text:
    STATE ex rel. Floyd TYLER and Ronald Braud v. STATE of Louisiana.
    No. 99-KH-2098.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Taylor, Floyd; Braud, Ronald;— Plaintiff(s); Applying for Motion to Enforce this Court’s Order dated October 1, 1999; Parish of Orleans Criminal District Court Div. “C” Nos. 268-294, 268-298.

Motion to enforce granted. The district court is ordered to comply with this Court’s earlier order, see State ex rel. Tyler v. State, 99-2098 (La.10/1/99), 747 So.2d 1133, within thirty days. The district court is further ordered to provide this Court with proof of compliance.


source: Caselaw Access Project

license: Public Domain

text:
    STATE ex rel. Lester ALLEN v. STATE of Louisiana.
    No. 1999-KH-2106.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Lester Allen applying for Motion to Enforce this Court’s Order dated October 8, 1999; Parish of Orleans, Criminal District Court, Division D, No. 264-794.

Motion to Enforce granted. The district court is ordered to comply with this Court’s earlier order, see, State ex rel. Lester Allen v. State, 99-2106 (La.10/8/99), 750 So.2d 173, within thirty days, if it has not done so already. The district court is further ordered to provide this Court with proof of compliance.


text:
    STATE ex rel. George BATISTE v. STATE of Louisiana.
    No. 2000-KH-0398.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re George Batiste, applying for Motion to Enforce this Court’s Order dated September 22, 2000; Parish of St. James, 23rd Judicial District Court, Division D, No. 2601; to the Court of Appeal Fifth Circuit, No. 99-KH-1336.

Motion to Enforce granted. The district court is ordered to comply with this Court’s earlier order, see State ex rel. George Batiste v. State, 00-0398 (La.9/22/00), 768 So.2d 30, within thirty days, if it has not done so already. The district court is further ordered to provide this Court with proof of compliance.


text:
    STATE ex rel. David LAPELL v. STATE of Louisiana.
    No. 99-KH-0112.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Lapell, David; — Plaintiffs); Applying for Motion to Enforce this Court’s Order dated June 18, 1999; Parish of Jefferson 24th Judicial District Court Div. “B” Number 95-4250; 24th Judicial District Court Div. “C” Number 95-1258; to the Court of Appeal, Fifth Circuit, Number 98-KH-1091.

Denied. Moot. The district court has acted.


text:
    STATE ex rel. Rogers JOHNSON v. STATE of Louisiana.
    No. 2001-KH-3212.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Johnson, Rogers; Applying for Reconsideration of this Court’s action dated January 24, 2003; Parish of Iberia; 16th Judicial District Court, Div. B, No. 95-870; to the Court of Appeal, Third Circuit No. KH 01-00776.

Reconsideration denied.

KNOLL, J., recused.


text:
    STATE ex rel. Chanda DESILVA v. STATE of Louisiana.
    No. 2002-KH-0519.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Desilva, Chanda; — Plaintiff; Applying for Reconsideration of this Court’s action dated January 24, 2003, Criminal District Court, Parish of Orleans, Div. E, Number 370-485; to the Court of Appeal, Fourth Circuit Number 97-KA-0462.

Reconsideration denied.


text:
    STATE ex rel. Theresa Marie RAINEY v. STATE of Louisiana.
    No. 2002-KH-0535.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Theresa Marie Rainey; — Plaintiff; Applying for Reconsideration of this Court’s order dated January 31, 2003, Parish of St. Tammany, 22nd Judicial District Court Div. B, No. 296522; to the Court of Appeal, First Circuit, No. 2001-KA-0459.

Reconsideration denied.


text:
    Clem MITCHELL v. MUNICIPAL FIRE & POLICE CIVIL SERVICE BOARD OF The CITY OF BATON ROUGE.
    No. 2002-C-3022.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Mitchell, Clem; — Plaintiff; Applying for Reconsideration of this Court’s action dated February 14, 2003, Parish of E. Baton Rouge, 19th Judicial District Court Div. N, No. 473,703; to the Court of Appeal, First Circuit, No. 2001 CA 1543.

Reconsideration denied. The application was untimely.


text:
    Dawn Hutchinson LITTLETON, et al. v. Timothy J. MCNABB, et al.
    No. 2003-CC-0043.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Timothy J. McNabb & Pinnacle Computer Services, Inc.; — Applying for Reconsideration of an Order of this Court dated January 24, 2003; Parish of Terrebonne, 32nd JDC Div. “A” No. 132,861-A; Court of Appeal, First Circuit No. 2002 CW 1076.

Reconsideration denied.


text:
    STATE ex rel. Daniel SWANN v. STATE of Louisiana.
    No. 2002-KH-0679.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Swann, Daniel; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 94-2590; to the Court of Appeal, Fifth Circuit, No. 02-KH-52.

Denied.


text:
    STATE ex rel. Shawn SEGURA v. STATE of Louisiana.
    No. 2002-KH-0878.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Segura, Shawn; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. A, No. 78,420; to the Court of Appeal, Third Circuit, No. 01-508.

Denied.


text:
    STATE ex rel. Kevin LEDET v. STATE of Louisiana.
    No. 2002-KH-1087.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Ledet, Kevin; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. B, No. 254,190; to the Court of Appeal, First Circuit, No. 2000 KW 2717.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; State v. Tran, 00-2471 (La.6/1/01), 793 So.2d 172.


text:
    STATE ex rel. Wesley R. BROADEN v. STATE of Louisiana.
    No. 2002-KH-1093.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Broaden, Wesley, R.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 408-059; to the Court of Appeal, Fourth Circuit, No. 2002-K-83.

Denied.


text:
    STATE ex rel. Henry ISSACS v. STATE of Louisiana.
    No. 2002-KH-1094.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Issacs, Henry; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, No. 85-1027; to the Court of Appeal, Fifth Circuit, No. 00-KH-1439.

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


text:
    STATE ex rel. Christopher WILLIAMS v. STATE of Louisiana.
    No. 2002-KH-1097.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Williams, Christopher; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 408-127; to the Court of Appeal, Fourth Circuit, No. 2002-K-224.

Denied.


text:
    STATE ex rel. Mac MINNIFIELD v. STATE of Louisiana.
    No. 2002-KH-1103.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Mixinifíeld, Mac; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Lincoln, 3rd Judicial District Court Div. B, No. 41,718; to the Court of Appeal, Second Circuit, No. KH-02-36075.

Denied. Repetitive. Cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. John HILLIARD v. STATE of Louisiana.
    No. 2002-KH-1106.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Hilliard, John; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 8-01-518; to the Court of Appeal, First Circuit, No. 2001 KW 2999.

Denied.


text:
    STATE ex rel. Marion THOMPSON v. STATE of Louisiana.
    No. 2002-KH-1113.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Thompson, Marion; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. L, No. 09-98-402; to the Court of Appeal, First Circuit, No. 2001 KA 1111.

Denied.


text:
    STATE ex rel. John Wayne NORRIS v. STATE of Louisiana.
    No. 2002-KH-1129.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Norris, John Wayne; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. H, No. 193,085; to the Court of Appeal, Second Circuit, No. 36083-KH.

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


text:
    STATE ex rel. Jonathan CARRIER v. STATE of Louisiana.
    No. 2002-KH-1133.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Carrier, Jonathan; — Plaintiff; Applying for Supervisory and/pr Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. G, No. 14979-94; to the Court of Appeal, Third Circuit, No. KH 01-01374.

Denied.


text:
    STATE ex rel. Keith HUDSON v. STATE of Louisiana.
    No. 2002-KH-1134.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Hudson, Keith; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 368-745; to the Court of Appeal, Fourth Circuit, No. 2002-K-0343.

Denied.


text:
    STATE ex rel. James WILLIAMS v. STATE of Louisiana.
    No. 2002-KH-1135.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Williams, James; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 403-818; to the Court of Appeal, Fourth Circuit, No. 2002-K-0401.

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


text:
    STATE ex rel. Bruce COWART v. STATE of Louisiana.
    No. 2002-KH-1137.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Cowart, Bruce; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 293-988; to the Court of Appeal, Fourth Circuit, No. 2002-K-0206.

