author: 2WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Troy TAYLOR.
    No. 02-KA-1063.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 25, 2003.

      John M. Crum, Jr., District Attorney, Rodney Brignae, Assistant District Attorney, Edgard, LA, for Plaintiff/Appellee, The State of Louisiana.
    Prentice L. White, Louisiana Appellate Project, for Defendant/Appellant, Troy Taylor.
    Panel composed of Judges SOL GOTHARD, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   2WALTER J. ROTHSCHILD, Judge.

On April 16, 2001, a St. John Parish grand jury indicted the defendant, Troy Taylor, for the second degree kidnapping and attempted second degree murder of Seeondra Johnson, in violation of LSA-R.S. 14:44.1 and 14:27:30.1. The defendant was arraigned on May 2, 2001 and entered a plea of not guilty. On May 21, 2001, the defendant filed a motion for mental examination and appointment of sanity commission, which was granted. After being evaluated by the court-appointed doctors, the defendant was found competent to stand trial on June 27, 2001.

On February 19, 2002, the defendant proceeded to trial by jury. He was rear-raigned on the charges and pled not guilty and not guilty by reason of insanity. After a three-day trial, a twelve-person jury found the defendant guilty as charged on both counts of the indictment, by a vote of ten to two. The defendant thereafter filed a motion for new trial and a motion for post verdict judgment of acquittal, both of which were denied on April 3, 2002. On May 8, 2002, the defendant was sentenced to twenty-five years at hard labor for the second degree kidnapping conviction, with two years of this sentence to be served without benefit of parole, probation, or suspension of sentence. He was also sentenced to fifty years at hard labor, without benefit of parole, probation, or suspension of sentence, for the attempted second degree murder conviction, to be served concurrently with the 13twenty-five year sentence for second degree kidnapping. The defendant filed a motion to reconsider sentence, which was denied, and a motion for appeal, which was granted by the trial court on July 2, 2002.

FACTS

The victim, Secondra Johnson, was twenty years old at the time of the incident in this case. At trial, she testified that she has known the defendant since she was a young girl. Her testimony revealed that on February 22, 2001, she was alone at her residence on 219 Spruce Street when she heard a door open. She remained in her bed sleeping until the defendant opened her bedroom door, jumped on her back and put a knife to her throat. Secondra testified that the defendant demanded to know where her purse was and she responded by telling him that it was in the car. She stated that they fought in her bed and then the defendant took her to the kitchen. She asked the defendant why he was behaving this way, and the defendant responded, “Don’t say my name.” The defendant then stated, “You say my name again I’m going to stab you.” Secondra testified that she said the defendant’s name again at which point he stabbed her under the chin. She fought with the defendant and he stabbed her under the chin again.

Secondra testified that the defendant brought her outside of the house and put her into her car. She was able to escape from the car and run toward her uncle’s home, but the defendant pursued her and stabbed her once again underneath her chin and dragged her back to the car. She stated that the defendant then drove onto the interstate, while she continued to plead with him to stop and bring her to a hospital, but the defendant kept driving. The defendant stated, “I’m going to do away with your body and your car where nobody never find you.” Secondra testified that the defendant made her strip naked in the vehicle and thereafter touched her vagina.

I ¿As they traveled along the interstate and approached Siegen Lane in Baton Rouge, Secondra opened the door and jumped out of the vehicle, which was traveling around 60 miles per hour. Secondra testified that, after jumping from the vehicle, she stopped a van and jumped inside. The driver of the van then exited onto Siegen Lane and dialed 911. When the ambulance and police arrived, Secondra stated that her attacker was the defendant, Troy Taylor.

Secondra testified that she remained in the hospital for several days. While in the hospital, an artificial artery was placed in her throat, she required a pint of blood, and she received 27 staples, as well as stitches in her hands. She testified that Detective Joseph showed her a photographic lineup while she was in the hospital, and she identified the defendant as her attacker.

On cross-examination, Secondra testified that she had known the defendant since she was a young child and that he had stayed at her residence for a brief period of time. She also testified that the defendant had never been violent in the past nor did he appear to have been sexually interested in her before.

Holly Kohan, an administrative assistant at Our Lady of the Lake Hospital in Baton Rouge, testified that on the morning of February 22, 2001, she was driving on Interstate-10 (I — 10) near the Siegen Lane exit when she saw a woman “fly out” of a moving vehicle. She testified that she saw someone stop to assist the female, so she continued to drive to work where she called 911. Kohan also testified that the driver of the vehicle from which the woman exited did not attempt to assist the woman.

Steven French, a sales representative for Glaser Wholesale in Baton Rouge, testified that on February 22, 2001, he saw a red Mitsubishi Eclipse swerve, and a nude woman exited the vehicle. He then observed the car exit onto Siegen Lane, and he pursued the vehicle. French testified that the vehicle made a U-turn and got back on the interstate heading toward Baton Rouge. He was able to get the license | opiate number of the vehicle and called 911. French stated that the vehicle was traveling around 55 to 60 miles per hour when the black female fell from the car.

Evelyn Bennet, an employee at Pennington Biomedical Research Center testified that on February 22, 2001, she was traveling on 1-10 when she saw a naked woman bleeding on the side of the road. Bennet testified that she stopped and pulled the woman inside her van and, after exiting from the interstate, dialed 911. Bennet also stated that when the woman entered her van, she repeatedly screamed for her to lock the door.

Barbara Wright, Secondra Johnson’s grandmother and a resident of 219 Spruce Street in Laplace, testified that she left her home on the morning of February 22, 2001 at approximately 5:25 a.m. in order to go to work. She stated that she received a phone call at work and left to go home. Wright testified that when she arrived home, she attempted to make a phone call at which time she noticed a chair flipped over and blood all over the kitchen.

On cross-examination, Wright testified that she knew the defendant, Troy Taylor, and that he had previously resided with her for a couple of months before the year 2001. She stated that the defendant had never been violent and that he was friendly with the victim, Secondra Johnson. Wright also testified that she ordered the defendant to leave her home when she suspected him of stealing things from her; however, they remained friendly thereafter. She stated that the defendant had a key when he lived there, but she had gotten it back.

Felix Joseph, a former criminal investigator with the St. John Parish Sheriffs Office, testified that he conducted an investigation of this incident, which resulted in the apprehension of Troy Taylor. He verbally advised him of his constitutional rights, which he waived, and Mr. Taylor also signed a written waiver of his rights. The defendant was thereafter interviewed.

IfiAccording to Joseph, the defendant told him that he took two hits of acid or LSD on the morning of February 22, 2001. The defendant stated that he was dropped off at the 219 Spruce Street residence, and he knocked on the door. Secondra Johnson answered the door and let him into the home. Joseph testified that the defendant told him that the next thing he remembered was driving Secondra’s bloody vehicle to Baton Rouge. The defendant thereafter told Joseph that he returned to Laplace and abandoned the vehicle in the Cambridge subdivision. Joseph also testified that Secondra Johnson identified the perpetrator as Troy Taylor, and she picked him out of a lineup.

Penny Brown Kendrick, the defendant’s former girlfriend, testified that she remembered seeing the defendant on February 21, 2001 at around 6:30 in the afternoon. She testified that the defendant did not appear to be intoxicated and that he remained at her home until approximately 9:30 that night. Kendrick stated that the defendant called later that night but she did not remember the time.

Tiyanica Matthews, Secondra Johnson’s cousin, testified that she took photos of Secondra’s injuries after the incident. She also testified that Troy Taylor was at a party for her grandmother, Barbara Wright, on February 21, 2001. The defendant left the party with her, and she later dropped him off at Penny Brown Kendrick’s home. Matthews also testified that the defendant did not appear drunk when she was with him.

The defendant, Troy Taylor, testified that on the night of February 21, 2001, he went to an EZ-Serve where he purchased a pack of cigarettes and some gin. Later that night, he stopped and bought a rose in a glass and a screen in order to make a crack pipe, after which he went to a bar and smoked crack cocaine. The defendant also testified that he purchased more crack cocaine and gin later that night, in addition to obtaining two hits of acid or LSD from two white males. The |7defendant stated that the two white males later drove him to Redwood Street, where he consumed the two hits of acid at around 3:00 in the morning.

The defendant testified that he stood on the corner of Redwood Street for a period of time. Then, after feeling the effects of the gin and LSD, he went to Secondra Johnson’s residence where he knocked on her window and was let inside by Secon-dra. Once in the residence, he sat in the living room where he smoked two more rocks of crack cocaine. The defendant testified that the next thing he remembered was that he was driving Secondra’s car on the interstate in Baton Rouge, and Secondra was bleeding from her neck and face. Secondra told him that he had attacked her and asked him to bring her to a hospital. He noticed that Secondra’s neck was bleeding and asked her to put her shirt over her neck which she did. He stated that Secondra was not naked at that time.

The defendant further testified that Se-condra jumped from the car near the Siegen Lane exit. Thereafter, he exited onto Siegen Lane and got back on the interstate driving toward Baton Rouge. He testified that he eventually made a U-turn and drove back toward where Secondra had exited the car, but when he noticed cars stopped near her, he decided to keep driving to his mother’s house in Reserve. The defendant stated that he then drove back to Baton Rouge to Earl K. Long Hospital to determine if Secondra had been admitted to the hospital. When he could not locate her at the hospital, he returned to Laplace, and drove to Jackson Hewitt tax service to pick up his “income tax.” The defendant testified that he was still driving Secondra’s car during this time but that he later parked the car in Cambridge subdivision and secured a ride to Metairie.

