaux, Lafayette Insurance, State Farm, et al., venue was proper in Avo-yelles Parish, the parish of Ms. Chesne’s domicile, per La.Code Civ.P. art. 73, even though the accident occurred in Rapides Parish, State Farm is a foreign insurer, and Mr. Mayeaux and Lafayette Insurance are domiciled in Orleans Parish. The real dispute in the instant appeal centers on the following chain of events: (1) Ms. Chesne dismisses State Farm; (2) May-eaux and Lafayette Insurance file an exception of improper venue; (3) Ms. Chesne files an amended and supplemental petition bringing State Farm back into the suit; (4) the trial judge denies the exception of improper venue.

Defendants Mayeaux and Lafayette Insurance assert, as their sole assignment of error on appeal, that the trial judge improperly denied their declinatory exception |sof improper venue. The preponderance of their brief, however, pertains to the events that occurred after the exception was filed.

The defendants cite a number of cases in support of their assertion that the trial judge improperly denied the exception, none of which is truly on point. Most significant among the jurisprudence relied upon are Cheramie v. Acadian Ambulance Service, Inc., 95-0038 (La.App. 1 Cir. 10/6/95), 671 So.2d 489; Durio v. Robert E. Lee, Inc., 00-1314 (La.App. 4 Cir. 8/2/00), 774 So.2d 181, writ denied, 00-2839 (La.12/8/00), 776 So.2d 462; and Jones v. Massachusetts Bay Ins. Co., 614 So.2d 262 (La.App. 3 Cir.1993).

In Cheramie v. Acadian Ambulance Service, Inc., an ambulance owned by Aca-dian Ambulance Services was involved in an accident with a vehicle driven by Herman Cheramie and owned by his employer. Cheramie, a Lafourche Parish domiciliary, filed suit in Lafourche Parish, naming as defendants Acadian Ambulance, the ambulance’s driver, Acadian’s insurance provider, Cheramie’s own uninsured motorist earner, and his employer’s uninsured motorist carrier. Cheramie later filed a motion for partial dismissal without prejudice that removed both uninsured motorist carriers from the suit. Nearly two months later, Cheramie filed a supplemental and amended petition that added his wife as a plaintiff and brought both uninsured motorist carriers back into the suit as defendants. Shortly thereafter, the Cheramies moved to dismiss the employer’s uninsured motorist carrier without prejudice. Acadi-an Ambulance, the driver, and its insurer then answered the supplemental and amended petition. The Cheramies filed a second supplemental and amended petition later, adding Cheramie’s wife as plaintiff, and naming Acadian, the ambulance driver, and its insurer as defendants. In turn, the defendants filed an | exception of improper venue due to the absence of the Cheramies’ uninsured motorist carrier from the second supplemental and amended petition. The trial court overruled the exception, and the defendants appealed. In support of the trial court’s ruling, the plaintiffs argued on appeal that the defendants had waived their objections to venue by answering the original and first amended and supplemental petitions. In its decision, the Louisiana First Circuit Court of Appeal held that the defendants had not yet answered the second amended and supplemental petition when they filed their exception, and because venue had once again become improper due to the omission of the uninsured motorist carriers from the petition, the exception should have been sustained.

We find that Cheramie v. Acadian Ambulance Service, Inc. is distinguishable from the instant matter. In Cheramie, the plaintiffs did not name their own uninsured motorist carrier as a defendant in the second amended and supplemental petition. As a result, venue became improper, and an exception was timely filed by the defendants. In contrast, in the case presently before this court, the exception of improper venue became moot when the trial judge signed the order allowing the plaintiffs amended and supplemental petition that renamed State Farm as a defendant. Although Cheramie’s fact pattern diverges from the instant matter, and, consequently, the holding diverges, as well, an observation made by the first circuit in Cheramie is nonetheless appropriate here: “[o]nce the Cheramies renamed [the uninsured motorist carriers] as defendants, the [Ambulance Services, its insurer, and the driver] could not raise the exception of improper venue because venue was once again proper.” Cheramie, 671 So.2d at 492. In light of this observation, the defendants’ assertion that Ms. Chesne’s amended petition had no legal effect is not valid.

|inLikewise, the defendants’ reliance upon Jones v. Massachusetts Bay Ins. Co. is ill-founded. In Jones, a panel of this court noted that an exception of improper venue was improperly sustained where the uninsured motorist carrier had been dismissed upon payment of its policy limits to the plaintiffs. There is no question of payment of policy limits in the instant matter on appeal; as such, the holding of Jones v. Massachusetts Bay is not applicable.

It is important to note that in his oral reasons for denying the exception, the trial judge stated that he had determined that venue remained proper despite the defendants’ assertion that La.Code Civ.P. art. 73(B) dictated otherwise. The judge reasoned that a compromise was reached between Ms. Chesne and State Farm and that Ms. Chesne’s original petition (N.B.: not her amended and supplemental petition ) did not name State Farm solely for the purpose of establishing venue in Avo-yelles Parish.

Venue did, indeed, remain proper in Avoyelles Parish, albeit for reasons other than those argued below. We conclude that when venue in Avoyelles Parish was lost due to the dismissal of State Farm, it was regained when the trial judge allowed the amended and supplemental petition renaming State Farm as a defendant. Because venue had been reestablished before the hearing on the exception of improper venue, the trial judge properly denied the exception. A consideration of La.Code Civ.P. art. 73(B) was neither essential nor germane to reaching the correct conclusion. Louisiana Code of Civil Procedure Article 73(B) pertains to the situation in which a plaintiff originally names a defendant as a party to suit for the sole purpose of establishing venue, and then, that defendant is dismissed by compromise or dismissed after trial on the merits. Article 73(B) does not address the situation in which a party Inis initially validly named defendant in a suit, then dismissed, then rejoined. As such, once the plaintiffs petition was amended, Article 73(B) ceased to be a governing principle in this case.

DECREE

For the foregoing reasons, the judgment denying the exception of improper venue is affirmed. All costs of this proceeding are assigned to the defendants-appellants, Mark Mayeaux and Lafayette Insurance Company.

AFFIRMED.


author: |, WOOD ARP, Judge.

text:
    Todd S. DARBONNE, Heidi Darbonne, Shannon Boudreaux and Horizon Helicopter v. ALLIED SIGNAL, INC., et al.
    No. 03-527.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 2003.
    Writ Denied Feb. 20, 2004.

      J.B. Jones, Jr., Jones Law Firm, Cameron, LA, for Plaintiffs/Appellees: Todd Shayne Darbonne, Heidi Darbonne.

