author: | «CARTER, C.J. |, GAIDRY, J., 11 KUHN, Judge, h McCLENDON, J.,

text:
    MOTOROLA, INC. v. ASSOCIATED INDEMNITY CORPORATION, Continental Casualty Company, National Surety Company, Transportation Insurance Company, and Zurich Insurance Company
    No. 2002 CA 1351.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 22, 2003.

      S. Gene Fendler, Harold J. Flanagan, New Orleans, J.W. Montgomery, III, Pittsburgh, PA, Counsel for PlaintiffAp-pellant Motorola, Inc.
    Michael Durand, Lafayette, Counsel for Defendants/Appellees Associated Indemnity Corporation and National Surety Corporation.
    Philip R. King, Chicago, IL, Counsel for Defendant/Appellee Zurich American Insurance Company.
    David P. Salley, New Orleans, Counsel for Defendant/Appellee Continental Casualty Company.
    William J. Mitchell, II, Baton Rouge, Counsel for Defendant/Appellee Hartford Insurance Company.
    Robert A. Vosbein, William J. Kelly, III, New Orleans, Counsel for Defendants/Ap-pellees Continental Casualty Company and Transportation Insurance Company.
    Edward A. Rodrigue, Jr., New Orleans, Counsel for Defendant/Appellee St. Paul Surplus Lines Insurance Company.
    Eavelyn T. Brooks, New Orleans, Counsel for Defendants/Appellees National Union Fire Insurance Company of Pittsburg, Pennsylvania and Illinois National Insurance Company.
    Before: CARTER, C.J., FOIL, WHIPPLE, PARRO, FITZSIMMONS, KUHN, GUIDRY, PETTIGREW, DOWNING, GAIDRY, McDONALD, & McClendon, jj.
   | «CARTER, C.J.

Motorola, Inc., was originally sued in various class actions and in two individual lawsuits. Motorola filed this action for declaratory judgment and breach of contract on August 11, 2000, against ten of its primary and excess liability insurers, seeking a determination that their policies provide coverage for the claims in the underlying actions, that they have the duty to defend Motorola for those claims, and that they are hable for damages to Motorola for their failure to defend it in the underlying actions. In addition to denying liability in their answers, Associated Indemnity Company, Hartford Insurance Company, and other insurers asserted reconventional demands for declaratory judgments that they have no obligation to either defend or indemnify Motorola in the underlying class actions.

Cross motions for summary judgment were filed by Motorola and its alleged insurers regarding insurance coverage and the duty to defend Motorola in those suits. The trial court denied Motorola’s motion, but granted the motions of Associated and Hartford, dismissing Motorola’s claims against those insurers. The trial court also granted partial summary judgment in favor of Continental Casualty Company on certain issues, although it remains a defendant as to the unresolved issues. Motorola appeals.

Because of the importance of consistency in the application of Louisiana Code of Civil Procedure article 1915 in determining the appealability of partial judgments, and with the consent of the parties, we review this procedural issue en banc, as we did in a prior opinion in the connected appeal, Motorola, Inc. v. Associated Indem. Corp., 02-0716 (La.App. 1 Cir. 4/30/03), 867 So.2d 715 (Motorola I). Since we are addressing only the procedural issue involved herein, the original threejjudge4 panel to which this appeal was assigned will decide the merits of the appeal, if it is maintained.

FACTUAL AND PROCEDURAL BACKGROUND

Motorola is a manufacturer of cellular wireless handheld telephones (cell phones). Class-action plaintiffs in a number of suits seek damages from Motorola and numerous other cell phone manufacturers and distributors to either prevent or alleviate customers’ allegedly harmful exposure to radio frequency radiation, Motorola is also a defendant in two individual lawsuits that seek damages for brain cancers allegedly caused by Motorola’s products.

In this declaratory judgment action by Motorola, on November 28, 2001, the trial court granted the motion for summary judgment of Zurich American Insurance Company, ruling that its policy did not afford coverage to Motorola for the claims asserted in the underlying class actions and that it owed no duty of defense. In the same judgment, the court denied Motorola’s.motion for summary judgment on the same issues. At a subsequent hearing on March 27, 2002, the trial court also granted summary judgment in favor of the other moving insurers and denied Motorola’s motions on the same issues. , The summary judgments dismissed Associated and Hartford as party defendants in this declaratory judgment action. As to Continental, the summary judgment granted it partial relief as to its duties for all of the underlying class actions, but not those reflating to the underlying individual actions, as to which it did not seek such relief. Thus, as to Continental, the . partial summary judgment did not grant complete relief as to all issues joined between it and Motorola.

DISCUSSION

Appellate courts have the duty to examine their subject matter jurisdiction sua sponte, even when the parties do not raise the issue. McGehee v. City/Parish of East Baton Rouge, 00-1058 (La.App. 1 Cir. 9/12/01), 809 So.2d 258, 260. A final judgment of the trial court can be appealed. LSA-C.C.P. art.2083. A judgment that determines the merits in whole or in part is a final judgment. LSA-C.C.P. art. 1841. Whether a partial judgment is appealable is determined by examining the requirements of Code of Civil Procedure article 1915. Once again, as in Motorola I, it is appropriate for us to examine the basis for our jurisdiction before addressing the merits of this appeal.

The judgments before us are summary judgments rendered in an action for declaratory judgment. Louisiana Code of Civil Procedure article 1915 authorizes the immediate appeal of partial final judgments, including partial summary judgments. It provides, in pertinent part:

A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
|fi(l) Dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or intervenors.
(3) Grants a motion for summary judgment, as provided by Articles 966 through 969, but not including a summary judgment granted pursuant to Article 966(E).
B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, recon-ventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal. Any such order or decision issued may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties. [Our emphasis; footnote added.]

In its judgment, the trial court designated the partial summary judgments in favor of the insurers as partial final judgments pursuant to article 1915B.

As between Motorola and the insurers, Associated and Hartford, the issue for determination is identical to that presented in Motorola I. No |7factors warrant a different resolution. We therefore conclude, for the same reasons set forth in Motorola I, that the judgments against those insurers are partial final judgments under both paragraphs A(l) and A(3) of article 1915, immediately appealable without need for the trial court’s designation. Accordingly, we maintain those judgments for appeal.

What is more difficult, however, is the trial court’s designation as final of the summary judgment in favor of Continental. That judgment clearly falls within the ambit of article 1915B, and despite the clear designation of the summary judgment as final and appealable by the trial court, the reasoning upon which it based that designation is unstated. We will therefore address what constitutes proper designation of a partial judgment for purposes of appeal under Louisiana law.

LEGAL BACKGROUND

The Initial Optimism

When the Louisiana Code of Civil Procedure was adopted in I960, commentators expressed great hope that the new codal provisions on judgments would greatly reduce future procedural problems. The redactors had “not only borrowed thoroughly-tested rules from other jurisdictions, but they also employed unambiguous language and exhaustive comments to minimize any confusion relative to still unlitigated matters.” Jack Brook, Symposium on Civil Procedure, Rendition of Judgements, 21 La.L.Rev. 168, 235 (1960). New article 1915 was hailed as one of the best examples of these new rules. No more would parties with easily proven claims be forced “to endure the hardship of awaiting final disposition of all claims.” Id. at 232.

[sUnfortunately, the redactors’ optimism was misplaced. The “thoroughly-tested rule” that they borrowed for article 1915 was Federal Rule of Civil Procedure 54(b). The Louisiana legislature did .not. adopt Rule 54(b) in its entirety, however, and over the years Louisiana’s jurisprudential interpretation of article 1915 has diverged somewhat from the- federal courts’ interpretation of Rule 54(b). The legislature amended article 1915 in 1983, 1992, 1997, 1999, and 2001, and the result has been a procedural morass.

The issue before the en banc court today is the interpretation of article 1915B’s language “an express deterrnination that there is no just reason for delay.” We must determine whether such express determination requires the trial court to give specific reasons for designating a partial judgment as final. When the legislature amended article 1915B in 1997, it took the “express determination” language verbatim from Rule 54(b). Because that language has remained unchanged since 1997, despite the multitudinous amendments to article 1915B, we shall begin our analysis by surveying the federal jurisprudence interpreting that language. See Scott v. Hospital Serv. District No. 1, 496 So.2d 270, 273 (La.1986); Carter v. BRMAP, 591 So.2d 1184, 1189 (La.App. 1 Cir.1991)."

The Federal Courts’ Views

Federal Rule of Civil Procedure 54(b) provides, in pertinent part, that when “more than one claim for relief is presented in an action ... or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” (Our emphasis.)

Whether an express determination requires written reasons has been litigated many times by the United States courts of appeals. Of the thirteen [ gfederal circuits, only the Sixth Circuit has held that written reasons are always required. In the Sixth Circuit, the trial court “must clearly explain why it has concluded that immediate review of the challenged ruling is desirable.” General Acquisition, Inc. v. Gen-Corp, Inc., 23 F.3d 1022, 1026 (6 Cir.1994). If it fails to do so, the case is dismissed for lack of jurisdiction. See Daleure v. Kentucky, 269 F.3d 540 (6 Cir.2001); Justice v. Pendleton Place Apartments, 40 F.3d 139, 140-141 (6 Cir.1994).

The other twelve circuits apply the prevailing rule set forth by the Seventh Circuit in Bank of Lincolnwood v. Federal Leasing, Inc., 622 F.2d 944 (7 Cir.1980), wherein the court held written reasons were not necessary. After noting that a statement articulating the considerations | inunderlying the trial court’s designation under Rule 54(b) was the “better practice,” it stated;

The statement is, however, primarily an aid to the appellate court to permit it to review the exercise of the trial court’s discretion. The failure of the district court to make a written statement at the time it makes a 54(b) certification is not a jurisdictional defect, ... and need not occasion even a remand if the basis for the district court’s determination is otherwise apparent.

Bank of Lincolnwood, 622 F.2d at 948-949 (footnote omitted).

Louisiana Courts’ Approaches

Before its 1997 amendment, article 1915 dealt with the problem of identifying un-mediately appealable partial judgments by setting forth exclusive classes of partial judgments that were immediately appeal-able. In 1997 the Louisiana legislature amended article 1915B to permit the appeal of certain partial judgments after designation as final by the trial courts. Conflicts soon arose between the state appellate circuits regarding the proper procedure for such appeals.