The defendant stated that he called the police the following Monday and turned himself in. He also testified that he had a prior felony conviction for first degree robbery.

|sThe defense called Dr. Pat Kent, a licensed psychotherapist and Regional Director for the State of Louisiana’s Office for Addictive Disorders Treatment Region in Southeast Louisiana, who testified as an expert in the field of the effects of alcohol and drug use. Dr. Kent stated that, after having examined the defendant, it was his opinion that the defendant suffered from toxic psychosis and was not rational at the time of the offense.

The state called Dr. Craig Troxlair in rebuttal, who testified as an expert in the field of forensic psychiatry and the effects of alcohol and drugs on humans. Dr. Troxlair testified that it was his opinion that it was more unlikely than likely that the defendant would not have remembered anything from the time he got to the victim’s house until the victim was out of the car.

DISCUSSION

In his first assignment of error, the defendant argues that the trial court erred in denying his motion for reconsideration of sentence, because the record reflects that he was heavily intoxicated at the time of the offense and similarly situated defendants have received lesser sentences.

The United States and Louisiana Constitutions both prohibit the imposition of excessive or cruel punishment. U.S. Const, amend. VIII; La. Const, art. I, § 20. Even a sentence within the prescribed statutory limit may violate a defendant’s constitutional right against excessive punishment. State v. Sweeney, 443 So.2d 522, 531 (La.1983); State v. Bradham, 94-71 (La.App. 5 Cir. 5/31/94), 638 So.2d 428, 430; State v. Jones, 98-1055 (La.App. 5 Cir. 2/23/99), 729 So.2d 95, 97. In reviewing a sentence for excessiveness, the appellate court must consider the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice. State v. Daigle, 96-782 (La.App. 5 Cir. 1/28/97), 688 So.2d 158, 159, writ denied, 97-0597 (La.9/5/97), 700 So.2d 506.

9 Generally, maximum sentences are reserved for cases involving the most serious violations of the offense charged and the worst type of offender. State v. Quebedeaux, 424 So.2d 1009, 1014 (La.1982), aff'd on remand, 446 So.2d 1210 (La.1984); State v. Styles, 96-897 (La.App. 5 Cir. 3/25/97), 692 So.2d 1222, 1234, writs denied, 97-1069 (La.10/13/97), 703 So.2d 609, and 00-3460 (La.10/12/01), 799 So.2d 496. However, the trial judge is afforded wide discretion in determining a sentence, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. McCorkle, 97-966 (La.App. 5 Cir. 2/25/98), 708 So.2d 1212, 1219. This Court should further consider three factors in reviewing a judge’s sentencing discretion 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Slang, 94-332 (La.App. 5 Cir. 11/16/94), 646 So.2d 1037, 1040-1041.

The defendant challenges his fifty-year sentence for his attempted second degree murder conviction, but he does not argue that his twenty-five year sentence for second degree kidnapping is excessive. A sentence for attempted second degree murder ranges from ten to fifty years at hard labor without benefit of parole, probation, or suspension of sentence. LSA-R.S. 14:27 and 14:30.1.

The defendant argues that the trial court failed to take into consideration certain mitigating factors, such as the defendant’s prior amicable relationship with the victim’s family and his intoxication. However, the record reflects that the trial court took numerous factors into consideration and also commented on the defendant’s intoxication. At sentencing, the trial judge stated that she considered the pre-sentence investigation report (PSI) and the letter that the defendant submitted. She noted that the victim was severely scarred as a result of being stabbed, jumping from a car moving at a high rate of speed, and being sexually molested by the defendant. She also indicated that she considered the defendant’s |inintoxication as an aggravating factor, not a mitigating factor, because the jury rejected the defendant’s contention that he did not know what he was doing. She further noted that the many aggravating factors outweighed the defendant’s argument that he did not know what he was doing.

The defendant also asserts that his sentence is excessive when compared with similar types of crimes. In support of his argument, he cites cases in which defendants have received less severe sentences than the fifty-year sentence he received. However, there are cases similar to the instant case in which sentences of 50 years have been held not to be excessive.

In State v. Breland, 97-2880 (La.App. 1 Cir. 11/6/98), 722 So.2d 51, the First Circuit upheld a defendant’s fifty-year sentence for attempted second degree murder and twenty-five year sentence for simple rape, which were to run consecutively with one another. In Breland, the defendant attacked and raped an eleven-year-old girl while the victim’s mother was away on a church-related trip. The defendant stabbed the victim twice and threatened that, if she screamed, he would stab her again. When the victim started to scream, the defendant stabbed her again. The defendant later walked the victim to a back porch, where he slashed her in the throat after which the victim collapsed to the floor. The defendant contended that the sentence was excessive and that the trial court erred in not considering amongst other mitigating factors that he had epilepsy and had previously been treated for psychiatric problems. The First Circuit, however, upheld the sentence, noting that the defendant stabbed the victim several times in the throat, tried to smother her, and slashed her throat. The court also noted that the victim had sustained puncture wounds on her hands and that the scars on her neck would likely be permanent.

We find that the Breland case is analogous to the present case. Like Breland, the victim in the present case was stabbed several times by the defendant |T1and will likely suffer permanent scarring as a result of the attack. Furthermore, as in Breland, the defendant’s attempted second degree murder occurred while he was participating in another felony, second degree kidnapping.

Although the victim in Breland was younger than the victim in this case, the defendant’s sentences in this case are concurrent, and the sentences in Breland were to be served consecutively. It should also be noted that, unlike Breland, the defendant in the present case had a prior conviction for first degree robbery.

As stated above, the trial judge is afforded wide discretion in determining a sentence, and the court of appeal will not set aside a sentence as excessive if it is supported by the record. State v. McCorkle, supra. Considering the record in this case, as well as the factors considered by the trial court and the case law involving similar crimes, we find that the trial judge did not abuse her discretion in imposing a sentence of 50 years at hard labor for the defendant’s attempted second degree murder conviction. Accordingly, we affirm the defendant’s sentence.

In his second assignment of error, the defendant argues that he was denied the right to effective assistance of counsel during the discovery phase of his case, because his attorney failed to file a written motion to suppress confession prior to the introduction of Felix Joseph’s testimony.

A claim of ineffective assistance of counsel is most appropriately addressed through an application for post-conviction relief rather than direct appeal, so as to afford the parties an adequate record for review. State v. Truitt, 500 So.2d 355, 359 (La.1987); State v. McIntyre, 97-876 (La.App. 5 Cir. 1/27/98), 708 So.2d 1071, 1075, writ denied, 98-1032 (La.9/18/98), 724 So.2d 753. Only when the record contains sufficient evidence to decide the issue and the issue is properly raised by assignment of error on appeal may it be addressed in the interest of judicial economy. State v. Peart, 621 So.2d 780, 787 (La.1993). We find that the record contains sufficient evidence to decide this issue at this time.

12 A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, Section 13 of the Louisiana Constitution of 1974. In assessing a claim of ineffectiveness, a two-pronged test is employed. The defendant must show that (1) his attorney’s performance was deficient, and (2) the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); State v. Soler, 93-1042 (La.App. 5 Cir. 4/26/94), 636 So.2d 1069, 1075, writs denied, 94-0475 (La.4/4/94), 637 So.2d 450, and 94-1361 (La.11/4/94), 644 So.2d 1055. The error is prejudicial if it was so serious as to deprive the defendant of a fair trial, or “a trial whose result is reliable.” Strickland, 466 U.S. at 686, 104 S.Ct. at 2064; State v. Serio, 94-131 (La.App. 5 Cir. 6/30/94), 641 So.2d 604, 607, writ denied, 94-2025 (La.12/16/94), 648 So.2d 388. In order to show prejudice, the defendant must demonstrate that, but for counsel’s unprofessional conduct, the outcome of the trial would have been different. Strickland, 466 U.S. at 693, 104 S.Ct. at 2068; State v. Soler, supra at 1075. Because there is no precise definition of reasonably effective assistance of counsel, any inquiry into the effectiveness of counsel must be specific to the facts of the case. State v. Peart, supra at 788.

In the present case, the defendant argues that defense counsel was deficient in failing to file a motion to suppress his confession made to police, because the jury was allowed to listen to Detective Joseph’s testimony without having the officer’s recollection of the defendant’s statement questioned prior to his trial testimony. For purposes of an ineffective assistance of counsel claim, the filing of pretrial motions is squarely within the ambit of the attorney’s trial strategy, and counsel is not required to engage in efforts of futility. State v. Pendelton, 96-367 (La.App. 5 Cir. 5/28/97), 696 So.2d 144, 156, writ denied, 97-1714 (La.12/19/97), 706 So.2d 450; State v. Morris, 98-236 (La.App. 5 Cir. 9/16/98), 719 So.2d 1076, 1081.

Lain the instant case, the record reflects that defense counsel objected to Felix Joseph testifying at trial regarding the statement he took from the defendant. The thrust of defense counsel’s objection was that it was a statement, not a confession, about what went on the night of February 21, 2001. Defense counsel also objected that no foundation had been laid for Felix Joseph’s testimony as to whether the defendant had been advised of his rights. Thereafter, the state produced an advice of rights form signed by the defendant and the questioning of Felix Joseph resumed.