Denied.


text:
    STATE ex rel. Ira Lee MARSHALL v. STATE of Louisiana.
    No. 2002-KH-1140.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Marshall, Ira, Lee; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. G, No. 191,906; to the Court of Appeal, Second Circuit, No. 36078 KH.

Denied.


text:
    STATE ex rel. Grady BREWER v. STATE of Louisiana.
    No. 2002-KH-1144.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Brewer, Grady; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of West Feliciana, 20th Judicial District Court Div. A, No. W 73 9 443; to the Court of Appeal, First Circuit, No. 2001-KW 2434.

Denied.


text:
    STATE ex rel. David LEWIS v. STATE of Louisiana.
    No. 2002-KH-1155.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Lewis, David; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. C, No. 51,019.

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


text:
    STATE of Louisiana v. Elizabeth A. BLAKE.
    No. 2002-K-2507.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re State of Louisiana; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. 7, No. 11-00-165; to the Court of Appeal, First Circuit, No. 2002 KW 1228.

Denied.

TRAYLOR, J., would grant the writ.

WEIMER, J., would grant the writ.


text:
    Lachelle Gerald WOOD v. William Gerald WOOD.
    No. 2002-C-2514.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Wood, Gerald; Wood, Rita;- — -Third Party(s); Applying for Writ of Certiorari and/or Review, Parish of Washington, 22nd Judicial District Court Div. A, No. 72,441; to the Court of Appeal, First Circuit, No. 2002 CU 0860.

Denied.

CALOGERO, C.J., would grant the writ.

KIMBALL, J., would grant the writ.


text:
    STATE of Louisiana v. Patrina BROWN.
    No. 2002-K-2523.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re State of Louisiana; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. J, No. 422-863; to the Court of Appeal, Fourth Circuit, No. 2002-K-1622.

Denied.

VICTORY, J., would grant the writ.

TRAYLOR, J., would grant the writ.

WEIMER, J., would grant the writ.


text:
    STATE of Louisiana v. Warren WHITE.
    No. 2002-K-2574.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re White, Warren; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. G, No. 337186; to the Court of Appeal, First Circuit, No. 2002 KW 1588.

Denied.


text:
    STATE of Louisiana v. John Dale ALLEN.
    No. 2002-K-2595.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Allen, John Dale; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Red River, 39th Judicial District Court Div. 0, No. 87,011; to the Court of Appeal, Second Circuit, No. 36,-180-KA.

Denied.


text:
    STATE of Louisiana v. Steve DRANE and Terri Haralson.
    No. 2002-K-2619.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Drane, Steve; Haralson, Terri;— Defendant(s); Applying for Writ of Certio-rari and/or Review, Parish of Franklin, 5th Judicial District Court Div. F, No. 1999-519; to the Court of Appeal, Second Circuit, No. 36,230-KA.

Denied.


text:
    STATE of Louisiana v. Clarence J. SALOOM.
    No. 2002-OK-2631.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re State of Louisiana; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. A, No. 65271; to the Court of Appeal, Third Circuit, No. KW 02-01004.

Denied.

TRAYLOR, J., would grant the writ.


text:
    STATE of Louisiana v. Lawrence CLARK.
    No. 2002-K-2642.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Clark, Lawrence; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. L, No. 408-469; to the Court of Appeal, Fourth Circuit, No. 2001-KA-2087.

Denied.


text:
    STATE of Louisiana v. Calvin COLEMAN.
    No. 2002-K-2649.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Coleman, Calvin; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. J, No. 416-083; to the Court of Appeal, Fourth Circuit, No. 2002-KA-0131.

Denied.


text:
    STATE of Louisiana v. Christopher MCDUFFIE.
    No. 2002-K-2654.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re McDuffie, Christopher; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. VI, No. 01-98-642; to the Court of Appeal, First Circuit, No. 2002 KA 0530.

Denied.


text:
    STATE of Louisiana v. Herman J. MILLS.
    No. 2002-K-2672.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Mills, Herman J.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Assumption, 23rd Judicial District Court Div. C, No. 97-30; to the Court of Appeal, First Circuit, No. 2002 KA 0433.

Denied.


text:
    STATE of Louisiana v. George TOBIAS.
    No. 2002-K-2673.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Tobias, George; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. K, No. 416-860; to the Court of Appeal, Fourth Circuit, No. 2002-KA-0202.

Denied.


text:
    STATE of Louisiana v. Winston J. CRADDOCK.
    No. 2002-K-2679.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Craddock, Winston J. Ill; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. F, No. 326256; to the Court of Appeal, First Circuit, No. 2001 KA 3015.

Denied.


text:
    STATE of Louisiana v. Shandella ABLES.
    No. 2002-K-2684.
    Supreme Court of Louisiana.
    March 28, 2003.
   IN RE: Abies, Shandella; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. I, No. 98-6122; to the Court of Appeal, Fifth, Circuit, No. 02-KA-386.

Denied.


text:
    STATE of Louisiana v. Jimmy SEGURA.
    No. 2002-K-2696.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Segura, Jimmy; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. A, No. 00-2263; to the Court of Appeal, Fifth Circuit, No. 02-KA-280.

Denied.


text:
    STATE of Louisiana v. Herbert CHARLES, Jr.
    No. 2002-K-2707.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Charles, Herbert Jr.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Iberia, 16th Judicial District Court Div. G, Nos. 94-150192, 00-094667; to the Court of Appeal, Third Circuit, No(s). 02-0443, 02-0444.

Denied.


text:
    Warren W. HOAG, Jr., et als. v. STATE of Louisiana, Through Its Treasurer, John Neely KENNEDY.
    No. 2002-C-3199.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Louisiana, State of Through its Treasurer; Kennedy, John Neely; — Defendants); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. N, No. 471,708; to the Court of Appeal, First Circuit, No. 2001 CA 1076.

Denied.

CALOGERO, C.J., would grant the writ.

KIMBALL, J., would grant the writ.

VICTORY, J., would grant the writ.


text:
    LOUISIANA STATE CORONER’S ASSOCIATION v. STATE of Louisiana.
    No. 2002-C-3201.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re State of Louisiana; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 476,352; to the Court of Appeal, First Circuit, No. 2002-CA-0392.

Denied.

CALOGERO, C.J., would grant the writ.

KIMBALL, J., would grant the writ.

VICTORY, J., would grant the writ.


text:
    Dr. L.E. STRINGER v. The STATE of Louisiana, Through the DEPARTMENT OF THE TREASURY.
    No. 2002-C-3203.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Louisiana State of Department of Treasury; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 479,281; to the Court of Appeal, First Circuit, No. 2001 CA 1791.

Denied.

CALOGERO, C.J., would grant the writ.

KIMBALL, J., would grant the writ.

VICTORY, J., would grant the writ.


text:
    Donnie HOLLOWAY and Nancy Holloway v. MIDLAND RISK INSURANCE COMPANY, et al. Ouachita Parish Police Jury
    No. 2002-C-3247.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Holmatro, Inc.; Vanguard Insurance Company; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. A, No. 98-3843; to the Court of Appeal, Second Circuit, No. 36262-CA.

Denied.

VICTORY, J., would grant the writ.


text:
    Charles Ray TAYLOR, Jr. et ux. v. Dr. Richard J. CLEMENT and the Louisiana Patient’s Compensation Fund.
    No. 2003-C-0038.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Louisiana Patient’s Compensation Fund; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Calca-sieu, 14th Judicial District Court Div. B, No. 99-191; to the Court of Appeal, Third Circuit, No. 02-561.

Denied.

VICTORY, J., would grant the writ.


text:
    MORRIS AND DICKSON COMPANY LIMITED v. Deborah KILLINGWORTH.
    No. 2003-CC-0071.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Morris and Dickson Company Limited; Louisiana Retailers Mutual Insurance Company; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs Office of Workers’ Compensation, District 1 W, No. 00-09182; to the Court of Appeal, Second Circuit, No. 36117-WCW.

Denied.


text:
    Denise LEWIS, Individually and on Behalf of Her Minor Child, Bryan Joseph Lewis; Joanna Jones, Individually and on Behalf of Her Minor Children, Brinton Jones, and Britney Jones; Avona Dorsey, Individually and on Behalf of Her Minor Children, et al. v. TRANSOCEAN TERMINAL OPERATORS, INC.
    No. 2003-C-0080.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Channel Shipyard of New Orleans Inc.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. J, No. 00-1025; to the Court of Appeal, Fourth Circuit, No. 2002-CA-0152.