One of the first decisions on this procedure was Banks v. State Farm Ins. Co., 30,868 (La.App. 2 Cir. 3/5/98), 708 So.2d 523, 525, in which the Second Circuit, sitting en banc, held that partial judgments should be designated as final only after a case-by-case consideration of the judicial administrative interests and equities involved. The court set forth criteria for determining appealability patterned after the federal jurisprudence. The court further found that the code required an express determination that could not be satisfied by inferences from the trial court’s order.

The Fourth Circuit issued inconsistent opinions on this issue. In Johns v. Jaramillo, 98-2507 (La.App. 4 Cir. 11/25/98), 724 So.2d 255, 257, the court followed Banks, holding that “a proper certification requires ^specific written reasons for the trial court’s determination that an immediate appeal is warranted.” Two weeks later, however, in In re Succession of Ton-crey, 98-2342 (La.App. 4 Cir. 12/9/98), 725 So.2d 59, 60-61, the court stated that it disagreed with Banks.

The Fourth Circuit continued to treat these appeals inconsistently until sitting en banc in Jackson v. America’s Favorite Chicken Co., 98-0605 (La.App. 4 Cir. 2/3/99), 729 So.2d 1060. In Jackson the court found that “the legislature intended to require that some reason be expressed for the determination that there is no just reason for delay, because Article 1915(B)(1) provides that the designation must be pursuant to ‘an express determination[,’] and clearly contemplates that more than a mere conclusory statement will be given as a justification for finality.” Id. at 1065. The court held that article 1915B requires “a clear and concise statement of why there is no just reason for delay” from the trial court, and that, in the absence of such, it would not certify the judgment at the appellate level, nor would it convert the appeal to a writ application. Id. at 1066.

The Fifth Circuit in Berman v. De Cha-zal, 98-0081 (La.App. 5 Cir. 5/27/98), 717 So.2d 658, 660-661, reached a middle ground similar to the prevailing view in the federal courts. While agreeing that Banks generally set forth the correct criteria to consider in determining whether a judgment was properly designated as final, the court did not follow Banks’s holding that written reasons by the trial court were a requisite for appellate | ^jurisdiction. Instead, the court held that the presence or absence of reasons affects only the standard of review. If reasons are given, the court applies the abuse-of-discretion standard in reviewing whether the judgment was properly designated as final. If no reasons are given, the court conducts a de novo review of the designation. Id. at 661. The Third Circuit adopted the Berman approach for “purposes of judicial efficiency and economy” in Flatland Real Estate Co. v. Dugas Constr., 00-1794 (La.App. 3 Cir. 5/9/01), 784 So.2d 867, 870.

The First Circuit’s 1915B History

Our own circuit originally dealt with the 1915B designation problem by adopting an internal policy. In 1999 we decided that if a partial judgment was appealed without trial court designation, the appellant would be given the opportunity to supplement the record with such designation. No special form of designation was required. From 1999 through 2001, this court did not address the decisions of the Second and Fourth Circuits regarding written reasons for designation as final. If the reasons were apparent, as they often are, this court merely noted that the trial court had designated the judgment as final.

In 2000 this court began looking more closely at the trial courts’ designations. We conducted a de novo review of a trial court’s designation of a judgment as final, determined the trial court erred in so designating the h judgment, and dismissed the appeal for lack of jurisdiction in Doyle v. Mitsubishi Motor Sales, 99-0459 (La.App. 1 Cir. 3/31/00), 764 So.2d 1041, 1047-1048, writ denied, 00-1265 (La.6/16/00), 765 So.2d 338. We did the same in Van ex rel. White v. Davis, 00-0206 (La.App. 1 Cir. 2/16/01), 808 So.2d 478. In White, we adopted the standard of review set forth by the Fifth Circuit in Berman and followed by the Third Circuit in Flatland, i.e., abuse of discretion if the trial court gave reasons, de novo if no reasons were given. White, 808 So.2d at 484.

In 2002, however, this court used dicta indicating the standard might be changing. In Boudreaux v. Audubon Ins. Co., 01-2061 (La.App. 1 Cir. 10/16/02), 835 So.2d 681, the trial court designated the judgment as final but neither stated there was no just reason for delay nor explained why there was no reason for delay. This court held that “in the absence of a designation of the judgment as final through an express determination — i.e., a meaningful and considered articulation by the trial court — of no just reason for delay, a jurisdictional defect exists.” Id. at 684. In Shapiro v. L & L Fetter, Inc., 02-0933 (La.App. 1 Cir. 2/14/03), 845 So.2d 406, 410, citing a Fourth Circuit case, we stated that “[vjalid certification of a partial judgment as final requires that the trial court give explicit reasons on the record as to why there is no just reason for delay; mere conclusory statements' do not suffice.” We did not adopt the Fourth Circuit’s no-reasons, no-jurisdiction rule, however. Instead, we cited Berman and conducted a de novo review of the- propriety of designation.

, \uThe Commentators’ Advice to the Legislature

Commentators discussing article 1915’s pre-1999 designation requirements observed that “it is of paramount importance that a trial court judge fully understand and carefully perform the role of ‘dispatcher,’ rather than routinely certifying partial judgments.” Mark Tatum & William Norris, III, Comment, Summary Judgment and Partial Judgment in Louisiana: The State We’re In, 59 La.L.Rev. 131, 169 (1998). The same commentators obviously recognized that article 1915B did not require that the trial court give written reasons but opined that' they “should give written reasons for certification to facilitate appellate review.” (Bold added.) Tatum and Norris explained:

Certainly, when a district court gives written reasons for certification, there can be no doubt that certification was intended, and written reasons often will be very helpful, if not essential for an appellate court to perform its duty of reviewing the propriety of certification. Thus, if a Louisiana appellate court has any, doubt whatsoever about whether certification was intended, or about why certification was granted, the court can remand for written reasons for certification, regardless of what language the trial court did or did not use when granting the motion for appeal. If our appellate courts uniformly follow this approach, problems concerning the adequacy of certification should be minimal.

Id at 164. In their recommendations for legislative changes, the writers • suggested that the legislature amend article 1915B to include language requiring that the trial court sign a “certificate expressly stating why an immediate appeal is warranted.” Id. at 172.

The Legislature’s Response to the Commentators

When the legislature met in 1999, it amended article 1915 to effect significant changes to partial judgments falling within article 1915A. . However, it made no changes to the concept of designation of article 1915B ^judgments, apart from the elimination of designation of finality by consent of the parties.

In Motorola 1, we reviewed the legislative history of the 1999 amendments in our effort to confirm the legislative intent of article 1915A, as amended. The minutes of the House Committee on Civil Law and Procedure, quoted in part in our opinion, also contain the following relevant discussion:

Representative McMains explained that the net effect of the changes to Article 1915 would be that a partial final judgment would unquestionably exist whenever a party were dismissed, but as to a partial summary judgment that dismissed an issue or cause of action, the court would be required to certify that it was indeed a partial final judgment.
Representative Wilkerson inquired as to whether the designation by the court would be made within the- written judgment. Professor L’Enfant responded that the trial court would have to designate the partial judgment as a final judgment and also declare there is no just reason for delay. Representative Wilkerson reiterated her concern that the designation should be made a part of the written judgment signed by the court.
Professor L’Enfant agreed with Representative McMains’ statement, that the courts of appeal have taken very seriously the language in Article 1915(B)(1) and have said that, without reasons from the trial court stating why an appealable partial judgment should exist, the appeal courts are prepared to dismiss the appeal as inappropriate. Therefore, the language of the bill is [reinforced] by the opinions of the courts of appeal that have been rendered so far. [Our emphasis.]

Professor L’Enfant’s statement was correct in 1999 insofar as the Second and Fourth Circuits were concerned. But considering the jurisprudential history outlined above, it appears he misspoke insofar as the other three circuits were concerned. Whether it was swayed by Professor 11fiL’Enfant’s testimony or some other reason, the legislature declined to amend article 1915B to require written reasons. The legislature amended article 1915 again in 2001, but it still did not require written reasons as part of the designation process.

CONCLUSION

We agree that a trial court’s explication of its designation of a judgment as final is the most desirable practice. We shall not impose this undue labor, however, on already overburdened trial courts in cases where the reasons are obvious.

Moreover, while written or oral reasons are desirable, we do not believe the trial court’s failure to give reasons when it designates a judgment as final is a jurisdictional defect. The legislature has had many opportunities to impose this requirement for our jurisdiction but has failed to do so. We shall not usurp the legislature’s authority by invoking a self-imposed jurisdictional requirement.

In cases in which the trial court designates a partial judgment as final under article 1915B and the reasons are neither apparent nor provided for us by the trial court, we shall conduct a de novo review. We shall continue to apply the non-exclusive list of factors that all Louisiana appellate circuits have adopted from the federal courts in determining whether a partial judgment is final, i.e.:

(1) The relationship between the adjudicated and unadjudicated claims;
(2) The possibility that the need for review might or might not be mooted by future developments in the district court;
(3) The possibility that the reviewing court might be obliged to consider the same issue a second time;
|17(4) The presence or absence of a claim or counterclaim which could result in setoff against the judgment sought to be made final; and
(5) Miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like.

If we determine after conducting a de novo review that the trial court erred in designating the judgment as final, we shall dismiss the appeal.

In cases in which a party appeals a partial judgment without obtaining a designation, we shall continue to employ the internal policy adopted by this court in 1999 of ordering the parties to show cause why the appeal should not be dismissed and permitting supplementation of the record with a proper designation, which we believe promotes judicial economy and efficiency.

.Having decided the sole issue before this en bane panel, we leave the de novo review of this particular appeal’s designation to the original three-judge panel to which .it was assigned.

APPEAL REFERRED TO MERITS PANEL.

GAIDRY, J., concurs with reasons.

KUHN, J., dissents and assigns reasons.

. McCLENDON, J., concurs and assigns reasons.

|, GAIDRY, J.,

concurs with reasons.

I concur in the result herein, referring this particular appeal to the merits panel for further disposition, but disagree with the majority’s interpretation of La. C.C.P. art. 1915(B)’s requirements. I would require the trial court to do what the legislature has already directed it to do — “express” its “determination” of the propriety of “designation” of a partial judgment' as final and appealable. The reasoning used in the cases discussed below is persuasive on this issue.