In the present case, it appears that defense counsel’s failure to file a motion to suppress was not a part of trial strategy, because he objected to Detective Joseph’s testimony at trial and could have chai-lenged his testimony in a motion to suppress. However, even if the failure to file a written motion to suppress were to constitute a deficiency under the first prong of Strickland, the record reveals that the defendant has not met the second prong of Strickland, which requires that the defendant prove actual prejudice and that there is a reasonable probability that the outcome of the trial would have been different if the motion had been filed. Strickland, 466 U.S. at 693, 104 S.Ct. at 2068.

The statement that the defendant contends should have been suppressed was the one given to Detective Felix Joseph; however, the testimony given by Joseph regarding what the defendant stated to him was essentially the same as the defendant’s own testimony at trial. In fact, the defendant’s testimony was more detailed in its description of what occurred on the night of February 21, 2001. Furthermore, it should be noted that defense counsel’s strategy was to establish that the amount of drugs and alcohol consumed by the defendant caused him to become psychotic and black out. Joseph’s testimony regarding the defendant’s statement only bolstered the defense’s argument at trial. Furthermore, the jury had more than sufficient evidence to convict the defendant if the statement had been | T4suppressed. Therefore, the defendant cannot show that the outcome of the trial would have been different if defense counsel had filed a motion to suppress.

Based on the foregoing, we find that the defendant was not prejudiced by defense counsel’s failure to file a motion to suppress, because even if the defendant’s statement had been suppressed, it is doubtful that it would have changed the outcome of the trial. Accordingly, we find that the defendant has not shown that he was deprived of effective assistance of counsel.

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals that there are no patent errors.

For the reasons set forth above, we affirm the defendant’s convictions for second degree kidnapping and attempted second degree murder, as well as the sentences imposed by the trial court.

AFFIRMED.


source: Caselaw Access Project

author: 3SUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    Robert Andrew BOURGEOIS, et al., v. A.P. GREEN INDUSTRIES, et al.
    No. 02-CA-713.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 25, 2003.

      Brian C. Bossier, Mickal P. Adler, Erin H. Boyd, Metairie, LA, for Defendant-Appellant Avondale Industries, Inc.
    Robert E. Caraway, III, Kenan S. Rand, Jr., Wendy K. Lappenga, Rebecca Goforth, New Orleans, LA, for Defendant-Appellant American Motorists Insurance Company.
    Gary A. Lee, Richard M. Perles, Johanna G. King, New Orleans, LA, for Defendants-Appellants Steven Kennedy and Peter Territo.
    Samuel M. Rosamond, III, Metairie, LA, for Defendant-Appellant Commercial Union Insurance Company.
    Philip J. Borne, J., Warren Gardner, Jr., New Orleans, LA, for Defendant-Appellant Highlands Insurance Company.
    Carl J. Hebert, John A. Kopfinger, Jr., New Orleans, LA, for Defendant-Appellant J.D. Roberts.
    Gordon P. Wilson, New Orleans, LA, for Defendant-Appellant Travelers Insurance Company.
    Frank J. Swarr, Mickey P. Landry, New Orleans, LA, for Plaintiffs-Appellees, Robert A. Bourgeois, et al.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY, and SUSAN M. CHEHARDY.
   3SUSAN M. CHEHARDY, Judge.

This suit is a class action by current and former employees of Avondale Industries, Inc., who allege they were exposed to asbestos while employed at Avondale. Plaintiffs have not manifested any physical illness or disease related to asbestos. They seek establishment of a judicially-administered medical monitoring fund and counseling program. Defendants are Avon-dale, several Avondale executive officers, various manufacturers and distributors of asbestos, and their insurers.

PROCEDURAL BACKGROUND

Defendants filed exceptions of no cause of action, which were granted by the trial court and affirmed by this Court. Bourgeois v. A.P. Green Indus., Inc., 97-648 (La.App. 5 Cir. 11/24/97), 703 So.2d 786. The Louisiana Supreme Court found that plaintiffs had a cause of action under La. C.C. art. 2315 and reversed the ruling. The court held:

[T]he reasonable cost of medical monitoring is a compensable item of damage under Civil Code article |42315 provided that a plaintiff satisfies the following criteria:
(1) Significant exposure to a proven hazardous substance_
(2) As a proximate result of this exposure, plaintiff suffers a significantly increased risk of contracting a serious latent disease-
(3) Plaintiffs risk of contracting a serious latent disease is greater than (a) the risk of contracting the same disease had he or she not been exposed and (b) the chances of members of the public at large of developing the disease-
(4) A monitoring procedure exists that makes the early detection of the disease possible-
(5) The monitoring procedure has been prescribed by a qualified physician and is reasonably necessary according to contemporary scientific principles_
(6) The prescribed monitoring regime is different from that normally recommended in the absence of exposure-
(7) There is some demonstrated clinical value in the early detection and diagnosis of the disease.

Bourgeois v. A.P. Green Indus., Inc., 97-3188, pp. 9-11 (La.7/8/98), 716 So.2d 355, 360-361 (hereafter “Bourgeois I”).

Subsequently the Louisiana Législature passed Act 989 of 1999, which amended La.C.C. art. 2315 to provide, “Damages do not include costs for future medical treatment, services, surveillance, or procedures of any kind unless such treatment, services, surveillance, or procedures are directly related to a manifest physical or mental injury or disease.” Specific language in the Act indicated it was intended to legislatively overrule the decision in Bourgeois I.

| sAct 989 also provided that it applied to pending suits. Accordingly, the Bourgeois defendants filed new exceptions of no cause of action, on the basis that the suit was barred by Act 989’s amendment of La.C.C. art. 2315. In addition, the Avon-dale executive officers asserted that plaintiffs’ cause of action was barred by the exclusive remedy provisions of the Long-shore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901, et seq. (hereafter “LHWCA”).

In response, plaintiffs filed a Motion to Declare Act 989 Unconstitutional, arguing that application of Act 989 would deprive them of their vested right to a cause of action for medical monitoring.

The district court overruled the exceptions of no cause of action, then granted plaintiffs’ motion and declared Act 989 unconstitutional as it applies to the instant matter. The district court also ruled that plaintiffs’ causes of actions are not barred by any worker’s compensation statutes.

Because a constitutional issue was involved, defendants took a direct appeal to the Louisiana Supreme Court. They sought a finding that Act 989 is constitutional as it applies to plaintiffs. Avondale also asserted the trial court erred in holding that plaintiffs’ claims against Avondale and the executive officers are not barred by any workers’ compensation statutes.

The supreme court upheld the district court’s ruling, finding Act 989 of 1999 could not be applied retroactively to bar plaintiffs’ claims. Bourgeois v. A.P. Green Indus., Inc., 00-1528 (La.4/3/01), 783 So.2d 1251 (hereafter “Bourgeois II”). The court declined, however, to address the non-constitutional issues raised by the defendants. Instead, the supreme court transferred the case to this Court for consideration of the other issues.

J^ISSUES

The only appellants raising issues before us on this transfer are Avondale, the Avon-dale executive officers, and their insurers.

Avondale asserts the trial court erred in ruling that plaintiffs’ cause of action against Avondale and the executive officers is not barred by any workers’ compensation statutes. Avondale contends, first, that the plaintiffs’ claims are for non-intentional torts and, thus, are subject to the exclusive remedy limitations of workers’ compensation coverage. Second, Avondale argues that plaintiffs’ claims fall under the LHWCA, because concurrent jurisdiction between the LHWCA and the Louisiana Workers’ Compensation Act, La.R.S. 23:1021, et seq. ended on January 1, 1990.

The Avondale executive officers assert the trial court should have dismissed these claims and directed them to the appropriate workers’ compensation administration. They also contend the trial court erred in finding they are not immune from plaintiffs’ tort suit as co-employees.

The defendants-appellants argue that we should not be guided by the jurisprudence that allows tort claims against the co-employees or employers for the actual contraction of an asbestos disease. Rather, they urge, this Court “should examine the instant claims in their unique context” to determine whether the tort claims asserted can be justified “when existing compensation remedies are available to give plaintiffs everything they seek without resort to the lengthy, |7expensive and uncertain process of attempting to obtain identical relief through the tort system.”

Plaintiffs-appellees contend that neither the Louisiana Workers’ Compensation Act nor the LHWCA immunizes the executive officers from plaintiffs’ tort claims and that the executive officers’ argument is without merit under past decisions by this Court and by the state supreme court. Similarly, they assert that Avondale’s argument that plaintiffs are subject to the exclusive remedy provision of the LHWCA has been squarely addressed and rejected both by this Court and by the supreme court.

ANALYSIS

The Louisiana Workers’ Compensation Act, La.R.S. 23:1021 et seq., provides that an employee who receives “personal injury by accident arising out of and in the course of his employment” shall be paid compensation by his employer. La.R.S. 23:1031(A). “ ‘Injury’ and ‘personal injuries’ include only injuries by violence to the physical structure of the body and such disease or infections as naturally result therefrom. These terms shall in no case be construed to include any other form of disease or derangement, however caused or contracted.” La.R.S. 23:1021(7)(a). “Accident” means “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La.R.S. 23:1021(1).

An employee who is “disabled because of the contraction of an occupational disease” is entitled to such compensation. La.R.S. 23:1031.1(A). “Occupational disease” is defined as “disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or |semployment in which the employee is exposed to such disease.” La.R.S. 23:1031.1(B).

