author: | ¡PARRO, J.

text:
    Donald DULIN v. LEVIS MITSUBISHI, INC.
    No. 2001 CA 2457.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 2002.
    Writ Denied March 28, 2003.

      Charles R. Davoli, Davoli, Sorrells & Bianca, Baton Rouge, for Plaintiff-Appellant Donald Dulin.
    Stephen E. Broyles, Glusman, Broyles & Glusman, L.L.C., Baton Rouge, for Defendant-Appellee Levis Mitsubishi, Inc.
    Before: PARRO, JAMES, and PATTERSON, JJ.

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

   | ¡PARRO, J.

This is an appeal by an employee from a judgment of the Office of Workers’ Compensation Administration, which dismissed the employee’s disputed claim for compensation because of a violation of LSA-R.S. 23:1208.1. For the following reasons, this court affirms.

Facts and Procedural History

Donald Dulin (Dulin) was employed with Levis Mitsubishi, Inc. (Levis) as a body technician from April 1996 to April 1997. On a “Pre-employment Questionnaire” completed on April 16, 1996, Dulin responded in the negative to an inquiry concerning physical impairments that would interfere with his ability to perform the job of a body technician. Nonetheless, in April 1995, prior to his employment with Levis, Dulin had had back surgery (hemi-laminectomy and discectomy) in Memphis, Tennessee, for a left sided L4-5 spinal disc problem. During the year of his employment with Levis, Dulin had informed most of his coworkers in the body shop about his prior back problems and back surgery. Dulin left Levis’ employment in April 1997 for a better paying job.

In August 1998, Dulin returned to work with Levis as a body shop repairman. In conjunction with his reemployment, Dulin completed a “Post-Hire Medical History” questionnaire on August 21, 1998. To every inquiry on the questionnaire, Dulin responded negatively. Notably, Dulin responded “no” to the following questions:

Has any doctor ever restricted your activities?
Have you ever been assessed any percentage of permanent disability to any part of your body for any reason whatsoever?
Have you ever had surgery to any part of your body?
Have you ever received treatment for your back ... from a doctor, chiropractor, therapist or other health care provider?
Have you ever had an injury which required you to miss time from work?
Are you aware of any condition or injury that might impair or limit your ability to work for this company?

1¡¡Each separate page of the form completed by Dulin contained a notice in boldfaced lettering stating:

PURSUANT TO LSA-RS 23:1208 AND 1208.1 OF THE LOUISIANA WORKERS’ COMPENSATION ACT, I UNDERSTAND THAT THE FAILURE TO ANSWER TRUTHFULLY ANY OF THE ABOVE QUESTIONS MAY RESULT IN (1) A FINE OF NOT MORE THAN FIVE HUNDRED DOLLARS OR IMPRISONMENT FOR NOT MORE [THAN] TWELVE MONTHS, OR BOTH AND (2) A FORFEITURE OF COMPENSATION AND MEDICAL BENEFITS UNDER THE LOUISIANA WORKERS’ COMPENSATION ACT.

Furthermore, he denied experiencing a discectomy, shooting pains, ruptured discs, bulging discs, sore back, back pain, back ache, back stiffness, back injury, or back symptoms.

Two months later, on October 28, 1998, Dubin injured his back at the L4-5 level while in the course and scope of his employment with Levis. Dulin eventually had surgery performed on his back by Dr. Horace Mitchell, a neurosurgeon, on January 14, 1999, and April 3, 1999. Levis rejected Dulin’s request for workers’ compensation benefits, denying that an accident had occurred and arguing that LSA-R.S. 23:1208.1 precluded benefits on account of the untruthful statements made by Dulin on his “Post-Hire Medical History.”

Following the trial of this matter, the workers’ compensation judge (WCJ) determined that an accident had occurred in the course and scope of employment. In relation to Levis’ claim of a forfeiture of workers’ compensation benefits under the provisions of LSA-R.S. 23:1208.1, the WCJ made the following findings: Dulin had given untruthful answers on his post-hire medical history questionnaire; the post-hire medical history questionnaire complied with statutory requirements; there was a direct relation between the untruthful answers and the subsequent injury and medical condition; and Levis did not have the requisite actual knowledge of Dulin’s permanent partial disability to qualify for the second injury .fund, citing LSA-R.S. 23:1378(A). Based on his finding that the untruthful answers prejudiced Levis’ ability to recover under the second injury fund, the WCJ found that LSA-R.S. 23:1208.1 had been violated, resulting in a forfeiture of workers’ compensation benefits.

14Pulin appealed, contending that the WCJ erred in finding that actual knowledge of a permanent partial disability by Levis is required for it to qualify for second injury fund reimbursement in light of the knowledge possessed by some of Levis’ employees, including supervisors, and in finding that Dulin’s answers were untruthful so as to constitute a violation of LSA-R.S. 23:1208.1 based on Levis’ “knowledge” of the situation.

Standard of Review

Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556. The two-part test for the appellate review of a factual finding is: 1) whether there is a reasonable factual basis in the record for the finding, and 2) whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987).

Analysis

An employee’s responsibility for responding to an employer’s inquiry into his prior injury is governed by LSA-R.S. 23:1208.1, which provides:

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.

This statute provides for the forfeiture of workers’ compensation benefits under narrow circumstances: there must be an untruthful statement by the employee, compliance by the employer with the notice requirements of the statute, and prejudice to the |Bemployer. An employer has the burden of proving each element within the statute. The lack of any one of the elements is fatal to an employer’s avoidance of liability. Wise v. J.E. Merit Constructors, Inc., 97-0684 (La.1/21/98), 707 So.2d 1214, 1218. Levis’ satisfaction of the second element of notice is not disputed in this case. Therefore, only the WCJ’s findings relative to the making of untruthful statements and the prejudicial effect on Levis need be considered in this case.

Untruthful Statements

An employee has failed to answer truthfully only when he clearly indicates “no” on the employer’s questionnaire, denying the existence of a known medical condition. Boh Bros. Construction Co. v. Price, 00-2233 (La.App. 4th Cir.8/29/01), 800 So.2d 898, 901, writ denied, 01-2623 (La.12/14/01), 804 So.2d 634.

The 1995 medical records of Baptist Memorial Hospital in Memphis, Tennessee, and Dr. Shelly D. Timmons reveal that Dulin suffered from a significant left L4-5 herniated nucleus pulposus extending from the midline into the left foramen, which caused him to experience back and left lower extremity pain. On April 6, 1995, a left L4-5 partial hemilaminectomy and discectomy were performed. According to Dulin, the surgery prevented him from working for a period of time. Two weeks after the surgery, Dr. Timmons told Dulin that he could return to work but should refrain from lifting over 30 pounds.

Dulin’s wife testified that prior to his 1998 work accident, Dulin voiced complaints of pain in his back. She also explained that he had taken aspirin on a regular basis as a pain reliever since the 1995 surgery. According to Dulin, his back was doing fine until the accident, without limitation in his range of motion. Admittedly, Dulin occasionally complained of pain and soreness while working at Levis, which Dulin attributed to the nature of his work, noting that his coworkers voiced similar complaints.

The parties stipulated that Dulin had made an untruthful statement. Dulin contends that the making of such statement was mitigated by the revelations made by Dulin during the period of his prior employment. Dulin testified that he told everyone in the body shop, including the shop’s manager, about his prior back injury and surgery. | ^According to Dulin, all of his coworkers were shown his surgical scar. However, the shop’s manager denied knowledge of Dulin’s pre-existing condition and 1995 back surgery.

According to Dulin, the manager of the body shop called him into his office and handed him the post-hire medical history questionnaire, but only after Dulin had left it on the manager’s desk one week earlier for completion at a later time. Based on the manager’s lack of knowledge regarding the form and his failure to offer to refer Dulin to a knowledgeable Levis employee for assistance in completing the form, Du-lin contends he hurriedly placed all negative responses and returned to work. Then, he attempted to clarify his testimony by stating that he took it for granted that Levis was simply inquiring about the time period since his last employment with Levis, thus it was not really necessary for him to read through the listed items. However, he admitted that the form did not make such a time limitation, that he was unsure as to exactly what portions of the form he had actually read, that he had not read the warning, and that he had not been coerced by his supervisor in filling out the form. As further justification for answering untruthfully, Dulin referred to his inability to read very well on account of having only received a ninth grade education.

