text:
    Scotty L. MAYO and Melissa Mayo v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al.
    No. 2003-CC-1801.
    Supreme Court of Louisiana.
    Feb. 25, 2004.
    Rehearing Denied April 23, 2004.

      Broussard, Bolton, Halcomb & Vizzier, Dorwan G. Vizzier, Alexandria, for applicant.
    Stafford, Stewart & Potter, Larry A. Stewart, Andrew P. Texada, Alexandria, for respondent.
   JOHNSON, Justice.

We granted this writ of certiorari to determine whether this plaintiff, who was injured while riding as a passenger in a vehicle owned by her husband as his separate property, is entitled to recover damages under an uninsured/underinsured motorist (“UM”) policy issued to cover a vehicle owned by her as her separate property. For the reasons that follow, we reverse the court of appeal’s decision to grant the insurer’s motion for summary judgment, and we remand this matter to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

Scotty Mayo (“Scotty”) and Melissa Mayo (“Melissa”) were married on June 22, 1996. Prior to their marriage, Scotty purchased a 1992 Isuzu pickup truck, which was his separate property. Scotty’s Isuzu pickup was insured by Allstate Insurance Company (“Allstate”), and he had rejected UM coverage. Also prior to the marriage, Melissa purchased a 1989 GEO Spectrum automobile, which was her separate property. Melissa’s GEO Spectrum was insured by State Farm Mutual Automobile Insurance Company (“State Farm”), and she selected the UM insurance.

[;>The instant case arises from an automobile accident which occurred on February 16, 1997, in which the Isuzu pickup truck, driven by Scotty and occupied by Melissa, was hit by a vehicle driven by Dianne Knapp. The vehicle that Knapp was driving was owned by Hixson Auto-plex of Alexandria, Inc. (“Hixson”) and was insured by Reliance Insurance Company (“Reliance”). State Farm was Knapp’s automobile liability insurer. At the time of the accident, Melissa was pregnant, but she suffered a miscarriage on March 20, 1997.

On February 13, 1998, the Mayos filed a personal injury and 'wrongful death suit against Knapp, Hixson, and State Farm as Knapp’s liability insurer and as Melissa’s UM insurer. Subsequently, plaintiffs filed a First Supplemental and Amended Petition, adding Reliance as a defendant. Plaintiffs settled their claims with the other defendants, including State Farm as Knapp’s liability insurer.

State Farm, as Melissa’s UM carrier, filed a motion for summary judgment, arguing that Scotty was an insured under the terms of its policy with Melissa because the definition of “insured” included a “spouse.” Therefore, State Farm contended that because Melissa was occupying a vehicle owned by an insured, her husband, she was precluded from recovering UM Insurance under LSA-R.S. 22:1406(D)(l)(e).

Following a hearing, the trial court denied State Farm’s motion without assigning reasons. State Farm filed an application for supervisory writs with the court of appeal. A five judge panel of the appellate court granted the writ application, and in a 3-2 decision, reversed the trial court’s ruling and rendered summary judgment in favor of State Farm. Mayo v. State Farm, Mutual Automobile Ins. Co., 02-0775 (La.App. 3 Cir. 5/21/03), 846 So.2d 973. Judge Cooks, joined by Judge Woodard, dissented, opining that Melissa is not barred from recovery under her own UM policy.

Scott and Melissa filed an application for certiorari in this Court. By order dated November 7, 2003, this Court granted the writ. Mayo v. State Farm Mutual Automobile Ins. Co., 03-1801 (La.11/7/03), 857 So.2d 506.

DISCUSSION

An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Louisiana Civil Code. Cadwallader v. Allstate Ins. Co., 02-1637, p. 3 (La.6/27/03), 848 So.2d 577, 580; Carbon v. Allstate Ins. Co., 97-3085, p. 4 (La.10/20/98), 719 So.2d 437, 439; Louisiana Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-0911, p. 5 (La.1/14/94), 630 So.2d 759, 763. The judiciary’s role in interpreting insurance contracts is to ascertain the common intent of the parties to the contract. See LSA-C.C. art.2045; Cadwallader, 848 So.2d at 580; Carbon, 719 So.2d at 439; Louisiana Ins., 630 So.2d at 763.

Words and phrases used in an insurance policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning. See LSA-C.C. art.2047; Cadwallader, 848 So.2d at 580; Peterson v. Schimek, 98-1712, p. 5 (La.3/2/99), 729 So.2d 1024, 1028-29; Carbon, 719 So.2d at 440-441; Reynolds, 634 So.2d at 1183. An insurance contract, however, should not be interpreted in an unreasonable or strained manner under the guise of contractual interpretation to enlarge or to restrict its provisions beyond what is reasonably contemplated by unambiguous terms to achieve an absurd conclusion. Cadwallader, 848 So.2d at 580; Carrier v. Reliance Ins. Co., 99-2573, p. 11 (La.4/11/00), 759 So.2d 37, 43; Peterson, 729 So.2d at 1029. The rules of Jjconstruction do not authorize a perversion of the words or the exercise of inventive powers to create an ambiguity where none exists or the making of a new contract when the terms express with sufficient clarity the parties’ intent. Cadwallader, 848 So.2d at 580; Succession of Fannaly v. Lafayette Ins. Co., 01-1355, p. 4 (La.1/15/02), 805 So.2d 1134, 1138; Peterson, 729 So.2d at 1029.

Ambiguous policy provisions are generally construed against the insurer and in favor of coverage. LSA-C.C. art. 2056; Cadwallader, 848 So.2d at 580; Carrier, 759 So.2d at 43; Louisiana Ins., 630 So.2d at 764. Under this rule of strict construction, equivocal provisions seeking to narrow an insurer’s obligation are strictly construed against the insurer. Cadwallader, 848 So.2d at 580; Carrier, 759 So.2d at 43. The strict construction principle applies only if the ambiguous policy provision is susceptible to two or more reasonable interpretations; for the rule of strict construction to apply, the insurance policy must be not only susceptible to two or more interpretations, but each of the alternative interpretations must be reasonable. Cadwallader, 848 So.2d at 580; Carrier, 759 So.2d at 43-44, (emphasis in original); Louisiana Ins., 630 So.2d at 770.

If the policy wording at issue is clear and unambiguously expresses the parties’ intent, the insurance contract must be enforced as written. Cadwallader, 848 So.2d at 580; Fannaly, 805 So.2d at 1137; Louisiana Ins., 630 So.2d at 764. Courts lack the authority to alter the terms of insurance contracts under the guise of contractual interpretation when the policy’s provisions are couched in unambiguous terms. Cadwallader, 848 So.2d at 580; Peterson, 729 So.2d at 1029; Louisiana Ins., 630 So.2d at 764. The determination of whether a contract is clear or ambiguous is a question of law. Cadwallader, 848 So.2d at 580; Louisiana Ins., 630 So.2d at 764.

Uninsured motorist coverage is governed by LSA-R.S. 22:1406(D). In 1988, |sthe Louisiana Legislature passed Act No. 203, which, inter alia, added LSA-R.S. 22:1406(D)(l)(e), which provides:

D. The following provisions shall govern the issuance of uninsured motorist coverage in this state:
* * *
(l)(e)The uninsured motorist coverage does not apply to bodily injury, sickness, or disease, including death of an insured resulting therefrom, while occupying a motor vehicle owned by the insured if such motor vehicle is not described in the policy under which a claim is made, or is not a newly acquired or replacement motor vehicle covered under the terms of the policy. This provision shall not apply to uninsured motorist coverage provided in a policy that does not describe specific motor vehicles.
* * *

(Emphasis added).

When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. LSA-C.C. art. 9. When the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law. LSA-C.C. art. 10.

The legislative intent of LSA-R.S. 22:1406 has been explored by the courts in various instances. In Haltom v. State Farm Mut. Auto. Ins. Co., 588 So.2d 792 (La.App. 2 Cir.1991), the Court stated:

1 fi[T]he amendment to the UM statute was clearly designed to keep vehicle owners from carrying UM coverage on only one of two or more aimed vehicles, thus obtaining the benefit of UM coverage regardless of which vehicle they occupied, at the cost of only one UM policy. Whereas the legislature probably intended only to preclude an insured from collecting more than the limits of the UM policy covering the vehicle in which he was riding, which in this case was equal to the coverage on the other vehicle, such is the result under the instant circumstances and pertinent statutes. (Emphasis added).