Denied.

CALOGERO, C.J., would grant the writ.

VICTORY, J., would grant the writ.

KNOLL, J., would grant the writ.


text:
    In re SUCCESSION OF Brian WALKER.
    No. 2003-OC-0110.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Memco Barge Line, Inc. et al.; Memco Barge Line 1998 Trust; Continental Insurance Company;' — Other(s); Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. O, No. 552-042; to the Court of Appeal, Fifth Circuit, No. 02-CA-625.

Denied.

CALOGERO, C.J., would grant the writ.

VICTORY, J., would grant the writ.

KNOLL, J., would grant the writ.


text:
    Denise LEWIS, Individually and on Behalf of Her Minor Child, Bryan Joseph Lewis; Joanna Jones, Individually and on Behalf of Her Minor Children Briton Jones, and Britney Jones; Avona Dorsey, Individually and on Behalf of Her Minor Children, Brindell Dorsey, Brandon Dorsey and Brandeshia Dorsey; Angela Smith, Individually and on Behalf of Her Minor Child, Keywanda Smith and the Estate of Bryan Walker v. TRANSOCEAN TERMINAL OPERATORS, INC.
    No. 2003-C-0111.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re MEMCO Barge Line Inc.; MEMCO Barge Line Inc. 1998 Trust; Continental Insurance Company;- — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. J, No. 2000-1025; to the Court of Appeal, Fourth Circuit, No. 2002-CA-0152.

Denied.

CALOGERO, C.J., would grant the writ.

VICTORY, J., would grant the writ.

KNOLL, J., would grant the writ.


text:
    Kedrick ANDERSON v. CLARENDON NATIONAL INSURANCE COMPANY, et al.
    No. 2003-C-0135.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Clarendon National Insurance Company, et al.; Allstate Insurance Company; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Avo-yelles, 12th Judicial District Court Div. B, No. 2000-0956; to the Court of Appeal, Third Circuit, No. 02-764.

Denied.

KNOLL, J., recused.

VICTORY, J., would grant the writ.

TRAYLOR, J., would grant the writ.


text:
    Roberto MOLINA, Sr. and Vicki Lynn Zulli, Individually and in Her Capacity as the Natural Tutrix of the Minor Children, Robert Molina, III and Alli Molina v. CITY OF NEW ORLEANS. Karen Grace Mann, et al. v. City of New Orleans.
    No. 2003-C-0156.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re New Orleans City of; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. G, Nos. 98-19760, 98-20772, 98-20869; to the Court of Appeal, Fourth Circuit, No(s). 2001-CA-1411, 2001-CA-1412.

Denied.

VICTORY, J., would grant the writ.

WEIMER, J., would grant the writ.


text:
    Willard A. EASTIN, Jr., et al. v. ENTERGY CORPORATION, et al.
    No. 2003-CC-0158.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Entergy Corporation et al.; En-tergy Services Inc.; Entergy La. Inc.; Entergy New Orleans Inc.; Lupberger, Edwin A.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, No. 456,981; to the Court of Appeal, Fifth Circuit, No. 02-C-1056.

Denied.


text:
    Joseph C. CANIZARO v. VINTAGE CONTRACTING, LLC and Maryland Casualty Company.
    No. 2003-CC-0169.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Maryland Casualty Company; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, No. 582-069; to the Court of Appeal, Fifth Circuit, No. 02-C-1132.

Denied.


text:
    ELIGIBILITY SERVICES, INC. v. STATE of Louisiana, DEPARTMENT OF HEALTH AND HOSPITALS and the Louisiana Health Care Authority.
    No. 2003-C-0186.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Eligibility Services Inc.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. H, No. 426,882; to the Court of Appeal, First Circuit, No. 2001 CA 2319.

Denied.


text:
    Larry D. WILLIAMS v. CITY OF HAMMOND.
    No. 2003-C-0188.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Williams, Larry D.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. F, No. 97-03092-F; to the Court of Appeal, First Circuit, No. 2001 CA 0874.

Denied.


text:
    Joseph C. CANIZARO v. VINTAGE CONTRACTING, LLC and Maryland Casualty Company.
    No. 2003-CC-0198.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Vintage Contracting, LLC; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, No. 582-069; to the Court of Appeal, Fifth Circuit, No. 02-C-1133.

Denied.


text:
    Kathleen DREISEL v. METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY.
    No. 2003-C-0199.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Dreisel, Kathleen; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. I, No. 2001-11569; to the Court of Appeal, First Circuit, No(s). 2001-CA-2705, 2001-CW-2347.

Denied.


text:
    Shirley Autin EUSEA v. Roger J. BLANCHARD, Jr., M.D., et al.
    No. 2003-C-0210.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Broadlawns Medical Center;' — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Lafourche, 17th Judicial District Court Div. C, No. 83883; to the Court of Appeal, First Circuit, No. 2001 CA 2229.

Denied.


text:
    STATE of Louisiana v. Whitney SPENCER.
    No. 2003-KK-0213.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Spencer, Whitney; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, No. 00-2084; to the Court of Appeal, Fifth Circuit, No. 02-K-1140.

Denied.


text:
    Jonathan DUNNING v. DAPCO VENTURES, L.L.C.
    No. 2003-C-0215.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Dapco Ventures L.L.C.; — Defendant; Applying for Writ of Certiorari and/or Review Office of Workers’ Comp. Dist. 6-S, No. 00-07605; to the Court of Appeal, First Circuit, No. 2001 CA 2366.

Denied.


text:
    Donald DULIN v. LEVIS MITSUBISHI, INC.
    No. 2003-C-0218.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Dulin, Donald; — Plaintiff; Applying for Writ of Certiorari and/or Review Office of Workers’ Comp. Dist. 5, No. 99-01081; to the Court of Appeal, First Circuit, No. 2001 CA 2457.

Denied.


text:
    Larry ROGERS v. DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT OFFICE OF ENGINEERING & OPERATIONS.
    No. 2003-C-0219.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Rogers, Larry; — Plaintiff; Applying for Writ of Certiorari and/or Review State Civil Service Commission, No. 14464; to the Court of Appeal, First Circuit, No. 2002 CA 0069.

Denied.


text:
    ST. MARY ANESTHESIA ASSOCIATES, INC. v. HOSPITAL SERVICES DISTRICT NO. 2 OF the PARISH OF ST. MARY, State of Louisiana d/b/a Lakewood Medical Center.
    No. 2003-C-0220.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re St. Mary Anesthesia Associates Inc.; — Plaintiff; Applying for Writ of Cer-tiorari and/or Review, Parish of St. Mary, 16th Judicial District Court Div. D, No. 107,891; to the Court of Appeal, First Circuit, No. 2001 CA 2852.

Denied.


text:
    SUCCESSION OF Carl MARSALISE.
    No. 2003-C-0222.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Marsalise, Lee J.; — Other; Applying for Writ of Certiorari and/or Review, Parish of Beauregard, 36th Judicial District Court Div. A, No. 98-177; to the Court of Appeal, Third Circuit, No. 02-757.

Denied.


text:
    Wilda RITZHEIMER v. Sean SMALL, et al.
    No. 2003-CC-0223.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Brookshire Grocery Company; Sealy Uptown L.L.C.; Wackenhut Corporation; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. C, No. 457,079; to the Court of Appeal, Second Circuit, No. 37108-CW.

Denied.


text:
    IMPERIAL TRADING CO., INC. v. Michael J. UTER, Jack G. Menzie, et al.
    No. 2003-C-0224.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Menzie, Jack G.; Menzie, Connie; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 412,341; to the Court of Appeal, First Circuit, No. 2001 CA 0506.

Denied.


text:
    AMERICAN MARINE HOLDING COMPANY, et al. v. MILLING, BENSON, WOODWARD, HILLYER, PIERSON & MILLER, et al.
    No. 2003-CC-0225.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Milling, Benson, Woodward, Hil-lyer, Pierson & Miller et al.; Hobson, Neal D.; Hobson, Neal D. P.C.; Neal D. Hob-son P.C.; Bercaw, James D.; Attorney’s Liability Assurance Society Inc.; — Defendants); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. M, No. 94-830; to the Court of Appeal, Fourth Circuit, No. 2002-C-1818.