A person who signs a written contract is presumed to know its contents and cannot avoid its obligations by contending he did not read it or that it was not explained or that he did not understand it. Tweedel v. Brasseaux, 433 So.2d 133, 138 (La.1983); Griffin v. Lago Espanol, L.L.C., 00-2544 (La.App. 1st Cir.2/15/02), 808 So.2d 833, 840; Boh Bros. Construction Co. v. Price, 800 So.2d at 902. If a party can read, it behooves him to examine an instrument before signing it; and if he cannot read, it behooves him to have the instrument read to him and listen attentively while this is being done. Tweedel v. Brasseaux, 433 So.2d at 137.

If we accept as true Dulin’s testimony that he responded negatively to all of the listed questions and signed the post-hire medical history questionnaire without first 17reading the form and/or having someone explain the form to him, the untruthful statements made therein can only be attributed to Dulin. Absent testimony from Dulin that he was coerced into signing the form or that he signed it under duress, he is presumed to have had knowledge of the import of the negative responses to the questions contained therein. Thus, the false statements on the questionnaire regarding a preexisting medical condition must be attributed to Dulin.

Prejudice to Levis

Untruthful answers alone do not result in the forfeiture of benefits. The employer must also prove that the untruthful statements were prejudicial to it. An employer is prejudiced by one of two circumstances: (1) the employee’s untruthful answer must directly relate to the medical condition that is the subject of the claim or (2) the employee’s untruthful answer must affect the employer’s ability to receive reimbursement from the second injury fund. Wise v. J.E. Merit Construc tors, Inc., 707 So.2d at 1217-1218; Resweber v. Haroil Construction Company, 94-2708, 94-3138 (La.9/5/95), 660 So.2d 7, 16; Boh Bros. Construction Co. v. Price, 800 So.2d at 905. The employer’s satisfaction of either prong of the “prejudice to the employer” test is sufficient to withstand its burden of proof as to this element. See Boh Bros. Construction Co. v. Price, 800 So.2d at 906-907.

Having found that a direct relationship to the medical condition existed, Levis urges that it is unnecessary for this court to reach the second prong of the “prejudice to the employer” test. We agree. Where the employer has shown that the employee’s untruthful answers directly relate to the medical condition that is the subject of the claim, it is unnecessary for the court to resolve whether the untruthful answer affected Levis’ ability to recover from the second injury fund. See Boh Bros. Construction Co. v. Price, 800 So.2d at 906-907. Thus, we must initially determine if the WCJ erred in |sfinding that Levis had satisfied its burden of proof under the first prong of the “prejudice to the employer” test.

A direct relationship is established pursuant to LSA-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 v. J.E. Merit Constructors, Inc., 707 So.2d at 1220. Dr. Mitchell, who performed the 1999 surgeries, testified that the surgery performed on Dulin in Tennessee in 1995 was the exact same operation that he performed on Dulin in 1999 as a result of a re-injury to the same side and same disc space. Dr. Mitchell explained that it is not uncommon for a patient who has had lumbar disc surgery to have a recurrent disc problem because of the presence of the preexisting condition, especially for someone in Dulin’s line of work.

Based on the testimony of Dr. Mitchell, the WCJ found that Levis established that the injury was to the same part of the spine and that the two injuries merged to cause a more serious disability. Furthermore, the WCJ found reasonable support in the testimony of Dr. Mitchell that the subsequent injury was inevitable or at least very likely to occur because of the presence of the preexisting condition. Based on our review of the record, we are unable to find manifest error in the WCJ’s finding that Levis proved a direct relation between Dulin’s untruthful answers to Levis’ post-hire medical history questionnaire and the 1998 injury and the medical condition that form the basis of this claim. Thus, the forfeiture of benefits is warranted in this case.

Decree

For the foregoing reasons, the judgment of the workers’ compensation judge is affirmed. Costs of the appeal are assessed to Donald Dulin.

AFFIRMED.

      . The workers' compensation judge in this case was Honorable Anthony P. Palermo, of District 5.

      . The notice on page one of the form varied slightly.

      . The focus of Dulin's appeal is on the WCJ's findings relative to the effect that Dulin’s answers had on Levis’ ability to receive reimbursement from the second injury fund. On the other hand, Levis urges that the law simply requires proof that the untruthful answer directly relates to the medical condition for which a claim for benefits is made to support a finding that benefits have been forfeited by the employee. Having satisfied its burden of proof in this respect, Levis submits that consideration of the prejudicial affect on reimbursement, even though shown in this case, was unnecessary.

      . Notably, on a pre-employment questionnaire completed by Dulin on April 16, 1996, Dulin indicated that he began attending Sar-dis High School in Sardis, Mississippi, in 1969 and graduated from that high school in 1972.

      . LSA-R.S. 23:1378(A) establishes that an employer is reimbursed from the second injury fund when the employer “knowingly employs or knowingly retains in his employment an employee who has a permanent partial disability.” However, the right to reimbursement is limited to circumstances where the permanent partial disability merges with a subsequent injury “to cause a greater disability than would have resulted from the subsequent injury alone.” LSA-R.S. 23:1371(A); Wise v. J.E. Merit Constructors, Inc., 707 So.2d at 1220.

      . Having concluded that Levis satisfied the “prejudice to the employer” element of LSA-R.S. 23:2801.1, we need not address whether the untruthful answer affected Levis’ ability to recover from the second injury fund.


source: Caselaw Access Project

author: LPARRO, J.

license: Public Domain

text:
    Kathleen DREISEL v. METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY.
    No. 2001 CA 2705.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 2002.
    Writ Denied March 28, 2003.
    Kevin C. Schoenberger, New Orleans, for Plaintiff-Appellee Kathleen Dreisel.
    Bruce D. Burglass, Jr., Celeste Brus-towicz, Scott O. Gaspard, Burglass & Tankersley, L.L.C., Metairie, for Defendant-Appellant Metropolitan Property and Casualty Insurance Company.
    Before: PARRO, JAMES, and PATTERSON, JJ.

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

   LPARRO, J.

This is an appeal by an underinsured motorist insurer from a trial court judgment granting its insured’s motion for partial summary judgment based on a finding that Louisiana law governed the determination of coverage under the insurance policy issued in Massachusetts. For the following reasons, the judgment is reversed.

Facts and Procedural History

On September 12, 2000, Kathleen Dreis-el (Dreisel), a Massachusetts resident, was a guest passenger in an automobile that was owned and operated by a Louisiana resident when a single-car accident occurred in St. Tammany Parish, Louisiana. As a result of the accident, Dreisel sustained severe injuries requiring medical attention in Louisiana. State Farm Automobile Insurance Company (State Farm), the liability insurer for the driver, admitted liability and tendered to Dreisel the per person policy limit of $100,000, plus $5,000 in medical payments, pursuant to a settlement between Dreisel and State Farm and its insured.

On the date of the accident, Dreisel had in full force and effect a policy providing underinsured motorist (UM) coverage issued to her and her husband by Metropolitan Property and Casualty Insurance Company (Metropolitan). Metropolitan issued the policy to the Dreisels in the state of Massachusetts relative to automobiles that were registered and garaged in Massachusetts. The Metropolitan policy provided UM coverage limits in the amount of $50,000 per person and $100,000 per accident; however, the policy provided that the limits for coverage for bodily injury caused by an underinsured automobile was subject to adjustment. Specifically, it provided that Metropolitan would only pay for any unpaid damages up to the difference between the total amount collected from the automobile bodily injury liability insurance covering the owner and operator of the underinsured automobile and the UM limits.

Dreisel notified Metropolitan of the Louisiana accident and sought recovery under her UM coverage. Metropolitan denied coverage based on the reduction clause 1 acontained in the policy, as well as the policy language indicating the contract of insurance was to be governed by Massachusetts law. Like the language of Metropolitan’s policy, Massachusetts law provided that UM coverage was subject to a dollar-for-dollar credit for the liability insurance covering the owner and operator of the legally responsible automobile up to the exhaustion of its UM limits. Since the $105,000 credit for amounts paid to Dreisel by State Farm exceeded the $50,000 per person UM limit, Metropolitan maintained that it had no exposure for UM coverage to Dreisel on account of the accident.