      Lawrence N. Curtís, Curtís & Lambert, Lafayette, LA, for PlaintifiyAppellee: Shannon Boudreaux.
    Kenneth H. Laborde, Leo R. McAloon, III, Pulaski, Gieger, & Laborde, New Orleans, LA, for Plaintiff/Appellee: Horizon Helicopter, Inc.
    Howard Daigle, Jr., James L. Bradford, III, Daigle & Fisse, Covington, LA, for Defendant/Appellant: Honeywell International, Inc.
    Court composed of BILLIE COLOMBARO WOODARD, MICHAEL G. SULLIVAN, and BILLY HOWARD EZELL, Judges.
   |, WOOD ARP, Judge.

Honeywell appeals an interlocutory judgment, denying its motion to transfer venue from the 14th JDC for Calcasieu Parish to the 19th JDC for East Baton Rouge Parish. We reverse the trial court’s decision, remand the case, and order that it be transferred to the 19th JDC. * * *

On June 15, 1998, a helicopter lost power while transporting Mr. Todd Darbonne and Mr. Shannon Boudreaux from an offshore oil platform in the Gulf of Mexico. The pilot successfully landed the helicopter on the water’s surface, but when a float on one side of the helicopter deflated, it capsized. Mr. Paul Anderton, the helicopter’s pilot, Mr. Darbonne, and Mr. Boudreaux deployed a raft and waited until the Coast Guard rescued them about four hours later. The helicopter, which Horizon Helicopters, Inc. (Horizon) owned, sank. Allied Signal, Inc., which is now Honeywell International, Inc. (Honeywell), manufactured and sold the power turbine governor and fuel control unit installed in the helicopter’s engine.

Subsequently, Mr. and Mrs. Darbonne, Mr. Boudreaux, and Horizon filed suit against several Defendants. Mr. Dar-bonne and Mr. Boudreaux sought damages for personal injuries; Mrs. Darbonne brought a claim for her loss of consortium; and Horizon sought property damages for the loss of its helicopter.

Before filing this suit in state court, Mr. and Mrs. Darbonne and Mr. Boudreaux filed suit against Horizon and other defendants in federal court. That lawsuit, among other things, resulted in a settlement, via a Mary Carter Agreement between Mr. and Mrs. Darbonne and Mr. Boudreaux with Horizon. This settlement explains the reason that Horizon is now a Plaintiff along with Mr. and Mrs. Dar-bonne and Mr. Boudreaux.

This appeal arises from a dispute over the proper venue for the underlying causes of action. Initially, Plaintiffs filed a lawsuit against Honeywell, L & L Oil Co., Inc., and L & L Oil and Gas Services, L.L.C., in the 38lh Judicial District Court (JDC) for Cameron Parish. Subsequently, they added Moffitt Oil Company, Inc. (Moffitt) as a Defendant. Honeywell excepted to venue in the 38th JDC. While its exception was pending, Plaintiffs voluntarily dismissed both L & L Oil entities, leaving only Honeywell and Moffitt as Defendants. The 38th JDC found that venue was improper 12and sustained Honeywell’s exception. It, then, transferred the case to the 14th JDC for Calcasieu Parish.

After the case was transferred to the 14th JDC, the Plaintiffs voluntarily dismissed Moffitt, leaving Honeywell as the sole Defendant. When Honeywell learned of the dismissal, it moved for a transfer of venue from the 14th JDC to the 19th JDC for East Baton Rouge Parish. The trial court denied Honeywell’s motion and maintained that the 14th JDC was a proper venue for the case. Honeywell appeals.

Accordingly, we must decide if the 14th JDC was correct in determining that the case may be maintained in its court or whether the case must be transferred to the 19th JDC in East Baton Rouge Parish.

Venue Articles

Venue refers to the proper parish in which to file an action. The Louisiana Code of Civil Procedure delineates the rules for determining the proper venue(s) in a particular case. Louisiana Code of Civil Procedure Article 42 provides the general rules governing proper venue. In the case at bar, the relevant rule is in subsection (4), which states:

A foreign corporation or foreign limited Lability company licensed to do business in this state shall be brought in the parish where its primary business office is located as designated in its application to do business in the state, or, if no such designation is made, then in the parish where its primary place of business in the state is located.

The above article is subject to certain exceptions. Two are relevant in the ease at bar; namely, those in Articles 73 and 74. In an action to recover damages which an offense or quasi offense causes, Article 74 renders venue proper in the parish in which the wrongful conduct occurred or damages were sustained. Article 78 provides, in pertinent part: “An action against joint or solidary obligors may be brought in a parish 13of proper venue, under Article only, as to any obligor who is made a defendant....” (Emphasis added.)

Under Article 42, the proper venue for Honeywell is the 19th JDC for East Baton Rouge Parish, and the proper venue for Moffitt (now dismissed) is the 14th JDC for Calcasieu Parish.

Proceedings in Cameron Parish — 38th JDC

Initially, the Plaintiffs in this case filed suit in the 38th JDC against several Defendants, including Honeywell. Honeywell excepted to venue there. Before the court ruled on the exception, some of the Defendants were voluntarily dismissed. In fact, when the 38th JDC ruled on Honeywell’s exception of improper venue, Honeywell and Moffitt were the only remaining Defendants. Plaintiffs argued that, under Article 74, the 38th JDC was a proper venue for, both, Moffitt and Honeywell, as joint tortfeasors. However, Article 73 allows venue against a joint or solidary obli-gor only when venue is proper for one of the obligors under the general rule of Article 42. Because the 38th JDC was a proper venue for Moffitt under an exception, rather than the general rule of Article 42, Article 73 did not apply to make it a proper venue for Honeywell.

Accordingly, the 38th JDC granted Honeywell’s exception and dismissed the case. Subsequently, the Plaintiffs moved for the trial court to clarify or reconsider its judgment, urging it to transfer the case to the 14th JDC for Calcasieu Parish, rather than dismissing it. Since the 14th JDC was a proper venue for Moffitt under Article 42, Article 73 applied to Honeywell, making venue in the 14th JDC proper because Honeywell was allegedly a joint obli-gor with Moffitt. Thus, the 38th JDC amended its ruling dismissing the suit, and transferred the case to the 14th JDC for Calcasieu Parish.

PROCEEDINGS IN CALCASIEU PARISH — 14th JDC

When the case was transferred to the 14th JDC, the two Defendants were Moffitt and Honeywell. However, the Plaintiffs voluntarily dismissed Moffitt from the case. When Honeywell learned that Mof-fitt had been dismissed, it moved the 14th JDC to | transfer venue to the 19th JDC, urging that the 14th JDC was no longer a proper venue for it.

The Plaintiffs argue that, since venue in the 14th JDC was an appropriate venue for Honeywell under Article 73 at the time the case was transferred, it remains a proper venue under section B of that article. Article 73(B) states:

If the action against this defendant is compromised prior to judgment, or dismissed after a trial on the merits, the venue shall remain proper as to the other defendants, unless the joinder was made for the sole purpose of establishing venue as to the other defendants.