Denied.


text:
    Gladys CUNNINGHAM, Eldridge Cunningham, Jr., Michael Cunningham, Linda C. Greene, Anna C. Simmons, Maxine C. Jefferson, Kenneth W. Cunningham and Cynthia C. Sylvester v. Dr. Glen SCHWARTZBERG and Our Lady of the Lake Hospital, ABC Insurance Company and XYZ Insurance Company.
    No. 2003-C-0227.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Our Lady of The Lake Hospital;— Defendant; Applying for Writ of Certiora-ri and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 471,743; to the Court of Appeal, First Circuit, No. 2001 CA 1914.

Denied.

VICTORY, J., would grant the writ.


text:
    Hugh A. RICKS and Janice Schmit Ricks, Individually and on Behalf of Their Minor Son, Benjamin Ricks v. JEFFERSON PARISH HOSPITAL SERVICE DISTRICT # 2 d/b/a East Jefferson General Hospital and Ruary O’Connell, M.D.
    No. 2003-C-0235.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Ricks, Hugh A. Individ. & on behalf Benjamin Ricks et al.; Ricks, Janice Schmit individ. & on behalf Benjamin Ricks; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. L, No. 470-376; to the Court of Appeal, Fifth Circuit, No. 02-CA-720.

Denied.


text:
    Freddie GUY and Dorothy Guy v. ENSCO MARINE COMPANY and A & B Insurance Company.
    No. 2003-C-0236.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Ensco Marine Company; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Mary, 16th Judicial District Court Div. G, No. 100477-G; to the Court of Appeal, First Circuit, No. 2001 CA 2488.

Denied.

VICTORY, J., would grant the writ.


text:
    Lisa FRIEDLEY v. ALEXANDER ELECTRICAL, INC. and CNA Insurance Companies.
    No. 2003-C-0237.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re' Alexander Electrical Inc. et al.; CNA Insurance Companies; — Defendants); Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation District 05, No. 01-01302; to the Court of Appeal, First Circuit, No. 2002-CA-0292.

Denied.


text:
    COLE, EVANS & PETERSON v. T.F. MANAGEMENT, INC., et al.
    No. 2003-CC-0252.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re T.F. Management Inc. et al.; Calhoun, Maurice Riemer Jr.; Calhoun Partners LLC; Howell, James C. Jr. Inc.; James C. Howell Jr. Inc.; B.L. of Louisiana Inc.; Mansfield Elderly Housing Association; Calhoun Builders Inc.; — Defendants); Applying for Supervisory and/or Remedial Writs, Parish of Desoto, 11th Judicial District Court Div. B, Nos. 61493, 61494, 61495, 69416, 61497, 61498, 61499; to the Court of Appeal, Second Circuit, Nos. 37014-CW THRU 37020-CW.

Denied.


text:
    Cindy LAYFIELD, Individually and as Natural Tutrix of Edward Layfield v. GREEN MEADOW HAVEN NURSING HOME et al.
    No. 2003-CC-0254.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re CLD, Inc., d/b/a; Green Meadow Haven Nursing Home; — Defendants); Applying for Supervisory and/or Remedial Writs, Parish of Red River, 39th Judicial District Court Div. 0, No. 32,766; to the Court of Appeal, Second Circuit, No. 37142-CW.

Denied.


text:
    Paula Maggiore HOERNER v. The BRAT PACK, Elks Krewe of Jeffersonians, Ann Kimball, Louis Frost and New Orleans Lodge No. 30, Benevolent and Protective Order of Elks of the United States of America.
    No. 2003-CC-0554.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Brat Pack et al.; Elks Krewe of Jeffersonians; Kimball, Ann; Frost, Louis; New Orleans Lodge No. 30; Benevolent and Protective Order of Elks of the United States of America; — Defendants); Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. K, No. 564-074; to the Court of Appeal, Fifth Circuit, No. 02-C-1233.

Denied.


text:
    STATE of Louisiana v. Donnell ROBINSON.
    No. 2003-KK-0647.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Robinson, Donnell; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. H, Nos. 02-2603, 02-2604; to the Court of Appeal, Fifth Circuit, No. 03-K-64.

Denied.


text:
    STATE of Louisiana v. Derek LANDRY.
    No. 2003-KH-0736.
    Supreme Court of Louisiana.
    March 28, 2003.
   In re Landry, Derek; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 373-137; to the Court of Appeal, Fourth Circuit, No. 2003-K-133.

Denied.


author: JOAN BERNARD ARMSTRONG, Judge. b MeKAY, J.,

text:
    Ginger BAILEY, et al. v. Dr. Gregory KHOURY, et al. Ginger Bailey, et al. v. Dr. Gregory Khoury, et al.
    Nos. 2002-C-0049, 2002-C-0236.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 28, 2002.

      Martin L. Broussard, Jr., Kevin K. Gip-son, Broussard and Associates, New Orleans, LA, for Plaintiffs.
    Deborah I. Schroeder, Mang, Batiza, Gaudin, Godofsky & Penzato, Metairie, LA, for Dr. Robert Ancira.
    Edward J. Rice, Jr., Arthur F. Hickham, Jr., Adams and Reese L.L.P., New Orleans, LA, for Dr. Gregory Khoury.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge JOAN BERNARD ARMSTRONG and Judge JAMES F. McKAY, III).
   JOAN BERNARD ARMSTRONG, Judge.

These consolidated writ applications are granted.

Ginger Bailey was prescribed medication and, while taking that medication, she became pregnant. As a result of her taking the medication while pregnant, her child was born with birth defects. Ms. Bailey sued defendants, Dr. Ancira and Dr. Khoury, on her own behalf and on behalf of the child, and alleges that the defendants failed to warn her of the risks of becoming pregnant while taking the prescribed medication. The defendants deny that, however, the issue before us is not the merits, but prescription.

The child was born on March 20, 1998. Ms Bailey’s action was begun March 16, 1999. Thus, the action was begun within one year of the birth. However, it is uncontested that, no later than October 28, 1997, Ms. Bailey was told by a doctor that her unborn child had birth defects and that the birth defects were due to her taking the prescribed medication while pregnant.

Prescription on a medical malpractice action begins to run when the plaintiff has “sufficient information to excite [her] attention and prompt further inquiry into a possible medical malpractice action”. In re Medical Review Panel For the Claim of Derek Dede, 98-2248 (La.App. 4 Cir. 12/02/98), 729 So.2d 603, 608, writ denied, 99-0531 (La.4/9/99), 740 So.2d 634. Further, in the absence of a deliberate cover-up by the defendants (and none is alleged here), prescription begins to run on a medical malpractice action when the plaintiff “has knowledge of facts strongly suggestive that the untoward condition or result may be the result of improper treatment”. Dede, 729 So.2d at 606. “It is not necessary that a lawyer or doctor tell the plaintiff that he or she has a medical malpractice claim before prescription begins to run [.]” Id.

By October 28, 1997, Ms. Bailey knew (a) that her unborn child had birth defects, (b) that those birth defects were the result of her taking the prescribed medication while pregnant, and (c) her own view or whether the defendants had warned her of the risks of taking the medication while pregnant. Thus, by October 28, 1997, Ms. Bailey had sufficient knowledge to start prescription running and she had one year from that date to begin a medical malpractice action on behalf of herself and her unborn child.

Ms. Bailey advances no argument as to why her own cause of action is not prescribed. However, as to the cause of action of her child, she argues that prescription does not run against an unborn child and that, therefore, prescription began to run as to her child’s cause of action at birth. However, this argument is foreclosed by existing law.

UWhen an unborn child is injured as a result of a tort, prescription begins to run as in other cases and it is not suspended until the birth of the child. See Vicknair v. Hibernia Building Corp., 468 So.2d 695 (La.App. 4th Cir.), rev’d on other grounds, 479 So.2d 904 (La.1985) (cited with approval in Wartelle v. Women’s and Children’s Hospital, Inc., 97-0744 (La.12/02/97), 704 So.2d 778, 781 n. 6). See also La. Civ. Code arts. 3467, 3468. The fact that Ms. Bailey’s child was not yet born did not prevent Ms. Bailey from bringing an action on behalf of the child. Malek v. Yekani-Fard, 422 So.2d 1151 (La.1982). See also La. Civ. Code arts. 26, 27. In determining when prescription begins to run on a medical malpractice claim of a minor child, the knowledge of the parent is determinative. See Dede, supra.