All claims for disability arising from an occupational disease are barred unless the employee files a claim with his employer within six months of the date that the disease manifested itself, the employee is disabled from working as a result of the disease, or the employee knows or has reasonable grounds to believe that the disease is occupationally related. La.R.S. 23:1031.1(E). The rights and remedies under the Louisiana Workers’ Compensation Act granted to an employee on account of an occupational disease for which he is entitled to compensation shall be exclusive of all other rights and remedies of the employee. La.R.S. 23:1031.1(H). Except for intentional acts, the rights and remedies granted under the Louisiana Workers’ Compensation Act on account of an injury, or compensable sickness or disease for which the employee is entitled to compensation, shall be exclusive of all other rights, remedies, and claims for damages. La. R.S. 23:1032(A)(l)(a).

The federal Longshore and Harbor Workers’ Compensation Act is contained in 33 U.S.C. § 901, et seq. Like the Louisiana Workers’ Compensation Act, the LHWCA provides that compensation is payable upon the disability or death of an employee from an injury occurring upon the navigable waters of the United States, including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel. 33 U.S.C. § 903. The LHWCA defines “injury” as “accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury.” 33 U.S.C. § 902(2). The liability of an employer is exclusive |¡,and in place of all other liability of such employer to the employee. 33 U.S.C. § 905.

Plaintiffs petition asserts that this suit is brought on behalf of those persons similarly situated “who are currently employed or have been employed in the past by Avondale industries, Inc., 5100 River Road, Avondale, Louisiana, and who have been so situated since the early 1940s.” The function of the exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Com’n., 94-2015 (La.11/30/94), 646 So.2d 885, 888 n. 3. Cause of action, as used in the context of the peremptory exception, means the operative facts which give rise to the plaintiffs right to judicially assert the action against the defendant. Everything On Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1238 (La.1993). The court reviews the petition and accepts well-pleaded allegations of fact as true, so that the issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Everything on Wheels Subaru, Inc., 616 So.2d at 1235.

In Cole v. Celotex Corp., 599 So.2d 1058 (La.1992), the Louisiana Supreme Court set out a framework for determining when a cause of action accrues in long-latency occupational disease cases. Cole and its progeny adopted the significant exposure theory to establish when a tort cause of action accrues for physical harm arising from asbestosis exposure. Acceptance of this theory was confirmed in Abadie v. Metro. Life Ins. Co., 00-344 (La.App. 5 Cir. 3/28/01), 784 So.2d 46, writs denied, 01-1543 (La.12/14/01), 804 So.2d 643, and Austin v. Abney Mills, Inc., 01-1598, p. 25 (La.9/4/02), 824 So.2d 1137, 1154. The law in effect at the time of the tortious exposures will apply if the evidence proves that the exposures were significant AND resulted in the later manifestation of damages. Abadie v. Metro. Life Ins. Co., supra. “[T]he ‘significant tortious exposure’ theory for determining when a cause of action accrued in a long-latency occupational disease case in which the plaintiff suffers from an illness or disease is when the exposures are ‘significant and such exposures later result in the manifestation of damages....’” Austin v. Abney Mills, Inc., supra, at 1154.

Justice Victory, in his dissent in Austin v. Abney Mills, Inc., supra, suggests that a manifestation theory should replace the significant exposure theory in determining when a cause of action accrues or vests. Application of the manifestation theory would eliminate the often-perplexing question of when significant tortious exposure occurs. This would simplify the determination of what law applies to latent long-term torts. Justice Victory’s dissent, however, has not been adopted by a majority of our supreme court and so Cole and its progeny continue to be the controlling law. Hence, in resolving latent long-term toxic torts courts must apply the law that was in effect at the time of the significant causative exposure.

In 1952 the Louisiana Workers’ Compensation Law was amended to recognize asbestosis as an occupational disease. La. R.S. 23:1031.1 (1952). In Chivoletto v. Johns-Manville Products Corp., 330 So.2d 295 (La.1976), the Supreme Court affirmed an award of compensation benefits to an employee who was not disabled, but who suffered impairment of a physical function from exposure to asbestos.

Thus, in order for an employee to have a cause of action for a non-intentional tort against an employer for asbestos-related medical treatment, including medical monitoring, that employee must have endured significant asbestos exposure prior to 1952, before asbestosis became an occupational disease covered by workers compensation benefits. Injury resulting from exposure after |n1952 is subject to the Louisiana Workers’ Compensation scheme that provides tort immunity for the employer for non-intentional torts.

Avondale admits that if plaintiffs’ last exposure to asbestos was at Avondale, Avondale has an obligation under the workers’ compensation scheme to provide medical benefits for injuries caused by asbestos exposure.

In 1976, the legislature amended the Louisiana Workers’ Compensation Law to provide tort immunity for non-intentional torts to third persons including any principal, officer, director, stockholder, partner, or employee of the employer. La.R.S. 23:1032. In Bazley v. Tortorich, 397 So.2d 475 (La.1981), the Louisiana Supreme Court specifically concluded that this amendment included immunity for executive officers. Therefore, a cause of action for non-intentional tort against Avondale’s executive officers can be asserted only by employees of Avondale who had significant exposure to asbestos prior to 1976.

The time of significant exposure, not the time of filing the claim, will determine which employees are entitled to assert a negligence action against Avondale and its executive officers. Those plaintiffs whose significant exposure was pre-1952, before asbestosis was a covered occupational disease, have an assertable negligence cause of action against Avondale and Avondale’s executive officers. Those plaintiffs whose significant exposure was between 1952 and 1976 have an assertable negligence claim against the Avondale executive officers, but not against Avondale. Plaintiffs with no significant exposure before 1976 have no negligence cause of action against Avondale or Avondale’s executive officers.

Plaintiffs’ petition alleges “willful misconduct” by Avondale executive officers. The purpose of the 1976 amendments to the Louisiana Workers’ Compensation Law was to enlarge the exclusive remedy rule to provide immunity for other members of the employment network. However, the legislature decided | ^against total immunity for those persons and allowed one exception for intentional acts. The exception for intentional acts recognizes the difference between damages caused without an intent to injure and those caused with intent to injure. Bazley v. Tortorich, 397 So.2d at 480.

The purpose of the intentional act exception is to prevent a person granted immunity, who intentionally inflicts an injury on an employee, from using the immunity to protect himself against the consequences of his own “willful misconduct.” Reeder v. Laks Corporation, 555 So.2d 7, 10 (La.App. 1 Cir.1989), writs denied, 559 So.2d 142 (La.1990), citing Johnson, Developments in the Law, 1980-1981—Workers’ Compensation, 42 La. L.Rev. 620, 631-32 (1982). To constitute an “intentional act” for purposes of the exception to the exclusivity of the workers’ compensation remedy, the defendant must have either desired to bring about the physical results of his act or believed they were substantially certain to follow from what he did. Bazley v. Tortorich, 397 So.2d at 482.

Whether the alleged “willful misconduct” in this case constitutes an intentional act cannot be ascertained at this stage of the proceeding. Therefore, the Exception of No Cause of Action as to the willful misconduct allegation was properly denied.

Avondale and its executive officers assert that a claim for medical monitoring is a new cause of action and that the theory established in Walls v. American Optical Corp., 98-0455 (La.9/8/99), 740 So.2d 1262, should apply. In Walls, the Louisiana Supreme Court distinguished between a survival action for pain and suffering and a wrongful death claim, holding that the law at the time of exposure applies in the survival action, while the law in effect at the time of the death applies in a wrongful death claims. Avondale and its executive officers contend that claims for medical monitoring should be considered a new cause of Inaction and that the law in effect at the time that the claim for medical monitoring is made should be applied.

A claim for medical monitoring is a claim for medical expenses incurred by the tort victim due to tortious exposure. It is a cause of action based on significant exposure to a proven hazardous substance that creates a risk of contracting a serious latent disease. Unlike a claim for wrongful death, a claim for medical monitoring is not a derivative claim.

Avondale and its executive officers also argue that the LHWCA controls. Under the LHWCA, plaintiffs are prohibited from suing co-employees in tort. This Court addressed this issue fully in Abadie v. Metropolitan Life Insurance, 00-344 at p. 22, 784 So.2d at 67, in which we stated:

We find that the Louisiana Supreme Court case of Poche v. Avondale Shipyards, Inc., 339 So.2d 1212 (La.1976), controls for the pre-1976 injuries. It holds that LHWCA and state workers compensation schemes provide concurrent remedies for these maritime workers who work over land; plaintiffs may choose to proceed under either scheme. Further, if a plaintiff chooses to proceed under the state compensation scheme and makes no claim under LHWCA, he may avail himself of the entire body of state compensation law, not merely the portions that do not conflict with the federal scheme. Thus, the plaintiffs choice to proceed under state law allows them to sue the executive officers in tort, under pre-amendment R.S. 23:1032 and 23:1101, a remedy not available under the LHWCA.

Accordingly, the trial court was correct in overruling the exceptions of no cause of action.

DECREE

For the foregoing reasons, the judgment is affirmed. Costs of this appeal are assessed against the appellants.

AFFIRMED.

      . The petition describes the class of plaintiffs as persons "who have not been previously informed of a diagnosis of an asbestos-related disease or who have been informed of an asbestos-related disease but are in need of regular medical monitoring. Persons with lawsuits filed due to an asbestos-related disease are specifically excluded from this class action.”