Any considered discussion of the requirements of La. C.C.P. art. 1915(B) must begin with F.R.C.P. 54(b), its primary source provision, and the case of Curtiss-Wright Corporation v. General Electric Company, 446 U.S. 1, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980). In that case, the United States Supreme Court explained the role Of the district court in the certification process of Rule 54(b):

| aOnce having found finality, the district court must go on to determine whether there is any just reason for delay. Not all final judgments on indi-vidúal claims should be immediately ap-pealable, even if they are in some sense separable from the remaining unresolved claims. The'function of the district court under the Rule is to act as a “dispatcher.” It is left to the sound judicial' discretion of the district court to determine the “appropriate time” when each final decision in a multiple claims action is ready for appeal. This discretion is to be exercised “in the interest of sound judicial administration.” [Citations omitted.]

Curtiss-Wright, 446 U.S. at 8, 100 S.Ct. at 1464-65. By contrast the Court held that “the proper role of the court of appeals is not to reweigh the equities or reassess the facts but to make sure that the conclusions derived from-those weighings and assessments are juridically sound and supported by the record.” Curtiss-Wright, 446 U.S. at 10, 100 S.Ct. at 1466. In fulfilling that role, the federal appellate courts “must, of course, scrutinize the district court’s evaluation of such factors ” militating for and against immediate appeal. Id. (My emphasis.)

In Kelly v. Lee’s Old Fashioned Hamburgers, Inc., 908 F.2d 1218 (5th Cir.1990), a closely divided en banc court held that Federal Rule of Civil Procedure 54(b) did not require that the district court recite verbatim the express litany of “no just reason for delay” in order to properly certify a partial final judgment for appeal. The majority held that if either the language of the judgment alone or in combination with the record reflected an unmistakable intent to certify the judgment, Rule 54(b)’s requirements were satisfied. The Kelly majority acknowledged, however, both the “close |3vote” of the en banc court in that case (10-7) and the “sharp” division of the federal appellate courts on that issue. Kelly, 908 F.2d at 1220-21 n. 2.

The dissenting opinion in Kelly emphasized the plain meaning of the word “express” as it modified “determination” in

Federal Rule of Civil Procedure 54(b), criticizing the majority for apparently declaring “that ‘express’ means the same thing as ‘implied.’ ” Kelly, 908 F.2d at 1222 (Smith, dissenting). The dissent pointedly stated that the goal of establishing “certainty, and not merely probability based upon inference and implication, that the district judge has decided to allow a piecemeal appeal” was met by requiring “an explicit statement by the judge that he or she has determined that there is no just reason for delay.” Kelly, 908 F.2d at 1223 (Smith, dissenting). Rather than requiring either “the talismanic [seven] words” from the rule or a statement of reasons from the district court, the dissent interpreted Rule 54(b) to require “only a simple, brief recital, verbatim or paraphrased” that the district court found no just reason for delay. Kelly, 908 F.2d at 1228 (Smith, dissenting).

14Closer to home, the Louisiana Second Circuit Court of Appeal in Banks v. State Farm Insurance Company, 30,868 (La.App. 2nd Cir.3/5/98), 708 So.2d 523, was presented with the appeal of a partial summary judgment in favor of the plaintiff on the issue of liability alone in a personal injury action. Under the pre-1999 version of La. C.C.P. art. 1915(B), the parties had agreed to the designation of the judgment as final and appealable, but the trial court failed to make an. express determination either in the summary judgment or the order of appeal. The appellate court undertook a succinct yet thorough analysis of article 1915 after the 1997 amendments, as well as its source provision, F.R.C.P. 54(b), in order “to guide trial courts in their new roles under Article 1915.” Banks, 30,868 at p. 1, 708 So.2d at 524. The court noted that it was clearly “the legislative intent that Louisiana courts follow a certification procedure” akin to that employed by the federal courts. Banks, 30,868 at p. 2, 708 So.2d at 524. The court concluded that despite the language referring to the parties’ agreement, it was not the legislative intent to relieve the trial courts of the responsibility to undertake “a determination and designation,” and that “partial judgments should be | ¡¡certified only after a ease-by-case consideration of the judicial administrative interests and equities involved.” Banks, 30,868 at pp. 3-4, 708 So.2d at 525 (emphasis in original). The court cited with approval the case of Allis-Chalmers Corporation v. Philadelphia Electric Company, 521 F.2d 360 (3rd Cir.1975), for the relevant factors guiding the trial court’s consideration for the determination phase. Finally, the Second Circuit held that “[t]rial courts should give written reasons for La. C.C.P. art. 1915(B) certification to facilitate appellate review” and to “satisfy the codal requirement for a trial court’s express determination;” Id. (Emphasis in original.) Since the trial court in Banks did not provide written reasons, the Second Circuit remanded the case, directing the trial court to do so.

The Fourth Circuit has similarly held that valid certification of a partial judgment as final requires that the trial court give explicit reasons on the record as to why there is no just reason for delay. Jackson v. America’s Favorite Chicken Company, 98-0605 (La.App. 4th Cir.2/3/99), 729 So.2d 1060. After summarizing a significant line of its past cases, the court paraphrased the reasoning of another earlier opinion as holding that “the legislature intended to require that some reason be expressed for the determination that there is no just reason for delay, because Article 1915(B)(1) provides that the designation must be pursuant to ‘an express determination,’ and clearly contemplates more than a mere conclusory statement will be given as a justification for finality.” Jackson, 98-0605 at p. 9, 729 So.2d at 1065 (bold emphasis in original). The court held that article 1915(B) required “a clear and concise statement of why there is no just reason for delay” from the trial court, and that in the absence of such it would not certify the judgment at the appellate level, nor would it convert the appeal to a writ application. Jackson, 98-0605 at pp. 11-12, 729 So.2d at 1066-67. The opinion was adopted by the Fourth Circuit en banc to fulfill “a need for clarification and consistency.” Jackson, 98-0605 at p. 9, 729 So.2d at 1065.

In Shapiro v. L & L Fetter, Inc., 02-0933 (La.App. 1st Cir.2/14/03), 845 So.2d 406, involving a classic case of partial summary judgment under La. C.C.P. 966(E), we held that a requirement of explicit reasons for certification is implicit from the language of La. C.C.P. art. 1915(B). We held that article 1915(B)(1) requires the designation (“certification”) be made “after an express determination,” and article 1915(B)(2) again refers to a bipartite “determination and designation.” Shapiro, 02-0933 at pp. 5-6, 845 So.2d at 410. We further held that unless the pre-certification determination is made and “express,” the certification of the partial judgment as “final” is deficient, citing Boudreaux v. Audubon Insurance Company, 01-2061 (La.App. 1st Cir.10/16/02), 835 So.2d 681.

Although the 1999 amendments to La. C.C.P. art.1915 effected significant changes to those partial judgments falling within article 1915(A), no changes to the concept of certification of article 1915(B) judgments were made, apart from the elimination of designation of finality by consent of the parties. I agree with the majority’s literal statement that the legislature declined to amend article 1915(B) in 1999 “to require written reasons,” but |7onIy because its intent in that regard had already been stated, and further amendment would obviously have been redundant.

Appeals are favored in the law, and should not be dismissed unless the reason for doing so is free from doubt. Fraternal Order of Police v. City of New Orleans, 02-1801, pp. 2-4 (La.11/8/02), 831 So.2d 897, 899-900. Here, unlike the situation addressed in the latter case, there is “an explicit expression of legislative will” in La. C.C.P. art.l915’s phrase, “express determination.” I therefore conclude that the legislative purpose of La. C.C.P. art. 1915 is best effectuated by requiring that an “express determination” for certification incorporate an explanation, analysis, or “statement of reasons” in the record of the trial court proceedings,

In short, this court cannot fulfill its responsibility to scrutinize the trial court’s evaluation of the factors supporting certification if that evaluation is not expressed or articulated; we have no crystal ball to divine subjective reasoning, however valid it may be. And we should not assume on our own initiative the trial court’s discretionary authority and mantle of “dispatcher,” bestowed upon it by the' legislature, by performing our own evaluation. The majority here contradicts itself and in effect “usurp[s] the legislature’s authority” by ignoring the article’s plain language and elevating our internal rule to the status of positive law. The general approach followed by the Second Circuit in Banks, the Fourth Circuit in Jackson, and this court in Boudreaux and Shapiro is the correct and preferable one.

The “determination” process itself, in which the trial court as “dispatcher” or “gatekeeper” weighs those factors militating for and against immediate appeal, is an indispensable element of proper certification. And because the article requires that such screening process be “express,” proper certification must incorporate the trial court’s articulation of its analysis or |srationale for certification. An inherent and necessary component of the codal concept of “express determination” is the objective expression of the reasoning employed in arriving at the ultimate result determined. A statement of reasons, explanation, or analysis need not be exhaustive in scope or tedious in length, as long as it succinctly sets forth those reasons and the relevant factors considered in that regard. Similarly, the form of the trial court’s reasons is not sacrosanct, provided they meet the preceding standard and are manifest from the record of the proceedings below.

Because we are determining the merits of the partial final judgments rendered under La. C.C.P. art. 1915(A) in both the earlier appeal and this appeal, because the article 1915(B) judgments here involve the identical precise issues on the merits, and because this case is our first detailed articulation of the proper procedures involved in “determination and designation,” I respectfully concur in the result herein.

11 KUHN, Judge,

dissenting.

I disagree with the majority’s conclusion that the articulation of reasons for designation of a partial judgment (or partial summary judgment) as final for purposes of an immediate appeal by the trial court is not a jurisdictional defect. I also disagree with the majority’s conclusion that the partial summary judgments in favor of insurers Associated Indemnity Company and Hartford Insurance Company, which dismissed the claims of Motorola, Inc. (Motorola) against those insurers under La. C.C.P. art. 1915A(1) and (3), are immediately appealable without need for certification under article 1915B for the reasons expressed in my dissent in Motorola Inc. v. Associated Indent. Corp, 02-0716 (La.App. 1st Cir.4/30/03), 867 So.2d 715 (Motorola I).

The plain language of La. C.C.P. art. 1915B as enacted by the legislature states:

B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, recon-ventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
| ?,(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal. Any such order or decision issued may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties. (Emphasis added.)