Haltom, 588 So.2d at 795. In Taylor v. Sider, 97-1841 (La.App. 4 Cir. 4/29/98), 714 So.2d 783, writ denied 98-1769 (La.10/9/98), 726 So.2d 406, the court stated:

Through this amendment [of LSA-R.S. 22:1406], the Legislature intended to preclude owners from carrying UM coverage only on selected family vehicles, while still gaining benefit of such protections regardless of which vehicle happens to be involved in an accident. Instead, in such circumstances, the lawmakers restricted UM coverage to that policy covering the occupied automobile. (Citations omitted). Thus, the owner occupying his own vehicle at the time of the accident is entitled to coverage only under the policy, if any, covering that vehicle. Further, Louisiana courts have not distinguished between the owner and other family members. (Citation omitted). Therefore, even though the vehicle involved in the accident was not owned by [the plaintiff], it was owned by her resident daughter ..., and Subsection (e) prohibits recovery under [the husband’s] policy as the vehicle was not described in that policy.

Taylor, 714 So.2d at 786.

LSA-R.S. 22:1406(D)(l)(e) provides a statutory exclusion of coverage for an insured suffering bodily injury while occupying a motor vehicle owned by the insured that is not a vehicle insured under the policy. William Shelby McKenzie and H. Alston Johnson, III, Louisiana Civil Law TReatise Vol. 15: Insurance Law and ItPractice, § 123 at 302 (2nd ed.1996). It is clear that, pursuant to LSA-R.S. 22:1406(D)(l)(e), UM coverage does not apply if an insured is injured while occupying a motor vehicle he or she owns if the occupied “non-owned” motor vehicle is not described in the policy under which the claim is made or if the occupied “non-owned” motor vehicle is not a newly acquired or replacement motor vehicle covered under the terms of the insured’s policy.

In this case, it is undisputed that Melissa Mayo was injured while occupying a vehicle not owned by her. Rather the vehicle was owned by Scotty Mayo, as his separate property. Melissa is the sole named insured on the State Farm policy at issue, which covers her separately owned vehicle. The vehicle occupied by Melissa at the time of the accident was not described in the State Farm policy. The only vehicle described in the State Farm policy is the GEO Spectrum. Moreover, the occupied vehicle was not a “newly acquired or replacement motor vehicle.”

However, it is clear from the related jurisprudence that our courts have not made a distinction between vehicles owned by members of the same family. In Taylor, swpra, the plaintiff was a passenger in a vehicle owned and being driven by her adult daughter when they were involved in an accident in which the other driver, who was uninsured, was at fault. The plaintiffs daughter’s vehicle was insured by State Farm, and that policy had UM coverage. State Farm also insured a ear owned by the plaintiffs husband, which also included UM coverage. The plaintiff was not the owner of either vehicle, and it was disputed whether she was insured under her husband’s policy. At the time of the accident, the plaintiffs daughter resided with the plaintiff and her husband. State Farm tendered the limits of the UM policy covering the vehicle in which the plaintiff was a passenger. Alleging that her damages exceeded the amount tendered, the plaintiff sued State Farm for UM coverage under the policy Ron her husband’s car. The court affirmed the trial’s courts decision to grant State Farm’s motion for summary judgment, finding, “[Wjhile [the plaintiff] may have UM coverage available under two State Farm policies, one on [her daughter’s] car and one on [her husband’s] car, she may not ‘stack’ them so as to receive UM coverage under both policies.” Taylor, 714 So.2d at 785.

Similarly, in Bamburg v. State Farm Mut. Auto. Ins. Co., 26,324 (La.App. 2 Cir. 12/7/94), 647 So.2d 447, the plaintiffs minor daughter lost control of a vehicle owned by her father and struck a tree, injuring her brother. The host vehicle was insured under a policy issued by State Farm, and UM coverage had been waived on that vehicle. The plaintiff filed suit, individually and on behalf of his minor son, seeking UM protections provided in State Farm policies covering two other vehicles he owned. The court found in favor of State Farm, finding that “[I]t is well settled that a passenger may not collect under both the liability and UM provisions of the policy insuring the involved automobile, even if that contract encompasses several vehicles.” Bamburg, 647 So.2d at 449. The court further concluded, “[0]ne cannot be insured with respect to liability coverage and underinsured with respect to UM coverage under the same insurance policy.” Id.

This case is clearly distinguishable from Taylor and Bamburg. In Taylor, the plaintiff sought to stack UM coverage from two separate UM policies. In this case, only one UM policy is at issue: Melissa’s own State Farm coverage. In Bamburg, the owner of multiple vehicles had waived UM coverage on the vehicle involved in the accident, but attempted to recover under a policy covering another vehicle he owned. In the instant case, Melissa is not the owner of the vehicle involved in the accident. She is the owner of the only vehicle covered under the State Farm policy at issue.

The majority of the court of appeal, relying on the reasoning of Brossett v. Progressive Ins. Co., 01-0986 (La.App. 3 Cir., 12/12/01), 801 So.2d 668, writ denied, 02-0130 (La.4/12/02), 813 So.2d 404, concluded that Melissa is not entitled to recover under her own UM policy. In Brossett, the plaintiff was driving a 1995 Pontiac, her separate property, purchased prior to her marriage, when she was involved in an accident with another vehicle. The plaintiffs husband, a passenger in the vehicle, was killed. The plaintiff filed a lawsuit, naming, among others, State Farm as her UM provider on her vehicle. State Farm filed a motion for summary judgment, arguing that UM coverage for the plaintiffs vehicle had been rejected. Thereafter, the plaintiff filed an amended petition, contending that State Farm provided UM coverage for her husband’s vehicle, which was owned by him prior to their marriage. State Farm filed a motion for summary judgment, alleging that the rejection of UM coverage on the wife’s vehicle prevented recovery under the UM policy on the vehicle that was not involved in the accident, pursuant to the anti-stacking provision, LSA-R.S. 22:1406(D)(l)(e). The trial court granted the motion for summary judgment, and the court of appeal affirmed. The court found that, as a named insured under the policy for her husband’s vehicle, plaintiff could not recover under the UM provisions of that policy for her own injuries. The court further concluded that the plaintiff could not recover for damages related to her husband’s death. The court noted that the UM waiver containing the plaintiffs signature was dated the same day as the UM selection form signed by the plaintiffs husband. The court concluded, “To permit recovery of a resident spouse under the UM provision of one policy, but permit the other policy to be obtained at less expensive, non-UM coverage rates, would be contrary to the purpose of the anti-stacking provision.”

In this case, the court of appeal stated:

Likewise, in the instant case, Melissa, a resident spouse, is not entitled to UM coverage under the State Farm policy Imissued on her Geo Spectrum.
Further, the State Farm policy itself provides that there is no UM coverage “FOR BODILY INJURY TO AN INSURED WHILE OCCUPYING A MOTOR VEHICLE OWNED OR LEASED BY THE INSURED IF IT IS NOT YOUR CAR OR A NEWLY ACQUIRED CAR.” The policy defines “INSURED” for purposes of UM coverage as the first person named in the declarations, i.e., Melissa, and her spouse. Additionally, the policy defines “YOUR CAR” as “the car or the vehicle described on the declarations page.” The Geo Spectrum is described on declarations page. Thus, under the terms of the policy, there is no UM coverage for Melissa’s bodily injury because she was occupying a vehicle owned by an “insured,” ie., her husband, and the vehicle involved in the accident was not the vehicle described on the declarations page.

Mayo, 846 So.2d at 975.

Judge Cooks, joined by Judge Woodard, dissented. The dissenters rejected the majority’s reliance on Brossett, finding that case to be distinguishable from the instant case. Judge Cooks explained:

I would agree, under the holding of this court in Brossett, Mr. Mayo is precluded from recovery for his injuries under Mrs. Mayo’s UM policy. He did not list his vehicle in the policy under which he is making a claim. Mrs. Mayo, on the other hand, was simply a guest passenger in a car in which she had no ownership interest. She selected UM coverage on her vehicle and paid premiums which reflected the additional coverage. Her vehicle was specifically described in her UM policy. This situation is not analogous. Mrs. Mayo is making a claim against her UM policy not her husband’s UM policy as was the situation in Brossett. [emphasis in original],

Mayo, 846 So.2d at 977 (Cooks, J. dissenting).

State Farm contends that, in interpreting LSA-R.S. 22:1406(D)(l)(e), Louisiana courts have not distinguished between the nominal owner of a vehicle and other family members. In support of its argument, State Farm relies on Brossett, supra.

As Judge Cooks observed, this case is distinguishable from Brossett. In Bros-sett, the plaintiff, who had waived UM coverage on her own vehicle, sought to _[I1recover UM benefits under her husband’s policy. In this case, it was Scotty who had waived UM coverage under his Allstate policy. Thus, under Brossett, had Scotty been seeking to recover under Melissa’s policy, he would be prohibited from doing so.