      . "The provisions of this Act are interpretative of Civil Code Article 2315 and are intended to explain its original intent, notwithstanding the contrary interpretations given in Bourgeois v. A.P. Green Indus., Inc., 97-3188 (La.7/8/98); 716 So.2d 355, and all cases cited therewith.” Acts 1999, No. 989, § 2.

      . The individual defendants are Peter Territo, Steven Kennedy, and J.D. Roberts, and their insurers are American Motorists Insurance Company, Commercial Union Insurance Company, and Highlands Insurance Company.

      . That was the effective date of Acts 1989, No. 454, which added La.R.S. 23:1035.2 to the worker's compensation statutes. La.R.S. 23:1035.2 provides, "No compensation shall be payable in respect to the disability or death of any employee covered by the ... Longshoremen's and Harbor Worker's Compensation Act [sic]...."


author: 2SUSAN M. CHEHARDY, Judge.

text:
    Sandra CHRISTIANA v. Dr. Stephen SUDDERTH and East Jefferson General Hospital Foundation d/b/a East Jefferson General Hospital.
    No. 02-CA-1080.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 25, 2003.

      Frank A. Silvestri, John Paul Massicot, Silvestri & Massicot, Peter D. Derbes, New Orleans, LA, for Plaintiff-Appellant, Sandra Christiana.
    Thomas P. Anzelmo, Catherine M. Williams, McCranie, Sistrunk, Anzelmo, Hardy, Maxwell & McDaniel, Metairie, LA, for Defendant-Appellee, East Jefferson General Hospital.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and SUSAN M. CHEHARDY.
   2SUSAN M. CHEHARDY, Judge.

Plaintiff appeals the granting of a summary judgment that dismissed one of the defendants in this medical malpractice suit. We reverse and remand.

On September 11, 1997 Sandra Christian na underwent surgery for removal of a twisted section of bowel. The surgery was performed by Dr. Stephen Sudderth at East Jefferson General Hospital (hereafter “EJGH”). Dr. Sudderth removed the damaged section of bowel and joined the remaining ends by creation of a side-to-side anastomosis (essentially, a bypass in the bowel). During this procedure Dr. Sudderth used two surgical staplers, a GIA stapler and a TA 55 stapler.

In the days following the procedure, Christiana developed post-surgical complications. She returned to surgery on September 18, 1997, at which time Dr. Sud-derth discovered there was leakage from the anastomosis along the GIA staple line. Because of the inflamed and infected condition of the bowel, Dr. Sudderth had to perform an ileostomy (placement of an external bag for the removal of waste matter). Ultimately, Christiana underwent three additional surgical | .¡procedures, which finally resulted in the repair of the ileostomy and removal of the bag in April 1998.

Christiana filed a medical malpractice complaint against Dr. Sudderth and EJGH. The medical review panel determined that as to Dr. Sudderth there is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court: specifically, whether or not the stapler was defective or Dr. Sud-derth used it improperly, based upon his deposition statements. However, the panel found no breach of the standard of care by EJGH.

Plaintiff subsequently filed suit against Dr. Sudderth and EJGH. As to EJGH, the plaintiff alleged that the hospital, through its employees, breached the applicable standards of care as follows:

A. By failing to properly load the GIA 80;
B. By removing the instructions for the GIA 80 which purportedly set forth the minimum tissue thickness on which the stapler could be used;
C. By such other negligent acts or omissions which may be proved at trial.

Both defendants filed motions for summary judgment. In its motion for summary judgment EJGH noted that plaintiff alleges there was a failure in the assembly of the stapler at the time of the surgery by one or more of the hospital employees that resulted in damage or misalignment of the staples as they were ejected from the cartridge. EJGH argued that the plaintiff cannot prove there was a breach of the standard of care by the hospital. In support of its position the hospital attached the opinion of the medical review panel, which was unanimous in ^finding that the evidence did not support the conclusion that the hospital failed to meet the applicable standard of care as charged in the complaint.

EJGH also attached the affidavit of the head of the EJGH surgery department, Judy Bauer, R.N., who has been a registered nurse for 20 years, has worked at EJGH for 16 years, and has been a Certified Operating Room Nurse for the past 10 years. Bauer stated that the duties of a surgical assistant during a surgical procedure similar to plaintiffs would include sterilely opening the packaging and handling it onto the sterile field, handing the stapler device to the surgeon, and reloading the stapler, as necessary.

According to Bauer, the GIA 80 stapler is a pre-packed, pre-loaded apparatus, which is not assembled by the surgical assistants but instead is a disposable, one-patient item that can be reloaded up to seven times and in the surgery in question was reloaded twice. Bauer stated that if the reloaded cartridge was not seated tightly or loaded properly, the apparatus would not fire and, further, the firing of the staple line and the advancement of the handle are under the control of the operator. Finally, Bauer said her review of the record disclosed no evidence that the stapler malfunctioned or that the surgery team loaded it incorrectly.

In its motion for summary judgment EJGH also pointed out that plaintiff has failed to identify an expert who will testify that the employees of EJGH deviated from the standard of care.

In opposition to the motion, the plaintiff contended that there is a significant factual dispute concerning what stapler and what size staples were provided to Dr. Sudderth during the procedure performed on the plaintiff on September 11, 1997. The plaintiff pointed out that, although Dr. Sudderth’s second operative report refers to a GIA 80 being used during the first procedure, billing provided by EJGH shows that Sandra Christiana was charged for a GIA 60 stapler and two GIA 60 3.8 mm staple cartridges.

|fiIn addition, Nancy Scoggins, a surgi-can technician who assisted at the surgery, gave testimony that contradicted Dr. Sud-derth’s regarding the respective size and color of the respective staplers and staples, further clouding the issue of what size stapler and staples were provided to Dr. Sudderth.

Further, the plaintiff argued that discovery taken after the medical review panel rendered its decision had produced evidence that raises a material issue of fact regarding the hospital’s role in the stapler and staple size confusion. Dr. Sudderth testified he believed he used a GIA 80 with 4.8 mm staples, but hospital billing records show he was given either a GIA 60 or 80 and two reload 3.8 mm staple cartridges, not the 4.8 or larger staples he thought he was using and believed was appropriate for use on the bowel.

The plaintiff also pointed out that Judy Bauer could not say in her deposition whether the GIA 60 or GIA 80 stapler was provided to Dr. Sudderth and Bauer did not know that these staplers could use different size staples.

In addition, the plaintiff submitted the GIA 80 stapler instruction booklet, which states in pertinent part as follows:

READ ALL INSTRUCTIONS CAREFULLY.
Contraindications:
1. Do not use the MULTIFIRE GIA 80^4.8 instrument on any tissue that compresses to less than 2.0mm in thickness. Do not use the MULTIFIRE GIA 80-3.8 instrument on any tissue that compresses to less than 1.5mm in thickness. In such cases, the staples may not be tight enough to ensure he-mostasis.
3. Do not use the MULTIFIRE GIA 80-4.85 instrument on any tissue that cannot comfortably compress to 2.0mm in thickness. Do not use the MULTI-FIRE GIA 80-3.85 instrument on any tissue that cannot comfortably compress to 1.5mm in thickness. In such cases, the tissue is too thick for the staple size.
5. Tissue such as the duodenum or stomach may be too thick for the MUL-TIFIRE GIA 80 disposable loading units, and therefore tissue thickness should be carefully ^evaluated before firing. However, the MULTIFIRE GIA 80 disposable surgical stapler with the MULTIFIRE GIA 80 disposable loading unit can be used on the stomach for anastomosis.
6. This device is not intended for use except where indicated.

The court denied Dr. Sudderth’s motion, but granted summary judgment in favor of EJGH. The plaintiff appeals the grant of summary judgment.

On appeal plaintiff contends the trial court erred in granting the motion for summary judgment because there are factual issues concerning whether EJGH personnel provided Dr. Sudderth with the appropriate stapler and the appropriate-sized staples for the procedure involved in this case.

Plaintiff asserts that the following material fact issues warranted denial of E JGH’s motion:

1. What stapler and what size staples Dr. Sudderth requested of the EJGH personnel assisting him for the September 11, 1997 procedure on the plaintiff, raised by the conflict between the deposition testimony of Dr. Sudderth and of nurse Nancy Scoggins.

2. What stapler and what size staples actually were provided to Dr. Sudderth by EJGH personnel for that operation, illustrated by the conflict between deposition testimony of Judy Bauer and Nancy Scog-gins, as well as by the patient’s bills, one of which shows a charge for a GIA 60 stapler and another which shows a charge for a GIA 80 stapler, and which also show charges for 3.8 mm staples rather than the 4.8 mm staples Dr. Sudderth thought he was using.

3. Whether EJGH personnel involved in the plaintiffs September 11, 1997 surgery knew or should have been familiar with the manufacturer’s instructions, contraindications and cautions regarding the use of the GIA stapler, illustrated by the deposition testimony of nurse Scoggins and nurse Cindy Fitzsimons.

17Plaintiff asserts that expert testimony is not required for resolution of these fact issues. She points to the medical review panel’s finding that there were material fact issues bearing on liability which could not be resolved by expert opinion. Plaintiff argues that the medical review panel’s absolution of EJGH of liability is moot because discovery she conducted subsequently resulted in production of the evidence indicating that Dr. Sudderth was given a different size stapler and staples than he requested.

Plaintiff contends the GIA stapler documentation, Dr. Sudderth’s testimony, and the conflicting records of EJGH, along with the testimony of its personnel, raise additional factual issues on the liability of EJGH, so that the motion for summary judgment should have been denied.