Ms. Bailey cites Wartelle for the proposition that she could not bring an action on behalf of her child until the child was born. However, Wartelle addressed the second sentence of Article 26 of the Civil Code, which deals with situations in which a child is born dead. Specifically, the second sentence of Article 26 states: “If a child is born dead, it shall be considered never to have existed as a person, except for purposes of actions resulting from wrongful death.” The Wartelle court held that, in the case of a child born dead, there could be a wrongful death action, but not a survival action. Wartelle’s holding is not applicable to the present case because Ms. Bailey’s child was not born dead.

Ms. Bailey’s argument seems to be that, under Wartelle, she had to wait to see if her child was bom alive before bringing an action on behalf of the child. |4However, we note that Malek expressly held that a parent could bring an action on behalf of an unborn child prior to birth. Wartelle and Article 26 provide that, if a child is born dead, then the child’s cause of action is extinguished (although there may be a wrongful death action by the parent). Considering Malek, Wartelle and Article 26 together, it is apparent that, if an action is brought on behalf of an unborn child, and then the child is born dead, then the action brought on behalf of the child would simply be dismissed. Thus, a parent can bring an action on behalf of an unborn child without waiting to see if the child is born alive.

For the foregoing reasons, the exceptions of prescription of Dr. Ancira and Dr. Khoury are maintained and the plaintiffs claims are dismissed.

EXCEPTION MAINTAINED; CASE DISMISSED.

McKAY, J., dissents with reasons.

b MeKAY, J.,

dissenting with reasons.

When does prescription begin to run in an action brought by or on behalf of a plaintiff seeking recovery for prenatal injuries? Is it from the moment that the injurious conduct occurs or is it from the moment of the child’s subsequent birth? If we look to Louisiana Civil Code article 26, the answer appears to be from the moment of the child’s birth. If the child had not been born alive, legally it would have been considered never to have existed (except for purposes of actions arising from its wrongful death). The date of birth argument was also implicitly recognized by the defendants when they filed not only and exception of prescription but also an exception of lack of procedural capacity. Accordingly, I respectfully dissent from the majority’s decision to grant this writ and would affirm the trial court’s denial of the exception of prescription.

      . See Vicknair v. Hibernia Building Corp., 468 So. 2d 695 (La. App. 4 Cir. 1985).


author: JOAN BERNARD ARMSTRONG, Judge. McKAY, J.,

text:
    Ginger BAILEY, et al. v. Dr. Gregory KHOURY. et al.
    No. 2002-C-0227.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 28, 2002.
    Jack E. Truitt, The Truitt Law Firm, Madisonville, LA, for DefendanL-Appli-cant, Walgreens Louisiana Co., Inc.
    Court composed of Chief Judge WILLIAM H. BYRNES III, Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY, III.
   JOAN BERNARD ARMSTRONG, Judge.

Relator Walgreen Louisiana Co., Inc’s, response to the Rule To Show Cause shows that Walgreen was not at fault as to the lateness of its writ application and, in fact, was diligent. It is in the interest of justice to allow Walgreen’s writ application to proceed.

The writ application is granted. For the reasons given in Bailey v. Khoury, et al, 2002-C-0049 (c/w 2002-C-0236), 840 So.2d 582, the plaintiffs claims against Walgreen Louisiana Co., Inc’s, are barred by prescription. Accordingly, plaintiffs claims are hereby dismissed.

WRIT GRANTED. DISMISSED.

MCKAY, J., dissents.

McKAY, J.,

dissenting.

I dissent for the same reasons I assigned in my dissent in writ No. 2002-C-0049 c/w 2002-C-0236, 840 So.2d 582.


author: JOAN BERNARD ARMSTRONG, Judge. hMcKAY, J.,

text:
    Ginger BAILEY, et al. v. Dr. Gregory KHOURY, et al.
    No. 2002-C-0199.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 28, 2002.
    Mark E. Seamster, Seale, Daigle & Ross, Hammond, LA, for Defendant (Eck-erd Corporation).
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge JOAN BERNARD ARMSTRONG and Judge JAMES F. McKAY, III).
   JOAN BERNARD ARMSTRONG, Judge.

Relator Eekerd Corporation’s response to the Rule To Show Cause shows that Eekerd was not at fault as to the lateness of its writ application and, in fact, was diligent. It is in the interest of justice to allow Eckerd’s writ application to proceed.

The writ application is granted. For the reasons given in Bailey v. Khoury, et al, 2002-C-0049 (c/w 2002-C-0236), 840 So.2d 582, the plaintiffs claims against Eekerd Corporation are barred by prescription. Accordingly, plaintiffs claims are hereby dismissed.

WRIT GRANTED. DISMISSED.

McKAY, J., dissents with reasons.

hMcKAY, J.,

dissenting.

I dissent for the same reasons I assigned in my dissent in writ No. 2002-C-0049 c/w No. 2002-C-0236, 840 So.2d 582.


author: LANIER, J. ^DOWNING, J.,

text:
    Vera M. RAINEY v. ENTERGY GULF STATES, INC. and Mike Case.
    No. 2001 CA 2414.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2002.
    Rehearing Granted April 9, 2003.

      Leonard Cardenas, III, John T. Joubert, Henri M. Saunders, Baton Rouge, for Plaintiff/Appellee Vera M. Rainey.
    John A. Braymer, Kenneth Carter, Joseph K. West, Charles L. Rice, Baton Rouge, for Defendants/Appellants Entergy Gulf States, Inc. Mike Case.
    Before: KUHN, DOWNING and LANIER, JJ.

      . The Honorable Walter I. Lanier, Jr., Judge (retired), First Circuit Court of Appeal, is serving as judge ad hoc by special appointment of the Louisiana Supreme Court.

   LANIER, J.

This action is a suit for damages in tort. In January 1999, ABB C-E Services, Inc. (ABB) began a construction project for Entergy Gulf States, Inc. (Entergy) at its Willow Glen power plant. The work was performed pursuant to the General Operations Agreement for Contracted Services between Entergy and ABB. On February 15, 1999, Vera Rainey (Rainey), a journeyman boilermaker working for ABB at Willow Glen, fell down a stairway on the jobsite and was injured. Rainey filed this action against Entergy. After a trial, the case was taken under advisement. The trial court subsequently rendered judgment in favor of Rainey and against Enter-gy for $839,916.08. ABB, as intervenor, was awarded $53,641.52 for workers’ compensation benefits paid to, and on behalf of, plaintiff. Entergy suspensively appealed and has asserted eight assignments of error.

AMENDMENT OF ANSWER TO ASSERT AFFIRMATIVE DEFENSE OF STATUTORY EMPLOYER

Entergy asserts the trial court abused its discretion by not allowing it to amend its answer to assert the “statutory employer” defense after the trial was continued without date.

Facts

Rainey’s injury occurred on February 15, 1999. This action was filed on June 11, 1999. Entergy filed its answer on October 12, 1999. This answer did not assert the statutory employer defense. A status conference was held on | December 21, 1999, and the trial court fixed a discovery cut-off date of June 1, 2000, and a trial date of July 5, 2000.

Subsequently, the July 5, 2000 trial date was continued to August 31, 2000. On August 29, 2000, Entergy filed a motion for leave of court to file a supplemental and amending answer to allege the statutory employer defense. This motion was summarily denied.

On August 30, 2000, Rainey requested that the trial be continued without date because of an illness. The trial court granted this motion.

In a pleading dated September 6, 2000, Entergy again filed a motion for leave of court to file an amended answer to allege the statutory employer defense. In this motion, Entergy asserted “the trial was continued without date” and the “Plaintiff will have an opportunity to conduct the necessary discovery she feels necessary to oppose the affirmative defense advanced by Entergy in its amending pleading.” On September 13, 2000, the trial court judge denied the motion with the following written reasons:

Reasons: This Court for reasons stated on the record denied defendant’s Motion to Continue the August 31st trial date and denied defendant’s Motion to Amend.
Subsequently, this Court granted plaintiffs Motion to Continue the 8/31 trial date due to the hospitalization of the plaintiff w/o objection from defense counsel. This Continuance did not open this case up for further pleadings nor discovery to be filed.