As I pointed out in my dissent in Motorola I, 02-0716, 867 So.2d at 721, according to Louisiana Civil Code article 9, when a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written. No further interpretation may be made in search of the intent of the legislature. See also La. R.S. 1:4 (when the wording of a Section is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit).

And the appropriate starting point for statutory interpretation then is, of course, the language of the statute itself. In re Louisiana Health Service and Indem. Co., 98-3034 (La.10/19/99), 749 So.2d 610; see also A.K. Durnin Chrysler-Plymouth, Inc. v. Jones, 2001-0810 (La.App. 1st Cir.5/10/02), 818 So.2d 867. Therefore, when a statute is clear, unambiguous, and its application does not lead to absurd consequences, there is no justification for considering comments to the enactment as persuasive sources or interpretive aids. Ramirez v. Fair Grounds Corp., 575 So.2d 811 (La.1991). It is only when the language of a statute is subject to more than one reasonable interpretation that the determination of the legislature’s intent in enacting the provision becomes necessary. Louisiana Mun. Ass’n v. State, 2000-0374 (La.10/6/00), 773 So.2d 663.

Louisiana Code of Civil Procedure article 1915B(1) expressly provides that a partial judgment shall not constitute a final judgment unless Lit is designated by the court after an express determination that there is no just reason for delay. There is nothing ambiguous or unclear in the language employed by the legislature. Simply stated, article 1915B(1) means that when the trial court renders a partial judgment or partial summary judgment, it must expressly determine why the parties are entitled to an immediate appeal.

In part, the majority justifies its usurpation of the legislature’s express delegation to the trial court of the management of the appealability of its partial judgments by pointing out a rejection of commentators’ recommendation that article 1915B be amended to include language requiring the trial court to sign a certificate expressly stating why an immediate appeal is warranted. But this overlooks the obvious fact that article 1915B is not ambiguous. Thus, no search of the legislative intent is warranted. Interestingly, the majority does not articulate the various reasonable interpretations of the language of article 1915B(1) that justifies its search for legislative intent.

There is nothing absurd or unclear in article 1915B. I initially note that while the majority’s analysis seems to focus on whether there exists a written determination of finality by the trial courts, I see nothing in article 1915B(1) that expressly requires a writing. A trial court’s oral reasons for finality certainly constitute “an express determination.”

It is the legislative authority granted to the trial court in article 1915B(1) which permits immediate review of an interlocutory judgment. And in those instances where the trial court does not express its “determination and designation” that a partial judgment is final, the language of article 1915B(2) expressly allows that partial judgment to “be revised at any time prior to rendition of the judgment adjudicating all the claims and |4the rights and liabilities of all the parties.” The language employed by the legislature in article 1915B(1) “after an express determination that there is no just reason for delay” sets forth the requisite with which the trial court must comply in order to bypass the legislatively-delegated trial court responsibility of subsection (2) to revisit the issues raised in partial judgments at a later juncture of the proceeding.

In essence, by its ruling today, the majority’s directive that this court is to conduct a de novo review on the issue of the immediacy of the appeal of a partial judgment when the trial court’s reasons are neither apparent nor provided by the trial court removes from the trial court’s original jurisdiction its important role as ultimate fact finder. In so doing, the potential exists for the appellate court to close the door on the trial court’s power to revisit issues which, with discovery and the development of admissible evidence, may have revealed a deeper truth than the initial appearance cast in the early stages of litigation. Remanding for an articulation of the rationale behind the trial court’s decision gives the court the power to revisit at a later stage its partial judgment made early on, and thus, is not simply a dilatory exercise.

Under the noble spirit of relieving overburdened trial courts of a perfunctory duty, the majority has simply created an avenue which allows a court of appeal, allotted appellate jurisdiction under La. Const, art. V, § 10, to substitute its judgment for that of the trial court, a court of original jurisdiction under La. Const, art. V, § 16. That which is obvious to a court of appeal is no less obvious to the trial court. Mandating an articulation by the trial court of the “express determination that there is no just reason for delay” legislatively-delegated to it compels the trial court to reflect upon, in consideration of the entirety of the lawsuit, its obligation as a court of |Boriginal jurisdiction. Should we, on de novo examination of the reasons for permitting an immediate appeal, determine there is no- just reason for delay when the trial court would not have done so, we have eliminated from the trial court the power to revise its partial judgment and render a different determination. When factual findings are implicated, this approach surely encroaches on the trial court’s original jurisdiction.

When we are grappling with solutions to reduce the delays created by the heavy caseload, taking within our purview a power expressly delegated to the trial courts by the legislature when it is unclear whether the trial court has duly considered the effect of finality of a partial judgment or partial summary judgment seems to me to be, at a minimum, an anomaly. In its broadest application, we may well be infringing on the original jurisdiction of the trial court.

Under the plain language of La. C.C.P. art. 1915B(1), I would remand to the trial court the partial summary judgment granted in favor of Continental Casualty Company, ordering that the court express its determination why there is no just reason to delay appellate review of the partial summary judgment.

For these reasons, I respectfully dissent.

h McCLENDON, J.,

concurring.

While I agree with the majority that reasons for final designation are' not required, I would further hold that LSA-C.C.P. art. 1915B clearly requires an “express determination,” by the trial court, either oral or written, that there is no just reason for delay. While said “express determination” need not be a formulaic statement, it does require some expression clearly indicating that there is no just reason for delay. I do not believé the majority opinion addressed this requirement.

I am of the opinion that article 1915B imposes a dual requirement, not only requiring a final designation, but also requiring an express determination of no just reason for delay, as clearly indicated by the language used in the article:

[T]he judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay. (Emphasis added.)

Moreover, Article 1915B(2) begins: “In the absence of such a determination and designation...” (Emphasis added).

U do agree with the majority that the failure of the trial court to make a final designation is not a fatal flaw, and that supplementation of the record of such designation should be allowed. I would suggest that the failure by the trial court to make an express determination that there is no just reason for delay be handled in the same manner as suggested by the majority opinion for a failure to designate, allowing supplementation of the record of such determination.

For these reasons, I respectfully concur.

      .The underlying class actions include Naquin v. Nokia, Inc. (originally filed in Civil District Court for the Parish of Orleans, State of Louisiana); Pinney v. Nokia, Inc. (originally filed in the Circuit Court for Baltimore City, State of Maryland); Farina v. Nokia, Inc. (originálly filed in the Court of Common Pleas for Philadelphia County, State of Pennsylvania); Gillian v. Nokia, Inc. (originally filed in the Supreme Court of the State of New York, Bronx County); and Gimpelson v. Nokia, Inc. (originally filed in the Superior Court for Fulton County, State of Georgia). All of the underlying class actions were removed to federal court and joined as one multi-district action in the United States District Court for the District of Maryland. On March 5, 2003, the underlying class actions were dismissed on the grounds that federal law preempted the causes of action asserted. In re Wireless Telephone Radio Frequency Emissions Products Liability Litigation, 248 F.Supp.2d 452 (D.Md.2003). As of this writing, that judgment is on appeal to the United States Court of Appeals for the Fourth Circuit under docket number 03-1433.

      . The underlying individual actions are Newman v. Motorola, Inc., pending in the Circuit Court for Baltimore City, Maryland; ahd Brower v. Motorola, Inc., pending in-the Superior Court of the County of San Diego, California.

      . That judgment was the subject of Motorola I.

      . As we observed in Motorola I, however, the character of this action as one seeking declaratory judgment does not prevent appellate review of partial final judgments rendered by the trial court. Motorola I, 867 So.2d at 717.

      . Louisiana Code of Civil Procedure article 966E states: "A summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case.” In Motorola I, we held that the type of partial summary judgment rendered under article 966E, which article 1915A(3) excludes, is that which does not dismiss a party from the action, or one determinative of less than all issues on the merits between the opposing parties. For convenience, such a partial summary judgment may be termed an "issue” summary judgment.

      .Although article 1915B refers to the judgment being "designated” as final, many times the courts have referred to the judgment being "certified” as final. We have chosen to use the verb “designated” to comport with the codal language.

      . The Code went into effect January 1, 1961.

      . See, e.g., Feinstein v. Resolution Trust Corp., 942 F.2d 34, 39-40 (1 Cir.1991) (where the reasons were apparent, it “would be sacrificing substance on the altar of form” to dismiss appeal for lack of appellate jurisdiction simply because the trial court failed to provide written reasons); Perez v. Ortiz, 849 F.2d 793, 796 (2 Cir.1988) (district court should offer a brief, reasoned explanation rather than merely repeat the formulaic language of the rule, but the policies underlying the rule are best served by exercising jurisdiction over an appeal where reasons the district court would provide on remand were "obvious”); Carter v. City of Philadelphia, 181 F.3d 339, 345-346 (3 Cir.), cert. denied, 528 U.S. 1005, 120 S.Ct. 499, 145 L.Ed.2d 385 (1999) (written reasons are not "a jurisdictional prerequisite but ... a prophylactic means of enabling the appellate court to ensure that immediate appeal will advance the purposes of the rule”; thus absence of reasons does not impose a jurisdictional bar “when the propriety of the appeal may be discerned from the record.”); Fox v. Baltimore City Police Dep’t, 201 F.3d 526, 531-532 (4 Cir.2000) (reasons would have been “helpful”; appeal maintained where "pure question of law” was involved and no "terrible consequences” would result from hearing the appeal); Kelly v. Lee’s Old Fashioned Hamburgers, 908 F.2d 1218 (5 Cir.1990) (if the language of the judgment alone or in combination with the record reflected an unmistakable intent to designate the judgment as final, the rule’s requirements were satisfied); Kocher v. Dow Chemical Co., 132 F.3d 1225, 1228 (8 Cir.1997) (quoting Kelly)', Fuller v. M.G. Jewelry, 950 F.2d 1437, 1441 (9 Cir.1991) (lack of specific findings was not a jurisdictional defect); Rutman Wine Co. v. E. & J. Gallo Wineiy, 829 F.2d 729, 732 n. 1 (9 Cir.1987) (waste of judicial resources to remand for lack of reasons where parties had already briefed the merits); Old Republic Ins. Co. v. Durango Air Serv., 283 F.3d 1222, 1225 n. 5 (10 Cir.2002) (giving clearly articulated reasons certainly was "the most desirable practice” so that the court could review the matter "more intelligently,” but even without reasons, court reviewed the record and determined judgment was final); Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d 162, 166 (11 Cir.1997) (absence of reasons not always fatal; no reasons required if explanation is obvious and remand would result only in unnecessary delay); Building Indus. Ass’n v. Babbitt, 161 F.3d 740, 745 (D.C.Cir.1998) (when the lower court fails to give reasons, "we do the best we can without that assistance,” giving no deference to the lower court); W.L. Gore & Assocs. v. International Med. Prosthetics Research Assocs., 975 F.2d 858, 865 (Fed.Cir.1992) (reasons not required when the "posture of the case and the factors justifying entry of judgment are apparent from the materials before” the court).