Specifically, Plaintiffs aver that this article was designed to prevent forum shopping, and continued venue in the 14th JDC is proper, absent a showing that they were forum shopping.

Honeywell argues that subsection B does not provide continuing venue because the action against Moffitt was neither “compromised prior to judgment” nor “dismissed after a trial on the merits.”

However, our supreme court has recently given the venue provisions a more liberal construction, elevating the status of the alternate venue provisions. This added flexibility enables the court to consider the contacts and relationship between the parties and the cause of action to the forum, advancing the ultimate goal of the venue statutes, which is to provide a convenient place for trial. Accordingly, we no longer have to give such a strict construction to the alternate provisions.

Thus, we cannot agree with Honeywell’s strict construction of Article 73(B). Instead, we find that the legislature intended for “compromise” to encompass more than a claim that is disposed of via a compromise agreement under La.Civil Code art. 3071. That article defines compromise as “an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them | ¡¡prefers to the hope of gaming, balanced by the danger of losing.” The joint petition for voluntary dismissal, which required an agreement between the Plaintiffs and Moffitt in the instant case, satisfies this definition, even though the procedural vehicle was a voluntary dismissal rather than a transaction or compromise agreement. Therefore, under this analysis, the 14th JDC remains a proper venue in the instant case unless the Plaintiffs joined Moffitt as a Defendant for the sole purpose of establishing venue regarding Honeywell in the 14th JDC. In other words, if Plaintiffs used Moffitt’s joinder as a method of forum shopping, Honeywell should not be required to remain in the 14th JDC.

Notwithstanding, the trial court found that venue was still proper in the 14th JDC for two reasons: (1) the Plaintiffs were not forum shopping when the case was transferred to the 14th JDC, and (2) Honeywell waived its objection to venue. We examine each of these determinations.

Forum Shopping

We agree with the trial court that the legislative intent behind Article 73(B) was to prevent plaintiffs from forum shopping. However, we disagree with its factual conclusion that the Plaintiffs were not forum shopping. Specifically, Moffitt’s relationship to the helicopter in question was that Moffitt provided the fuel which the aircraft was using at the time of the accident. However, Honeywell introduced evidence in the record that, during the previous proceedings in federal court, Plaintiff Horizon argued that the aircraft’s fuel was not contaminated, supporting its argument with the pilot’s testimony that he checked the fuel before the flight and that the fuel filter light on the instrument panel never lit up. Further, Horizon offered the testimony of Mr. William Hutchison, a pilot who had tested the fuel after the accident, who found that the fuel was not diluted or contaminated. Furthermore, Horizon submitted expert testimony that “fuel contamination must be disregarded as a possible cause of the engine failure.” (Emphasis added.) Notwithstanding, in the instant case, Plaintiffs sued Moffitt, the provider of the fuel.

| fiHoneywell, also submitted in evidence a facsimile from Moffitt’s counsel to Plaintiffs’ counsel, which stated, in pertinent part:

It is pretty clear from a review of the case that you have no evidence that contaminated fuel was a cause of the accident. In fact, you represented this very fact to the Federal Court in the previous federal litigation in your Memorandum in Opposition to Motion to Remand. Naturally, we will be propounding additional discovery to you to get a copy of all of the Affidavits you referenced in the Memorandum, including the one by the Horizon Helicopters pilot, Mr. William Hutchison, that he tested fuel samples in the tanks post-accident and found no contaminates, as well as the Affidavit from your expert, Mr. Ar-mond Edwards, that fuel contamination must be disregarded as a possible cause of the engine failure. We are curious as to what investigations you conducted since the filing of the memorandum that prompted you to file this lawsuit against Moffitt Oil. As soon as you respond to the outstanding discovery we plan on filing a Motion for Summary Judgment with our key exhibit being your Memorandum.

Thus, as Honeywell pointed out to the trial court, the evidence from the federal court proceedings reveals that Plaintiffs should have known that they did not have a viable claim against Moffitt before they urged a transfer to Calcasieu Parish and, in fact, before they initially filed suit. However, Moffitt was the only Defendant that provided a basis for venue in the 38th JDC, where they wanted to try the case. Moffitt was also the only party who gave the Plaintiffs a basis for requesting a transfer to the 14th JDC when the 38th JDC found venue improper. Without Mof-fitt, the 38th JDC would have transferred the case to the 19th JDC. Thus, in both instances — in the initial filing of suit as well as the requested transfer — it appears that the Plaintiffs were using Moffitt as a vehicle to forum shop.

Accordingly, the exception to continuing venue under Article 73 applies. Thus, venue became improper when Moffitt was voluntarily dismissed; Honeywell’s motion should have been granted unless it waived its objection to venue.

Waiver

The trial court found three particular actions constituting Honeywell’s waiver to any objection it had to venue in the 14th JDC; namely, (1) because it failed to file an objection to the transfer, (2) because it filed a summary judgment motion in the 14th JDC, and (3) because it continued to engage in discovery while the case was ^pending in the 14th JDC. We examine each of these actions to determine whether any constituted a waiver.

Failure to Object to the Transfer of Venue to the Hth JDC

The trial court found that since Honeywell did not object to the case being transferred from the 38th JDC to the 14th JDC at the time of transfer, it waived its objection. However, as Honeywell points out, the basis for its objection to venue in the 14th JDC did not arise until the Plaintiffs voluntarily dismissed Moffitt from the case. At the time of transfer to the 14th JDC, Moffitt was a Defendant; therefore, the 14th JDC was an appropriate venue. Thus, at that time, Honeywell had no valid basis on which to object to venue.

Filing a Summary Judgment Motion in the ijth JDC

Likewise, when Honeywell filed its motion for summary judgment, Moffitt was still a Defendant; therefore, Honeywell had no valid basis to object to venue in the 14th JDC. The 14th JDC dismissed Moffitt from the case on April 29, 2002, providing Honeywell with a basis for objecting to venue. Thus, only actions Honeywell took after this date are relevant to determining whether it waived its objection to venue.

Engaging in Discovery While Suit Was Pending in the lja' JDC

After Moffitt was dismissed from the case, Honeywell responded to certain discovery requests with a written stipulation sent to all counsel. Plaintiffs contend that, in doing so, Honeywell waived its objection to venue, even though the stipulation was not filed in the record at that time. However, Honeywell filed this motion to transfer venue on October 4, 2002. It conveyed the stipulation to counsel on October 22, 2002, while the motion was pending.

| sOur supreme court has found that conducting discovery, even when it is filed in the record (which was not done here), does not waive an objection to venue if the exception is pending at the time. It reasoned:

There is a useful purpose (judicial efficiency) in the requirement that all decli-natory and dilatory exceptions be filed prior to answer or general appearance, but there is no useful purpose in judicially extending this requirement to constitute a waiver when the general appearance is made after the declinatory exception has been filed. Our conclusion that the subsequent general appearance, before trial of the exception, does not constitute a waiver of the pending exception is consistent with the intermediate court’s conclusion (with which we agree) that the subsequent (or simultaneous) filing of an answer, before trial of the exception, does not waive the pending exception.