Based on its denial of her UM claim, Dreisel filed a petition for damages against Metropolitan. Subsequently, Dreisel filed a motion for partial summary judgment, arguing that Louisiana law, not Massachusetts law, governed the determination of UM coverage available to her. Metropolitan filed a cross motion for summary judgment claiming the reverse. After a hearing, the trial court found that Louisiana law applied and noted in oral reasons that the accident occurred in Louisiana, the car in which Dreisel was riding at the time of the accident was registered in Louisiana and driven by a Louisiana resident, and significant medical treatment was rendered to Dreisel in Louisiana. Accordingly, the trial court granted Dreisel’s motion for partial summary judgment and denied the opposing motion filed by Metropolitan. From the grant of Dreisel’s partial motion for summary judgment, Metropolitan appealed, contending that the trial court erred in finding that the Louisiana UM statute applied to a Massachusetts insurance policy that expressly provided that the contract of insurance would be governed by Massachusetts law.

Standard of Review

An appellate court reviews a trial court’s decision to grant a motion for summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Jarrell v. Carter, 632 So.2d 321, 323 (La.App. 1st Cir.1993), writ denied, 94-0700 (La.4/29/94), 637 So.2d 467. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. LSA-C.C.P. art. 966(A)(2); Rambo v. Walker, 96-2538 (La.App. 1st Cir.11/7/97), 704 So.2d 30, 32. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B).

The initial burden of proof is on the moving party. However, on issues for which the moving party will not bear the burden of proof at trial, the moving party’s burden of proof on the motion is satisfied by pointing out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the nonmoving party must produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial; failure to do so shows that there is no genuine issue of material fact. LSA-C.C.P. art. 966(C)(2); Clark v. Favalora, 98-1802 (La.App. 1st Cir.9/24/99), 745 So.2d 666, 673.

Discussion

After the 1987 enactment of LSA-R.S. 22:1406(D)(l)(a)(iii) relative to uninsured motorist coverage, Louisiana courts were faced with the issue of whether the general conflict-of-laws provisions governed, requiring a choice-of-law analysis in cases of this nature, or whether LSA-R.S. 22:1406(D)(l)(a)(iii), as a more specific choice-of-law rule, controlled in cases of this nature. See LSA-C.C. art. 14. In Zuviceh v. Nationwide Insurance Company, 00-0773 (La.App. 1st Cir.5/11/01), 786 So.2d 340, writ denied, 01-2141 (La.11/9/01), 801 So.2d 373, this court considered that issue after recognizing that the issue had been resolved differently by the Louisiana courts of appeal. Notably, the second and third circuits favor a choice-of-law analysis over the automatic application of LSA-R.S. 22:1406(D)(l)(a)(iii). See Adams v. Thomason, 32,728 (La.App. 2nd Cir.3/1/00), 753 So.2d 416, 426, writ denied, 00-1221 (La.6/16/00), 764 So.2d 965; Anderson v. Oliver, 97-1102 (La.App. 3rd Cir.1/7/98), 705 So.2d 301, 305, writ denied, 98-0755 (La.5/8/98), 718 So.2d 434; Holcomb v. Universal Insurance Company, 93-1424 (La.App. 3rd Cir.6/1/94), 640 So.2d 718, 720-722, writ denied, 94-1740 (La.10/7/94), 644 So.2d 643. However, the fourth and fifth circuits automatically applied Louisiana’s UM law, based on the language in LSA-R.S. 22:1406(D)(l)(a)(iii), without conducting a choice-of-law analysis. See Austin v. Western World Insurance Company, 99-2541 (La.App. 4th Cir.5/17/00), 765 So.2d 390, 395, writ denied, 00-1795 (La.9/22/00), 768 So.2d 1288; Drew v. Martello, 98-1141, 98-1142 (La.App. 5th Cir.2/23/99), 729 So.2d 90, 93; Dekeyser v. Automotive Casualty Insurance Company, 97-1251 (La.App. 4th Cir.2/4/98), 706 So.2d 676, 680.

LSA-C.C. art. 14 provides, “Unless otherwise expressly provided by the law of this state, cases having contacts with other states are governed by the law selected in accordance with the provisions of Book IV of this Code.” In Zuviceh v. Nationwide Insurance Company, this court considered whether LSA-R.S. 22:1406(D)(l)(a)(iii) is a provision “otherwise expressly provided by the law of this state,” as stated in LSA-C.C. art. 14, which requires application of Louisiana law without a conflict-of-laws analysis. The introductory language of LSA-R.S. 22:1406(D) directs that provisions enumerated thereafter apply to policies issued in Louisiana. Based on the legislature’s failure to modify the introductory paragraph of LSA-R.S. 22:1406(D) in conjunction with its enactment of LSA-R.S. 22:1406(D)(l)(a)(iii), this court concluded that LSA-R.S. 22:1406(D)(l)(a)(iii) only governs UM coverage for policies issued in Louisiana. Zuviceh v. Nationwide Insurance Company, 786 So.2d at 345. Because the policy under consideration in this case was issued in Massachusetts, as opposed to Louisiana, subparagraph (D)(l)(a)(iii) has no application. See Zuviceh v. Nationwide Insurance Company, 786 So.2d at 345. Accordingly, it is appropriate to conduct a choice-of-law analysis in cases of this nature. Zuviceh v. Nationwide Insurance Company, 786 So.2d at 345.

The Louisiana Civil Code enactments and expressions in Book IV, entitled “Conflict of Laws,” afford the appropriate balancing of competing interests between | fistates. The objective is to identify the state whose policies would be most seriously impaired if its law were not applied to the issue at hand. LSA-C.C. arts. 3515 and 3537. With respect to conventional obligations and this case, the law of the state applicable to the insurance contract and its UM coverage is determined by evaluating the strength and pertinence of the relevant policies of the involved states in light of the following factors:

1. the pertinent contacts of each state to the parties and the transaction, including the place of negotiation, formation, and performance of the contract, the location of the object of the contract, and the place of domicile, habitual residence, or business of the parties;

2. the nature, type, and purpose of the contract; and

3. the policies referred to in LSA-C.C. art. 3515, as well as the policies of facilitating the orderly planning of transactions, of promoting multistate commercial intercourse, and of protecting one party from undue imposition by the other.

See LSA-C.C. art. 3537; Zuviceh v. Nationwide Insurance Company, 786 So.2d at 347-348.

There are profound competing public policies and interests between the states of Louisiana and Massachusetts in this case. The goal of Louisiana’s UM legislation is to promote full recovery for innocent accident victims. Martin v. Champion Insurance Company, 95-0030 (La.6/30/95), 656 So.2d 991, 994. Factors supporting Louisiana’s strong interest in promoting full recovery for innocent automobile accident victims are: (1) there are economic interests involved, which include costs of medical care (which are more likely to be paid if there is sufficient insurance); (2) there is significant involvement of the facilities of the Department of Public Safety and Corrections and the judicial system; and (3) the issuing states of the insurance policy often have credit and reduction provisions in their UM coverage, thereby reducing limits and serving to prevent full recovery by the innocent accident victims. Zuviceh v. Nationwide Insurance Company, 786 So.2d at 345. Any credit reducing the UM limits by the amount of liability insurance of the adverse driver is clearly contrary to the underin-sured motorist protection required by Louisiana’s statute. Zuviceh v. Nationwide Insurance Company, 786 So.2d at 345-346, quoting William Shelby McKenzie and H. Alston Johnson, III, Insurance Law and Practice § 119, p. 293, in Louisiana Civil Law Treatise (2nd ed.1996).

On the other hand, Massachusetts has a very real interest in the regulation of its insurance industry and in the contractual obligations that are inherent parts thereof. The integrity of the contract is a substantial and real interest. The fact that Congress has allowed fifty states to have their own uniform system of regulations governing insurance strongly suggests this is a legitimate public purpose. See Zuviceh v. Nationwide Insurance Company, 786 So.2d at 346.

Metropolitan and Dreisel entered into a contract that contained a reduction clause, which provided for the reduction in her UM coverage by the amount collected from the automobile bodily injury liability insurance covering the owner and operator of the underinsured automobile. This agreement was the contemplation of the contracting parties, and the premium of $16 per year per vehicle for $50,000/$100, 000 of UM coverage for bodily injury caused by an underinsured auto was based on Metropolitan’s potential exposure under the policy, with the reduction clause.

The record in this case establishes the following contacts with the state of Louisiana:

1. The accident occurred in St. Tammany Parish, Louisiana;

2. The automobile in which Dreisel was riding was owned and operated by a Louisiana resident;

3. The automobile in which Dreisel was riding was registered and garaged in Louisiana; and

4. $92,000 in medical care was administered to Dreisel in Louisiana.