      . The 1997 version of article 1915B also permitted appeals of partial judgments upon agreement of the parties. That provision was removed in the 1999 amendment.

      . The Fourth Circuit has not followed Jackson in all cases. In Montgomery v. Lobman, Carnahan, Batt & Angelle, 98-2098 (La.App. 4 Cir. 2/17/99), 729 So.2d 1075, 1076, writ denied, 99-0784 (La.4/30/99), 743 So.2d 207, the court made no mention of Banlcs or Jackson, but it found that a handwritten notation in the record — "It's appealable” — was a sufficient designation.

      .The refusal to consider the matter under its supervisory jurisdiction was implicitly overruled by the Louisiana Supreme Court's action in Evans v. Charity Hospital, 01-0507 (La.4/20/01), 790 So.2d 8. See Evans v. Charity Hospital, 00-0202 (La.App. 4 Cir. 11/14/01), 801 So.2d 1192 (on remand).

      . See, e.g., Croker v. Reliance Nat’l Indent. Co., 00-0474 (La.App. 1 Cir. 5/11/01), 800 So.2d 4, 7; Reily v. Frey, 99-1166 (La.App. 1 Cir. 6/23/00), 762 So.2d 728, 729; Gaylord Chem. Corp. v. ProPump, Inc., 98-2367 (La. App. 1 Cir. 2/18/00), 753 So.2d 349, 352; Ilubbs v. Anco Insulations, Inc., 98-2570 (La. App. 1 Cir. 12/28/99), 747 So.2d 804, 806 n. 1, writ denied, 00-0325 (La.3/24/00), 758 So.2d 798; Wells v. Sutherland, 98-2272 (La. App. 1 Cir. 11/5/99), 746 So.2d 292, 293 n. 1; Sutherland v. Hibernia Corp., 98-2273 (La. App. 1 Cir. 11/5/99), 746 So.2d 294, 295 n. 1; Vamado v. Hosp. Serv. Dist. No. 1, 98-0468 (La.App. 1 Cir. 4/1/99), 730 So.2d 1066, 1068 n. 2. The Louisiana Supreme Court took the same approach in several cases. See, e.g., Richard v. Mike Hooks, Inc., 01-0145 (La. 10/16/01), 799 So.2d 462, 464, cert. denied, 535 U.S. 1018, 122 S.Ct. 1608, 152 L.Ed.2d 622 (2002); Williams v. Watson, 01-0495 (La. 10/16/01), 798 So.2d 55, 56 n. 1.

      . Dean v. United Med. Ctr., 01-1414 (La.App. 4 Cir. 4/17/02), 816 So.2d 926, 930, writ denied, 02-1386 (La.9/13/02), 824 So.2d 1177.

      . Meeting of House Committee on Civil Law and Procedure, 1999 Regular Session, April 20, 1999 (La. 1999) (statements of Prof. Howard W. L’Enfant, Jr., and Rep. F. Charles McMains, Jr., chairman).

      . While priorjurispmden.ee refers to written reasons, we recognize that many trial courts routinely give oral, rather than written, reasons. Reasons in either form, written or oral, that explain the trial court’s rationale for designating a judgment as final are beneficial.

      . Banks, 708 So.2d at 525, citing Allis-Chalmers Corp. v. Philadelphia Elec. Co., 521 F.2d 360, 364 (3 Cir.1975).

      . The U.S. Supreme Court in Curtiss-Wright did not expressly address the issue of whether the district court was required to explain or assign reasons as part of the "express determination” that appeal is appropriate. Significantly; though, the district court in that case had issued a detailed written statement of reasons supporting its decision in favor of certification. Curtiss-Wright, 446 U.S. at 8-9, 100 S.Ct. at 1463-64. Thus, there was no compelling need for the Supreme Court to directly address that aspect of the certification process. The district court's well-articulated reasons obviously guided the Supreme Court’s ultimate decision to reverse the court of appeals and to reinstate the district court's certification as within its discretion.

      . Even prior to rendition of Curtiss-Wright, the U.S. Court of Appeals for the Second Circuit had already expressed its view that "the trial court [should] marshal the competing considerations and state the ones considered to be most important" when certifying a partial judgment under Rule 54(b), and in doing so should "make a brief, reasoned statement in support of its determination that 'there is no just reason for delay.' " Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 275 (2nd Cir.1968). The U.S. Court of Appeals for the Sixth Circuit followed the lead of the Second Circuit in Solomon v. Aetna Life Insurance Company, 782 F.2d 58 (6th Cir.1986). The court first observed that Rule 54(b) "is not to be used without due deliberation.” Solomon, 782 F.2d at 60. It then held that "[cjertainly a proper exercise of discretion under Rule 54(b) requires the district court to do more than just recite the 54(b) formula of 'no just reason for delay.' ” Solomon, 782 F.2d at 61. Holding that the rule requires written reasons, the court noted that "[i]f no reasons were given then we cannot tell if there has been an abuse of discretion.” Id. The court proceeded to dismiss the appeal for lack of jurisdiction.

      . In the case of Taylor v. Federal Deposit Insurance Coiporation, 132 F.3d 753 (D.C.Cir.1997), the U.S. Court of Appeals for the District of Columbia Circuit implicitly approved of the analysis of the dissenters in Kelly, admitting the difficulty in responding to their contrast of the terms "express” and "implied.” The court acknowledged that requiring the trial court to expressly state that there is no just reason for delay "would have its pay-off in future cases, by inspiring closer district court focus on the criteria of Rule 54(b) and by removing ambiguities as to what they actually require.” Taylor, 132 F.3d at 760-61. That court also spoke favorably of requiring a statement of reasons for certification, noting that "[t]he lack of such a statement may leave the appellate court uncertain whether the district judge [sic ] exercised its discretion soundly, or indeed whether it exercised its discretion at all.” Taylor, 132 F.3d at 761. Cf. Building Industry Association v.

        Babbitt, 161 F.3d 740, 745 (D.C.Cir.1998). Other federal appellate courts have held that the absence of reasons for certification is not a-jurisdictional bar to an appeal. Bank of Lincolnwood v. Federal Leasing, Inc., 622 F.2d 944, 948-49 (7th Cir.1980); Carter v. City of Philadelphia, 181 F.3d 339, 345-46 (3rd Cir.1999). In the latter cited case, the court held that “the absence of an explanation by the district court does not pose a jurisdictional bar when the propriety of the appeal may be discerned from the record,” but also "adhere[d] to [its] consistent requirement that the district courts provide a brief statement of reasons.” Carter, 181 F.3d at 345-46, 347. Nevertheless, in my view the unmistakable trend in the federal courts is toward requiring the district courts to articulate their reasons for certification, even if the absence of reasons-is not viewed as a jurisdictional defect. The Federal Court of Appeals Manual, a guide for the practitioner rather than an authoritative treatise, advises the practitioner that he has “an interest in seeing that the district court’s reasons for certification are adequately articulated in view of the increasing demand by appellate courts for the district court to explain its reasons for certification.” Fed. Ct.App. Manual, § 3.6 (4th ed.). It therefore recommends that the practitioner provide the district court with articulated-reasons for certification for incorporation into its decision. That reference further observes that “[t]he district court's explanation is especially important for effective review when the reasons for certification are not self-apparent.” Id. Finally, it points out that in a case where -the reasons are unclear, the appellate court "may remand for further proceedings [for clarification] or dismiss the appeal.” Id.

      . The Fourth Circuit’s decision in Jackson was tacitly reversed in part by the Louisiana Supreme Court in Evans v. Charity Hospital in New Orleans, 01-0507 (La.4/20/01), 790 So.2d 8, but only as to the Fourth Circuit's “blanket” holding that it would no longer convert an improperly certified partial summary judgment to a writ application. Thus, the prior rule whereby the Fourth Circuit reserved its right to invoke its supervisory jurisdiction on a case-by-case basis was reinstated. See Evans v. Charity Hospital in New Orleans, 00-0202, p. 3 (La.App. 4th Cir. 11/14/01), 801 So.2d 1192, 1195. The essence of supervisory jurisdiction is the appropriate, judicious exercise of discretion in invoking it, and a “blanket” rule against its invocation would be in derogation of our authority and responsibility to do justice. Where irreparable injury is not shown and no other compelling reasons exist for the invocation of supervisory jurisdiction over an improperly-certified appeal, remand for reasons or dismissal of the appeal should be ordered.

      . For example, a transcription of oral reasons or a detailed minute entry may be adequate, although formal written reasons, composed with the benefit of reflection, would obviously be preferable. The trial court by order or court rule should require any party seeking certification to provide it with reasons supporting that result, in order to aid the court in meeting the duty of “express determination” imposed by the legislature. Enforcing the plain meaning of article 1915(B) in such fashion cannot reasonably be deemed unduly burdensome on the trial courts.


source: Caselaw Access Project

author: | .PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Gary MORRISON
    No. 2003 KW 1554.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 17, 2003.

      Clive Stafford Smith, New Orleans, A. Gregory Rome, Counsel for Relator, Gary Morrison.
    Doug Moreau, District Attorney, Aaron Brooks, Assistant District Attorney, Counsel for Respondent, State of Louisiana.
    Before: WHIPPLE, KUHN, and MCDONALD, JJ.
   | .PER CURIAM.

This matter is before the court on application for supervisory writs of certiorari and review by defendant/relator, Gary Morrison. This is a capital case wherein the State is seeking the death penalty. At trial, part of the State’s evidence will include an oral tape recording of what the State alleges is the defendant making in-culpatory statements concerning this crime. The defendant has challenged this assertion, arguing that the voice on the recording is not his voice. At a hearing to determine the admissibility of expert evidence on this issue, defense counsel offered the testimony of Dr. A1 Yonovitz, a voice identification expert. Upon the conclusion of Dr. Yonovitz’s testimony, the trial court held that the defendant failed to satisfy the requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and ordered the expert testimony of Dr. Yonovitz inadmissible at trial. The defendant seeks review of that ruling. For the following reasons, we deny the writ.