Likewise, we find that this same reasoning applies in the instant case in which the motion to transfer venue was pending at the time of Honeywell’s actions. Accordingly, we find that Honeywell did not waive its objection to venue in the 14th JDC,. and the trial court should have granted its motion to transfer the case to the 19th JDC for East Baton Rouge Parish.

CONCLUSION

We reverse the trial court’s ruling, which found that the 14th JDC remains a proper venue in the instant case, remand to the 14th JDC, and order transfer of the case to the 19th JDC. We cast all costs of this appeal on the Plaintiffs/Appellees.

REVERSED AND REMANDED WITH INSTRUCTIONS.

      . La.Code Civ.P. art. 41.

      . La.Code Civ.P. art. 43.

      . Jordan v. Cent. La. Elec. Co., 95-1270 (La.6/23/95); 656 So.2d 988.

      . Id.

      . Rachal v. Ford Motor Co., 96-160 (La.App. 3 Cir. 6/5/96), 676 So.2d 671, writ denied, 96-2271 (La.11/15/96), 682 So.2d 773.

      . La.Civil Code art. 3071.

      . La.Code Civ.P. art. 73(B).

      . See Durio v. Robert E. Lee, Inc., 00-1314 (La.App. 4 Cir. 9/15/00), 774 So.2d 181, writ denied, 00-2839 (La.12/8/00), 776 So.2d 462.

      . See Id. See also Cheramie v. Acadian Ambulance Serv., Inc., 95-38 (La.App. 1 Cir. 10/6/95), 671 So.2d 489.

        . Bickham v. Sub Sea Int’l Inc., 617 So.2d 483, 484 (La.1993).


author: 1,WOODARD, Judge.

text:
    STATE of Louisiana v. Steven D. GOBERT.
    No. KH02-771.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 2003.

      Robert Richard Bryant, Jr., District Attorney, Lake Charles, LA, Counsel for State/Respondent.
    Mathew D. Henrich, Lake Charles, LA, Counsel for Defendant/Applicant.
    Court composed of BILLIE COLOMBARO WOODARD, MICHAEL G. SULLIVAN, and BILLY HOWARD EZELL, Judges.
   1,WOODARD, Judge.

We must consider whether the Defendant, Steven D. Gobert, who entered a plea of guilty to criminal charges of manslaughter and attempted manslaughter, may assert a double jeopardy violation when he knowingly and intelligently entered a plea that raised double jeopardy concerns. We deny the Defendant’s writ.

* * *

The trial court convicted Mr. Gobert on May 18, 1994 for committing a second degree murder and, later, sentenced him to life imprisonment. On appeal, this court found that the State withheld evidence that was favorable and material to his defense. Accordingly, we overturned his conviction.

After a second trial of this matter, the trial court found him guilty of second degree murder and sentenced him to life in prison. Once again, this court reversed his conviction due to the State’s prejudicial comments made during its rebuttal-closing argument.

On October 18, 2001, a few days before the third trial of this matter, Mr. Gobert pled guilty to one count of manslaughter, a violation of La.R.S. 14:31, and one count of attempted manslaughter, a violation of La. R.S. 14:27. Under the plea agreement, he received a sentence of forty years on the conviction for manslaughter and twenty years on the conviction for attempted manslaughter. The sentences were to run consecutively.

In his “Motion to Correct or Modify Illegal Sentence,” filed on November 7, 2001, Mr. Gobert contends that he illegally received multiple punishments for the same offense. The trial court denied this motion on March 20, 2002. In its written reasons for the denial, it states:

It is true that the manslaughter and attempted manslaughter in this case involved the same deceased victim, and occurred on the same day. Defendant’s motion could have merit but for the fact that his current | ¡¡.convictions and sentences were pursuant to a plea agreement, to which he was a fully informed defendant.

Later, Mr. Gobert filed an application for post conviction relief in which he asserts that his conviction and sentence for attempted manslaughter violated his constitutionally protected right against double jeopardy. On May 29, 2002, the trial court denied his application for post conviction relief for the same reasons it assigned on March 20, 2002: “[T]he sentences were imposed on the basis of a plea agreement which the Defendant fully understood and which benefitted Mm significantly, and of which he cannot now be heard to complain.”

Mr. Gobert believes the trial court should have granted him post conviction relief. Specifically, he asserts that it erred: (1) in failing to grant him post conviction relief because convicting him of, both, attempted manslaughter and manslaughter violates the double jeopardy clause of the federal and state constitutions; (2) in convicting him of, both, manslaughter and attempted manslaughter when the facts indicate that the crime arose from one victim and one event; and (3) in convicting him of attempted manslaughter when no factual basis exists for his attempted manslaughter conviction independent of the factual basis given for his manslaughter conviction and when he never, unequivocally, plead guilty to attempted manslaughter.

On the other hand, he is not challenging his manslaughter conviction. As such, he requests that we reverse his attempted manslaughter conviction and affirm his manslaughter conviction.

We will address the Defendant’s interrelated assignments of error together. Essentially, each is based upon his assertion that the trial court’s sentence of forty years on the conviction for manslaughter and twenty years on the conviction for attempted manslaughter constitutes a double jeopardy violation because it is giving him multiple punishments for the same conduct.

| ¡¡Double Jeopardy

In post conviction matters, the petitioner has the burden of proving that the trial court improperly denied him relief. Therefore, Mr. Gobert must prove that a double jeopardy violation occurred in relation to his guilty plea.

In State v. Love, this court explained:

Both the Fifth Amendment to the United States Constitution and Article 1, § 15 of the Louisiana Constitution guarantee that no person shall be twice placed in jeopardy for the same offense. The purpose of these provisions is to protect a person from a second prosecution after he has already been acquitted or convicted of that offense and also to protect an accused against multiple punishment for the same conduct.[]

(Emphasis added.)

Review of a double jeopardy claim is limited to the charging documents and plea colloquy.

Originally, the bill of indictment charged Mr. Gobert with second degree murder. On the day of his plea, the State amended the bill to reflect the charges of manslaughter and attempted manslaughter. The bill does not, however, contain any additional information on the particular circumstances of the crime. At the guilty plea hearing, the trial court asked for a recitation of the facts to support a guilty plea, only, for manslaughter:

THE COURT:
Okay. Briefly, Mr. Gobert, what did you do to be guilty of manslaughter?
THE DEFENDANT:
I engaged in a heated argument and a fight with the victim, John Kirkley, and during the course thereof, I shot him one time in the head.
|/THE COURT:
All right.
THE DEFENDANT:
And, he subsequently died from those wounds.