Dreisel’s contacts with the state of Massachusetts include the following:

1. Dreisel’s choice of residence is in Massachusetts;

2. Massachusetts is the place of negotiation and formation of the insurance contract;

3. the vehicles on which Dreisel purchased coverage were registered and garaged in Massachusetts;

4. the insurance policy- is a Massachusetts contract which provides for the application of Massachusetts law relating to automobile insurance; and

|s5. nothing in the policy indicated that the parties contemplated the application of another state’s laws relative to accidents occurring outside of Massachusetts.

Under the facts of this case, we find Massachusetts has a more substantial interest in the uniform application of its laws governing insurance contracts than Louisiana has in providing an insurance remedy to an out-of-state resident who happened to have sustained an injury while transitor-ily within its borders. The application of Louisiana law to the insurance policy would result in the abrogation of a Massachusetts contract. Moreover, we find that Dreisel’s premium for UM coverage was based on the application of Massachusetts law to the contract. Under a conflict-of-laws analysis, we conclude that Massachusetts’ policies will be most seriously impaired if its law is not applied to the insurance policy. Thus, we find error in the trial court’s determination that Dreisel had satisfied her burden of proving that Louisiana law applied to the Metropolitan policy. Accordingly, the trial court erred in granting Dreisel’s motion for partial summary judgment.

Decree

For the foregoing reasons, the trial court’s judgment granting Dreisel’s motion for partial summary judgment is reversed. Costs of this appeal are assessed to Kathleen Dreisel.

REVERSED.

      . The partial summary judgment in this case was designated as a final judgment by the court after an express determination that there was no just reason for delay. See LSA-C.C.P. art.1915.

      . Separate coverage was purchased for bodily injury caused by an uninsured motorist.

      . LSA-R.S. 22:1406(D)(l)(a)(iii) provides that "This Subparagraph and its requirement for uninsured motorist coverage shall apply to any liability insurance covering any accident which occurs in this state and involves a resident of this state.”

      . Notably, no other automobiles or Louisiana residents were involved in the accident.


text:
    Cheryl Allen COLLINS v. Phil D. RANDALL, Empire Fire and Marine Insurance Company, et al.
    No. 2002 CA 0209.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 2002.

      K. Luke Williamson, McKay, Williamson, Lutgring & Cochran, L.L.C., Baton Rouge, for Plaintiff-Appellant Cheryl A. Collins.
    Stephen N. Elliott, Bernard, Cassia, Elliott & Davis, Metairie, for Defendant-Appellee Empire Fire & Marine Ins. Co.
    Before: PARRO, JAMES, and PATTERSON, JJ.

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

   | ¡PARRO, J.

This is an appeal by the plaintiff from an adverse summary judgment rendered in favor of Empire Fire and Marine Insurance Company. For the following reasons, we affirm the summary judgment.

FACTS AND PROCEDURAL HISTORY

This lawsuit arises out of an automobile accident that occurred in Baton Rouge, Louisiana, on April 9, 2000. Plaintiff, Cheryl Allen Collins, alleges that her daughter, Tazwanna Allen, was killed when the car Tazwanna was operating was struck by a vehicle owned by Enterprise Leasing Company of New Orleans and operated by Phil D. Randall (Randall). Randall was leasing the vehicle from Enterprise at the time of the accident. Named as defendants in plaintiffs petition were Phil D. Randall, Enterprise Leasing Company of New Orleans (Enterprise), and Empire Fire and Marine Insurance Company (Empire).

Empire issued a “Supplemental Rental Liability Insurance Excess Policy” to Enterprise. Pursuant to the Empire policy, excess coverage is provided, subject to certain conditions and exclusions, to persons paying to rent vehicles from Enterprise if they opted to purchase the supplemental coverage. The Empire policy provides excess coverage for the difference between $1,000,000 and the limits of the underlying insurance, defined as the minimum financial liability limits of the applicable state jurisdiction. Paragraph 6 of the “Rental Agreement” executed by Randall and Enterprise stipulates that Enterprise provides no liability insurance coverage to the lessee of the vehicle for bodily injury or property damage to third parties, that the lessee’s insurance applies, and that the lessee warrants that he has such insurance.

In due course, Empire filed a motion for summary judgment, averring that no coverage was available under its excess policy, because Randall was under the influence of alcohol at the time of the accident. The trial court granted the motion and dismissed plaintiffs claims against Empire, with prejudice and at plaintiffs cost. Plaintiff |3appeals the adverse decision of the trial court. The narrow issue presented for our review is whether the trial court erred in granting summary judgment and dismissing plaintiffs claim against Empire based on certain exclusions in the Empire excess policy.

STANDARD OF REVIEW

In determining whether summary judgment is appropriate, appellate courts conduct a de novo review of the evidence, employing the same criteria that govern the district court’s determination of whether summary judgment is appropriate. Sanders v. Ashland Oil, Inc., 96-1751 (La.App. 1st Cir.6/20/97), 696 So.2d 1031, 1035, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29. Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B).

The issue of whether an insurance policy, as a matter of law, provides or precludes coverage is a dispute that can be resolved properly within the framework of a motion for summary judgment. Johnson v. Allstate Ins. Co., 95-1953 (La.App. 1st Cir.5/10/96), 673 So.2d 345, 347, writ denied, 96-1292 (La.6/28/96), 675 So.2d 1126. When denying coverage under a policy exclusion, the insurer bears the burden of proving the applicability of the exclusion asserted. Williams v. Diggs, 593 So.2d 385, 386 (La.App. 1st Cir.1991). Absent a conflict with statutory provisions or public policy, insurers, like other individuals, are entitled to limit their liability and to impose and to enforce reasonable conditions upon the policy obligations they contractually assume. Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191, 196-197. The Insurance Code expressly permits an insurer to impose limitations on its liability in the form of exclusions. See LSA-R.S. 22:620. The fact that the purpose of liability insurance, in general, is to protect the public, and not just the insured, does not mean that exclusions are not to be enforced. Hickey v. Centenary Oyster House, 97-1074 (La.10/20/98), 719 So.2d 421, 425.

In the case at hand, plaintiff concedes the applicability of the policy exclusions relied upon by Empire. Plaintiff also concedes that there are no material facts in [ 4dispute that preclude summary judgment. However, plaintiff argues that the policy exclusions relied upon by Empire are unenforceable because they violate statutory law and/or public policy.

THE EMPIRE EXCESS POLICY AND THE RENTAL AGREEMENT

The Rental Agreement entered into on February 14, 2000, shows that Randall, designated therein as the “renter,” opted to purchase supplemental liability protection at the rate of $10.99 per day by checking the appropriate box on the Rental Agreement. Enterprise purchased the Empire excess policy as a means of providing the supplemental liability protection coverage it offered to its renters in the Rental Agreement.

The Empire policy is a “Supplemental Rental Liability Insurance Excess Policy” issued directly to the policyholder, Enterprise. By its terms, it provides excess insurance over and above the minimum financial liability limits under Louisiana law to persons who lease Enterprise vehicles and who also elect to purchase the optional “supplemental liability insurance” provided under the Empire policy. Empire concedes that Randall purchased the optional Empire coverage and that Randall is an insured under the excess policy. However, it argues that no coverage is afforded to Randall for the accident at issue in this case because of the operation of the following exclusions:

D. EXCLUSIONS
In addition to the exclusions contained in the “underlying insurance”, this insurance does not apply to the following:
1. Loss arising out of an “accident” which occurs while the “insured” is under the influence of alcohol or drugs, or other substances unless prescribed by a physician.
\k2. Loss arising out of the use of a “rental vehicle” when such use is in violation of the terms and conditions of the “rental agreement.”

At paragraph 13, the Rental Agreement provided, in pertinent part:

13. VIOLATIONS OF THE CONTRACT: A violation of the contract shall exist if the car is used or driven: ... (d) By any person if there is reasonable evidence they were under the influence of narcotics, intoxicants or drugs....

In addition, we note that paragraph 6 of the Rental Agreement executed by Randall stipulates that supplemental liability protection does not apply if the Rental Agreement is violated.

DISCUSSION

The evidence submitted by Empire indicates, as plaintiff alleges in her petition, that Randall was under the influence of alcohol at the time of the accident and that he was driving the rented Enterprise vehicle when he collided with the car driven by Tazwanna Allen, causing her death. Thus, Randall’s conduct falls squarely within the operation of the exclusions relied upon by Empire. Plaintiff concedes that the exclusions relied upon by Empire are applicable to the facts of this case. Nevertheless, plaintiff contends that the exclusions are unenforceable, because they violate the requirements of the Louisiana Motor Vehicle Safety Responsibility Law, LSA-R.S. 32:851 et seq., and are in derogation of public policy. We do not agree.