Dr. Yonovitz’s report indicated that based primarily on the general guidelines promulgated by the International Association of Identification (IAI), as well as current theory and practice in phonologic linguistic aural analyses, the results yielded a positive elimination of relator with respect to the voice and speech attributed to him in the known exemplar. According to Dr. Yonovitz, two voice exemplars were taken from relator and compared to the unknown exemplar. Dr. Yonovitz concluded that relator was definitely not a speaker in the unknown exemplar.

The trial court’s evaluation of scientific evidence must be flexible, with an eye toward reliability and relevancy. Admission of scientific evidence is within the discretion of the trial judge. State v. Edwards, 97-1797, pp. 25-26 (La.7/2/99), 750 So.2d 893, 908-909, cert. denied, 528 U.S. 1026, 120 S.Ct. 542, 145 L.Ed.2d 421 (1999). The court must consider the following factors: (1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate and the existence and maintenance of standards controlling its operation; and (4) whether it has attracted widespread acceptance within a relevant scientific community. Daubert, 509 U.S. at 593-594, 113 S.Ct. 2786. Louisiana courts have adopted the reasoning and observations of Daubert, which specifically rejected .the “general acceptance” test and outlined the means for determining reliability.

|2Voice identification analysis consists of both “critical listening,” which requires an expert to carefully listen to the qualities of two voices, and spectrographic analysis. In the latter phase, a computer-based instrument compares the frequencies and amplitudes of a voice on a questioned recording with those of a known sample. United States v. Drones, 218 F.3d 496, 499 n. 4 (5th Cir.2000), cert. denied, 531 U.S. 1151, 121 S.Ct. 1095, 148 L.Ed.2d 968 (2001). According to Dr. Yonovitz’s testimony, the State could test or retest the information, and if an examiner had the same raw data that he used, the examiner could fully replicate his findings.

Dr. Yonovitz testified that within the last 200 times that he has .given presentations to a professional audience, only two or three presentations have not been accepted by the panel. He further testified that he has published many times in acute listening which is required by the standards, and he has published in spectro-graphic analysis, which is the analysis used to conduct the testing of the defendant. Dr. Yonovitz further stated that it is the opinion of his peers that this is a recognizable field of expertise.

When questioned concerning his error rate, Dr. Yonovitz answered that the error rate in his measurement of formats was very low, but he stated he did not know specific error rates. The State’s questioning of Dr. Yonovitz emphasized the inconsistency in error rates when distinguishing between Dr. Yonovitz’s assertion of a 1% error rate given by Dr. Bruce Koenig and an FBI study done by Oscar Tosi finding the error rate to be 18%.

Dr. Yonovitz testified that standards for examiners were promulgated in this area by the American Board of Recorded Evidence (ABRE) in 1998. He testified that he followed the ABRE standards, which specify the requirements of the American Board of Recorded Evidence for the comparison of recorded voice samples. Dr. Yonovitz indicated that the 1998 regulations have not been revised since 1998 and do not reflect today’s equipment.

Although Dr. Yonovitz testified in favor of the voice identification analysis technique, he did not introduce supporting documentation to verify the error rates and studies conducted within the field or to support his claims concerning the development of this field. The inconsistency in error rates clearly illustrates the uncertainty of this method, and a proper foundation has not been established pursuant to the factors listed within Daubert, 509 |sU;S. at 593-594, 113 S.Ct. 2786. Moreover, other courts considering the uncertainty of .the law regarding the reliability and admissibility of expert voice identification evidence have also concluded that there are problems concerning the reliability and scientific validity of the method. See United States v. Drones 218 F.3d at 501-504 (5th Cir.2000); see also United States v. Angleton, 269 F.Supp.2d 892 (S.D.Tex.2003).

Accordingly, the defendant’s writ application seeking review of the district court’s denial of the admissibility of Dr. Yonovitz’s expert testimony is hereby denied.

WRIT DENIED.


author: hPER CURIAM.

text:
    Billy SINCLAIR v. Richard STALDER, Secretary, Louisiana Department of Public Safety and Corrections
    No. 2003 CW 1568.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 2003.
    Billy Sinclair, Angola, Applicant, In Proper Person.
    William F. Kline, Jr., Baton Rouge, for Respondent Louisiana State Department of Public Safety and Corrections.
    Before: WHIPPLE, KUHN, and McDonald, jj.
   hPER CURIAM.

Plaintiff, Billy Wayne Sinclair, files this application for supervisory writs, seeking review of the district court’s February 13, 2003 judgment dismissing in part his petition for a writ of habeas corpus, wherein Sinclair sought review of the Louisiana Parole Board’s decision denying him parole.

Louisiana Revised Statutes 15:574.11 is a statutory grant of appellate jurisdiction to the Nineteenth Judicial District. Madison v. Ward, 2000-2842, p. 5, n. 7 (La.App. 1 Cir. 7/3/02); 825 So.2d 1245, 1250, n. 7 (en banc). This court has interpreted 15:574.11A as meaning there is no appeal of decisions of the board unless the procedural due process protections specifically afforded by the hearing provisions of 15:574.9 are violated. See id. Pleadings challenging actions of the parole board other than failure to act in accordance with 15:574.9 should be dismissed by the district court. Id. Louisiana Revised Statutes 15:574.9 deals with parole revocations, not with denials of release on parole. Therefore, there is no statutory basis for Sinclair to seek review of the parole board’s decision denying him early release on parole.

A petition for a writ of habeas corpus is the proper mechanism for an inmate who claims his initially lawful custody became unlawful due to the parole board’s actions in denying him release on parole. Sinclair v. Kennedy, 96-1510, p. 8 (La. App. 1 Cir. 9/19/97); 701 So.2d 457, 461, writ denied, 97-2495 (La.4/3/98); 717 So.2d 645. However, the fact that an action may be properly maintained as a petition for a writ of habeas corpus does not end the inquiry into whether a cause of action has been stated. Id.

The Supreme Court has held “[tjhere is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.” Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). However, a state’s parolejdetermi-nation2 provisions may create an expectation of parole entitled to some measure of constitutional protection. See id. 442 U.S. at 11-12, 99 S.Ct. 2100 (finding that the Nebraska parole statute created a pro-tectable liberty interest in parole).

The Louisiana Supreme Court has concluded that Louisiana parole statutes do not create an expectancy of release or liberty interest. Bosworth v. Whitley, 627 So.2d 629, 633 (La.1993). The parole board has full discretion when passing on applications for early release. Id. Even if an inmate is fully rehabilitated and is clearly eligible for parole consideration, the Louisiana parole scheme does not require that he be paroled. See Sinclair, 701 So.2d at 462. The procedures used by the parole board in deciding whether an inmate should be released early “are beyond the scope of this court’s review.” See id.

The district court concluded that Sinclair’s petition stated a cause of action in regard to “retaliation by parole board members in denying parole.” With the exception of the retaliation claim, the district court concluded Sinclair’s petition failed to state a cause of action. Although Sinclair has sought review of the district court’s partial grant of the state’s motion to dismiss, the state has not sought review of the district court’s partial denial of its motion. However, an appellate court can raise the peremptory exception of no cause of action on its own motion. La.Code Civ. P. art. 927.

We conclude Sinclair’s petition fails to state a cause of action entitling him to a writ of habeas corpus. Therefore, the district court’s judgment is vacated, and it is ordered that Sinclair’s suit be dismissed with prejudice at his cost.

WRIT DENIED WITH ORDER.


author: 1 ¡/DOWNING, J. McCLENDON, Judge,

text:
    Virginia SHULTZ v. David SHULTZ, Jr.
    No. 2002 CA 2534.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 7, 2003.
    Michael S. Walsh, Baton Rouge, Counsel for Plaintiff/Appellee Virginia Shultz.
    Brian J. Pendergast, Baton Rouge, S. Stephen Spring, II, Baton Rouge, Counsel for Defendant/Appellant David Shultz, Jr.
    Before: PETTIGREW, DOWNING and McClendon, jj.
   1 ¡/DOWNING, J.

David Shultz appeals a family court judgment in which the trial court declined to reduce ordered child support after it found that no extra-judicial agreement existed between him and his ex-wife, Virginia Shultz, concerning modification of child support. Concluding the trial court erred in this regard, we reverse the judgment of the trial court in- part and remand with instructions.

FACTS AND PROCEDURAL HISTORY

Virginia Shultz filed a petition for divorce from David Shultz in July 1997. In September 1997, the trial court signed a judgment on rule granting both parents joint custody of the two children, Jacob, then almost eight years old, and Sarah, then four years old, but naming Virginia primary domiciliary parent. Mr. Shultz was ordered to pay' $969.30 per month, reflecting child support, day care expenses, and a credit for Mrs. Shultz’s share of the children’s insurance- premiums. Soon after the trial court entered this order, Mr. Shultz began paying $650.00 per month toward this obligation, allegedly with the agreement of Mrs. Shultz.

In August 2000, Jacob moved in with his father, after which Mr. Shultz began paying $450.00 per month toward his child support obligation, also allegedly with the agreement of Mrs. Shultz. Mr. Shultz did not seek any court order to formally reduce the amount of child support or to change primary domiciliary custody of Jacob.

In December 2001, Mr. Shultz filed a rule for modification of custody in which he prayed for primary domiciliary custody of their daughter, Sarah. In this motion, Mr. Shultz also prayed for an order recognizing the alleged extrajudicial agreement regarding reduced child support. The trial court denied the change of custody and declined to recognize that any extrajudicial |3agreement regarding reduced child support existed between the parties. The trial court also denied Mr. Shultz’s motion for new trial.

Mr. Shultz appeals the oral judgment of July 24, 2002 that denied him a new trial, alleging in one assignment of error that “[t]he trial court erred in finding that no extra judicial agreement to reduce and/or modify the original child support obligation between the parties.” He did not specifically appeal the underlying trial court judgment dated May 1, 2002.