In Kirkland v. State Farm Mut. Auto. Ins. Co., 95-0462 (La.App. 5 Cir. 10/31/95), 663 So.2d 872, the plaintiff was a passenger in a Ford pickup truck owned and driven by her husband. The plaintiff was injured, and her husband was killed following a collision between the pickup truck and a train. The plaintiff sought to obtain benefits under the uninsured/underinsured motorist section of her own State Farm UM policy which covered her own vehicle. The plaintiffs UM policy excluded coverage for vehicles “furnished for the regular use of you, your spouse or any relative.” State Farm denied coverage, and the trial court found in favor of State Farm. The plaintiff appealed, arguing that LSA-R.S. 22:1406(D)(l)(e) did not preclude her from recovery, since she was injured in an automobile which she did not own. Pursuant to a prenuptial agreement entered into by the plaintiff and her husband, the truck which was involved in the accident was her husband’s separate property, and a Chrysler was the separate property of the plaintiff. Both of the vehicles were separately insured in the individual names of their respective owners, and each owner paid their own premiums.

The court of appeal reversed the trial court’s ruling, stating:

Under La.C.C. art. 2341,[] the separate property of a |12spouse is his or hers exclusively. Therefore ... [the plaintiff] can not be deemed an owner or co-owner of this vehicle.
* * iK
The key issue in the present case is the status of the automobile in which the plaintiff was injured — here, she was injured while occupying a vehicle not owned by her. The restrictions of La. R.S. 22:1406(D)(l)(e) do not operate to bar [the plaintiff] from recovery.
[The clause, “furnished for the regular use of you, your spouse or any relative,”] does not preclude recovery of UM benefits by [the plaintiff]. A vehicle “furnished for ... regular use” is not, by definition, the same thing, as a vehicle “owned ” by the spouse.

Kirkland, 663 So.2d at 874-75 (Emphasis in original).

In this case, while there is no evidence that Scotty and Melissa Mayo entered into a prenuptial agreement, it is unrefuted that both the Isuzu pickup truck and the GEO Spectrum were purchased prior to the marriage, and Scotty was the sole owner of the Isuzu, while Melissa solely owned the GEO. Therefore, both vehicles were “acquired by a spouse prior to the establishment of a community property regime.” As such, neither spouse “owns” the vehicle owned by the other spouse. Thus, Melissa was injured while occupying a vehicle which she did not own. Moreover, both vehicles were separately insured in the names of their respective owners. Each policy had different coverages: Melissa had limits of $25,000-$50,000, with UM coverage, |13while Scotty had minimum legal coverage, with no UM coverage.

We conclude that the statutory mandate of LSA-R.S. 22:1406(D) does not prohibit Melissa from recovering under her own UM policy. The statute prohibits recovery if the insured, ie., Melissa Mayo, is injured while occupying a vehicle she owns i.e., the GEO Spectrum.

State Farm argues that Melissa is precluded from recovering under the policy because she was injured while occupying a vehicle owned by her spouse, who was an “insured” under the State Farm policy. The general State Farm policy at issue defines “insured” as “the person, persons, or organization defined as insureds in the specific coverage.” (Emphasis in original). The specific UM coverage provision of the policy provides as follows:

We will pay nonpunitive damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be caused by accident arising out of the operation, maintenance or use of an uninsured motor vehicle.
Who is an Insured Under Coverage U
Insureds — means the person or persons covered by uninsured motor vehicle coverage.
This is:
1. the first person named in the declarations;
2. his or her spouse;
3. their relatives; and
4. any other person while occupying: a. your car, a temporary substitute car, a newly acquired car or a trailer attached to such car.
Such vehicle has to be used within the scope of the consent of you or your spouse; or
j14b. A car not owned or leased by you, your spouse or any relative, or a trailer attached to such a car. It has to be driven by the first person named in the declarations or that person’s spouse and within the scope of the owner’s consent.
When Coverage U Does Not Apply
THERE IS NO COVERAGE:
* * *
2. FOR BODILY INJURY TO AN INSURED WHILE OCCUPYING A MOTOR VEHICLE OWNED OR LEASED BY THE INSURED IF IT IS NOT YOUR CAR OR A NEWLY ACQUIRED CAR.

(Emphasis in original).

We find that this clause does not operate to preclude Melissa from recovering UM benefits. It is apparent that, under the clear language of the policy, Scotty is an insured “under Coverage U.” However, LSA-R.S. 22:1406(D)(l)(e) provides that UM coverage is inapplicable to injuries-of an insured while occupying a motor vehicle owned by the insured. The language of that provision suggests that the legislature contemplated an insured, the owner of multiple vehicles, who is injured while, occupying another vehicle he or she owns. This means if Melissa had been injured while occupying another vehicle she owns, UM coverage would not apply. Those are not the facts of this case. Only two vehicles are at issue: the one owned by Melissa and the one owned by Scotty. Melissa was injured while occupying the vehicle owned by Scotty. Therefore, we must conclude that LSA-R.S. 22:1406(D)(l)(e) does not preclude Melissa from recovery UM benefits under her own State Farm policy. Accordingly, we hold that the court of appeal erred in finding that Melissa is excluded from coverage under her UM policy by this statute and by the terms of the policy itself.

| ^CONCLUSION

For the foregoing reasons, the judgment of the court of appeal is reversed, and the judgment of the trial court denying State Farm’s motion for summary judgment is reinstated. Because of our conclusions, this matter is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

VICTORY J., concurs in the result.

      . According to the Partial Judgment of Dismissal, Knapp remained in the suit as “a nominal defendant ... only to the extent required to satisfy the Louisiana Direct Action Statute and to allow plaintiffs to prosecute claims against [Knapp’s] liability insurers other than State Farm....”

      . In Haltom, William Haltom, accompanied by this wife and daughter ("the Haltoms”), was driving a vehicle owned by Jerry and Joyce McDonald ("the McDonalds”). Joyce McDonald and her daughter were also passengers in the vehicle. They were involved in an accident in which the other driver was solely at fault. The other driver and his insurer settled with the plaintiffs. State Farm also settled with the plaintiff as the Mc-Donalds’ UM carrier. Subsequently, the plaintiffs sought to recover under a second State Farm UM policy covering another vehicle owned by the McDonalds. The trial court concluded that the Haltoms could not recover under the second policy because they were not "insureds” under that policy because they were not named in the declarations, none of them were the spouse or relatives of the Mc-Donalds, and they were not occupying that vehicle at the time of the accident. The court of appeal affirmed that decision, stating, "Louisiana law requires that insurance policies provide UM coverage only for persons insured under the policy.” Haltom, 588 So.2d at 794 (citations omitted). The court further held that the McDonalds could not recover under the second policy, as they were not occupying the vehicle covered under that policy at the time of the accident.

      . LSA-C.C. art. 2341 provides:
      The separate property of a spouse is his exclusively. It comprises: property acquired by a spouse prior to the establishment of a community property regime; property acquired by a spouse with separate things or with separate and community things when the value of the community things is inconsequential in comparison with the value of the separate things used; property acquired by a spouse by inheritance or donation to him individually; damages awarded to a spouse in an action for breach of contract against the other spouse or for the loss sustained as a result of fraud or bad faith in the management of community property by the other spouse; damages or other indemnity awarded to a spouse in connection with the management of his separate property; and things acquired by a spouse as a result of a voluntary partition of the community during the existence of a community property regime.


source: Caselaw Access Project

author: PER CURIAM. CALOGERO, C.J.,

license: Public Domain

text:
    In re Louis A. GERDES, Jr.
    No. 2003-B-2642.
    Supreme Court of Louisiana.
    March 12, 2004.

      Charles B. Plattsmier, Chief Disciplinary Counsel, James T. Daly, Deputy Disciplinary Counsel, Counsel for Applicant.
    Elie, Jones & Associates, Lolis E. Elie, Louis A. Gerdes, Jr., New Orleans, Counsel for Respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS ■

PER CURIAM.

This attorney disciplinary proceeding involves ten counts of misconduct filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Louis A. Gerdes, Jr., an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

Count I — Jones Matter

In December 1992, Latonya Jones retained respondent to represent her two minor children in a case against her landlord for lead poisoning exposure. Since Ms. Jones was only seventeen years old, respondent named Cynthia Knight, Ms. Jones’ sister, as the plaintiff in the suit instituted on behalf of the minors. Subsequently, the defendants filed a Dilatory Exception of Lack of Procedural Capacity on the basis that Ms. Knight had not been properly qualified to act as tutrix. The trial court granted the defendants’ motion, and allowed respondent an additional thirty days to have Ms. Knight properly qualified.