Plaintiff is in error in contending that the Louisiana Motor Vehicle Safety Responsibility Law (LMVSRL) governs the enforceability of exclusions in a rental agreement and/or policy of insurance provided to a lessee of a vehicle by an automobile rental agency. Under the controlling jurisprudence, the LMVSRL does not govern the rental contract or the policy at issue. Therefore, it cannot be said that the exclusions in dispute violate the requirements of the LMVSRL.

In Hearty v. Harris, 574 So.2d 1234, 1238 (La.1991), the Louisiana Supreme Court held that a self-insured rental agency is not required by law to afford omnibus coverage in compliance with the LMVSRL and can lawfully restrict omnibus coverage [ (¡provided under a rental agreement. The court held that when a car rental agency agrees to provide liability coverage for a lessee, the agreement constitutes the equivalent of an insurance policy. However, absent a conflict with statutory requirements or public policy, the agency has a right to restrict omnibus coverage. The court distinguished between a “motor vehicle liability policy,” which is defined in the LMVSRL as a policy of liability insurance certified as proof of financial responsibility, and an “automobile liability policy,” a voluntary policy not certified as proof of financial responsibility and which is not required to comply with the LMVSRL. The court concluded that, since the rental agency in Hearty was self-insured and its certificate of self-insurance was the means by which it complied with the LMVSRL, the rental agreement, even if it provided insurance to the agency’s lessees, did not constitute a policy issued to comply with the LMVSRL. Thus, it was not governed by the LMVSRL. Hearty, 574 So.2d at 1239. When a non-owner operator of a vehicle, such as a lessee of a vehicle, chooses to purchase a voluntary automobile liability policy, that policy does not have to comply with the LMVSRL. Hearty, 574 So.2d at 1240.

Having determined that there was no statutory impediment to a restriction on omnibus coverage afforded to a lessee, the court in Hearty went on to consider whether such a restriction might nevertheless violate public policy. The court held that it is not against public policy for a rental agency to restrict omnibus coverage afforded under its rental agreement, a limitation that would otherwise be in violation of the LMVSRL. The court found that a rental agency has an interest in protecting its property and has the right to impose restrictions on the operation and use of its vehicles. While it is true that automobile insurance policies are issued primarily for the protection of the motoring public, it is not the policy of this state to provide compensation to injured parties at all times. Hearty, 574 So.2d at 1242. The court also considered persuasive the language in LSA-R.S. 32:1041(B), and concluded that the legislature has recognized the unique 17nature of rental car agencies and stipulated that such agencies are not required to furnish proof of financial responsibility to satisfy judgments entered against their lessees. Hearty, 574 So.2d at 1242. Thus, the court concluded in Hearty that public policy was not violated by restricting omnibus coverage in a rental agreement that provided liability insurance to a lessee.

In Dennison v. Liberty Mut. Ins. Co., 94-0026 (La.App. 1st Cir.11/10/94), 645 So.2d 1227, 1232, we faced a similar issue to that presented in Hearty. However, in Dennison the rental agency was not self-insured. Instead, the insurance provided to the lessee was afforded under an insurance policy issued by an independent insurance company. The rental agreement in Dennison stipulated that the coverage afforded under the insurance policy would extend only to drivers named in the rental agreement. The injured third party in Dennison argued that the rental agreement could not restrict the omnibus coverage that would otherwise have been provided under the insurance policy. We disagreed. We held that the rental agreement could validly alter the coverage under the policy. Moreover, we followed the rationale set forth in Hearty and reasoned that, since automobile lessors are not required to offer any insurance at all to their customers to cover a customer’s potential liability to third parties, any such liability insurance extended by a rental agency, whether as a self-insurer or through an insurance policy, is in the nature of a “voluntary automobile liability policy.” Pursuant to Hearty, voluntary automobile liability policies need not comply with the LMVSRL. Dennison, 645 So.2d at 1232. Accordingly, we concluded in Dennison that the restriction of coverage to drivers named in the rental agreement did not violate the provisions of the LMVSRL, even though the . exclusion would have been unenforceable had it been in a policy that was covered by the LMVSRL.

We also found that the coverage exclusion at issue in Dennison did not violate public policy. We made this determination even though there is a statutorily mandated policy against such exclusions in “motor vehicle liability policies” and even though the policy at issue was a primary policy rather than an excess policy. Dennison, 645 So.2d at 1232. Our holding in Denni-son confirms that the public policy concerns evidenced in lathe LMVSRL are not automatically engrafted upon insurance policies that are not governed by the LMVSRL.

In this case, it is abundantly clear that the policy provided by Empire was not issued as a means of satisfying the LMVSRL. Just as in Hearty, the rental agency in this case is self-insured. Thus, any insurance coverage it made available to lessees was in the nature of a voluntary automobile liability policy and was not governed by the LMVSRL. And, as we held in Dennison, it makes no difference whether the disputed exclusion is found in the rental agreement or in the policy of insurance. In this case, it is found in both.

Because the policy at issue in this case is an excess policy, it is even more apparent that it is not governed by the language or policy concerns manifested in the LMVSRL. The LMVSRL dictates the terms of coverage for primary policies and provides, inter alia, for mandatory minimum coverage limits. Since the Empire policy was, by its own terms, excess over the mandatory minimum limits required under Louisiana law, there was clearly no intent by either Enterprise or Randall to use the Empire policy as a means to satisfy the requirements of the LMVSRL provided in LSA-R.S. 32:900(A). We conclude, as we did in Dennison, that the Empire policy at issue in this case is a voluntary automobile liability policy not governed by the LMVSRL.

We likewise conclude, as we did in Dennison, that the exclusions at issue do not violate public policy. There is absolutely no statutory requirement that a rental agency offer excess insurance to its customers or that the customers maintain such insurance. No driver in this state is required to carry excess insurance for the benefit of third parties. Nor does state law dictate all of the terms and conditions under which excess insurance must be provided when it is offered. The Rental Agreement executed by Randall provided that the supplemental liability protection he was purchasing would not apply if the Rental Agreement was violated. The Rental Agreement further provided that operation of the rented vehicle under the influence of alcohol constituted a violation of 19the Rental Agreement. Since there is no statutory requirement that Randall have any excess insurance at all, we can find no public policy reason to infringe on the freedom of contract of Empire and Enterprise to impose a limitation on the excess coverage afforded.

Nor can we find any other basis for implying that public policy precludes an excess carrier from excluding coverage for accidents related to alcohol consumption. As our supreme court found in Hearty, a rental car agency has a right to protect its property. We believe that an agency has a legitimate interest in precluding the use of its vehicles by intoxicated drivers. It has a similar justifiable interest in offering excess insurance to its customers on the condition that they do not violate the restrictions on use of the rented vehicle that the agency adopts and imposes by contract. Empire has a like interest in limiting the risks it agrees to insure. We do not believe that the public policy of Louisiana dictates that insurers providing excess coverage to customers of self-insured rental car agencies must provide coverage for accidents related to alcohol consumption.

|inIn sum, we find no statutory or public policy reasons to refuse enforcement of the exclusions in the Empire excess policy. The trial court did not err in granting Empire’s motion for summary judgment and in dismissing Empire from this litigation.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting summary judgment in favor of Empire Fire and Marine Insurance Company is affirmed. Costs of this appeal are assessed against the plaintiff.

AFFIRMED.

      . Also named as a defendant was ABC Insurance Company, alleged to be an insurer of unknown name insuring Phil D. Randall.

      . Plaintiff makes no argument that the Empire policy is unenforceable because not delivered. The delivery of the policy to the policyholder is sufficient to satisfy the mandates of LSA-R.S. 22:628. Naquin v. Fortson, 99-2984 (La.App. 1st Cir.12/22/00), 774 So.2d 1277, 1280. See also Lindsey v. Colonial Lloyd’s Ins. Co., 595 So.2d 606, 611 (La.1992) (holding that the statutory rules regarding delivery of policies are not meant to provide protection to third parties). Nor does plaintiff argue that the party renting the vehicle was unaware of the terms and/or scope of the excess supplemental insurance purchased, that the conduct of Empire was in any way deceptive or misleading, or that the exclusions at issue are vague or ambiguous. In Taylor v. Rowell, 98-2865 (La.5/18/99), 736 So.2d 812, 818, the Louisiana Supreme Court acknowledged the unique status of rental car agencies and noted that a person renting a car does not have a reasonable expectation of the broad coverage one might expect in a personal liability policy.