DISCUSSION

Appeal Of New Trial Judgment

Preliminarily, we observe that “[t]he established rule in this circuit is that the denial of a motion for new trial is not an appealable judgment absent a showing of irreparable harm.” Pittman v. Pittman, 01-2528, p. 3 (La.App. 1 Cir. 12/20/02), 836 So.2d 369, 372, writ denied, 03-1365 (La.9/19/03), 853 So.2d 642. Even so, we note that “the supreme court has directed us to consider an appeal of the denial of a motion for new trial as an appeal of the judgment on the merits as well, when it is clear from the appellant’s brief that he intended to appeal the merits of the case.” Carpenter v. Hannan, 01-0467, p. 4 (La.App. 1 Cir. 3/28/02), 818 So.2d 226, 228-229, writ denied, 02-1707 (La.10/25/02), 827 So.2d 1153. Accordingly, we consider Mr. Shultz’s appeal as an appeal of the merits of the underlying judgment.

14.Extrajudicial Agreements

In its judgment, the trial court specifically found that “there was no extrajudicial agreement between Virginia Shultz and David Shultz, Jr. with regard to a modification of child support.” And regarding the first reduction to $650.00 per month, paid from September 1997 through August 2000, we agree. There is no evidence in the record showing that Mrs. Shultz ever agreed to this sum. While she never challenged this amount or filed a rule for contempt for non-payment of child support, we cannot conclude the trial court was manifestly erroneous in finding Mrs. Shultz did not agree to this reduction where no evidence supports such an agreement.

Regarding the subsequent reduction to $450.00 per month after Jacob moved in with Mr. Shultz, however, the record shows Mrs. Shultz expressly agreed to the reduction. The trial court, however, found that this agreement was coerced. In its written reasons, it stated that it could not find an extrajudicial agreement “because I find that Ms. Shultz felt she was coerced and did not voluntarily agree to this reduetion[.]” We conclude the trial court was erroneous in this regard.

In essence, the trial court found that Mrs. Shultz’s consent was vitiated by the vice of consent of duress. Louisiana Civil Code art.1959, concerning the nature of duress, states that, “Consent is vitiated when it has been obtained by duress of such a nature as to cause a reasonable fear of unjust and considerable injury to a party’s person, property, or reputation.” Comment (b) to this article provides the following definition and commentary on duress:

According to Black’s Law Dictionary (Rev. 4th ed.1968), duress means: “Unlawful constraint exercised upon a man | Bwhereby he is forced to do some act that he otherwise would not have done. It may be either ‘duress of imprisonment,’ where the person is deprived of his liberty in order to force him to compliance, or by violence, beating, or other actual injury, or duress per minas, consisting in threats of imprisonment or great physical injury or death. Duress may also include the same injuries, threats, or restraint exercised upon the man’s wife, child, or parent.” For the drafters of the Restatement of the Law, Second, Contracts, duress takes two forms. In one, a person physically compels conduct that appears to be a manifestation of assent by a party who has no intention of engaging in that conduct. The result of this type of duress is that the conduct is not effective to create a contract. In the other, a person makes an improper threat that induces a party who has no reasonable alternative to manifest his assent. The result of this type of duress is that the contract that is created is voidable by the victim. This latter type of duress is in practice the more common and more important. Restatement, Second, Contracts, §§ 174 and 175 (1981). In sum, “duress” is a word of art or technical word in the English language which expresses exactly what is meant by “violence or threats” in C.C. Arts. 1850-1852 (1870). (Emphasis added.)

We have carefully reviewed the record and can find no evidence of the use of force or threats by Mr. Shultz against Mrs. Shultz. Nor is there evidence that she lacked reasonable alternatives. While Mrs. Shultz expressed a fear of Mr. Shultz and an assertion that he is a violent man, her testimony was that she agreed because she did not want an argument and wanted to avoid going to court. The record reflects no threats or improper inducements to force her agreement. Accordingly, we conclude the trial court erred in finding Mrs. Shultz’s consent to a reduction in child support was vitiated by the vice of consent of duress.

Stogner

Our inquiry does not conclude here, however. In Richardson v. Richardson, 02-2415 (La.App. 1 Cir. 7/9/03), 859 So.2d 81, this court considered the deference owed to stipulated judgments in light of the Louisiana supreme court’s decision in Stogner v. Stogner, 98-3044 (La.7/7/99), 739 So.2d 762. We observed first that under La. R.S. 9:315.ID, the |ntrial court could accept stipulated provisions relating to child support or could categorically reject them in favor of the guidelines. See Richardson, 02-2415 at p. 5, 859 So.2d 81 at 85. We noted that if the stipulation was not rejected, the trial court was required to consider the guidelines for adequacy. Id. We then concluded that if the stipulation were accepted, it would be enforced only so long as it did not derogate from the public interest or the best interest of the child. Id. We conclude that these constraints apply equally to extrajudicial agreements regarding modification of child support.

Here, the record does not contain worksheets showing how the guidelines would apply at the pertinent times when Mr. Shultz was paying $450.00 per month. Nor do we know from the record the duration or terms of the agreement to reduce. And we decline to usurp the trial court’s prerogative to accept or reject the ágreed reduction in the amount of child support. Accordingly, we remand this matter to the trial court for review of the agreed reduction in child support.

The trial court is to consider all relevant factors including whether deviation from the guidelines pursuant to La. R.S. 9:315 B and C is appropriate due to the fact that Jacob was in Mr. Shultz’s physical custody during the time of the agreed reduction.

DECREE

For the foregoing reasons, we reverse the judgment of the trial court in its finding that no extrajudicial agreement existed between Mr. and Mrs. Shultz to reduce child support payments to $450.00 per month. We remand this matter to the family court to consider Mr. Shultz’s request to enforce that agreement with Mrs. Shultz and the application of La. R.S. 9:315.1D to 17the agreement. Costs of this appeal are assessed equally between Mr. and Mrs. Shultz.

REVERSED IN PART; REMANDED WITH INSTRUCTION.

McCLENDON, J., concurs in part and dissents in part and assigns reasons.

McCLENDON, Judge,

concurring in part and dissenting in part.

I respectfully concur in part and dissent in part. I agree with the majority’s decision to the extent that it upholds one of the- extrajudicial agreements between Mr. and Mrs. Shultz. However, I believe that the record is sufficient to decide this matter on appeal and that a remand is not necessary.

      . In his notice of appeal, Mr. Shultz appeals the judgment of July 24, 20,02. On July 24, 2002, the trial court orally denied his motion for new trial, and a minute entry was entered to this effect. No written judgment denying the new trial is contained in the record. However, a written judgment is unnecessary."The denial of a motion for new trial may be made by minute entry and does not require a signed judgment. La. C.C.P. art,1914[.]” Custom-Bilt Cabinet & Supply, Inc. v. Quality Built Cabinets, Inc., 32,411, p. 4 (La.App. 2 Cir. 12/8/99), 748 So.2d 594, 598. See also Boyd v. Fourchon, Inc., 408 So.2d 380, 382 (La.App. 1 Cir.1981). The record does contain an appropriate minute entry.

      . By order dated February 13, 2003, this court ruled that Mr. Shultz’s appeal was filed timely where it seeks review of the trial court’s determinátion that there was no extrajudicial agreement regarding child support. The appeal was maintained in this regard only. The appeal was dismissed as to the remainder of the judgment dealing with relocation of the children and visitation for the two minor children.

      . We note that Mrs. Shultz did not raise or argue duress as an affirmative defense as required by La. C.C.P. art. 1005. Mr. Shultz, however, did not assign error on appeal in this regard, so we do not consider whether the trial court was erroneous in basing its finding on duress.


author: J^FITZSIMMONS, J.

text:
    David BORDELON v. THYSSEN DOVER ELEVATORS
    No. 2002 CA 2578.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 7, 2003.
    Writ Denied Feb. 13, 2004.
    Denise A. Vinet, Baton Rouge, Counsel for Plaintiff-Appellee David Bordelon.
    Philip J. Borne, Joseph M Guillot, New Orleans, Counsel for Defendanh-Appellant Thyssen Dover Elevator.
    Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.
   J^FITZSIMMONS, J.

Thyssen Dover Elevator (Thyssen) appeals a workers’ compensation court judgment awarding David Bordelon (Bordelon) workers’ compensation benefits. Following review of the record and applicable law, this court affirms.

BACKGROUND

Bordelon, an elevator installer, began working for Thyssen in May 1983. He possessed a history of back “flare-ups,” which he described as arthritis and for which, as early as January 2000, a family practitioner, Dr. Wayne Gravois, had prescribed an anti-inflammatory. In April 2000, Bordelon went to Gidden Medical Clinic for “slight to moderate” back problems. He was, thereafter, treated by Dr. Gravois on two occasions for low back, hip, and thigh symptoms. Additionally, in the beginning of January 2001, Bordelon requested a refill of the anti-inflammatory prescription.

In his workers’ compensation claim, Bordelon alleges that he suffered two injuries while at work. He testified that on January 18, 2001, he experienced a sharp pain and injury while pulling a “gang box” at work. He did not report the incident to his supervisor, and he returned to work. Bordelon privately received some physical therapy between January and May 2001. In March 2001, Dr. Charles Kaufman, a neurologist, evaluated Bordelon for “severe pain in his back, right hip, and right thigh radiating to his knee for the past 10-11 months.” Dr. Kaufman interpreted an MRI, dated February 2, 2001, to indicate a herniated disc compressing the right L4 nerve root. Following two steroid injections by Dr. Alan J. Ostrowe, Bordelon felt almost pain-free, and he elected not to take the planned third injection.

Bordelon did not tell Dr. Gravois or Dr. Kaufman that he had hurt himself on the job. He admitted at trial that he was aware of Thyssen’s policy directing an employee to report to his supervisor-if hurt on the job. Bordelon testified that he [3had not reported the incident because he thought his back would heal, as had other flare-ups in the past. He never missed work as a result of his symptoms.

On May 16, 2001, Bordelon experienced an acute pain on the job while installing a car header that weighed between 100 and 200 pounds. He described the pain as worse than he had previously experienced. He was unable to continue his duties at work as he had done in the past. Dr. Ostrowe performed an epidural steroid injection at the L5/S1 interspace. For the first time, Bordelon’s symptoms did not improve. Instead, the intensity of the pain worsened, especially in his leg. The pain radiated anteriorly, and to some degree medially, along the thigh. Bordelon related that he was not able to “walk, stand or sit for any extended periods of time.”