Respondent took no measures to have Ms. Knight qualified within this time period. As a result, defendants filed a motion to dismiss the suit, which the trial court granted. Respondent filed a motion for new trial from the dismissal, but failed to have Uthis motion set for hearing. Additionally, respondent failed to advise his clients of'the dismissal of their suit.

Count II — Ricard, Matter

Sandra Ricard retained respondent to represent her in a personal injury action arising out of a July 1996 slip and fall accident at the Louisiana Superdome. Respondent filed suit on Ms. Ricard’s behalf in July 1997, but' failed to provide any service information in the petition. Almost two years later, in March 1999, Ms. Ricard complained to respondent that no action had been taken in her case. Thereafter, respondent requested service of the suit. However, service was not effectuated until July 28, 1999, two years after the suit had been filed and months after Ms. Ricard had discharged respondent and filed a complaint with the ODC.

In his testimony at the formal hearing, respondent testified he did not think Ms. Ricard “had much of a case” due to problems with proof of liability. He indicated his decision to file the suit was a “last minute decision” and was done “just to protect her rights.”

Count III — Brown Matter

Shearle and Shorrne Brown retained respondent to represent them in a personal injury action for injuries allegedly sustained on December 16, 1995 while traveling on a bus operated by the Regional Transit, Authority of New Orleans. On December 16, 1996, respondent filed suit on his clients’ behalf, but failed to provide any service instructions until several months later.

Subsequently, defendants filed a motion to dismiss, on the grounds that service had not been made in the time provided by law, and an exception of | svagueness/ambiguity. Respondent took no action on behalf of his clients in response to the motion and exception. Further, respondent neglected to communicate with his clients regarding the status of the case.

In May 1999, the Browns filed a complaint with the ODC alleging that respondent failed to communicate with them. Respondent filed a response alleging he had been communicating with his clients’ mother since his clients were young adults who resided with their mother. He also explained that he accepted 300 or 400 cases per year and sometimes gets “stuck” with cases that he shouldn’t have taken.

Count IV — Hampton Matter

Larry Hampton retained respondent to represent him in a personal injury action arising out of a bus accident in Jefferson Parish. On April 25, 1996, respondent filed suit on behalf of his client. Although respondent provided service instructions in the petition, he failed to pay the filing fee for service. Respondent took no further action in the case and failed to communicate with Mr. Hampton, who had moved to California. Mr. Hampton retained Rose Molloy, a California attorney, to assist him in obtaining information about the status of his case.

In May 1999, Mr. Hampton and Ms. Molloy each filed a complaint with the ODC. Two months later (and three years after the suit had been filed), respondent paid the filing fee to effectuate service of process.

At the formal hearing, respondent asserted the delay in effectuating service was due to the denial of Mr. Hampton’s motion to proceed in formal pauperis and the failure of his employee to determine if service had been made. However, he admitted he did not communicate with Mr. Hampton.

| ¿Count V — Francis Matter

In 1994, Florence Francis retained respondent to represent her in two personal injury matters. One of the matters was dismissed on grounds of abandonment in May 1999. Respondent filed a motion for new trial, which was granted by the trial court. As such, the suit was reinstated. Subsequently, the parties satisfactorily settled the matter.

The second suit was dismissed on the grounds of prescription. According to respondent, his failure to file the suit timely was due improper information provided by his client about her personal injury claim.

In June 1999, Ms. Francis filed a complaint with the ODC alleging respondent’s failure to communicate with her regarding the dismissal of her suits.

Count VI — Williams Matter

In 1998, respondent employed Charles Williams, a Louisiana attorney who had been suspended from the practice of law, as a paralegal. In June 1998, respondent sent Mr. Williams to attend the deposition of one of respondent’s clients. According to the ODC, Mr. Williams did not advise the parties present at the deposition that he was suspended from practice, and provided assistance as counsel in response to two questions directed by opposing counsel to respondent’s client.

Count VII — Navarre Matter

| ¡^Ricardo Navarre retained respondent in 1987 to represent him in connection with class action litigation arising out of a railroad tank car fire. After the criteria of the class was determined, counsel for all plaintiffs (including respondent) were instructed to advise their clients to register to become members of the class. Respondent sent one letter to Mr. Navarre on June 8, 1990, but the letter did not advise Mr. Navarre of the court-ordered deadline for filing the proof of claim. The letter, which was not sent certified mail, was addressed to Mr. Navarre at his last known address. Respondent took no subsequent action to ascertain whether his client responded in any respect, nor did respondent check with the plaintiffs’ committee to determine if Mr. Navarre had registered. Respondent did not send out a second letter or attempt to obtain another address for his client.

In October 1999, Mr. Navarre filed a complaint with the ODC alleging respondent’s neglect of his legal matter and failure to communicate.

Count VIII — Dorsey Matter

Dennis Dorsey retained respondent to represent him in a personal injury matter stemming from an accident which occurred on or about October 24, 1997. Respondent filed suit on Mr. Dorsey’s behalf on October 26, 1998, but did not provide service instructions on his petition. After filing the suit, respondent took no further action in the case.

Approximately two years after the suit was filed, Mr. Dorsey discharged respondent and retained new counsel. On June 14, 2001, Mr. Dorsey’s new counsel requested in writing that respondent immediately send him Mr. Dorsey’s file. When | firespondent failed to comply, Mr. Dorsey filed a complaint with the ODC in August 2001.

Respondent later testified at the formal hearing that he had sent the file on July 23, 2001, five weeks after Mr. Dorsey’s new counsel made his request for such. Additionally, respondent testified that he had only filed suit to interrupt prescription and that he personally thought it was a “bad case” that he did not think he could win.

Count X — Anderson Matter

In November 1998, Margaret Anderson retained respondent to represent her in a personal injury action arising from a November 15, 1998 incident at Bally’s Casino. Respondent filed suit on Ms. Anderson’s behalf in June 1999, but failed to provide service instructions in the petition. Respondent took no further action in the case, nor did he communicate with his client, despite her repeated attempts to contact him.

Almost three years after suit was filed, Ms. Anderson filed a complaint with the ODC, alleging she had learned respondent had not taken measures to have the defendants served. In his response to the complaint, respondent maintained he filed suit on Ms. Anderson’s behalf solely for the purpose of interrupting prescription, because “the liability picture was very poor.” Respondent pointed out that his client’s claim was still viable and that he would voluntarily withdraw so she could retain other counsel to complete the matter.

Count XI — Smith Matter

Respondent represented Dominica Smith in connection with a wrongful death suit. In April 2001, Ms. Smith discharged respondent and requested a return of her |7file. At the same time, she also retained other counsel, Randall J. Meyer, who also made numerous requests that respondent return the file.

in July 2001, Ms. Smith filed a complaint with the ODC, alleging that her case had been pending for over fifteen years and respondent had not returned her file to her new attorney. Respondent delivered the file to Mr. Meyer’s office in October 2001, six months after respondent was discharged and the file was initially requested.

DISCIPLINARY PROCEEDINGS

Formal Charges

Following its investigation, the ODC filed the ten counts of formal charges against respondent at issue in this proceeding. With the exception of the Williams and Smith matters which are the subject of Counts VI and XI, respectively, each of the counts of misconduct alleged violations of Rules 1.3 (lack of diligence) and 1.4 (failure to communicate) of the Rules of Professional Conduct. In the Dorsey and Smith matters (Counts VIII and XI), the ODC alleged a violation of Rule 1.16(d) (failure to protect clients interests at the termination of representation). In the Williams matter (Count VI), the ODC alleged violations of Rules 5.3(b) (failure to properly supervise non-lawyer assistants), 5.5(b) (assist a nonmember of the bar in the unauthorized practice of law) and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

After filing some incidental procedural motions, respondent filed an answer denying the allegations of misconduct. The case then proceeded to a formal hearing.

| sRecommendation of the Hearing Committee

At the conclusion of the formal hearing, the hearing committee filed a lengthy report finding clear and convincing evidence to support each of the formal charges. Specifically, the committee recognized respondent admitted in most instances to the neglect of legal matters and failure to communicate in violation of Rules 1.3 and 1.4, respectively. As to Counts VIII and XI relative to the Dorsey and Smith matters, the committee found respondent breached Rule 1.16 due to his failure to protect his clients’ interests at the termination of their representations when he did not promptly return their files upon request. Regarding respondent’s failure to supervise his paralegal, the committee concluded respondent violated Rule 5.3(b) because Mr. Williams “participated in the deposition of respondent’s client, and respondent knew Mr. Williams was suspended from the practice of law when he sent him to the deposition.” The committee determined respondent also assisted in Mr. Williams’ unauthorized practice of law and engaged in conduct prejudicial to the administration of justice in violation of Rules 5.5(b) and 8.4(d). However, relying on In re: Vaughan, 01-1948 (La.10/26/01), 801 So.2d 1058, and Louisiana State Bar Ass’n v. Chatelain, 573 So.2d 470 (La.1991), the committee specifically noted it would not impose additional discipline for these violations because respondent received an admonition in 1999 for the same misconduct, which involved the use of Mr. Williams, who was suspended from practice, in a deposition during the same time period as the misconduct at issue in the instant matter.

|90n the issue of sanctions, the hearing committee recognized in aggravation respondent’s prior discipline, pattern of misconduct, multiple offenses, substantial experience in the practice of law, vulnerability of the victims and lack of remorse. The committee relied on the mitigating factors of personal or emotional problems and absence of selfish motive.