The Defendant gave no separate factual basis for his attempted manslaughter conviction. A review of the entire plea colloquy reveals that the State, merely, charged him with manslaughter and attempted manslaughter in order to reach a term of imprisonment that was amenable to him and the victim’s family. The plea agreement is accurately set forth beginning with a summary of the agreement by Defendant’s attorney, Randall Hart:

MR. HART:
Your Honor, at the outset, I want to say on behalf of Mr. Gobert, we recognize the impossibility of being convicted of the charge of attempted manslaughter, and manslaughter, if he were to be tried on that issue. However, this is a settlement, or a plea agreement, whereby Mr. Gobert will not have to face trial on the charge of second-degree murder which, of course, holds the awful sentence of mandatory life in prison, without benefit of parole.

The concurrence of Assistant District Attorney, Donald Guidry, immediately follows Mr. Hart’s summary of the agreement:

MR. GUIDRY:
And on behalf of the State, Judge, as you are aware, this case has been tried twice and was scheduled this — I think, this past Monday, to be tried again, but was continued.
The State has met with the victims— the victim’s family, and discussed this matter, and have discussed this matter with the defendant, as well as his lawyer, and reached an agreement. All parties have reached an agreement to resolve this matter.

Next, the court conducted a Boykin examination, after which the following discussion took place:

I sTHE COURT:
Now, I think at this point — I know that the proposal here has to do with the concept of recording this as a — accepting it as a plea of guilty to the manslaughter and to attempted manslaughter. I think I would like for counsel to elaborate on the record, all the basis and the concept of the recommendation. You said some of that in the beginning, but I would like to get in here, right now.
You know, just as to what the — what was sought to be done by this, and why you are doing this.
MR. HART:
Randall Hart representing Steven Go-bert. In discussions with the victim’s family, the concept of Mr. Gobert pleading to a charge less than second-degree murder was discussed, and the only terms that were acceptable to the victim’s family, would be under those terms which would require Mr. Gobert to serve a minimum of 20 years in the penitentiary.
If he were to be given a sentence of 60 years under the law applicable at the time of the offense, he would be entitled to serve two-for-one, plus his good-time credit would reduce the sentence further to 20 years minimum. At that time, he would be eligible for parole, after serving 20 years. It doesn’t necessarily mean he would be released—
THE COURT:
—Right.
MR. HART:
—after 20 years of time in the penitentiary, but he would be eligible for parole.
Under those terms and understandings, the family agreed to that type of sentence. In order to get a 60-year sentence, it was necessary to stack the charge of manslaughter and attempted manslaughter.
MR. GUIDRY:
Judge — I may stand corrected on this — but I think what Mr. Hart meant was that we did reach an agreement with the family. As we indicated, this thing has been tried twice and we were set to try this again October 15.
Mr. Hart and I are diligently trying to resolve this matter with all the parties involved. We talked to the family. The family is involved and we reached the agreement with the 60 years.
And it’s my understanding that back at that time, the defendant would become eligible for parole after serving one-third — no dealing with the two-for-one — -He would be eligible for parole after serving one-third of his sentence, which would be 20 years.
| fiThat is how we reached the agreement for the 60 years, and the reason for it.
MR. HART:
That’s correct, your Honor. If Mr. Gobert were to behave well in the penitentiary, he would also be entitled to two-for-one, which would mean release after 30 years.
THE COURT:
Right. Well so in essence, it appears— in essence what’s desired here is, from both the State’s interest and the defendant’s interest, was to reach the result of 60 years of DOC time, which would carry with it the expectation that he, thus, would not get out any sooner than 20 years.
MR. GUIDRY:
That is correct, your Honor.
THE COURT:
With credit for time served.
MR. GUIDRY:
That is correct, Judge.
THE COURT:
Mr. Gobert, I know we’ve been over this several times, and Mr. Hart, who is a very highly competent attorney, but you’ve thought about this a lot, I’m sure. THE DEFENDANT:
Yes, sir, I have.
THE COURT:
And, you know — if I accept this and impose it, you will have — if I accept it and impose it, you will be looking at a total time of 20 years with credit for time served. And, you’re not guaranteed to be paroled after 20 years. Do you understand that?
THE DEFENDANT:
I understand that. It just means eligibility.
THE COURT:
|7But, the only thing it does mean is that under the law at that time, you would be eligible for parole after 20 years.
THE DEFENDANT:
Yes sir.

At this point, there was a discussion about the applicability of good time credit, which is not materially relevant to the subject motion. The colloquy ends as follows:

THE COURT:
Well, back to the recommendation. It’s an unusual situation. In my thinking about it, too, Mr. Gobert — of course, I’m sure you’ve thought about the fact that even with this long sentencing time, you are avoiding the possibility of a life sentence.
THE DEFENDANT:
Yes, sir.
THE COURT:
And, I suppose that even though they found errors in the trial, having been convicted by two juries, I expect you had some real concern about — that you might get convicted again and be subject to a life sentence.
THE DEFENDANT:
Definitely; yes, sir.
THE COURT:
It was mentioned to me yesterday that you were thinking about presenting something like this — and the thoughts I had about it in the meantime were that — as far as- — these are maximum sentences on both offenses, leaving aside the issue of the viability of having a conviction on these two counts out of the same transaction, which I think — I’m satisfied can be done under these circumstances as part of a plea agreement, because from — and I inject this into it, just in my thoughts are that from my general understanding and from what I’ve read through the years, in those cases where someone is fortunate enough to get a life sentence without parole, changed by the Pardon Board, the typical way that it happens is that it’s — usually the sentence is reduced to 60 years, and then let them out on parole. That’s — I know that there’s a lot of cases that get handled that way. I say a lot — through the years.
|sIn my thoughts, what the result here is that I think there is a real benefit to Mr. Gobert to resolve this in this manner, and avoid the exposure to a life sentence, because he has no assurance of the ability to get there without parole removed.
Whereas in this instance, you have a known quantity of what you can expect. I can understand the value to you, so I certainly — I will approve the — what’s been recommended, and accept the plea of guilty as tendered to these facts.

The State admits that a review of this plea colloquy clearly reveals, on its face, a violation of the Defendant’s right to be protected against double jeopardy. We agree.

Waiver

Nonetheless, the State asserts that the Defendant’s rights were not violated, given that he knowingly, voluntarily, and intelligently waived his double jeopardy claim during the plea proceedings.

Generally, a guilty plea is considered a waiver of all non-jurisdictional defects and courts usually only review them to ensure that the plea was both counseled and voluntary. An exception to this rule exists for double jeopardy violations. A plea of guilty (or plea bargain) does not preclude a double jeopardy challenge when the violation is apparent on the face of the record. However, in United States v. Broce, the United States Supreme Court noted an important qualification to this rule when it stated: ‘We do not hold that a double jeopardy claim may never be waived.”