Dr. Kaufman referred Bordelon to Dr. Horace Mitchell, a neurosurgeon. On June 5, 2001, Dr. Mitchell diagnosed “severe radiculopathy secondary to the disc herniation ....” A follow-up MRI demonstrated “continued L4-L5 foraminal disc rupture.” On June 7, 2001, Dr. Horace Mitchell performed a lumbar discectomy. Bordelon returned to work at Thyssen in October 2001, and he was employed there at the time of the trial on May 30, 2002.

THE LAW

The workers’ compensation court found that Bordelon sustained two work-related accidents that resulted in temporary total disability. Where an employee seeks workers’ compensation benefits on the basis of temporary total disability, the employee bears the burden of proving such disability by clear and convincing evidence. La. R.S. 23:1221(l)(c). The question of disability ultimately presents a factual determination. LeBlanc v. Cajun Painting Inc., 94-1609, p. 10 (La.App. 1 Cir. 4/7/95), 654 So.2d 800, 807, writs denied, 95-1706 (La.10/27/95), 661 So.2d 1349 and 95-1655 (La.10/27/95), 661 So.2d 1350. A workers’ compensation judge’s finding of fact may not be set aside on appeal in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Thomas v. Tony’s Seafood, Ltd., 633 So.2d 675, 677 (La.App. 1st Cir.1993), writ denied, 94-0223 (La.3/18/94), 634 So.2d 856.

In the instant case, although Bordelon sustained a work-related injury on January 18, 2001, he elected not to seek workers’ compensation coverage. Instead, he independently sought medical treatment for the pain. Notwithstanding the results of an MRI test demonstrating the existence of a herniated disc, Bordelon was able to continue to work at his employment without any interruption. However, following a second incident on May 16, 2001, steroid treatments failed to alleviate the pain, which Bordelon described as more severe than in the past. The second MRI revealed “continued L4-L5 foraminal disc rupture.”

The evidence presented in the record does not undermine the workers’ compensation court finding that the May 16 accident exacerbated the previous condition of a herniated disc. Dr. Mitchell stated that he premised his decision to operate on the initial MRI of February 2001 and the extent of Bordelon’s exacerbated symptoms in May 2001. Moreover, the workers’ compensation judge emphasized that she found the claimant to be particularly credible. Such determinations of whether a claimant’s testimony is credible and whether he has satisfied his burden of proof are factual conclusions that will not be disturbed upon review absent manifest error.

In the instant case, we do not construe the documents or objective evidence to contradict the witness’s testimony to the extent of manifest or clear error. Rosell, 549 So.2d at 844, 845. There is no evidence that Bordelon intentionally withheld the history of his January 2001 accident from his physicians or employer, and the lack of interruption of work lends credence to Bordelon’s statement that he assumed that the flare-up in pain was of a relatively minor nature. In this regard, the work-related activity is not required to be the sole cause of the disability. LeBlanc, 94-1609, at p. 10, 654 So.2d at 806. Additionally, the consequences of a work-related disability are not always fully apparent at the time of the accident. LeBlanc, 94-1609, at p. 10, 654 So.2d at 806-807.

Given the particular facts of this case and the workers’ compensation judge’s express recognition of Bordelon’s credibility, Bordelon’s failure to relate to his employer or doctor in January 2001 that he had incurred an injury to his back should not preclude his entitlement to workers’ compensation following the second exacerbating incident. Accordingly, the decision of the workers’ compensation judge is hereby affirmed. All costs associated with this appeal are assessed to Thyssen Dover Elevator.

AFFIRMED.


text:
    Clint RENO and Donna Reno v. The TRAVELERS HOME AND MARINE INSURANCE COMPANY.
    No. 2002 CA 2637.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 7, 2003.

      Andrew A. Lemmon, Hahnville, for Plaintiffs-Appellants, Clint and Donna Reno.
    Thomas J. Eppling, Brian J. Engeron, Metairie, for Defendant-Appellee, The Travelers Home & Marine Ins. Co.

      Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   1 .CARTER, C.J.

This is an appeal from a summary judgment granted in favor of defendant, The Travelers Home and Marine Insurance Company (Travelers), dismissing plaintiffs’ case after finding a valid waiver of uninsured/underinsured motorist (UM) coverage. We affirm.

FACTS

Mr. and Mrs. Clint Reno (the Renos) brought an action for personal injuries arising out of an automobile accident. The Renos alleged that the available insurance was inadequate to cover their damages, thus triggering the UM provision in their insurance policy issued by Travelers. It is undisputed that Mrs. Reno, with Mr. Reno’s authority, placed her husband’s initials on the one-page waiver/rejection of UM coverage form (the Form) attached to the Travelers’ policy. It is also undisputed that Mrs. Reno, in her own handwriting, printed her husband’s name and her own name in the signature section of the Form.

Travelers filed a motion- for summary judgment on the grounds that the Renos had validly rejected UM coverage. In support of its motion, Travelers attached a copy of the Form, along with a copy of plaintiffs’ responses to requests for admission. The Renos admitted in their responses that Mr. Reno had authorized his wife to reject UM coverage and that Mrs. Reno had, in fact, handwritten their individual names on the Form. The Renos opposed Travelers’ motion for summary judgment, arguing that the rejection of UM coverage was invalid because Mrs. Reno had “printed” both her and her husband’s names on the Form when a “signature” was required. The trial court rejected this argument, granted Travelers’ motion for ^summary judgment, and dismissed the Renos’ case with prejudice. This appeal followed.

LAW AND ANALYSIS

The legal principles regarding summary judgment are well settled. Whether an insurance policy, as a matter of law, provides or precludes coverage is a dispute that can properly be resolved within the framework of a motion for summary judgment. Lafitte v. Compton, 29,296 (La.App. 2 Cir. 2/26/97), 690 So.2d 872, 874, writ denied, 97-1138 (La.6/20/97), 695 So.2d 1355. Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s consideration of the appropriateness of summary judgment. Simmons v. Berry, 98-0660 (La.App. 1 Cir. 12/22/00), 779 So.2d 910, 913-914. The applicable substantive law determines whether a particular fact is material in a summary judgment setting. Id. at 915. When interpreting an insurance contract, the court must attempt to discern the common intent of the insured and insurer. Analysis should begin with a review of the words in the insurance contract, and the contract must be enforced as written when the words are clear and explicit and lead to no absurd consequences. Clements v. Folse ex rel. Succession of Clements, 01-1970 (La.App. 1 Cir. 8/14/02), 830 So.2d 307, 312, writ denied, 02-2328 (La.11/15/02), 829 So.2d 437.

The validity of a waiver/rejection of UM coverage form is determined by the law in effect at the time the waiver is executed. See Roger v. Estate of Moulton, 513 So.2d 1126, 1131-1132 (La.1987). On March 30, 1999, Mrs. Reno printed by hand her husband’s initials, his name, and her name on the Form, indicating their desire to reject UM coverage. At that time, the UM statute, LSA-R.S. 22:1406(D)(l)(a)(ii), required that any rejection or |4selection of lower limits be signed by the named insured or his legal representative. The Louisiana Supreme Court has held that a valid rejection or selection of lower limits must be in writing and signed by the named insured or his legal representative, and that the insurer must place the insured in a position to make an informed rejection of UM coverage. See Tugwell v. State Farm Ins. Co., 609 So.2d 195, 197 (La.1992). Neither the UM statute nor the supreme court has defined “signed” or “signature” in connection with a valid rejection of UM coverage. Furthermore, the Form does not define signature, but does provide that “[t]he choice I made by my initials on this form will apply to all persons insured under my policy.”

The weight of authority is that where a statute requires an instrument to be signed by a person, a printed or typed “signature” is sufficient, provided that the signature was authorized and intended to constitute the signature. See Commerce Loan Company v. Howard, 82 So.2d 487, 488 (La.App.Orl.1955). Generally, in the absence of a statute prescribing the method of affixing a signature, it may be written by hand, printed, stamped, typewritten, engraved, or by various other means. See 80 C.J.S. Signatures § 14, p. 906 (2000).

The Renos do not allege fraud or that the Form was signed in error, nor do they disavow the authenticity of their names as they appear on the Form. The Renos merely contend that their printed names are inadequate to bind them on the Form. We find no merit to the Renos’ position. The | fiRenos clearly and positively admitted their intention to waive UM coverage in order to save money, and they acknowledged that Mrs. Reno handwrote the printed names on the Form. A signature consists of both the act of writing one’s name and of the intention of authenticating the instrument. Action Finance Corp. v. Nichols, 180 So.2d 81, 83 (La.App. 2 Cir.1965). The fact that a signature is printed by hand rather than written in cursive does not indicate a lack of genuineness. Boykin v. DeSoto Parish Police Jury, 359 So.2d 239, 241 (La.App. 2 Cir.), writ denied, 360 So.2d 199 (La.1978). It makes no difference whether a signature is printed by hand or handwritten in script or cursive. It is merely a question of identity and a representation of. a person’s willingness to be bound. See Williamson v. Guice, 613 So.2d 797, 799 (La.App. 4 Cir.), writ denied, 617 So.2d 937 (La.1993). See also Smith v. Travelers Ins. Co., 560 So.2d 472, 474 (La.App. 1 Cir.), writ denied, 564 So.2d 325 (La.1990).

In the case sub judice, we find there is no question that by printing her name and her husband’s name on the Form after placing her husband’s initials next to the UM rejection choice, Mrs. Reno effectively signed the Form with the intention of waiving. UM coverage. Mrs. Reno’s authority to write her husband’s name and her intention to reject UM coverage are not at issue. Accordingly, there are no genuine issues of material fact and the trial court was correct as a matter of law in granting summary judgment in favor of Travelers. We affirm the trial court’s judgment at the Renos’ cost.

AFFIRMED.

      . Al oral argument, the Renos attempted to raise an alleged ambiguity in the signature section of the Form by pointing out that the Form requires a printed name on one line and then a "signature” on another line, and it does not require that both names be the same. However, the undisputed facts show no confusion on Mrs. Reno's part as to the signature requirements on the Form. The Renos intended to reject UM coverage, Mrs. Reno had Mr. Reno's authority to sign his name, she printed by hand his name as well as his initials in the appropriate locations on the Form, and she printed by hand her own name on the appropriate signature line on the Form.