Based on its findings, the hearing committee recommended that respondent be suspended from the practice of law for three years, with two years deferred, subject to a two-year period of probation and conditions.

Recommendation of the Disciplinary Board

Following its independent review of the record, the disciplinary board adopted the findings of the hearing committee, except insofar as it concluded the committee erred in finding respondent violated Rule 1.4(a) in connection with the Francis matter (Count V).

Relying on the aggravating and mitigating factors cited by the hearing committee, the board recommended that respondent be suspended for one year, with six months deferred, subject to successful completion of the Louisiana State Bar Association’s Ethics School program. One board member dissented to the leniency of the proposed sanction.

|inBoth respondent and the ODC filed objections to the disciplinary board’s recommendation. Accordingly, the matter was docketed for briefing and argument in accordance with Supreme Court Rule XIX, § 11(G).

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343, 348; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444, 445 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

We find the record supports the findings of the hearing committee, as modified by the disciplinary board. In essence, the common theme running through this case is respondent’s neglect of legal matters and his failure to communicate with his clients. Although respondent attempts to offer explanations and justifications for his actions, the fact remains that his conduct is in violation of the professional rules.

Having found evidence of professional misconduct, the next issue presented for our consideration is the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the Inseriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

Considered in isolation, none of respondent’s transgressions are particularly egregious. However, taken as a whole, they demonstrate a disturbing course of conduct.

In mitigation, respondent avers that the impact of his neglect of legal matters is lessened by the fact the suits he filed were without merit in the first place and were often filed simply to placate the client. Because these suits had little or no merit, he takes the position his failure to pursue them caused no significant harm to his clients.

To the contrary, however, we find respondent’s defense unacceptable. The practice of filing suits which he knew to have no merit creates substantial harm on many different levels. The practice of filing frivolous lawsuits impose a burden on the legal system and society at large. Such suits undermine public confidence in the legal system and exact a financial and emotional toll on the innocent targets of such filings. The filing of meritless suits adversely impacts those litigants with legitimate and meritorious claims for whom justice is often delayed because time and resources of the legal system must be devoted to dispensing with those frivolous claims. At the same time, the filing of a frivolous suit gives false hope to claimants who believe, however wrongly, that they have a claim. Sometimes the best advice an attorney can l18give to his or her client is that no one is at fault and/or that there is no case to pursue. To file suit merely to placate a client does a disservice to the client, the legal system, and, ultimately, to society at large, which must bear the increased costs of an over-burdened legal system. Accordingly, we decline to consider the lack of merit of the underlying suits as a factor which mitigates the seriousness of respondent’s neglect of legal matters entrusted to him.

However, we find other mitigating factors are present. We recognize that respondent did not act with a dishonest or improper motive. Additionally, at oral argument before this court, respondent’s counsel represented that respondent has reassessed his practice methods and is committed to avoid similar problems in the future.

Under these circumstances, we conclude the appropriate sanction for respondent’s misconduct is a one-year suspension from the practice of law. In light of the mitigating circumstances, we will defer six months of this suspension. Following completion of the active portion of his suspension, respondent shall be placed on probation for a period of one year, during which time he shall complete the Louisiana State Bar Association’s Ethics School program.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Louis A. Gerdes, Jr., Louisiana Bar Roll number 6030, is suspended from the practice of law for a period of one year. Six months of this suspension shall be deferred. Following the completion of the active portion of his suspension, respondent shall be placed on probation for a period of one year, during which time he shall be required to attend the |13Louisiana State Bar Association’s Ethics School program. Any violation of this condition or any other misconduct during the probationary period may be grounds for making the deferred portion of the suspension executory or imposing other discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

CALOGERO, C.J., dissents and assigns reasons.

JOHNSON, J., dissents for reasons assigned by CALOGERO, C.J.

CALOGERO, C.J.,

dissents and assigns reasons.

I dissent from the sanction imposed in this case. I would impose a suspension of three months, which I consider a sufficient penalty for this respondent’s conduct. The respondent practices in an urban area with many disadvantaged clients, and while that fact does not excuse his conduct, it helps to explain, perhaps, his error in taking on cases of questionable merit. Furthermore, as the majority concedes, none of the respondent’s transgressions is particularly egregious, and the respondent did not act with a dishonest or improper motive. Moreover, the respondent through counsel has asserted that he has taken steps to avoid future problems regarding the filing of non-meritorious lawsuits. Accordingly, in my view a three-month suspension would be an appropriate sanction.

      . The ODC initially filed eleven counts of misconduct against respondent. However, one count, Count DC, was dismissed prior to the formal hearing. The ODC has not sought review of this dismissal. Accordingly, we will not discuss Count DC in this opinion.

      . The Browns are the children of Sandra Ri-card subject of Count II. The hearing committee incorrectly stated they were the children of the complainant subject of Count I.

      . The complaint alleged neglect of legal matters and the ODC instituted charges citing a violation of Rule 1.3. However, the hearing committee and disciplinary board found insufficient evidence of neglect. The ODC did not object to the dismissal of the allegation.

      . In 1986, Mr. Williams was suspended from the practice of law for a minimum of two years. Louisiana State Bar Ass’n v. Williams, 498 So.2d 727 (La.1986). The charges alleged that Mr. Williams engaged in a conflict of interest when he entered into a business transaction with a client without making full disclosure or advising his client to seek independent legal advice, charged an excessive legal fee in a worker's compensation case and neglected a legal matter.

      .Respondent admitted at the formal hearing that his only responsibility in the entire class action litigation was to ensure his client timely registered for the class with a proof of claim. The plaintiffs’ litigation committee handled all other responsibilities.

      . This was Ms. Smith's second complaint filed against respondent. Initially, she filed a complaint in 1998 alleging neglect and a failure to communicate. Respondent submitted a response to the ODC. It appears the ODC found insufficient evidence to pursue the matter further.

      . Mr. Williams .was ultimately suspended from the practice of law for two years, with all but one year and one day deferred, for participating in a deposition in April 1998 in an unrelated matter while employed for Mr. Gerdes as a paralegal. In re: Williams, 02-2698 (La.4/9/03), 842 So.2d 353. Additionally, the disciplinary board admonished respondent in 1999 for the same incident giving rise to Mr. Williams’ suspension. In re: Gerdes, 99-ADB-071.

      . Respondent has been admonished on two prior occasions. In addition to respondent’s 1999 admonishment for using Mr. Williams, a suspended attorney, at a deposition, respondent was admonished in 1995 for a violation of Rules 1.8(e) (offering of financial assistance to client in connection with litigation), 1.15(a) (commingling) and 1.15(d) (failure to maintain interest-bearing client trust account) of the Rules of Professional Conduct. See, 95-ADB-038.

      .Respondent was admitted to the practice of law in Louisiana in 1968, approximately thirty-four years at the time of the misconduct at issue in these proceedings.

      . Respondent explained that he accepted 300-400 cases per year and sometimes got "stuck” with cases he should not have taken. During testimony before the hearing committee, respondent stated that in the Ricard matter, he filed suit although he acknowledged "I did not think I could win the case; I did not think there was a claim.” He further stated, "the case was so bad, so impossible to win, that I did filer] a favor by filing a suit to protect her interests so at least she had a right to proceed.” In the Dorsey matter, he stated he filed suit despite the fact that he thought it was a "bad case” in which he could not prevail.

      . The public policy against the filing of frivolous suits is reflected by La.Code Civ. P. art. 863, which requires an attorney to certify that there is a good faith basis for the filing of a pleading and that the pleading is not filed for any improper purpose.


author: KIMBALL, Justice. VICTORY, J. hKNOLL, Justice, WEIMER, J.,

text:
    Katherine RAMEY (Individually and on Behalf of the Estate of David F. Ramey, M.D., and on Behalf of her Minor Children, Kristen Ramey and Brad Ramey) and Renee Ramey v. Michael DeCAIRE (Administrative Director, Physicians’ Health Foundation of Louisiana), Martha Brown, (Medical Director, Physicians’ Health Foundation of Louisiana), Physicians’ Health Foundation of Louisiana (PHFL), Physicians’ Health Program (PHP), Physicians’ Health Committee (PHC).
    No. 2003-CC-1299.
    Supreme Court of Louisiana.
    March 19, 2004.