In the instant case, it is undeniable that the Defendant and his counsel recognized the double jeopardy violation inherent in the plea agreement; nevertheless, Mr. Go-bert prudently agreed to plead guilty because it provided a substantial benefit to him — the avoidance of a mandatory sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension. It is also important to recognize |9that the likelihood that the trial court would eventually convict him of second degree murder was high, given that it had done so twice before, even though, both were subsequently reversed. Furthermore, Mr. Gobert confirmed that he considered this likelihood before he agreed to this plea bargain.

Especially noteworthy is that all the parties, including the victim’s family, negotiated for this plea agreement so they could be sure that Mr. Gobert would receive a particular sentence. In fact, his counsel, Mr. Hart, explained to the trial court that the reason for this unusual plea agreement was to ensure that Mr. Gobert would serve at least twenty years in prison.

The Broce Court held that the defendants’ guilty plea foreclosed their double jeopardy challenge when they failed to call into question the knowing, voluntary, and intelligent nature of their plea. Like Mr. Gobert, the defendants in Broce alleged that their counsel did not discuss double jeopardy issues with them before they entered their pleas, and, as a result, they had not considered the possibility of raising a double jeopardy defense before pleading. They also argued that, under the circumstances, a court could not hold that they waived their right to raise a double jeopardy defense since there was no intentional relinquishment of a known right or privilege. However, the Court responded by stating:

Our decisions have not suggested that conscious waiver is necessary with respect to each potential defense relinquished by a plea of guilty. Waiver in that sense is not required....
... Relinquishment derives not from any inquiry into a defendant’s subjective understanding of the range of potential defenses, but from the admissions necessarily made upon entry of a voluntary plea of guilty. The trial court complied with Rule 11 in ensuring that respondents were advised that, in pleading guilty, they were admitting guilt and waiving their right to a trial of any kind. A failure by counsel to provide advice may form the basis of a claim of ineffective assistance of counsel, but absent such a claim it cannot serve as the predicate for setting aside a valid plea.[]

| inSimilarly, the record before this court clearly establishes that Mr. Gobert was fully aware of the fact that these charges raised double jeopardy concerns before he entered his plea of guilty, despite the fact that the trial court never explicitly told him he was waiving his right to raise a double jeopardy defense at a later time. Furthermore, we must note that he had the opportunity to challenge the theory of the indictments, instead of pleading guilty, but when he chose not to do so, he relinquished that entitlement. Moreover, the record suggests that Mr. Hart’s sole interest was to fashion a plea bargain yielding a certain sentence that Mr. Gobert wanted, and that Mr. Hart, as well as the State, expended a great deal of effort crafting a plea to satisfy their sentencing objective, which was, ultimately, achieved.

Therefore, fundamental fairness dictates that Mr. Gobert, who knowingly and intelligently entered a plea that raised double jeopardy concerns, cannot attack the validity of that plea. Thus, we find that he waived his right to attack its validity.

CONCLUSION

The trial court correctly denied the Defendant’s application for post conviction relief.

WRIT DENIED.

      . State v. Gobert, 98-1996 (La.App. 3 Cir. 1/29/99), writ denied, 99-389 (La.6/4/99), 743 So.2d 1254.

      . State v. Gobert, 00-924 (La.App. 3 Cir. 2/28/01), 780 So.2d 616.

      . U.S. Const. amend. V; La. Const. art. I, § 15.

      . La.Code Crim.P. art. 930.2.

      . 602 So.2d 1014, 1020 (La.App. 3 Cir.1992) (citing North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); State v. Vaughn, 431 So.2d 763 (La.1983)).

        .State v. Arnold, 01-1399 (La.4/12/02), 816 So.2d 289.

      . Id.

      . Id.

      . State ex rel. Adams v. Butler, 558 So.2d 552 (La.1990).

      . 488 U.S. 563, 575, 109 S.Ct. 757, 765, 102 L.Ed.2d 927 (1989) (citing Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975)).

      . La.R.S. 14:31.

      . Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927.

        .Id.

      . Id. at 573-74, 109 S.Ct. 757.

      . See Id.


author: |,WOODARD, Judge.

text:
    Alex M. LeGROS v. GREAT AMERICAN INSURANCE COMPANY OF NEW YORK, et al.
    No. CW02-1478.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 2003.
    Writ Denied Feb. 20, 2004.

      Gregory P. Marceaux, Marceaux Law Firm, Lake Charles, LA, Billy Edward Loftin, Jr., Attorney at Law, Lake Charles, LA, for Plaintiff/Respondent: Alex LeGros.
    Randell E. Treadaway, Jessica G. Roux, Reich, Meeks & Treadaway, L.L.C., Me-tairie, LA, for Defendant/Applieant: Great American Insurance Company of New York.
    Robert Edwin Torian, LaBorde & Neuner, Lafayette, LA, for Defendant/Respondent: Crick Insurance Agency, Inc.
    Marshall M. Redmon, Virginia Y. Trai-nor, Phelps, Dunbar, L.L.P., Baton Rouge, LA, for Defendant/Respondent: U.S. Risk Brokers, Inc.
    Court composed of BILLIE COLOMBARO WOODARD, MICHAEL G. SULLIVAN, and BILLY HOWARD EZELL, Judges.
   |,WOODARD, Judge.

Great American applied to this court for a supervisory writ, alleging that it can have no liability to Mr. LeGros for damages to his fishing vessel; therefore, the trial court erred in denying its motion for summary judgment. We find no error in the trial court’s decision and deny Great American’s writ, accordingly.

^5 Sji ^ J¡<

The Plaintiff, Mr. Alex LeGros, a self-employed commercial fisherman, had just unloaded his catch at Don Bailey’s Fish House on June 5, 2001, when his vessel, MTV MISS ANGIE, caught fire. He and some of the deck and dock hands were able to extinguish the fire but not before it caused substantial damage to the vessel’s living quarters and pilothouse.

Accordingly, Mr. LeGros filed a claim with his insurance company to recover his loss. It denied recovery, both, because his policy had expired three days before the fire and because he had violated the trading warranty designation of “port risk,” which it claims voided the policy even before its expiration date. Mr. LeGros filed suit against The Crick Agency, Inc., (Crick), U.S. Risk Brokers, Inc. (U.S.Risk), and Great American Insurance Company of New York, fh/a American National Fire Insurance Company (Great American).

Great American, a foreign insurance company authorized to and doing business in Louisiana, had issued Mr. LeGros a policy of limited coverage, on the vessel, from June 2, 2000 to June 2, 2001. Crick was Mr. LeGros’ retail agent. Thus, he communicated directly with Crick to obtain the policy. Afterwards, Crick contacted U.S. Risk, one of the intermediate wholesale brokers with whom it had a contract, and informed it of Mr. LeGros’ coverage needs. In turn, U.S. Risk communicated the information it obtained from Crick to various insurance companies with whom it contracted, seeking a company that would agree to issue Mr. LeGros a policy. Great American agreed to issue the policy, which consisted of hull insurance and protection and indemnity coverage. The policy contained the following “Trading Warranty:” “PORT RISK OUT OF COMMISSION CAMERON, LA.” The policy does not define or describe the terms “trading warranty,” “port risk,” or “out of commission.”