      . Supplemental rental liability insurance is defined in the Empire policy as optional excess liability coverage made available to and elected by a "rentee,” for which a premium is paid. By endorsement, Enterprise Leasing Company of New Orleans was designated as a policyholder.

      . The copy of the contract in the record is difficult to read. However, plaintiff does not contest the correctness of the wording of paragraph 13 as noted above and as quoted in defendant’s brief.

      . An omnibus clause is intended to extend liability beyond the law of principal and agent. The Louisiana legislature requires a “Motor Vehicle Liability Policy” to include an omnibus clause, which insures the person named therein and any other person, as insured, using such motor vehicle or motor vehicles with the express or implied permission of such named insured, subject to certain statutory limitations. LSA-R.S. 32:900(B)(2). Hearty, 574 So.2d at 1238.

      . An exception is found in the statutory requirement that all policies must afford UM coverage in the same limits of liability unless such coverage is expressly rejected by the insured. This exception is founded on the explicit language of LSA-R.S. 22:1406(D)(1)(a), which requires UM coverage under any policy that provides automobile liability insurance.

      . Decisions in cases that do not deal with rental agencies, but discuss public policy concerns in the context of excess insurance, are consistent with the result we reach in this case. Cf. Adams v. Thomas, 98-2003 and 98-2005 (La.4/13/99), 729 So.2d 1041, 1044 (holding that a clause in a minimum limits primary automobile liability policy excluding coverage for drivers without a valid driver's license was found to be against the public policy manifested in the LMVSRL. The concurring opinion suggested that a different result might have been obtained if the policies at issue had been excess policies). See also Marcus v. Hanover Ins. Co., Inc., 98-2040 (La.6/4/99), 740 So.2d 603, 609-610 (holding that where an exclusion is held unenforceable because it contravenes public policy, the exclusion will be unenforceable only up to the statutory minimum limits and the exclusion will be enforced as to that portion of the policy in excess of the minimum limits).

      .In Taylor v. Lumar, 612 So.2d 798 (La.App. 1st Cir.1992), we declined to strike language, even when appearing in a primary policy, that excluded coverage for exemplary or punitive damages associated with wanton or reckless behavior brought about by voluntary intoxication. We do not address the question of whether coverage afforded under a primary policy governed by the LMVSRL could exclude coverage for compensatory damages sustained by third parties injured in alcohol-related accidents. We deal here only with the extent to which such an exclusion can validly be placed in an excess policy afforded through a self-insured rental car agency. In some jurisdictions, such exclusions found in rental agreements providing primary liability coverage and/or found in primary liability insurance policies have been held unenforceable. See, e.g., Ryan v. Knoller, 695 A.2d 990 (R.I.1997) and cases cited therein. In contrast, in Philadelphia Indem. Ins. Co. v. Carco Rentals, Inc., 923 F.Supp. 1143 (W.D.Ark.1996), the court found that such an exclusion can be enforced when found in an excess policy that provides voluntary supplemental excess insurance to customers who rent vehicles. See also Hertz Corp. v. Home Ins. Co., 14 Cal.App.4th 1071, 18 Cal.Rptr.2d 267 (1993). But see Philadelphia Indem., Ins. Co. v. Barerra, 200 Ariz. 9, 21 P.3d 395 (2001), where numerous defenses to a declaratory judgment action were raised that are not presented in this case.

      . We are reinforced in the conclusion we reach in this case by the language in the LMVSRL at LSA-R.S. 32:900(G):
      Any policy which grants the coverage required for a motor vehicle liability policy may also grant any lawful coverage in excess of or in addition to the coverage specified for a motor vehicle liability policy and such excess or additional coverage shall not be subject to the provisions of this Chapter. With respect to a policy that grants such excess or additional coverage the term "motor vehicle liability policy" shall apply only to that part of the coverage which is required by this Section, (emphasis added).
      If the portion of an automobile policy governed by the LMVSRL that provides coverage over and above the statutorily mandated limits need not comply with the LMVSRL, an insurance carrier issuing a stand-alone excess policy surely enjoys the same freedom of contract to provide coverage that does not conform to the LMVSRL. Thus, even if the Empire policy were governed by the LMVSRL, it would not affect our resolution of the dispute before us.


author: | ?.JAMES, Judge Pro Tem.

text:
    Welmon COMEAUX v. STAR ENTERPRISE/MOTIVA ENTERPRISE.
    No. 2002 CA 0024.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 2002.

      Karen D. Brooks, Donaldsonville, for Plaintiff-Appellant Welmon Comeaux.
    Albert C. Miranda, Gina P. Campo, Me-tairie, for Defendant-Appellee Star Enterprise/Motive Enterprise.
    Before: PARRO, JAMES, and PATTERSON, JJ.

      . Judge A. Clayton James, retired, is serving as judge pro tempore by special assignment of the Louisiana Supreme Court.

      . Michael A. Patterson is serving as judge pro tempore by special assignment of the Louisiana Supreme Court.

   | ?.JAMES, Judge Pro Tem.

In this workers’ compensation case, plaintiff, Welmon Comeaux, appeals a summary judgment rendered by the Office of Workers’ Compensation Administration (the OWC) in favor of defendant, Star Enterprise/Motiva Enterprise (Star).

FACTS AND PROCEDURAL HISTORY

Plaintiff filed a disputed claim for compensation, averring that bacteria found in industrial dust entered into his body causing an occupational disease, nocardiosis. It is plaintiffs contention that during the 26 years he worked for Star, he was exposed to open-storage containers of crude oil and high volumes of contaminated dust. Plaintiff also contends that he may have inhaled the bacteria during two fires at the refinery in 1996 and 1997. Star and its insurer, The Continental Insurance Group, denied that plaintiff contracted an occupational disease and that plaintiffs medical problems were employment related.

In due course, Star filed a motion for summary judgment alleging that there was no support for plaintiffs claim that he contracted a work-related occupational disease. Star correctly asserted that in order to prevail on his claims, plaintiff would have to prove, by a preponderance of the evidence, (1) that he suffers from a disability; (2) that the disability is related to an employment-related disease; (3) that he contracted the disease during the course and scope of his employment; and (4) that the disease is a result of the work performed. Star argued that plaintiff could not produce evidence that would prove those elements at trial and offered the deposition testimony of two physicians to show that the bacteria that caused plaintiffs illness is not specific to his work environment.

|3In opposition to the motion, plaintiff filed a memorandum including excerpts from various publications. He also offered his own affidavit and that of his sister, as well as other correspondence and documents exchanged with his employer. However, plaintiff produced no affidavits or depositions of medical experts to prove that it was more probable than not that his exposure to the bacteria that caused his illness was work related.

After a hearing on the matter, the workers’ compensation judge (WCJ) granted Star’s motion for summary judgment, being convinced that there was no evidence of a causal connection between the alleged disease and the conditions of plaintiffs employment.

On appeal, plaintiff assigns two related errors for our review. First, he contends that disputed facts exist regarding nocar-diosis such that a summary judgment should not have been granted. Secondly, he argues that the WCJ erred in relying on the testimony of the physicians whose depositions were submitted in support of Star’s motion for summary judgment.

STANDARD OF REVIEW

A motion for summary judgment is a procedural device used to avoid a full-scale trial where there is no genuine issue of material fact. It should only be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ. P. art. 966; Zeringue v. Karl Ott Poles & Pilings, 2000-0522, p. 3 (La.App. 1st Cir.5/11/01), 808 So.2d 628, 630.

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s determination of whether a summary judgment is appropriate. Because it is the applicable substantive law that determines [4materiality, whether or not a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Zeringue, 2000-0522 at p. 4, 808 So.2d at 631. To prevail on his claims, plaintiff must prove by a preponderance of the evidence that he suffers from a disability related to an employment-related disease that was contracted during the course of his employment as a result of work performed. See Price v. City of New Orleans, 95-1851, p. 8 (La.App. 4th Cir.3/27/96), 672 So.2d 1045, 1049, writ denied, 96-1016 (La.10/25/96), 681 So.2d 360; see also La. R.S. 23:1031.1.

Summary judgments are now favored, and the documents submitted by both parties are to be equally scrutinized. The initial burden of proof remains with the mover to show that no genuine issue of material fact exists. However, if the mover will not bear the burden of proof at trial on the matter, the mover is not required to negate all essential elements of the adverse party’s claim. If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, then the non-moving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. La.Code Civ. P. art. 966C(2). If the non-moving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. La.Code Civ. P. arts. 966C(2) & 967; Zeringue, 2000-0522 at pp. 3-4, 808 So.2d at 630-631.