In opposition, EJGH asserts the trial court properly granted the motion for summary judgment because the plaintiff produced no expert to testify that EJGH breached the standard of care in this case.

Plaintiffs in a medical malpractice suit against a hospital have the burden of showing that the hospital personnel negligently departed from the recognized standard of care afforded by hospitals in the area for the particular malady involved. Dean v. Ochsner Med. Found. Hosp. & Clinic, 99-466, p. 5 (La.App. 5 Cir. 11/10/99), 749 So.2d 36, 39.

An expert is not required when there is some obvious act from which a lay person can infer negligence, such as fracturing a leg during examination, amputating the wrong limb, dropping knife, scalpel or acid on a patient, or leaving a sponge in a patient’s body. Pfiffner v. Correa, 94-0924, p. 9 (La.10/17/94), 643 So.2d 1228, 1233.

In Pfiffner, the court held further:

We hold that expert testimony is not always necessary in order for a plaintiff to meet his burden of proof in establishing a medical malpractice claim. 1 «Though in most cases, because of the complex medical and factual issues involved, a plaintiff will likely fail to sustain his burden of proving his claim under LSA-R.S. 9:2794’s requirements without medical experts, there are instances in which the medical and factual issues are such that a lay jury can perceive negligence in the charged physician’s conduct as well as any expert can, or in which the defendant/physician testifies as to the standard of care and there is objective evidence, including the testimony of the defendant/physician, which demonstrates a breach thereof. Even so, the plaintiff must also demonstrate by a preponderance of the evidence a causal nexus between the defendant’s fault and the injury alleged.

94-0924, p. 9-10 (La.10/17/94), 643 So.2d 1228, 1234.

We conclude there are genuine issues of material fact in the following respects: whether hospital personnel gave Dr. Sudderth a different size stapler and/or staples than he requested; whether such was a negligent act that was a breach of the standard of care; and whether EJGH personnel knew or should have been familiar with the manufacturer’s instructions, contraindications, and cautions regarding the use of the GIA stapler.

We are not persuaded by the affidavits of the three physicians who were members of the medical review panel, which EJGH filed in support of its motion for summary-judgment. In those affidavits the doctors each state it was within the standard of care for Dr. Sudderth to use either a GIA 60 or a GIA 80 stapler and also either 3.8 or 4.8 size staplers in this procedure. Those affidavits were given after the medical review panel had concluded and were based on information that was not considered by the panel in its deliberations, because the information was developed after-wards.

Further, the affidavits do not address the manufacturer’s instructions for the GIA 80 stapler, which state under “Contraindications” that the GIA 80 should not be used on tissue that is either too thick or too thin for the different available staple l9sizes. The affidavits appear to contradict the manufacturer’s own contraindications. A health-care provider’s deviation from a manufacturer’s warning may be negligence for which expert testimony is not required to establish the applicable standard of care, because such evidence may be sufficient to make a prima facie showing of negligence. See Fournet v. Roule-Graham, 00-1653 (LaApp. 5 Cir. 3/14/02), 783 So.2d 439, writ denied, 01-985 (La.6/15/02), 793 So.2d 1242; Terrebonne v. Floyd, 99-766 (La.App. 1 Cir. 5/23/00), 767 So.2d 758, writ not considered, 00-1931 (La.9/29/00), 769 So.2d 549.

For the foregoing reasons, the judgment granting summary judgment in favor of East Jefferson General Hospital is reversed and the matter is remanded. Costs of this appeal are assessed against the appellee, East Jefferson General Hospital.

REVERSED AND REMANDED.

      . Dr. Sudderth testified he believed he was using a GIA-80 with 4.8 mm staples.

      . The plaintiff named the hospital incorrectly as "East Jefferson General Hospital Foundation d/b/a East Jefferson General Hospital.” The hospital’s correct legal name is "Jefferson Parish Hospital Service District No. 2, Parish of Jefferson, State of Louisiana d/b/a East Jefferson General Hospital,” as pointed out by the hospital in its answer to the petition.
      In addition, the plaintiff originally included United States Surgical Corporation, manufacturer of the surgical stapler, as a defendant under a products liability claim. Subsequently, however, the plaintiff amended her petition to eliminate United States Surgical Corporation as a defendant, deleting all references to the company in the petition.

      . The physician members of the medical review panel were Julius Levy, Jr., M.D.; Frank DiVincenti, M.C.; and Rene deBoisblanc, M.D.


author: 2SOL GOTHARD, Judge.

text:
    Elaine DOUCET, et al v. HUFFINE ROOFING AND CONSTRUCTION, et al.
    No. 02-CA-1049.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 25, 2003.

      James E. Shields, Gretna, LA, for Plaintiffs/Appellants.
    David K. Persons, Alayne R. Corcoran, Hailey, McNamara, Hall, Larmann & Pa-pale, L.L.P., Metairie, LA, for Defendant/Appellee, State Farm Fire & Casualty Company.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD, and WALTER J. ROTHSCHILD.
   2SOL GOTHARD, Judge.

This is an appeal from a grant of a defense motion for summary judgment. The issue on appeal is whether a policy of liability insurance issued by State Farm Insurance Company to its insured, Plateo & Silcio Architects (Plateo & Silcio), applies to the negligence of the insured in this case.

This matter began as a class action suit by certain plaintiffs who allege they sustained injuries due to exposure to toxic fumes at L.W. Higgins High School during the repair and replacement of the building roof. Several defendants were named in the action, including Plateo & Silcio, and, in a supplemental and amending petition, State Farm as the insurer of Plateo & Silcio. State Farm filed a motion for summary judgment in which it asserted that the specific professional liability exclusion contained in the policy precluded coverage of plaintiffs’ claim. Attached to the motion were the following documents:

1. Pertinent pleadings,
2. A contract between the Jefferson Parish School Board and Plateo & Silcio,
3. A copy of a professional liability insurance policy written by Continental Casualty Company and insuring Plateo & Silcio, and,
4. A copy of the State Farm business policy that is at issue herein.

laAfter a hearing on the matter, the trial court granted State Farm’s motion and rendered a judgment accordingly, dismissing State Farm from the suit. The judgment was certified by the trial court as a partial final judgment subject to immediate appeal.

LSA-C.C.P. art 966 provides in pertinent part as follows:

.The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.
C. (1) After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.

Summary judgments are now favored in the law and the rules should be applied liberally. Breaux v. Schiro, 01-1398 (La.App. 5 Cir. 5/29/02), 821 So.2d 123, 125; writ denied, 02-1784 (La.10/4/02), 826 So.2d 1129.

On appeal this Court must review a summary judgment de novo and inquire whether there are genuine issues of material fact and whether the summary judgment should be granted in accordance with article 966. Id. The summary judgment procedure shall be construed to accomplish the ends of just, speedy, and inexpensive determination of allowable actions. LSA-C.C.P. art. 966; Perricone v. East Jefferson General Hospital, 98-343 (La.App. 5 Cir. 10/14/98), 721 So.2d 48.

There is no dispute that the Jefferson Parish School Board entered into a contract with Plateo & Silcio for its professional architectural services in construction work done on L.W. Higgins High School, or that State Farm insures Plateo & Silcio. The State Farm business policy covers the buildings and personal property of the firm from losses for fire, lightning, explosion, windstorm, had, etc., and loss of income resulting from such losses. The policy states:

|4Under coverage L, this insurance does not apply:
10. to bodily injury, property damage or personal injury due to rendering or failure to render any profession services or treatments. This includes but is not limited to:
b. engineering, drafting, surveying or architectural services, including preparing, approving, or failing to prepare or approve maps, drawings, opinions, reports, surveys, change orders, designs or specifications....

In support of its motion for summary judgment, State Farm argued successfully that the above exception precluded coverage for the alleged negligence of its insured in this case.

Plaintiffs cite a different section of the policy that reads:

Under coverage L, this insurance does not apply:
* * *
10. to bodily injury, property damage for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages.
a. assumed in a contract or agreement that is an insured contract, provided the bodily injury or property damage occurs after the execution of the contract or agreement; or
b. that the insured would have in the absence of a contract or agreement.

Plaintiff argues that the contract between the School Board and the architect was a contract which fits into the exception to the exclusion cited above because of certain clauses in the contract that make the architect responsible for supervision and control of the project.

LSA C.C. art.2045 provides that the interpretation of a contract is the determination of the common intent of the parties. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. LSA C.C. art.2046. Further, when a contract can be construed from the four corners of the instrument without looking lRto extrinsic evidence, the question of contractual interpretation is answered as a matter of law and summary judgment is appropriate. Becnel v. Alexander, 00-1304 (La.App. 5 Cir. 3/28/01) 783 So.2d 540, 543.

In our consideration of plaintiffs’ argument that the exception to the exclusion for liability assumed in a contract is applicable, we note that the contract between the School Board and the architect provides that the architect has the responsibility for supervision of the repair work. However, we do find that fact sufficient to provide coverage under the cited clause in the State Farm policy regarding assumed liability. The meaning of the contract is obvious from the four corners of the document. It is a contract between the Jefferson Parish School Board and Plateo & Silcio for professional architectural services that included supervision and control of the project. It is a transfer of responsibility for supervision of the project in the normal course of the furtherance of the profession of the architect. It is not a transfer of liability. Surely it would be illogical for this Court to rule that Plateo & Silcio had assumed the School Board’s legal liability for all damages occurring from the incident by reason of the contract for professional services.