The trial of this case was re-scheduled and commenced on December 6, 2000.

Law Pertaining to Amendment of Answer

Louisiana Code of Civil Procedure article 1151 provides, in pertinent part, as follows:

A defendant may amend his answer once without leave of court at any time within ten days after it has been served. Otherwise, the petition and answer may be amended only by leave of court or by written consent of the adverse party.

Louisiana Code of Civil Procedure article 1153 provides as follows:

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or | occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.

In Maddens Cable Service, Inc. v. Gator Wireline Services, Ltd., 509 So.2d 21, 23 (La.App. 1 Cir.1987), appears the following:

La. C.C.P. art. 5051 admonishes us that the articles of the Louisiana Code of Civil Procedure must “be construed liberally, and with due regard for the fact that rules of procedure implement the substantive law and are not an end in themselves.” The official revision comment for Article 5051 states that it “expresses the procedural philosophy of this Code and serves as a constant reminder to the bench and bar that procedural rules are only a means to an end, and not an end in themselves.” Lawsuits should be decided on their merits and should not turn on arbitrary or technical rules of procedure. (Emphasis added.)

Thus, the law and jurisprudence take a liberal approach toward allowing amended pleadings to promote the interests of justice. Reeder v. North, 97-0239, p. 15 (La.10/21/97), 701 So.2d 1291, 1299.

As a general rule, a trial judge has much discretion in granting amendments to pleadings after an answer has been filed; thus, a trial judge’s ruling on granting an amendment to the pleadings will not be disturbed on appeal unless an abuse of discretion has occurred that indicates a possibility of resulting injustice. Heritage Worldwide, Inc. v. Jimmy Swaggart Ministries, 95-0484, p. 4, (La.App. 1 Cir. 11/16/95), 665 So.2d 523, 527, writ denied, 96-0415 (La.3/29/96), 670 So.2d 1233. The Louisiana Supreme Court discussed the policy for allowing the amendment of pleadings in detail in Giron v. Housing Authority of City of Opelousas, 393 So.2d 1267, 1270 (La.1981), as follows:

There is no prohibition against a plaintiff amending his petition with leave of court to alter the substance of his demand after filing of answer. Article 1151 authorizes such an amendment within the sound discretion of the trial court, evidencing a legislative aim to abolish the former rule which provided that the plaintiffs amendment may not “alter the substance of his demand, by making it different from the one originally brought.” See, Code of Practice 1870, art. 419; La.Code Civ.P. art. 1151, Official Revision Comments.
Even prior to the adoption of the Code of Civil Procedure, our courts showed increasing liberality in permitting amendments to uphold substantive rights. Now under our more modern procedural scheme, the legislature has expressly directed that the |Bprocedural rules are to be construed liberally with due regard for the fact that these rules are not an end in themselves, but rather implement the substantive law. La. Code Civ.P. art. 5051. That liberality is particularly appropriate in the amendment process according to leading Louisiana scholars and jurists. See, McMahon, Summary of Procedural Changes in Chapter 1, 3 L.S.A.: Code of Civil Procedure 2, 3 (1960); McMahon, The Louisiana Code of Civil Procedure, 21 La. L.Rev. 1, 29 (1960); Tate, Amendment of Pleadings in Louisiana, 43 Tul.L.Rev. 211, 217 (1969); Tucker, Proposal for Retention of the Louisiana System of Fact Pleading: Expose des Motifs, 13 La.L.Rev. 395, 425, 435 (1969).
Liberal allowance of amendments is also in accord with the treatment given Rule 15(a) of the Federal Rules of Civil Procedure from which article 1151 of the Louisiana Code of Civil Procedure is in part derived. That an amendment involves a departure from the facts previously alleged or a change in the theory of recovery or the relief requested is no bar to its allowance, since consistency in pleading is not required. 3 Moore’s Federal Practice § 15.08(2). Recognizing that the entire spirit of the rules is to the effect that controversies shall be decided on the merits, the federal courts have not been hesitant to allow amendments for the purpose of presenting the real issues of the case, where the moving party has not been guilty of bad faith and is not acting for the purpose of delay, the opposing party will not be unduly prejudiced, and the trial of the issues will not be unduly delayed. (Emphasis added; some citations omitted.)

See also Premier Bank, National Assn. v. Robinson, 618 So.2d 1037, 1039-1040, (La.App. 1 Cir.1993) and F. Maraist and H. Lemmon, supra, at pp. 157-158.

Pursuant to Giron and Robinson, amendments to pleadings should be allowed if (1) the movant is acting in good faith; (2) the amendment is not being used as a delaying tactic; (3) the opponent will not be unduly prejudiced; and (4) the trial will not be unduly delayed.

Good faith in the context of the Giron and Robinson cases is a reasonable belief that the facts alleged in the proposed amendment are true. See Gathright v. Smith, 368 So.2d 679 (La.1978); Aranyosi v. Delchamps, Inc., 98-1325, pp. 7-8 (La.App. 1 Cir. 6/25/99), 739 So.2d 911, 916, writ denied, 99-2199 (La.11/5/99), 750 So.2d 187; Redmond v. McCool, 582 So.2d 262, 264 (La.App. 1 Cir.1991).

The evidentiary basis for Entergy’s assertion of the statutory employee defense is a February 27, 1998 addendum to the Entergy-ABB contract that specifically states, in pertinent part, that “[t]he parties mutually agree that it is | fitheir intention to recognize Entergy Corporation ... as the statutory employer[s] of the Contractor’s [ABB] employees, ... in accordance with Louisiana Revised Statute 23:1061 while Contractor’s employees are providing Work hereunder.” See Entergy Proffer No. 1 filed in the record. In this factual posture, pursuant to La. R.S. 23:1061A(3), as amended and re-enacted by Acts 1997, No. 315, effective June 17, 1997, “[w]hen the contract recognizes a statutory employer relationship, there shall be a rebut-table presumption of a statutory employer relationship between the principal and the contractor’s employees, whether direct or statutory employees.” (Emphasis added.) If Entergy is a statutory employer of Rai-ney, then Rainey does not have a tort cause of action against Entergy; her exclusive remedy against Entergy would be for workers’ compensation benefits. La. R.S. 23:1032; H. Johnson, Workers’ Compensation Law and Practice, 13 and 14 La. Civ. Law Treatise, § 121 et seq. and § 363 (3d ed.1994). Pursuant to La. R.S. 23:1061, the February 27, 1998 addendum to the Entergy-ABB contract created a rebuttable presumption that there was a statutory employer relationship between them. Pursuant to La. C.E. 304, rebutta-ble presumptions “may be controverted or overcome by appropriate evidence.” Pursuant to La. C.E. art. 305, “[i]f the trier of fact finds the existence of the predicate fact [the Entergy-ABB contract addendum], and there is no evidence controverting the fact to be inferred [statutory employer relationship], the trier of fact is required to find the existence of the fact to be inferred [the statutory employer relationship].” (Emphasis added.) Thus, in the absence of contrary evidence, if the addendum is properly introduced into evidence, and Rainey produces no controverting evidence, Entergy will prevail with this defense. If Rainey has evidence to rebut the presumption, she should be allowed to present it. In either event, Entergy satisfies the good faith element of Giron and Robinson.

Rainey’s injury occurred on February 15,1999. This action was filed on June 11, 1999. This case was set for trial on August 31, 2000. On August 30, 2000, the trial was continued without date on motion of Rainey. Entergy’s second motion to amend to assert the statutory employer defense was filed on September 6, 2000, apparently while the trial was still continued without date. Therefore, elements (2), (3) and (4) of the Giron test have been satisfied. Pursuant to La. C.C.P. arts. 1151 and 5051, and Giron and Robinson, there were no valid reasons for the trial court to deny the amendment and the trial court abused its discretion by doing so. Even if the trial had been fixed for December 6, 2000 at the time the motion was filed, there was a three-month (90 day) time period between the request for the amendment and the trial. Pursuant to the authority of Beard v. Circle K, Inc., 554 So.2d 825 (La.App. 1 Cir.1989), the trial court still would have abused his discretion.