LAt the time that Mr. LeGros sought the policy on the MTV MISS ANGIE, the vessel was in port for repairs. Furthermore, he had been keeping it in port for a period of time before this because of his divorce. He alleges that he told the Crick agent that the vessel would only be in port for a couple of weeks for repairs, after which he intended to start fishing again. The Crick agent, however, alleges that Mr. LeGros knew that he was supposed to contact her before he took the vessel out of port. She was not aware that he was using it until she tried to reach him to discuss the renewal of his policy and was informed that he was unavailable because he was out fishing.

When he returned, he completed the renewal application and gave it to Crick. Crick submitted it to U.S. Risk, indicating that the delay in getting it to U.S. Risk was because Mr. LeGros had been out fishing. Facsimile records indicate that U.S. Risk passed along this information to Great American. At that time, presuming that Mr. LeGros had been using the vessel named in the policy for his fishing voyages, it told U.S. Risk that it would not be offering a renewal to Mr. LeGros and, furthermore, there was no existing coverage because the present policy was warranted “port risk.” U.S. Risk informed Crick that Great American had declined to renew the policy and that it attempted to get a quote from other companies, but they declined to offer coverage. Whether Crick informed Mr. LeGros that his policy was not being renewed is disputed. The fire occurred on June 5, 2001, three days after the end of the policy term.

Mr. LeGros asserts that Great American and U.S. Risk had a duty to send him a notice that his policy was not going to be renewed and that they breached this duty. Great American moved for summary judgment, asserting that it did not have a duty to provide him with a notice of non-renewal and, even if it had renewed the policy, his breach of the trading warranty would have voided it. The trial court denied Great American’s motion. Great American applied for a supervisory writ to this court.

Great American contends that it can have no liability for Mr. LeGros’ loss, as a matter of law, and that the trial court should have dismissed it from the case, accordingly. Specifically, it claims: (1) that its policy is exempt from the Louisiana Insurance Code; therefore, it is relieved of providing policy holders notice of non-renewal; and (2) Mr. LeGros’ use of the vessel outside of its “port risk” designation was a material breach of his contract which voided the policy.

|a* * * * *

Duty to Notify Under Louisiana Law

Louisiana Revised Statutes 22:636.4(D), which is applicable to renewals of commercial insurance, provides, in pertinent part:

(1) An insurer may decide not to renew a policy if it delivers or mails to the first-named insured at the address shown on the policy written notice it will not renew the policy. Such notice of nonrenewal shall be mailed or delivered at least sixty days before the expiration date.... If the notice is mailed less than sixty days before expiration, coverage shall remain in effect under the same terms and conditions until sixty days after notice is mailed or delivered....
(2) Notice of nonrenewal shall not be required if the insurer or a company within the same insurance group has offered to issue a renewal policy, or where the named insured has obtained replacement coverage or has agreed in writing to obtain replacement coverage.

However, La.R.S. 22:636.4 is located in Part XIV of the Louisiana Insurance Code, which is entitled “The Insurance Contract.” The provisions under Part XIV are explicitly limited. Specifically, the Code says that “[t]he applicable provisions of this Part shall apply to insurance other than ocean marine and foreign trade insurances.” (Emphasis added.) Traditional marine insurance, such as hull insurance, is considered ocean marine insurance.

Nevertheless, the Louisiana Supreme Court, answering a certified question of law from the Fifth Circuit, concerning the ocean marine exclusion, stated:

This language seems to indicate that the legislature intended for the exclusions to apply to only some of the sections of Part XIV. Had the legislature intended for the exclusionary language of La.R.S. 22:611 to apply to all of Part XIV, it would have left out the “applicable provisions” language and simply stated, “The provisions of this Part |4shall apply to insurances other than ocean marine and foreign trade insurances.”

Afterwards, the court traced the history of the “direct action statute,” the statute at issue in that case which is also found in Part XIV, and concluded that the statute applied to ocean marine policies notwithstanding the exclusion found in La.R.S. 22:611.

Likewise, we find that the provision, requiring the insurer to send the insured a notice of non-renewal, is applicable to ocean marine insurance policies. The Louisiana insurance laws were codified in Act 195 of 1948. However, as early as 1870, the U.S. Supreme Court had endorsed the application of international uniform rules, practice, and laws, regarding contracts of marine insurance. Achieving this uniformity required the application of federal law rather than each state’s law. The Supreme Court continued its endorsement of applying federal law to marine insurance contracts until 1955. Thus, in 1948, when the Louisiana insurance laws were codified, there was no need to subject marine insurance policies to those laws which would have been displaced, anyway, by federal maritime law.

However in 1955, the U.S. Supreme Court abandoned its position that federal rules should uniformly apply in marine insurance matters. Instead, it concluded that where there is no judicially established federal admiralty rule, courts should apply state law, instead. The Fifth Circuit recently concluded that, in deciding which law should govern, even when there is a federal admiralty rule, we should consider | ¿whether it constitutes “entrenched federal precedent,” whether the state’s law is materially different, and evaluate the state’s interest in applying its law.

In the instant case, we find no federal rule which addresses the issue of an insurer’s duty, or lack of, to provide notice of non-renewal of a marine insurance policy. Thus, we conclude that La.R.S. 22:636.4 applies to marine insurance policies. Furthermore, we believe that federal law would surely dictate the same result as our state law. The federal rules governing marine insurance contracts developed from the ubenimae fidei doctrine. “The doctrine of uberrimae fidei in marine insurance law requires both the insurer and the assured to exercise ‘the highest degree of good faith’ to inform each other of every fact material to the risk to be insured.” We cannot imagine that the doctrine of uberrimae fidei would not impose the same duty on the insurer; namely, the duty to notify its insured of its choice not to renew his policy.

It is undisputed that Great American did not send a notice, directly to Mr. LeGros, that it was not renewing his policy. Thus, whether it fulfilled its duty by disseminating the information to another party requires a determination of the agent/principal relationships, if any, among all four parties. Whether an agency relationship exists between parties is a question of fact and must be determined on the particular circumstances in each case. Accordingly, this issue cannot be disposed of on summary judgment.