We also note that it is clear that the insured, Plateo & Silcio, understood that a separate policy for coverage of professional liability was required, because the firm has such a policy with Continental Casualty Insurance Company.

In Succession of Fannaly v. Lafayette Ins. Co., 01-1144,1343,1355,1360 (La.1/15/02), 805 So.2d 1134, the Supreme Court set forth the general rules of insurance contract interpretation.

An insurance policy is an aleatory, nominate contract subject to the general rules of contract interpretation as set forth in our civil code. See LSA-C.C. arts.1912, 1914-15. The extent of coverage under an insurance contract is dependent on the common intent of the insured and insurer. Thus, when interpreting an insurance contract, courts must attempt to discern the common intent of the insured and insurer. See LSA-C.C. art.2045.
lain ascertaining the common intent of the insured and insurer, courts begin their analysis with a review of the words in the insurance contract. Words in an insurance contract must be ascribed their generally prevailing meaning, unless the words have acquired a technical meaning, in which case the words must be ascribed their technical meaning. See LSA-C.C. art.2047. Moreover, an insurance contract is construed as a whole and each provision in the contract must be interpreted in light of the other provisions. One provision of the contract should not be construed separately at the expense of disregarding other provisions. See LSA-C.C. art.2050;
When the words of an insurance contract are clear and explicit and lead to no absurd consequences, courts must enforce the contract as written. See LSA-C.C. art.2046. Courts lack authority to alter the terms of an insurance contract under the guise of contractual interpretation when the contract’s provisions are couched in unambiguous terms. Indeed, the rules of contractual interpretation “do not authorize a perversion of the words or the exercise of inventive powers to create an ambiguity where none exists.” (some citations omitted)

Id. 805 So.2d at 1137-38.

In the instant matter we find the professional services exclusion in the State Farm policy is clear and unambiguous. We further find no error in the trial court’s ruling that the exclusion precludes recovery in this case. Accordingly, we find the trial court’s grant of summary judgment was correct and, accordingly, we affirm the judgment.

AFFIRMED.


text:
    Gloria MORRIS, v. WESTSIDE TRANSIT LINE and/or American Transit Corp.
    No. 02-CA-1029.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 25, 2003.
    Writ Denied May 16, 2003.

      Hilary G. Gaudin, Gaudin & Gaudin, Gretna, LA, for Gloria Morris, .Plaintiff/Appellant.
    Richard L. Olivier, Metairie, LA, for Parish of Jefferson, Defendant/Appellee.
    Leonard M. D’Angelo, Metairie, LA, for Ferdinand H. Cerruti, Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and WALTER J. ROTHSCHILD.
   2WALTER J. ROTHSCHILD, Judge.

This is an appeal from a judgment of the trial court granting defendants’ exceptions of prescription. For the reasons stated herein, we affirm.

Facts and Procedural History

Plaintiff, Gloria Morris, injured her left leg on July 22, 1998 when she fell at a bus stop on Lapalco Blvd. in Jefferson Parish. She filed the instant suit for damages on September 14, 1998 against Westside Transit Line and American Transit Corporation, alleging that the bus stop was under the care, custody and control of defendants. On December 2, 1998, ATC/Vancom Management Services Limited Partnership (“ATC/Vancom”) filed an answer to this petition, stating that plaintiff had improperly named them as West-side Transit Line and American Transit Corporation.

On May 10, 1999, defendant ATC/Van-com filed a motion for summary judgment on the basis that it had no ownership or maintenance responsibility over the bus stop and that Jefferson Parish owned the land where the stop was located. The trial court denied this motion. On August 26, 1999, over one year after the date of the accident, plaintiff filed a supplemental and amending petition naming Jefferson Parish as a defendant in these proceedings. On January 10, 2000, plaintiff filed a second supplemental and amending petition naming as defendant Ferdinand Cerruti. Plaintiff alleged that both Jefferson Parish and Cerruti owned and were responsible for maintenance of the land in question. Both of these defendants subsequently filed answers to the petition denying liability for plaintiffs injuries.

IsiOn August 3, 2001, defendant ATC/Vancom filed a second motion for summary judgment on the basis that Jefferson Parish had the care, custody and control of the bus stop where plaintiffs injury occurred. Defendant attached to its motion a copy of plaintiffs deposition as well as the answers to interrogatories obtained from Jefferson Parish indicating that the bus stop in this case was created by resolution of the Jefferson Parish Council. Defendant also attached work orders from Jefferson Parish Streets Department indicating that the Parish maintained the land where the bus stop was located. Additionally, defendant submitted an affidavit from an employee of ATC/Vancom who stated that that entity did not own or maintain the bus stop. Plaintiff indicated that there was no opposition to this motion, and the trial court subsequently granted the motion on October 3, 2001, dismissing plaintiffs demand against ATC/Vancom with prejudice.

Thereafter, on February 8, 2002, defendants Jefferson Parish and Ferdinand Cerruti filed peremptory exceptions of prescription on the basis that the plaintiffs suit against them was untimely filed. Defendants also asserted that the only timely sued defendant, ATC/Vancom, was dismissed by judgment rendered on October 3, 2001, and therefore plaintiffs case against the remaining defendants who were not timely sued had prescribed. Hearing on these exceptions was set for May 14, 2002.

Plaintiff opposed these exceptions and submitted evidence of a contract between ATC/Vancom and Jefferson Parish for transit management services which contained an indemnity agreement in favor of Jefferson Parish. Plaintiff also submitted copies of the answers to a request for production of documents submitted by ATC/Vancom in which defendant denied the existence of such contract. Additionally, plaintiff submitted the affidavit of her attorney, Pierre Gaudin, who stated that he was told in a telephone conversation with counsel for Jefferson Parish that the Parish was the responsible party in plaintiffs lawsuit.

On May 10, 2002, plaintiff filed into these proceedings a petition to annul the summary judgment entered by the trial court on October 3, 2001 in favor of ATC/Vancom. Plaintiff alleged that ATC/Vancom had fraudulently answered plaintiffs request for production of documents by denying the existence of a contract with Jefferson Parish. Plaintiff argued that she relied on the information supplied by defendant in failing to oppose defendant’s motion for summary judgment. Plaintiff contended that defendant deliberately withheld the contractual documents to obtain an uncontested summary judgment, and that such actions constitute ill ^practices which require that the summary judgment be annulled. Plaintiff also requested that hearing on defendants’ exceptions of prescription be continued until a determination of the merits of the petition to annul was rendered.

The trial court denied the motion to continue and by judgment signed on May 22, 2002, the trial court maintained defendants’ exceptions of prescription dismissing plaintiffs demands against Jefferson Parish and Ferdinand Cerruti with prejudice. This devolutive appeal followed. Discussion

Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained. La. C.C. art. 3492. Prescriptive statutes are strictly construed against prescription and in favor of the obligation sought to be enforced. See, Lima v. Schmidt, 595 So.2d 624, 629 (La.1992). Of two possible constructions of a prescription statute, one barring the action and one maintaining it, the statute will be read in such manner as to maintain the obligee’s claim. Id., 595 So.2d at 629.

The burden of proof of showing prescription is generally on the exceptor. However, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show suspension, interruption or renunciation. Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1383, 1386 (La.1993); Castaneda v. Louisiana Ins. Guar. Ass’n, 95-29 (La.App. 5 Cir. 5/30/95), 657 So.2d 338, 339, writ denied, 95-2097 (La.11/17/95), 663 So.2d 715.

On appeal, plaintiff contends that the trial court erred in granting the exception of prescription because the defendants are joint tortfeasors and prescription was interrupted based on La. C.C. art. 2324(C), which provides:

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

Plaintiff contends that the timely filed suit against ATC/Vancom interrupted prescription of the claims against Jefferson Parish and Cerruti. However, the law is well settled that where no liability is found on the part of a timely sued alleged tort-feasor, prescription will not be interrupted as to another tortfeasor, who is not timely sued, since no joint or solidary obligation exists. Renfroe v. State of Louisiana, DOTD, 01-1646 (La.2/26/02), 809 So.2d 947, 950. In this case, plaintiff sued ATC/Vancom within the applicable prescriptive period, but the supplemental and amending petitions against Jefferson Parish and Cerruti were filed more than one year from the date of the accident. Further, ATC/Vancom was dismissed from these proceedings with | .^prejudice by judgment dated October 3, 2001, and there is no joint or solidary obligation in this case. Thus, the interruption provided in La. C.C. art. 2324(C) is not applicable here.

Plaintiff further contends that the trial court erred in granting the exceptions of prescription because the supplemental and amending petitions filed against Jefferson Parish and Mr. Cerruti relate back to the timely filed original petition pursuant to the provisions of La. C.C.P. art. 1153. That article 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 support of the argument that the amending petitions filed in this case relate back to the date of the filing of the original petition, plaintiff relies on Ray v. Alexandria Mall, 434 So.2d 1083 (La.1983) and Findley v. City of Baton Rouge, 570 So.2d 1168 (La.1990).

In the Ray case, the Supreme Court established the following criteria for determining whether art. 1153 allows an amendment which changes the identity of the party or parties sued to relate back to the date of filing of the original petition:

(1) The amended claim must arise out of the same transaction or occurrence set forth in the original pleading;
(2) The purported substitute defendant must have received notice of the institution of the action such that he will not be prejudiced in maintaining a defense on the merits;
(3) The purported substitute defendant must know or should have known that but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him;
(4) The purported substitute defendant must not be a wholly new or unrelated defendant, since this would be tantamount to assertion of a new cause of action which would have otherwise prescribed.