A ruling on the merits of this case is contingent, in part, on a determination of whether or not Rainey was a statutory employee of Entergy. If, as matter of fact and law, Entergy was a statutory employer, it should prevail. If Entergy was not a statutory employer, Rainey should prevail. To rule otherwise would be to render a judgment contrary to the law and the facts. That would be an injustice. Because of the particular facts and circumstances of this case, its outcome should be determined on its merits and not by technical rules of procedure.

This assignment of error has merit.

DECREE

For the foregoing reasons, the judgment of the trial court in favor of Rainey is reversed, and this action is remanded to the trial court for further proceedings in accordance with law and the instructions contained herein. On remand, the trial court shall (1) allow Entergy a reasonable period of time to amend its answer and answers to discovery interrogatories; (2) allow Rainey a reasonable period of time to discover evidence pertaining to Enter-gy’s statutory employer defense; (3) after discovery is completed, conduct a trial on the merits |«of the statutory employer issue only; and (4) render an appropriate judgment that decides the relevant issue or issues of the case.

Rainey is cast for the cost of this appeal.

REVERSED AND REMANDED WITH INSTRUCTIONS.

DOWNING, J., concurs and assigns reasons.

^DOWNING, J.,

concurs and assigns reasons.

Despite the general rule that a trial judge has much discretion in granting amendments to pleadings, the jurisprudence appears to only give discretion when an amendment is granted, never when it is denied. The jurisprudence states that a trial judge should be able to control his docket, in his discretion. Then the appellate courts find abuse of discretion, second guess and micromanage the trial court’s docket. Discretion should go both ways. A trial judge should be able to set deadlines and require the parties to stick to them without interference by the appellate court, except in extreme, rare circumstances.

However, this opinion is a correct, well-written summary of the current state of the law and, although I disagree with the jurisprudence, I am compelled to follow it.

      . Because we find merit in the first assignment of error, the remaining seven are not listed or discussed.

      . There is a distinction between supplemental and amended pleadings. An amended pleading pertains to matters that occurred before the petition was filed, whereas, a supplemental pleading pertains to matters that have occurred after the filing of the petition or answer. La. C.C.P. arts. 1151 and 1155; H. McMahon, Summary of Procedural Changes in Chapter 7, paragraph 4 in introduction to Chapter 7; Gaines v. Bruscato, 30,340, p. 8 (La.App. 2 Cir. 4/8/98), 712 So.2d 552, 557-558, writ denied, 98-1272 (La.6/26/98), 719 So.2d 1059; F. Maraist and H. Lemmon, Civil Procedure, La. Civ. Law Treatise, § 6.10, pp. 155-156 (1999).

      . The statutory employer defense is an affirmative defense that must be alleged in an answer. La. C.C.P. art. 1005; Stockstill v. C.F. Industries, Inc., 94-2072, p. 6, (La.App. 1 Cir. 12/15/95), 665 So.2d 802, 810, writ denied, 96-0149, (La.3/15/96), 669 So.2d 428.

      . The record on appeal is unclear about when and how the December 6, 2000 trial date was fixed. See Tranum v. Hebert, 581 So.2d 1023, 1026-1027 (La.App. 1 Cir.), writ denied, 584 So.2d 1169 (La.1991) for a discussion of what constitutes the record on appeal.


author: PATTERSON, J. Pro Tempore.

text:
    Ernest GRIFFIN and Lucy Griffin v. WICKES LUMBER COMPANY and/or Wickes, Inc. (Delaware), ABC Insurance Company, Ernest Gross, and Westaff, Inc. (F/K/A Western Temporary Services).
    No. 2002 CA 0294.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 2002.
    Rehearing Denied April 8, 2003.

      Michael C. Palmintier, Baton Rouge, Counsel for Plaintiffs/Appellants, Ernest and Lucy Griffin.
    Charles A. Schutte, Jr., Baton Rouge, Counsel for Defendant/Appellee, Wickes, Inc. and/or Wickes Lumber Co.
    Before: PARRO, JAMES, and PATTERSON, JJ.

      . Judge A. Clayton James, retired, and Michael A. Patterson are serving as judges pro tempore by special appointment of the Louisiana Supreme Court.

   PATTERSON, J. Pro Tempore.

Ernest Griffin (Griffin) and his major children, Ernest Griffin, Jr., JoAnn Griffin, Michael Griffin, Edward Griffin, and Frederick Griffin, individually and on behalf of the estate of Lucy Griffin, appeal the decision of the trial court granting the motion for summary judgment filed by Wickes, Inc., formerly Wickes Lumber Company (Wickes).

FACTS

Wickes owns and operates retail stores selling lumber and building materials. In 1997, Wickes began a remodeling process designed to update its stores and more efficiently manage its inventory. One of the stores Wickes planned to remodel was located in Baton Rouge, Louisiana. For assistance in the remodeling, Wickes requested laborers from Manpower of Baton Rouge, Inc. (Manpower) and Westaff, Inc. (Westaff), two companies providing temporary labor services. Manpower leased the services of Griffin and Anthony Flowers as temporary laborers from September 9, 1997, through October 10, 1997; Westaff assigned Earnest Gross (Gross) to work at the Wickes store on the same dates. On October 10, 1997, Griffin was injured when a portion of a metal rack fell on him. At the time of the accident, Griffin was working to construct metal racks in the warehouse to be used to store and display lumber maintained in the store’s inventory. Manpower provided workers’ compensation benefits to Griffin.

Griffin filed the present action against Wickes seeking damages in tort for Wickes’ alleged negligence in causing Griffin’s damages. Griffin amended his petition and added Gross and Westaff, Gross’ direct employer, as additional defendants. Wickes filed a motion for summary judgment asserting it was Griffin’s employer and seeking to avail itself of tort immunity under the Louisiana Workers’ Compensation Act, La. R.S. 23:1021, et seq. Following a hearing, the trial court determined that Griffin was a borrowed employee, granted the motion for summary judgment, and dismissed Griffin’s suit with prejudice.

| aGriffin appeals and argues the trial court erred in granting the motion for summary judgment, because there are issues of material fact regarding the employment status of Griffin. We affirm.

DISCUSSION

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no issue of material fact in dispute. Sanders v. Ashland Oil, Inc., 96-1751, p. 5 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, 1034, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966B. Summary judgment is favored and “is designed to secure the just, speedy, and inexpensive determination of every action.” La. C.C.P. art. 966A(2). The burden of proof on a motion for summary judgment is set forth in La. C.C.P. art. 966C(2):

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

If, as in this case, the issue before the court on the motion for summary judgment is one on which the party bringing the motion will bear the burden of proof at trial, the burden of showing that there is no genuine issue of material fact remains on the party Lbringing the motion and does not shift to the adverse party. See La. C.C.P. art. 966C(2); Buck’s Run Enterprises, Inc. v. Mapp Const., Inc., 99-3054, p. 4 (La.App. 1 Cir. 2/16/01), 808 So.2d 428, 431. Once the court has determined that there is no genuine issue of material fact, summary judgment should be granted. La. C.C.P. arts. 966 and 967.

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Sanders, 96-1751 at p. 7, 696 So.2d at 1035. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can only be seen in light of the substantive law applicable to the case. Walker v. Phi Beta Sigma Fraternity (RHO Chapter), 96-2345, p. 6 (La.App. 1 Cir. 12/29/97), 706 So.2d 525, 528.

Under the Louisiana Workers’ Compensation Act, an employee injured in an accident while in the course and scope of employment is generally limited to the recovery of workers’ compensation benefits as his exclusive remedy against his employer. La. R.S. 23:1032A(1)(a); Dustin v. DHCI Home Health Services, Inc., 95-1989, p. 3 (La.App. 1 Cir. 5/10/96), 673 So.2d 356, 358.

Louisiana Revised Statute 23:1031C provides:

In the case of any employee for whose injury or death payments are due and who is, at the time of the injury, employed by a borrowing employer in this Section referred to as a “special employer”, and is under the control and direction of the special employer in the performance of the work, both the special employer and the immediate employer, referred to in this Section as a “general employer”, shall be liable jointly and in solido to pay benefits as provided under this Chapter. As between the special and general employers, each shall have the right to seek contribution from the other for any payments made on behalf of the employee unless there is a contract between them expressing a different method of sharing the liability. Where compensation is claimed from, or proceedings are taken against, the special employer, then, in the application of this Chapter, reference to the special employer shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the general employer by whom he is immediately employed. The special and the general employers shall be entitled to the exclusive remedy protections provided in R.S. 23:1032.