Star will not bear the burden of proof at trial; therefore, its burden on the motion for summary judgment does not require it to negate all essential elements of plaintiffs claim. La.Code Civ. P. art. 966C(2). Rather, Star’s burden on the motion for summary judgment is to point out to the court that there is an absence of factual support for one or more elements essential to plaintiffs claim. La. Code Civ. P. art. 966C(2); Babin v. Winn-Dixie Louisiana, Inc., 2000-0078, p. 4 (La.6/30/00), 764 So.2d 37, 39. Thereafter, if plaintiff cannot provide factual evidence | insufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact, and summary judgment should be granted. La.Code Civ. P. art. 966C(2).

COMEAUX’S CLAIM

In support of its motion for summary judgment, Star introduced into evidence the deposition of Dr. Cullen Hebert, plaintiffs treating physician. Dr. Hebert is board certified in the specialties of internal medicine and pulmonary medicine. He first treated plaintiff in 1997 for sarcoido-sis, a different disease from the one at issue in this case. Plaintiff was treated with steroids from April through November 1998 for complaints of shortness of breath, decreased appetite, and fatigue. In July 1998, plaintiff was hospitalized for a fainting episode, and it was discovered that he had lesions that, when cultured, showed his body was harboring a bacteria known as nocardiosis. He was placed on antibiotics through November 1999 to treat that condition. By November, he had recovered, and Dr. Hebert felt that it was unlikely that he would be subject to a relapse.

Dr. Hebert testified that he has a high population of patients with sarcoidosis and that the cause of that condition is unknown. He has seen two cases of nocar-diosis and testified that he was unable to say that it was related to plaintiffs work environment. Nocardiosis is a bacteria that is common in the environment, in soil and vegetables. Dr. Hebert specifically indicated that he did not believe plaintiff would have picked up this bacteria from a fire at a refinery because he did not believe the bacteria could live through a fire. In his view, nocardiosis is an opportunistic bacterium that takes advantage of a situation where someone’s immune system is unable to fight off its effects. Dr. Hebert was of the opinion that the steroid treatment for sarcoidosis might have affected plaintiffs immune system, but he did not know from what source the actual bacteria that caused the 1 ^nocardiosis came. When asked if either the sarcoidosis or nocar-diosis were work related, Dr. Hebert responded;

I can’t. I cannot in all honesty say that there was a direct relationship between him being at his work site and developing either of these conditions.

Star also introduced the deposition testimony of Dr. Joseph William Brown, III. Dr. Brown, who is board certified in infectious diseases and microbiology, first saw plaintiff for a consultation in 1998 at the request of Dr. Hebert. Dr. Brown agreed with Dr. Hebert that sarcoidosis, the disease plaintiff was originally being treated for, is a disease of unknown etiology. When Dr. Brown saw plaintiff in July 1998, he believed, based on symptoms and a laboratory culture, that plaintiff had no-cardiosis. He testified that Nocardia is an organism widely spread in nature and looked upon as a soil borne organism. It can find its way into the human system by inhalation or by getting into a wound, such as a contaminated injury to a foot while working in a field. An individual with sarcoidosis is predisposed to be susceptible to the bacteria that causes nocardiosis, and those with weakened immune systems from drugs, HIV, aging, vascular disease, and steroid treatments are more at risk than the general population. As to the work-related nature of the illness, Dr. Brown testified:

This particular bug, with it being so ubiquitous or widespread in nature, you can’t say where the person got it. Now, if Welmon lived in a city in an apartment; did nothing outdoors except go back and forth to work; worked in a field where there was lots of dust; then you would say the probability is that’s where he had his exposure.... If there were a large number of people, or at least a few other people working in the same situation as the commonality, and there was an infection, and nobody else in the community got it, then you would say that that likely was acquired in the work place.... This — you know, we know Welmon has sarcoidosis, steroids, and that he has Nocardia. Where the dust that he breathed in that had the bug in it came from, you know, retrospectively I can’t say.

|7At most, Dr. Brown would agree that plaintiff could have inhaled the bacteria from dust in a fire at a refinery, but had that been the case, it would be expected that many others exposed at the same time would have the condition.

In opposition to Star’s motion, plaintiff did not produce evidence of other workers contaminated with Nocardia in connection with the refinery fires in 1996 or 1997. Nor did he produce any medical testimony to support his claim that there was a link between the nocardiosis that he contracted and his employment. He introduced his own affidavit to establish that he worked many years for Star for long hours, six to seven days per week. However, that affidavit in no way ruled out his having inhaled the bacteria away from his place of employment, since it is common in nature. Nor did it negate the scenario that he succumbed to it because of the predisposing conditions of sarcoidosis and steroid treatment, which is the scenario his treating physician considered most likely. The affidavit statements of the plaintiff and his sister to the effect that Dr. Brown told them plaintiff contracted nocardiosis from inhalation of contaminated industrial dust were contradicted by the actual deposition testimony of Dr. Brown.

We are not persuaded that plaintiff demonstrated an ability to prove medical causation or established the existence of a genuine issue of material fact through the excerpts from publications that were included in his memorandum in opposition to Star’s motion. Those publications were not introduced into evidence, were not proven as authoritative, and did not establish the causal link at issue. We are likewise unimpressed with plaintiffs attack on the qualifications of his treating physician, who is board certified in areas specifically related to nocardiosis. The fact that he may have seen few cases of nocardiosis does not alone render his expert testimony incompetent, particularly in view of the total lack of countervailing medical opinion offered by plaintiff.

|sBased on our independent review of the evidence adduced, we do not believe that the OWC erred in concluding that plaintiff failed to demonstrate that he would be able to bear his burden of proof at trial that his disease was an occupational disease caused by work-related conditions. Plaintiff has the burden of proving by a preponderance of the evidence that he suffers from a disability related to an employment-related disease that was contracted during the course of his employment as a result of work performed. The causal link between his illness and work-related duties must be established by a reasonable probability. Seal v. Gaylord Container Corp., 97-0688, p. 6 (La.12/2/97), 704 So.2d 1161, 1165. The claimant will fail if he shows only a possibility that the employment caused the disease, or that other causes not related to the employment are just as likely to have caused the disease. Shields v. GNB Technologies, Inc., 33,911, p. 7 (La.App.2d Cir.10/4/00), 768 So.2d 774, 780. Statements by doctors that plaintiffs condition could be related to work allegedly performed in connection with a refinery fire do not support a finding that plaintiff could sustain his burden of proof at trial. King v. Stranco, Inc., 2000-2003 (La.App. 1st Cir.11/9/01), 818 So.2d 48, 52.

Star has pointed out to the court that there is an absence of factual support for an essential element of plaintiffs claim, i.e., causation. Plaintiff has failed to produce factual evidence sufficient to establish that he will be able to satisfy his evidentia-ry burden of proof at trial as to that issue. Thus, there is no genuine issue of material fact, and the OWC properly granted summary judgment in favor of Star.

CONCLUSION

For the reasons set forth above, we affirm the decision of the OWC granting 1 asummary judgment in favor of Star with regard to plaintiffs claim. Costs of this appeal are assessed against plaintiff, Wel-mon Comeaux.

AFFIRMED.

      .La. R.S. 23:1310.5(F) requires that the published court of appeal opinion identify the office of workers' compensation district from which the appeal was taken and the name of the workers’ compensation judge (WCJ) who rendered the judgment. The WCJ was Honorable Anthony P. Palermo of the Office of Workers' Compensation Administration, District 5.

      . Plaintiff acknowledges in brief to this court that he has never filed a claim for benefits for sarcoidosis and that he does not dispute the finding of the OWC that his disease of sarcoi-dosis is not work related.


author: JaKUHN, Judge.

text:
    Winnifred LAIRD v. ST. TAMMANY PARISH SAFE HARBOR.
    Nos. 2002 CA 0045, 2002 CA 0046.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 2002.

      Joseph G. Albe, Metairie, Counsel for Plaintiff/Appellant Winnifred Laird.
    Neil Hall, District Attorney’s Office, St. Tammany Parish, Covington, Counsel for Defendant/Appellee St. Tammany Parish Safe Harbor.
    Before: KUHN, DOWNING, and GAIDRY, JJ.
   JaKUHN, Judge.