In Ray, the plaintiff who slipped and fell in a mall improperly named the defendant as Alexandria Mall, through their insurer St. Paul Property and Liability Insurance, rather than the partnership, Alexandria Mall Company. The correct defendant was named in an amended petition filed after the one-year prescriptive date, and the Supreme Court held that the amended petition related back to the date of the filing of the original petition. However, in that case, St. Paul was the insurer of Alexandria Mall Company and paid plaintiffs medical expenses from the time of the accident and the manager of the mall where the injury occurred was served with a copy of the original petition. In its holding, the Supreme Court noted that the defendant named in the amended suit was not a wholly new or unrelated defendant as there was only one | ^Alexandria Mall in that city and further that defendant was put on notice of the filing of the suit by the service of its manager within the prescriptive period.

In Findley v. City of Baton Rouge, 570 So.2d 1168 (La.1990), a case also relied upon by Ms. Morris, the plaintiff was injured in a public park in Baton Rouge and improperly named the City of Baton Rouge as defendant rather than the actual owner of the park, the Recreation and Park Commission for the Parish of East Baton Rouge. Plaintiff amended his petition after the prescriptive date to name the correct defendant and the Supreme Court found that the amendment related back based on the fact that the two defendants were closely related because of the control element exercised over BREC by the City and because the two defendants had an identity of interests. Further, the court noted that the defendant was not prejudiced because the City had notified BREC of its investigation of the lawsuit shortly after the accident.

Our review of the record shows that the facts of the present case are distinguishable from the cases cited above, and we find that plaintiffs reliance on La. C.C.P. art. 1153 is misplaced. Although plaintiff presented evidence that Jefferson Parish contracted with ATC/Vancom for management of the transit service, this business relationship alone is insufficient to support a connexity between the two defendants to allow the amending petition to relate back. The application of article 1153 in the Ray case was based on a misnomer of the correct defendant. In the Findley case, there was an identity of interests between the two governmental agencies which the court found had the components of a parent corporation and a wholly owned subsidiary relationship. Further, in both of these cases, the defendant added after the prescriptive date had notice of the lawsuit prior to the running of prescription.

In the present case, there is no evidence that ATC/Vancom had any type of identity of interest or a sufficient connexity of relationship with Jefferson Parish. There is no evidence that Jefferson Parish was notified of the lawsuit during the prescriptive period or that Jefferson Parish would not be prejudiced by the failure to receive notice with the statutory prescriptive period. Rather, the record shows that the Parish of Jefferson is a not a related party to the party timely sued, and as such, the amended petition does not relate back to the original petition pursuant to La. C.C.P. art. 1153. See, Renfroe v. State of Louisiana, 01-1646 (La.2/26/02), 809 So.2d 947.

Ms. Morris also argues that prescription was interrupted by acknowledgement of liability by the attorney for Jefferson Parish pursuant to the provisions of La. C.C. art. 3464 or the concept of equitable estoppel. Plaintiff contends that counsel for Jefferson Parish lulled her into 17believing it would not contest legal responsibility for the area where the accident occurred. In support of this argument, plaintiff submitted the affidavit of plaintiffs counsel, Pierre Gaudin, who stated that counsel for Jefferson Parish contacted him in May of 2001 and requested a settlement demand based on a statement that Jefferson Parish was the responsible party in this case. Plaintiffs counsel stated that he did not oppose ATC/Vaneom’s motion for summary judgment based on the representations made by defense counsel.

Prescription is interrupted when one acknowledges the right of the person against whom he had commenced to prescribe. La. C.C. art. 3464. Interruption by acknowledgment may be oral, in writing, formal, informal, express or tacit. Gulf Coast Bank and Trust Co. v. Eckert, 95-156 (La.App. 5th Cir.5/30/95), 656 So.2d 1081, writ denied, 95-1632 (La.10/6/95), 661 So.2d 474. With respect to delictual actions, the acknowledgment need not be of a certain amount of damages, only of the defendant’s responsibility and plaintiffs right against that defendant. See, Lima v. Schmidt, supra, 595 So.2d 624 (La.1992). “A tacit acknowledgement occurs when a debtor performs acts of reparation or indemnity, makes an unconditional offer or payment, or lulls the creditor into believing he will not contest liability.” Id. at 634.

Equitable estoppel is defined as “the effect of voluntary conduct of a party whereby he is precluded from asserting rights against another who justifiably relied upon such conduct and changed his position so that he will suffer injury is the former is allowed to repudiate the conduct.” Wilridge v. Capital MFG. Co., 97-574 (La.App. 3 Cir. 12/17/97), 704 So.2d 966. Plaintiff contends that her counsel justifiably relied on the representation of counsel for Jefferson Parish that it was responsible for the area where the accident occurred.

In the present case, plaintiff has the burden of proving the interruption of prescription. Plaintiffs counsel in his affidavit states that counsel for Jefferson Parish made an admission that Jefferson Parish was responsible for the area and requested a settlement demand. However, this statement is not an admission or stipulation of liability. Even assuming defense counsel admitted to custody of the property in question, plaintiff still had the burden of proving the remaining elements of her tort claim: defective condition, causation, damages. Plaintiffs counsel does not allege that defense counsel stipulated to these elements of plaintiffs cause of action. Further, plaintiff has not submitted any 'written evidence which supports the claim that there was an admission of liability.

|sWe find that affidavit of plaintiffs counsel merely shows that there was an offer of settlement made to plaintiff by counsel for Jefferson Parish, and we fail to find sufficient evidence of an admission of liability which would invoke the above-cited principles. See, Lima v. Schmidt, 595 So.2d 624 (La.1992). Under these circumstances, we fail to find that prescription was interrupted by acknowledgement or equitable estoppel.

Plaintiff also argues that the doctrine of contra non valentem operates to interrupt prescription against the two belatedly sued defendants in this case. La. C.C. art. 3467 states that “prescription runs against all persons unless exception is established by legislation.” In spite of the clear language of La. C.C. art. 3467, the jurisprudential doctrine of contra non va-lentem remains a viable exception to this rule. Plaquemines Parish Comm. Council v. Delta Dev. Co., 502 So.2d 1034 (La.1987); see also La. C.C. art. 3467, Official Revision Comment (d).

As stated in Renfroe, supra, 809 So.2d at 953, the Louisiana Supreme Court has recognized four factual situations in which the doctrine of contra non valentem applies so as to prevent the running of prescription:

(1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action;
(2) where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting;
(3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; or
(4) where the cause of action is neither known nor reasonably knowable by the plaintiff even though plaintiffs ignorance is not induced by the defendant.

In Whitnell v. Menville, 540 So.2d 304 (La.1989), the Supreme Court indicated that the third category of contra non va-lentum applies when the defendant engages in conduct which prevents the plaintiff from availing himself of his judicial remedies. However, the doctrine of contra non valentem only applies in “exceptional circumstances.” La. C.C. art. 3467, Official Revision Comment (d); Renfroe, supra, 809 So.2d at 953.

As stated previously, we do not construe the affidavit of plaintiffs counsel as sufficient evidence to prove an admission of liability on the part of Jefferson Parish which would have reasonably lulled plaintiff into inaction. Rather, plaintiff was put on notice in December of 1998 by the fifing of ATC/Vancom’s answer that Jefferson Parish was the responsible party for the | flinjuries sustained in this accident. Further, in their motion for summary judgment filed in May of 1999, ATC/Vancom contended that the responsible party for plaintffs injuries was the Parish of Jefferson. Yet plaintiff failed to name the Parish as a defendant until August of 1999, and Mr. Cerruti was added as a defendant in January of 2000. Plaintiff has failed to introduce sufficient competent evidence that defense counsel engaged in conduct that prevented plaintiff from availing herself of her cause of action. We fail to find exceptional circumstances in this case which would warrant the application of contra non valentum.

Finally, plaintiff contends that the trial court erred in failing to grant a continuance of the hearing on defendants’ exceptions of prescription until a judgment was rendered on plaintiffs petition to annul the summary judgment rendered on October 3, 2001 in favor of ATC/Vancom. Plaintiff also contends there was an outstanding motion to compel discovery from Jefferson Parish at the time of the hearing on the exception of prescription which justified a continuance.

However, the record shows that plaintiffs petition to annul was filed only four days prior to the scheduled hearing on defendants’ exceptions of prescription, and the trial court did not abuse its discretion in refusing to stay the hearing pending resolution of that matter. Further, the record shows that plaintiff received discovery responses from the Parish of Jefferson prior to the hearing, and plaintiff fails to show how she was prejudiced by the trial court’s denial of the motion to continue.

A continuance may be granted in any case if there is good ground therefor. La. C.C.P. art. 1601. A trial court has great discretion in granting or denying a motion for a continuance under Art. 1601; that discretion will not be disturbed on appeal in the absence of a clear abuse of discretion. Louisiana State Bd. of Dentistry v. Baker, 33,828 (La.App. 2 Cir.9/27/00), 768 So.2d 683. The trial court considered plaintiffs arguments advanced in the motion to continue the hearing. We fail to find that the trial court clearly abused his discretion in denying the motion for continuance.

Conclusion

Accordingly, for the reasons assigned herein, the judgment of the trial court is affirmed. Plaintiff is to bear all costs of this appeal.

AFFIRMED.