Nonetheless, according to La.R.S. 22:636.4, failure to provide such notice re-suits in continued coverage “under the same terms and conditions” as the previous policy. Accordingly, Great American asserts that there is no coverage under its policy because Mr. LeGros breached the “port risk” trading warranty, which voided the policy.

| ^Breach of Trading Warranty

Great American alleges that Mr. LeGros’ violation of the “port risk” designation automatically voided the policy. Relying on Forrester v. Arco Oil & Gas Co., Great American asserts that the policy was void from the moment the vessel left port. We cannot agree. Forrester is not instructive in the instant case. In that case, the endorsement, itself, “provided that the vessel was covered only when it remained in port; once the vessel commenced voyage, the coverage would terminated [sic].” The Forrester court continued, “Indisputably, the accident occurred after the vessel had left port and commenced a voyage.”

Thus, there are two important distinctions which render Forrester inapplicable to the instant situation. First, the policy in Forrester defined the port risk designation and, also, included the penalty for violating it. Thus, the court was construing language within the policy. In the instant case, we must determine what the law provides when the policy is silent. Secondly, the vessel in Forrester was in violation of the policy provisions at the time of the accident. Therefore, the court was not required to determine coverage in a situation where the vessel had committed a violation of the policy before the accident but was no longer in violation at the time of the accident. And, most significantly, the parties conceded that there was no coverage under the policy; thus the For-rester court did not, specifically, address the issue.

Like Forrester, the other cases that the parties cite involve an accident that happened while the vessel was in violation; thus, it was unnecessary in those cases for the courts to determine the precise effect, per se, of the respective violations.

Therefore, the facts in the instant case present a res nova issue. Although we find no cases that squarely address the effects of a previous violation of a port risk designation, when the vessel is no longer in violation at the time of the accident, the Fifth Circuit has stated, “[a] warranty as to the place where the policy stipulates the |7insured vessel is to be located during the period covered by the policy makes the right of the insured to recover for damages or loss dependent upon the vessel being at the stated place when the damage or loss occurred.” As Mr. LeGros points out, the vessel was in port at the time of the fire. Therefore, we do not find that his previous violation automatically voided his policy. ■

An “insurer is required to clearly express exclusions to its insuring obligations and ... any doubt or ambiguity is to be resolved against the insurer ... and in favor of what reason and probability dictate was intended by the parties with respect to coverage.” We find that the “port risk” designation is ambiguous when read in conjunction with the “HELD COVERED CLAUSE” which states:

PROVIDED, HOWEVER, SHOULD THE VESSEL AT THE EXPIRATION OF THIS POLICY BE AT SEA, OR IN DISTRESS, OR AT A PORT OF REFUGE OR CALL, SHE SHALL, PROVIDED PREVIOUS NOTICE BE GIVEN TO THE UNDERWRITERS, BE HELD COVERED AT A PRO RATA DAILY PREMIUM TO HER NEXT RETURN TO FIRST PORT IN THE UNITED STATES.

Additionally, while Mr. LeGros’ testimony was unclear regarding whether he understood what the “port risk” designation meant, he alleges that, when he applied for the policy, he informed Crick that he would be putting the vessel back in navigation in the next couple of weeks after he had completed the repairs. Whether Crick told him that he needed to notify them when the repairs were finished and before he took it on a voyage is disputed. The determination of this factual dispute bears on what the parties reasonably intended concerning coverage. In fact, ascertaining what the parties reasonably intended regarding coverage, in the instant case, will require a survey of all of the facts. Therefore, we agree with the trial court that summary judgment in Great American’s favor is inappropriate.

Furthermore, even if it is ultimately determined that there is no coverage under the policy between Great American and Mr. LeGros, nevertheless, he should have the opportunity to demonstrate whether Great American’s breach of its duty not to send notice of its non-renewal was a cause of his failure to obtain insurance covering the ^vessel at the time of the loss, therefore, contributing to damages his lack of coverage caused.

While we express no opinion on these issues, we agree with the trial court that there are mixed questions of law and fact, in dispute, in this case, making it inappropriate for a decision on summary judgment. Thus, we deny Great American’s writ, finding that the trial court was correct in denying summary judgment in its favor.

CONCLUSION

We agree with the trial court that disputed issues of material fact preclude Great American’s dismissal on summary judgment. Therefore, we deny Great American’s writ. We tax costs associated with this writ to Applicant/Great American.

WRIT DENIED.

      . La.R.S. 22:611(A).

      . See La.R.S. 22:1379(9). See also Grubbs v. Gulf Int’l Marine, Inc., 625 So.2d 495 (La.1993).

      . Grubbs, 625 So.2d at 503 (quoting Giannouleas v. Phoenix Mar. Agencies, Inc., 621 So.2d 1131, 1135 (La.App. 1 Cir.1993)).

      . Grubbs, 625 So.2d 495.

      . 1948 La. Acts No. 195. See also Grubbs, 625 So.2d 495.

      . See, e.g., New England Mut. Marine Ins. Co. v. Dunham, 11 Wall. 1, 78 U.S. 1, 20 L.Ed. 90(1870).

      . Dunham, 11 Wall. 1, 78 U.S. 1, 20 L.Ed. 90 (1870). See also Paula Hamilton Lee, Untying the Gordian Knot and Opening Pandora’s Box: The Need for a Unifonn Federal Maritime Rule of Uberrimae Fidei with Respect to Marine Insurance, 19 Tul.Mar.L.J. 411 (1995).

      . See Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 310, 75 S.Ct. 368, 99 L.Ed. 337 (1955). See also Lee, supra note 7.

      . See Wilburn, 348 U.S. 310, 75 S.Ct. 368.

      . Id.

      . Albany Ins. Co. v. Anh Thi Kieu, 927 F.2d 882 (5th Cir.), cert. denied, 502 U.S. 901, 112 S.Ct. 279, 116 L.Ed.2d 230 (1991).

      . See Lee, supra note 7.

      . David B. Sharpe, James E. Mercante, Diane M. Butler & Todd A. Zilbert, Recent Developments in Maritime Law, 19 Tul.Mar L.J. 301, 343 (1995) (citing Albany Ins. Co. v. Horak, 1994 AMC 273 (E.D.N.Y.1993)).

      . Venable v. U.S. Fire Ins. Co., 02-505 (La.App. 3 Cir. 10/30/02), 829 So.2d 1179.

      . No.CIV.A.88-777, 1989 WL 114006 (E.D.La. Sept.25, 1989). See also Forrester v. Arco Oil & Gas Co., No. CIV.A.88-777, 1991 WL 110389 (E.D.La. June 13, 1991).

      . Forrester, 1991 WL 110389 at *1.

      . Id. at *1.

      . Forrester, 1989 WL 114006.

      . Graham v. Milky Way Barge, Inc., 824 F.2d 376, 383 (5th Cir.1987) (quoting Robinson v. Home Ins. Co., 73 F.2d 3, 4 (5th Cir.1934)).

      . Graham, 824 F.2d at 383 (quoting Benton Casing Serv., Inc. v. Avemco Ins. Co., 379 So.2d 225, 232 (La.1979)).