Louisiana Revised Statute 23:1061A provides:

|B(1) Subject to the provisions of Paragraphs (2) and (3) of this Subsection, when any “principal” as defined in R.S. 23:1032(A)(2), undertakes to execute any work, which is a part of his trade, business, or occupation and contracts with any person, in this Section referred to as the “contractor”, for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal, as a statutory employer, shall be granted the exclusive remedy protections of R.S. 23:1032 and shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed. For purposes of this Section, work shall be considered part of the principal’s trade, business, or occupation if it is an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.
(2) A statutory employer relationship shall exist whenever the services or work provided by the immediate employer is contemplated by or included in a contract between the principal and any person or entity other than the employee’s immediate employer.
(3) Except in those instances covered by Paragraph (2) of this Subsection, a statutory employer relationship shall not exist between the principal and the contractor’s employees, whether they are direct employees or statutory employees, unless there is a written contract between the principal and a contractor which is the employee’s immediate employer or his statutory employer, which recognizes the principal as a statutory employer. When the contract recognizes a statutory employer relationship, there shall be a rebuttable presumption of a statutory employer relationship between the principal and the contractor’s employees, whether direct or statutory employees. This presumption may be overcome only by showing that the work is not an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.

Griffin argues that the 1997 amendments to these provisions, overruling the statutory employer tests as stated in Berry v. Holston Well Service, Inc., 488 So.2d 934 (La.1986), and Kirkland v. Riverwood International USA, Inc., 95-1830 (La.9/13/96), 681 So.2d 329, were intended to eliminate application of all extensive subjective tests to determine employment status and are not limited to the determination of statutory employers under La. R.S. 23:1061. According to Griffin, the lawmakers intended that any party seeking immunity under the workers’ compensation statute, including borrowing employers, must make a commitment in writing. Griffin argues that it would be inconsistent to treat statutory employers and borrowing employers differently;, thus, a Isparty seeking the protection of the workers’ compensation exclusivity as a borrowing employer should have a written contract, as is required of a statutory employer. We disagree.

Although the stated intent of the legislature in amending La. R.S. 28:1031 and 1061 was to overrule Berry and Kirkland, neither case addressed the concept of a “borrowed employee.” Further, had the legislature intended for any party seeking immunity under the workers’ compensation act to have a written contract, such a requirement would have been expressly provided. However, the minutes of the House Committee on Labor and Industrial Relations regarding Senate Bill No. 922, which culminated in the amendments of La. R.S. 23:1031 and 1061, do not support this assertion:

A final provision in Senate Bill No. 922 has to do with a borrowed employee, such as a temporary employee. The bill codifies the definition of a borrowed employee. It makes it clear that the individual’s employer and the employer “borrowing” the employee would both be responsible for workers’ compensation for the employee in the event of an injury. Senator Dardenne said this is not a change to the current law, but simply a codification of longstanding jurisprudence in Louisiana.

Thus, there was no intention of the legislature to require the written contract provision to extend to borrowed employers under La. R.S. 23:1031. Moreover, a plain reading of La. R.S. 23:1031 and 1061 reveals that the written contract provision only applies to statutory employers, not borrowing employers.

The terms “statutory employee” and “borrowed employee” are distinguishable for workers’ compensation purposes. This distinction is still recognized following the ,1997 amendments to La. R.S. 23:1031 and 1061. Moreover, the test for determining who is a borrowed employee is still applied by the courts. See Doucet v. National Maintenance Corp., 01-1100, p. 8, n. 6 (La.App. 1 Cir. 6/21/02), 822 So.2d 60, 67; Maddox v. Superior Steel, 00-1539, p. 7 (La.App. 1 Cir. 9/28/01), 814 So.2d 569, 574; Vaughn v. BFI Waste Systems of North America, Inc., 01-1105, p. 7 (La.App. 4 Cir. 7/25/01), 793 So.2d 410, 414. Accordingly, we find no merit in Griffin’s assertion that there must be a written contract for Wickes, as a borrowing employer, to avail itself of the benefits of tort immunity in the workers’ compensation act.

Griffin alternatively argues that regardless of the application of La. R.S. 23:1061 to La. R.S. 23:1031C, the trial court erred in granting summary judgment because genuine issues of material fact exist regarding Griffin’s status as a borrowed employee.

The issue of whether a borrowed servant relationship exists is a matter of law for the court to determine. Dustin, 95-1989 at p. 4, 673 So.2d at 359. There is no fixed test, nor is the existence of a contract or any other single factor determinative. However, the following should be considered in determining the existence of a borrowed employee relationship: right of control; selection of employees; payment of wages; power of dismissal; relinquishment of control by general employer; which employer’s work was being performed at the time in question; agreement, either implicit or explicit between the borrowing and lending employer; furnishing of instructions and place for performance of the work in question; length of employment; and acquiescence by the employee in the new work situation. Dustin, 95-1989 at p. 4, 673 So.2d at 359; Maddox 00-1539 at p. 7, 814 So.2d at 574.

In support of its motion for summary judgment, Wickes introduced the affidavits of Cliff Burkhart, assistant manager of the Wiekes store, and Joseph Ardoin, an employee of Wiekes; the deposition of Randy Balcom, the manager of Manpower at the time of this accident; and other documentary evidence. Our review of the record reveals the following undisputed facts: although there was no written agreement between Wiekes and Manpower, there was an oral agreement for Manpower to supply laborers to Wiekes to implement the remodeling of the Wiekes store; Griffin was selected by Manpower to work at the Wiekes site; Wiekes’ employees would direct Griffin on what tasks to perform while at the store; Wiekes was responsible for supervising Griffin; Manpower had no supervisor at the store; Griffin’s actual paycheck was issued by Manpower, but the funds used to pay Griffin were calculated from the form Griffin turned in to Manpower that had been verified by Wiekes’ employees; if Wiekes was not satisfied with Rthe work done by Griffin, it could request a new worker; Wiekes provided all the necessary equipment and tools to perform the rack assembly project that Griffin was participating in at the time of his accident; and, at the time of the accident, Griffin was assisting in the remodeling of the Wiekes store. Based on the evidence presented by Wiekes in support of its motion for summary judgment, we find that Griffin was a borrowed employee of Wiekes. Consequently, we find this assignment of error to be without merit.

CONCLUSION

Given his status as a borrowed employee, Griffin is barred from suing Wiekes in tort under the provisions of the Louisiana Workers’ Compensation Act. The trial court properly granted the motion for summary judgment and dismissed the portion of the suit against Wiekes. The decision of the trial court is affirmed with all costs of this appeal assessed against Griffin.

AFFIRMED.

      . There are inconsistent spellings of Gross' name in the record, appearing as "Ernest Gross,” "Ernest Gros,” "Earnest Gross,” and "Earnest Gros.”

      . In his brief, Griffin cites La. C.C.P. art. 1915B as authority for this court’s jurisdiction over his appeal. Because the instant suit was filed before January 1, 2000, the 1997 version of La. C.C.P. art.1915 is applicable to the case. See Belanger v. Gabriel Chemicals, Inc., 00-0747, p. 6 (La.App. 1 Cir. 5/23/01), 787 So.2d 559, 564 n. 4, writ denied, 01-2289 (La.11/16/01), 802 So.2d 612. The supreme court has determined that the pre-2000 language of La. C.C.P. art.1915 is ambiguous with regard to the availability of appeal is cases under Article 1915A(3) involving summary judgment pursuant to La. C.C.P. art. 966E. See Shell Pipeline Corp. v. Kennedy, 00-3207, p. 5, (La.10/16/01), 799 So.2d 475, 478. In light of the decision in Shell, this court has concluded that the granting of a summary judgment in this situation constitutes a final partial judgment and is appealable. See Pitts v. Fitzgerald, 01-0543, p. 4 (La.App. 1 Cir. 5/10/02), 818 So.2d 847, 850.