      Angela W. Adolph, Baton Rouge, Rose-lyn B. Koretzky, New Orleans, George M. Papale, Milling, Benson, Woodward, Counsel for Applicant. -
    Sean D. Fagan, Baton Rouge, Counsel for Respondent.
   KIMBALL, Justice.

In this case, plaintiffs, decedent’s survivors, allege defendants’ negligence caused decedent to commit suicide. The sole issue presented is whether plaintiffs’ amended petition states a cause of action against defendants. For the following reasons, we find that plaintiffs’ petition does not contain sufficient well-pleaded facts to state a cause of action in negligence. The judgment of the district court to the contrary is reversed; however, plaintiffs will be allowed time within which to amend their petition pursuant to the provisions of La. C.C.P. art. 934.

| ¡.Facts and Procedural History

This case arises from a petition for damages filed on January 23, 2002 by Katherine Ramey (individually and on behalf of the Estate of David F. Ramey, M.D. and on behalf of her minor children, Kristen Ramey and Brad Ramey) and Renee Ra-mey (“plaintiffs”) and naming as defendants Michael DeCaire (Administrative Director of Physicians’ Health Foundation of Louisiana), Martha Brown (Medical Director of the Physicians’ Health Foundation of Louisiana), Physicians’ Health Foundation of Louisiana (“PHFL”), Physicians’ Health Program (“PHP”), Physicians’ Health Committee (“PHC”), and Louisiana State Board of Medical Examiners. The original petition filed by plaintiffs alleges the following in pertinent part:

2.
Plaintiffs specifically show that defendants failed to have in force procedures that ensured twenty-four (24) hour turn around time for test results relating to random drug sampling done of physicians under their direction, supervision and control, which procedure would have minimized the emotional distress and turmoil of a physician tested, and further would have ensured immediate intervention to protect the physician under defendants!!’] direction, supervision and control.
3.
Plaintiffs further show that defendants failed to have in force procedures that ensured immediate face to face intervention of physicians under their direction, supervision and control, which procedure would have minimized the emotional distress and turmoil of a physician tested, and further would have ensured immediate intervention to protect the physician under defendants^] direction, supervision and control if a positive drug test is made.
4.
Petitioners show that said defendants, through the |3above negligent acts and omissions, improperly supervised and provided care to David F. Ramey for his addiction and illness in the specific following respects:
a. After random testing of Dr. Ra-mey, defendants failed to take steps to ensure a twenty-four (24) hour turn around analysis of the sample;
b. Defendant, Martha Brown, after learning of the positive drug test, instructed defendant, Michael DeCaire, to contact Dr. Ramey by telephone, not face to face and advise of the results;
c. Defendants, Martha Brown and Michael DeCaire, took no steps at all to ensure immediate face to face intervention took place with Dr. Ramey to protect him from his illness and to ensure his safety.
5.
As a result of the above negligent acts and omissions of said defendants, David F. Ramey, M.D. committed suicide at approximately 5:30 o’clock p.m., the same day after receiving a telephone call from defendant, Michael DeCaire, advising Dr. Ramey of the positive drug test.
6.
Plaintiffs show had defendants exercised the standard of care and degree of skill ordinarily employed, under similar circumstances, by members of their profession in good standing in their community and locality, and had defendants used reasonable care and diligence, along with their best judgment, David F. Ramey would not have committed suicide.
7.
Specifically, had defendants acted within the standard of care by implementing procedures to ensure proper notification, intervention and treatment of David F. Ramey, he would not have committed suicide.

Defendants responded by filing a peremptory exception of no cause of action, asserting that the allegations made by plaintiffs in the petition did not disclose any |4actionable negligence by defendants and failed to set forth any theory, of liability upon which relief could be granted. Specifically, defendants contended that the petition failed to allege a legal or factual relationship between defendants and the decedent from which a legal duty to act or not to act could have arisen. Additionally, defendants alleged that the petition failed to specify the professions or purposes of defendants. Finally, defendants argued that even if all the allegations of plaintiffs’ petition are true, the petition fails to state how the defendants’ behavior caused the decedent’s suicide.

After a hearing on defendants’ peremptory exception of no cause of action, the district court granted the exception, concluding that plaintiffs’ petition failed to state an actionable claim under Louisiana law. The district court allowed plaintiffs thirty days within which to supplement and amend their petition to state a cause of action.

Subsequently, plaintiffs filed an amending and supplemental petition in which they alleged that defendants had knowledge of decedent’s history of substance abuse and treatment, and should have known that decedent was at an increased risk of committing suicide. Specifically, plaintiffs’ amended petition supplemented the original petition with the following pertinent allegations:

15.
At all times pertinent to this litigation, defendants were aware that prior to May 8, 2001[,] the decedent, David Ra-mey, had been the subject of two separate substance abuse “interventions.”
16.
Prior to May 8, 2001, defendants knew that David Ramey had completed the twelve steps of Alcoholics Anonymous on three separate occasions.
17.
Prior to May 8, 2001, defendants knew that David Ramey had received inpatient therapy for substance abuse on tivo separate occasions.
J¿18.
Prior to 'May 8, 2001, defendants know that David Ramey was actively involved in the outpatient counseling of other substance abusers.
19.
Given David Ramey’s extensive involvement with the impaired physicians program, defendants knew or should have known on May 8, 2001 that, upon notification of the failed drug screen, Ramey was actually aware that he would lose his license to practice medicine.
20.
Given that David Ramey was a diagnosed substance abuser, defendants knew or should have known that a relapse placed him at increased risk for committing suicide.
21.
Defendants knew that prior to May 8, 2001 it was standard practice to “intervene” in person when confronting relapsing physicians (i.e. those who had already been diagnosed as substance abusers).
22.
Defendants knew or should have known that personal intervention under such circumstances was done, in part, to guard against the increased risk of suicide.
28.
Upon receiving the results of David Ramey’s drug screen, Michael DeCaire notified Martha Brown.
24.
Both Martha Brown’s and Michael DeCaire’s involvement (vis[-]a[-]vis the notification of David Ramey) was within the course and scope of their employment by the Physiciansf] Health Foundation of Louisiana.
25.
Martha Brown instructed Michael De-Caire to advise David Ramey of the failed drug screen.
I «26.
On May 8, 2001, Ramey received a telephone call from defendants’ agent, Michael DeCaire, advising him that he had failed a drug screen that had been administered approximately two weeks earlier.
27.
Following that telephone call, Dr. Ra-mey finished seeing patients over the next few hours and then took his own life at his office.

In response to this amending and supplemental petition, defendants again filed a peremptory exception of no cause of action. Defendants’ second exception of no cause of action raised essentially the same objections that had been sustained by the district court in its earlier ruling regarding the original petition for damages.

After a hearing, the district court denied defendants’ exception of no cause of action, finding that plaintiffs’ petition, as amended, states an actionable claim under Louisiana Law. Defendants applied for supervisory writs from this ruling. The court of appeal, with one judge dissenting, denied the writ without comment. Ramey v. De-Caire, 02-2674 (La.App. 1 Cir. 4/7/03).

At defendants’ request, we granted cer-tiorari to review the correctness of the district court’s judgment denying the peremptory exception of no cause of action. Ramey v. DeCaire, 03-1299 (La.10/10/03), 855 So.2d 355.

Discussion

The narrow issue presented in this case is whether plaintiffs’ amended petition Instates a cause of action against defendants such that their suit should be allowed to proceed.

A cause of action, when used in the context of the peremptory exception, is defined as the operative facts that give rise to the plaintiffs right to judicially assert the action against the defendant. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1238 (La.1993). The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition, which is done by determining whether the law affords a remedy on the facts alleged in the pleading. Id. at 1235. No evidence may be introduced to support or controvert an exception of no cause of action. La. C.C.P. art. 931. Consequently, the court reviews the petition and accepts well-pleaded allegations of fact as true. Jackson v. State ex rel. Dept. of Corrections, 00-2882, p. 3 (La.5/15/01), 785 So.2d 803, 806; Everything on Wheels Subaru, 616 So.2d at 1235. The issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Montalvo v. Sondes, 93-2813, p. 6 (La.5/23/94), 637 So.2d 127, 131.

Louisiana has chosen a system of fact pleading. La. C.C.P. art. 854 cmt. (a); Montalvo at p. 6, 637 So.2d at 131. Therefore, it is not necessary for a plaintiff to plead the theory of his case in the petition. Kizer v. Lilly, 471 So.2d 716, 719 (La. 1985). However, the mere conclusions of the plaintiff unsupported by facts does not set forth a cause of action. Montalvo at p. 6, 637 So.2d at 131.

The burden of demonstrating that the petition states no cause of action is upon the mover. City of New Orleans v. Board of Com’rs of Orleans Levee Dist., 93-0690, p. 28 (La.7/5/94), 640 So.2d 237, 253. In reviewing the judgment of the district court relating to an exception of no cause of action, appellate courts should conduct a de novo review because the exception raises a question of law and the lower court’s Indecision is based solely on the sufficiency of the petition. Fink v. Bryant, 01-0987, p. 4 (La.11/28/01), 801 So.2d 346, 349; City of Neto Orleans at p. 28, 640 So.2d at 253. The pertinent question is whether, in the light most favorable to plaintiff and with every doubt resolved in plaintiffs behalf, the petition states any valid cause of action for relief. City of Neto Orleans at p. 29, 640 So.2d at 253.

Accepting all of the allegations in plaintiffs’ amended petition as true and applying the legal principles set forth above, we find'plaintiffs’ petition fails to allege facts sufficient to state a cause of action in negligence. Generally, there is an almost universal legal duty on the part of persons to conform to the standard of conduct of a reasonable person in like circumstances. Davis v. Witt, 02-3102, p. 13 (La.7/2/03), 851 So.2d 1119, 1128. Whether a legal duty exists, and the extent of that duty, depends on the facts and circumstances of the case and the relationship of the parties. Id. In the instant case, plaintiffs’ allegations of facts do not show the circumstances giving rise to. a duty on the parts of these particular defendants to prevent decedent’s suicide. Plaintiffs’ petition fails to articulate the relationship between decedent and defendants which could give rise to a finding that defendants’ negligence was a substantial factor in causing decedent’s suicide. The lack of particular facts alleging a relationship between defendants and decedent that could give rise to a duty on the parts of defendants to prevent decedent’s suicide prevent this court from determining from the petition what duty defendants are alleged to have breached. Consequently, we cannot find at this time that the law affords a remedy to plaintiffs. We therefore conclude that defendants’ peremptory exception of no cause of action should have been sustained and the district court erred in denying the exception.

| ciArticle 934 of the Code of Civil Procedure states that “[w]hen the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court.” The article further provides, however, that if the grounds of the objection cannot be removed by amendment, the action shall be dismissed. In the instant case, the district court found plaintiffs’ amended petition set forth a cause of action, and the court of appeal denied defendants’ request for supervisory writs. Consequently, because we conclude defendants’ peremptory exception should be sustained, we are the first court to consider the applicability of La. C.C.P. art. 934 as it relates to plaintiffs’ amended petition. The language of La. C.C.P. art. 934 does not limit a plaintiff to a single amendment of his petition. We therefore conclude that additional opportunities for amendment of a petition pursuant to the provisions of La. C.C.P. art. 934 may be allowed in the discretion of the court. In this case, we are not prepared to find as a matter of law that the basis for defendants’ objection to plaintiffs’ amended petition cannot be removed by amendment of the petition. Therefore, out of an abundance of caution, we will allow amendment of the plaintiffs’ petition in accordance with La. C.C.P. art. 934. Thus, while we recognize that plaintiffs in this case have already been afforded one opportunity to amend their petition to remove the grounds of defendants’ objections, we find it advisable and in the interests of justice to allow plaintiffs another opportunity to amend their petition.

Decree

For the foregoing reasons, the judgment of the district court is reversed and defendants’ peremptory exception of no cause of action is sustained. The case is remanded to the district court with instructions to permit an amendment of plaintiffs’ Impetition in accordance with the views expressed herein. Plaintiffs are given thirty days from the date of the finality of this judgment to amend their petition. If plaintiffs fail to amend their petition within the prescribed time, the district court shall dismiss their suit.

REVERSED AND REMANDED.

VICTORY, KNOLL and WEIMER, JJ., concurs in part and dissents in part and assigns reasons.

VICTORY, J.

concurring in part and dissenting in part.

I concur with most of the majority opinion, but dissent from that part of the opinion allowing the plaintiff to again amend the petition. In my view, the grounds for the defendant’s objection to the petition cannot be removed by amendment.

hKNOLL, Justice,

dissenting in part.

I respectfully disagree with the majority’s ruling remanding this matter to the district court with instructions to give plaintiffs the opportunity to amend their petition.

As the majority correctly stated, Article 934 of the Code of Civil Procedure provides “when the grounds of the objection pleaded by the peremptory exception may be removed by an amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court.” However, “if the grounds of the objection raised through the exception cannot be so removed, ... the action ... shall be dismissed.” La.Code Civ. Proc. art. 934. While the majority correctly sustained defendants’ exception of no cause of action, I do not find the plaintiffs can successfully remove the grounds of the objection.

In this case, the pleadings do not allege a physician/patient relationship or hospital/patient relationship nor do they articulate any legally recognized standard of care or any legal duty, the breach of which would create liability. Moreover, given |¿the strong policy considerations against assigning delictual responsibility for the suicidal acts of another, and the great reluctance of our courts to extend such liability, especially in non-custodial circumstances, I find based upon what plaintiffs have alleged they will not be able to amend their petition to allege such a relationship or duty of care imposing liability for Dr. Ramey’s suicide.

Moreover, the theories of the plaintiffs’ allegations are based upon pure speculation that had defendants employed a face-to-face notification as opposed to notice by telephone of Dr. Ramey’s test results, he would not have committed suicide. The notice by defendant to Dr. Ramey via telephone certainly was not unknown to Dr. Ramey, because he would have had to know he had taken the drugs. A legal duty is not owed by crafting creative speculation. Pleadings which establish only possibility, speculation, or unsupported probability do not suffice to establish a cause of action. See Todd v. State Through Dept. of Social Services, Office of Community Services, 96-3090 (La.9/9/97), 699 So.2d 35. For these reasons, I would not remand this matter for further amendment, and dissent from the majority only as to this issue.

WEIMER, J.,

concurring in part and dissenting in part.

I concur in that portion of the majority decision that concludes the petition does not state a cause of action.

I dissent from that portion of the decision which allows the plaintiffs to once again amend the petition. The amended petition stated that after being advised by telephone of the failed drug screen administered two weeks earlier, “Dr. Ramey finished seeing patients over the next few hours and then took his own life at his office.” Further, the defendants merely informed Dr. Ramey of what he had to have already known — that he had abused drugs. Based on the facts alleged in the original and amended petitions, these defendants are not responsible for Dr. Ra-mey’s tragic death. See Todd v. State, Department of Social Services, Office of Community Services, 96-3090 (La.9/9/97), 699 So.2d 35.

      . The claims against the Louisiana State Board of Medical Examiners were dismissed without prejudice in a separate judgment of the trial court that is not at issue in the instant case.

      . In their second peremptory exception of no cause of action, defendants asserted that plaintiffs' allegations also failed to state a cause of action in light of the qualified immunity provided by La. R.S. 37:1287(D), (E) and (F). The judgment of the district court contains no mention of this statute; however, because the exception was denied, we assume the district court had insufficient evidence before it at that stage of the case to dismiss the matter on the basis of La. R.S. 37:1287. Defendants did not mention this statute in their writ application or brief to this court and did not raise the issue of immunity in this court. Consequently, we express no opinion regarding the applicability of La. R.S. 37:1287 in this case.

      . We do not find that a defendant’s negligence can never be a substantial factor in causing a person’s suicide. This court has previously held that an emergency room doctor’s negligence was a substantial factor in causing a patient's suicide. See Tabor v. Doctors Memorial Hosp., 563 So.2d 233 (La.1990).


author: TERRI F. LOVE, Judge.

text:
    Mason ALEXIS, III v. ALTON OCHSNER FOUNDATION HOSPITAL.
    No. 2003-CA-1775.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 25, 2003.

      Kenny M. Charbonnet, Charbonnet Law Firm, L.L.C., New Orleans, LA, for Plaintiff/Appellant.
    Christopher S. Mann, Joseph J. Lowen-thal, Jr., Jones, Walker, Waechter, Poitev-ent, Carrere & Denegre, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge DAVID S. GORBATY).
   TERRI F. LOVE, Judge.

This appeal is taken from a decision rendered in a workers’ compensation case. Summary judgment was granted in favor of defendani/appellee, Ochsner Foundation Hospital (“Ochsner”), dismissing the workers’ compensation claim of plaintiff/appellant, Mason Alexis, III (“Alexis”). For the reasons assigned below, we reverse.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Alexis began working for Ochsner in November of 2000 as a patient care technician. In connection with his employment application, Alexis was required to complete a Louisiana Second Injury Fund Questionnaire. The questionnaire listed thirty-two specific medical conditions and directed the applicant to circle any of the listed conditions that he currently had or had suffered in the past. Number 27 of the questionnaire listed the following conditions: “Herniated disc, degenerative disc, back/neck pain.” Alexis did not circle number 27. Alexis did, however, circle number 34 which indicated: “None of the above.”

On April 13, 2001, Alexis sustained a herniated disc at L3-L4 while attempting to lift a patient. It is not disputed that Alexis was working in the course and scope of his employment with Ochsner at the time of his injury. Alexis was | ¡.paid temporary total disability benefits from May 14, 2001 until November 11, 2001. Alexis filed a Disputed Claim for Compensation on November 29, 2001.

On February 18, 2003, Ochsner filed a motion for summary judgment before the Office of Workers’ Compensation, seeking dismissal of Alexis’ workers’ compensation claim pursuant to La. R.S. 23:1208.1. The statute provides as follows:

Nothing in this Title shall prohibit an employer from inquiring about previous injuries, disabilities, or other medical conditions and the employee shall answer truthfully; failure to answer truthfully shall result in the employee’s forfeiture of benefits under this Chapter, provided said failure to answer directly relates to the medical condition for which a claim for benefits is made or affects the employer’s ability to receive reimbursement from the second injury fund. This Section shall not be enforceable unless the written form on which the inquiries about previous medical conditions are made contains a notice advising the employee that his failure to answer truthfully may result in his forfeiture of worker’s compensation benefits under R.S. 23:1208.1. Such notice shall be prominently displayed in bold faced block lettering of no less than ten point type.

On June 16, 2003, Workers’ Compensation Judge (WCJ), the Honorable Gwendolyn F. Thompson, granted the summary judgment, finding that Alexis “violated La. R.S. 23:1208.1 when he failed to respond positively to the Louisiana Second Injury Fund Questionnaire on the issue of back pain.” Alexis’ workers’ compensation claim was dismissed with prejudice. It is from this judgment that Alexis appeals.

LAW AND ANALYSIS

As stated by the Louisiana Supreme Court in Resweber v. Haroil Const. Co., 94-2708, 94-3138 (La.9/5/95), 660 So.2d 7, the purpose of La. R.S. 23:1208.1 is to allow the employer to ask prospective or current employees about prior injuries. It applies to employment-related questioning of an employee or prospective employee, by an employer, concerning a prior injury, when there is no pending | ¿workers’ compensation claim. The answers provided on the questionnaire allow the employer to discern if he has hired or will hire a worker with a permanent partial disability for second injury fund purposes.

It is well-established in our jurisprudence that for a claimant to forfeit benefits pursuant to Section 1208.1 the employer must prove the following three elements: 1) an untruthful statement; 2) prejudice to the employer; and 3) compliance with the notice requirements of the statute. Wise v. J.E. Merit Constructors, Inc., 97-0684 (La.1/21/98), 707 So.2d 1214, 1217-1218; Mayo v. CASCO Construction Company, Inc., 30,343 (La.App. 2 Cir. 4/8/98), 712 So.2d 169, 174; Boh Brothers Construction Company v. Price, 2000-2233 (La.App. 4 Cir. 10/29/01), 800 So.2d 898, 901.

The first prong of the test set forth above is an untruthful statement. Our courts have consistently held that an employee/applicant fails to answer truthfully when he clearly indicates “no” on the employer’s questionnaire, denying the existence of a known medical condition. Mayo; Boh Bros. Construction Company; Stevens v. Bechtel Construction Corp., 94-1825 (La.App. 4 Cir. 4/26/95), 655 So.2d 423; Carter v. Our Lady of Lake Regional Medical Center, 612 So.2d 805 (La.App. 1 Cir.1992); Williams v. Fibrebond, 27,401, 27,402 (La.App. 2 Cir. 9/27/95), 661 So.2d 562; Burris v. LaSalle Parish Police Jury, 95-696 (La.App. 3 Cir. 11/2/95), 664 So.2d 680.

In the instant case, Alexis answered “no” to question number 27 concerning “herniated disc, degenerative disc disease, back/neck pain.” On the face of the questionnaire, and considering his medical history, Alexis’ answer was not truthful. The medical evidence contained in the record clearly demonstrated that Alexis sought medical treatment with Dr. Frederick L. Keppel, an orthopedic | ^physician, on July 29, 1998, for low back pain. At that time, x-rays taken of Alexis’ lumbar spine showed a disc narrowing and anterior and poster osteophytes at L3-L4 consistent with degenerative disc disease. Dr. Keppel’s report indicated that Alexis had injured his back in a motor vehicle accident, four years prior.

The record further reflects that Alexis sought treatment with Dr. Richard L. Meyer, Jr. on January 11, 1999, also for low back pain. Alexis’ complaints of back pain were attributed to a fall he experienced on December 30, 1998. X-rays ordered by Dr. Meyer again confirmed disc space narrowing at L3-L4. It also appears from the record that Dr. Meyer forwarded his report to Alexis’ attorney at the time, Alonzo Stanza.

In an affidavit presented in opposition to Ochsner’s motion for summary judgment, Alexis denied ever being advised by Dr. Keppel, Dr. Meyer or his attorney that he suffered from degenerative disc disease. Alexis maintains that he answered “no” to question number 27 on Ochsner’s question-name because he suffered from only mild back pain on a few occasions over his lifetime, and because he never had any chronic problems with his back.

Under the circumstances described above, there was sufficient evidence to substantiate the WCJ’s finding that Alexis failed to respond truthfully to his employer’s questionnaire on the issue of back pain.

Under the second part of the inquiry, we address whether Alexis’ untruthful statements regarding his back condition were prejudicial to his employer. As we noted in Boh Bros., an employer is prejudiced by one of two circumstances. The employee’s untruthful answer must directly relate to the medical condition that is the subject of the claim or affect the employer’s ability to receive reimbursement from the second injury fund.

| fiBased on the record in the present case, we find that whether there is an establishment of a direct relationship between Alexis’ pre-existing back problems at L3-L4 and the injury incurred is a factual determination. Alexis’ duties as a patient care technician required the lifting and maneuvering of patients, which made him susceptible to injury, however determination of whether Alexis’ answers on the medical questionnaire were directly related to the medical condition that is the subject of the instant claim, thereby, satisfying the “prejudice to the employer” element under La. R.S. 23:1208.1, is a factual determination, to be determined by the trier of fact and not a matter subject to summary judgment. La. C.C.P. article 966(B) provides that a summary judgment motion shall be granted when there exists no genuine issue of material fact. A genuine issue is a triable issue. Bauer v. Dyer, III, et al., 00-1778 (La.App. 5 Cir. 2/28/01), 782 So.2d 1133 citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Id. citing Penalber v. Blount, 550 So.2d 577, 583 (La.1989). A direct relationship is established pursuant to La. R.S. 23:1208.1 when the subsequent injury was inevitable or very likely to occur because of the presence of the preexisting condition. Wise at 1220. The existence or nonexistence of pre-existing condition is essential to plaintiffs cause of action, therefore, making it a triable issue.

Normally, the final step in the analysis would be to determine whether the questionnaire complied with the notice requirements under the statute. However, the notice requirement is not disputed by Alexis; and, therefore, it will not be addressed herein.

^STANDARD OF REVIEW

The hearing officer’s factual findings in worker’s compensation cases are subject to the manifest error rule or clearly wrong standard of appellate review. Seal v. Gaylord Container Corp., 97-0688 (La.12/02/97); 704 So.2d 1161; Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. Under the manifest error rule, the reviewing court does not decide whether the factual findings are right or wrong, but whether the fact finder’s conclusion was a reasonable one. Seal; Stobart v. State, Through Dept. of Transportation & Development, 617 So.2d 880, 882 (La.1993). Reasonable evaluations of credibility and inferences of fact should not be disturbed upon review where conflict exists in the testimony. Id. Where there are two permissible views of the evidence, a fact finder’s choice between them can never be manifestly erroneous or clearly wrong. Seal; Stobart.

In the present case, the WCJ made a factual finding that Alexis violated La. R.S. 23:1208.1 by failing to respond positively to the Louisiana Second Injury Fund Questionnaire on the issue of back pain. After a thorough review of the record, we find that the trial court committed manifest error in granting the motion for summary judgment and we find that an issue of material fact exist sufficient to defeat Ochsner’s motion for summary judgment.

CONCLUSION

For the reasons assigned herein, we reverse the WCJ’s granting of summary judgment in favor of Ochsner and the dismissal of Alexis’ workers’ compensation claim.

REVERSED AND REMANDED.