This appeal involves an Office of Workers’ Compensation (“OWC”) ruling that fails to identify the parties involved in the litigation. Although the ruling purports to dismiss all claims, the ruling fails to set forth either a caption identifying the litigants or sufficient decretal language identifying the prevailing party and the party against whom the ruling is made. Because we find this ruling is fatally defective, we dismiss this appeal without prejudice.

On March 16, 2001, Winnifred Laird filed two claims for workers’ compensation benefits against her employer, St. Tammany Parish. In one claim, Laird contended she had sustained physical and mental injury resulting from a February 23, 2000 automobile accident (Docket 01-01853). In the other claim, Laird asserted she suffered a “panic attack” on June 1, 2000, due to unusual and extraordinary work stress and complications of the auto accident (Docket 01-01854). By order dated May 11, 2001, the OWC consolidated these matters.

St. Tammany Parish responded by filing a peremptory exception raising the objection of prescription. A hearing on the exception was held on October 5, 2001. Thereafter, the OWC issued a October 23, 2001 ruling, containing the following pertinent language:

STATE OF LOUISIANA OFFICE OF WORKERS’ COMPENSATION

DOCKET NO: 01-01853 DISTRICT 6

JUDGMENT ON EMPLOYER’S PEREMPTORY EXCEPTION OF PRESCRIPTION

[T]he Court grants the Peremptory of Exception in part and denies the exception in part.
LIT IS ORDERED, ADJUDGED AND DECREED that all claims for “physical injuries” as a result of the alleged February 23, 2000, auto accident have prescribed and are dismissed with prejudice.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the assertions for a “mental injury” arising out of the alleged February 23, 2000, auto accident have not prescribed and are dismissed without prejudice for want of compliance with 23:1021(7)(d).

A judgment is the determination of the rights of the parties in an action. La. C.C.P. art. 1841. A final judgment shall be identified as such by appropriate language. La. C.C.P. art.1918. Although the form and wording of judgments are not sacramental, Louisiana courts require that a judgment be “precise, definite and certain.” See Russo v. Fidelity & Deposit Co., 129 La. 554, 56 So. 506 (1911) and Vanderbrook v. Coachmen Industries, Inc., 2001-0809 (La.App. 1st Cir.5/10/02), 818 So.2d 906, 913.

We find that the ruling is fatally defective because the parties’ names appear nowhere in the ruling. Neither the caption nor the language of the ruling identifies the parties involved in this litigation. The ruling purports to dismiss all claims raised in these proceedings but does not identify either the party in whose favor the ruling is ordered or the party against whom the ruling was ordered. These determinations should be evident from the language of a judgment without reference to other documents in the record. In the absence of such decretal language, the ruling is not a valid “final judgment.” See Carter v. Williamson Eye Center, 2001-2016 (La.App. 1st 11/27/02), 837 So.2d 43. In the absence of a valid final judgment, this court lacks jurisdiction to review this matter.

We additionally note that because the OWC did not hold a hearing on the merits of the claims advanced by Laird, it was improper for the OWC to dispose of the claims for “mental injury” that it determined were not | ¿prescribed. The OWC should have ruled only on the exception of prescription.

Because we lack jurisdiction, this appeal is dismissed without prejudice. Assessment of appeal costs are to await a final determination of this suit.

APPEAL DISMISSED.


author: IsKUHN, Judge.

text:
    Debra A. CRITSER v. DILLARD’S DEPARTMENT STORES, INC.
    No. 2002 CA 0310.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 2002.

      A. Remy Fransen, Jr., New Orleans, Counsel for Plaintiff/Appellee Debra Crit-ser.
    M. Blake Monrose, Lafayette, Counsel for Defendant/Appellant Dillard’s Department Stores, Inc.
    Before: KUHN, DOWNING, and GAIDRY, JJ.
   IsKUHN, Judge.

Dillard’s Department Stores, Inc. (Dillard’s) appeals a judgment from the Office of Workers’ Compensation (OWC) ordering it to pay claimant, Debra A. Critser, penalties and attorney fees. We reverse.

FACTS AND PROCEDURAL HISTORY

The facts of this matter are not in dispute. On January 10, 1993, Debra A. Crit-ser was involved in an accident within the course and scope of her employment with Dillard’s. From the date of the accident, through the present, defendant voluntarily paid workers’ compensation benefits to Critser, without admitting liability per La. R.S. 23:1204. At the time of her accident, Critser’s average weekly wage was $460.25, which corresponds to a temporary total disability rate of $307.00.

On August 3, 1998, Dillard’s obtained a judgment granting a Social Security credit in the amount of $234.45 per month, or a weekly credit of $74.87. An employer’s entitlement to a Social Security credit was provided by the supreme court’s interpretation of La. R.S. 23:1225C(l)(e) in Garrett v. Seventh Ward General Hospital, 95-0017 (La.9/22/95), 660 So.2d 841. But in Al Johnson Constr. Co. v. Pitre, 98-2564 (La.5/18/99), 734 So.2d 623, the supreme court expressly overruled Garrett on the issue of an employer’s entitlement to credit for Social Security Disability benefits, concluding that Social Security Disability benefits are not included in “Benefits under disability plans,” as described in La. R.S. 23:1225C(l)(c). Al Johnson Constr. Co., 98-2564 at p. 10, 734 So.2d at 628. (Footnote omitted.)

Following the decision in Al Johnson Constr. Co., Critser filed a Petition for Modification on July 31, 1999, seeking reimbursement of all Social Security credits withheld under the August 3, 1998 judgment. ^Jj^Dillard’s filed peremptory exceptions of res judicata and no cause of action. Dillard’s asserted that it had obtained its offset by judgment signed August 3, 1998, which was not appealed. Therefore, despite the change in law enunciated in Al Johnson Constr. Co., Dillard’s maintained the matter was settled because the August 3, 1998 judgment was a final, non-appeal-able judgment. OWC agreed and sustained the exceptions, dismissing Critser’s petition.

Critser appealed the dismissal of her claim to this court. And in Critser v. Dillard’s Dep’t Stores, Inc., 99-3113 (La.App. 1st Cir.2/16/01), 791 So.2d 702, writ denied, 01-0753 (La.5/4/01), 791 So.2d 659, we concluded OWC erred in granting the peremptory exceptions. Critser addressed a scenario where a claimant had not litigated her disability status but had been receiving voluntary disability payments from her employer, and the employer received a judgment determining the amount of offset under La. R.S. 23:1225C(l)(c) entitling the employer to withhold a Social Security credit from the claimant’s benefits. Under these circumstances, this court specifically found that the earlier-rendered judgment constituted an award under the modification statute, La. R.S. 23:1310.8A(1). Crit-ser, 99-3113 at p. 7, 791 So.2d at 707-08. The matter was remanded to the Office of Workers’ Compensation; however, Dillard’s sought a writ to the supreme court, which was denied.

On June 9, 2001, and before the hearing on the merits of Critser’s Petition for Modification, Dillard’s voluntarily reversed its credit and resumed making voluntary payments to Critser, as per La. R.S. 23:1204, in the full amount of $307.00 per week. On June 13, 2001, Dillard’s forwarded a check to Critser in the amount of $7,230.32, representing voluntary | reimbursement of all Social Security credits withheld by Dillard’s from the date of judicial demand, July 31, 1999, through June 9, 2001.

On June 20, 2001, Critser filed a Motion to Fix Penalties and Attorney’s Fees. Despite Dillard’s voluntary payments of the offset, the matter was scheduled for trial on the merits on September 13, 2001. The parties submitted the matter on joint stipulations and briefs. On October 9, 2001, OWC issued a judgment finding that (1) Critser was entitled to modification of the August 3, 1998 judgment granting Dillard’s a credit for Social Security benefits against her workers’ compensation benefits; (2) Critser was entitled to all Social Security credits withheld since July 31, 1999, the date of judicial demand; and (3) Critser was entitled to penalties in the amount of $2,000.00 and attorney fees in the amount of $2,000.00.

Dillard’s appeals.

DISCUSSION

Dillard’s contends the workers’ compensation judge legally erred in holding it liable for penalties and attorney fees.

The purpose of the imposition of penalties and attorney fees in a workers’ compensation proceeding is to nudge the employer into making timely payments when there is no reasonable basis for refusing or delaying its obligation. Brown v. Texas-LA Cartage, Inc., 98-1063, p. 13 (La.12/1/98), 721 So.2d 885, 893. To determine whether a claimant’s right has been reasonably controverted, thereby precluding the imposition of penalties under La. R.S. 23:1201, one of the factors used by the court is to determine whether the employer or his insurer engaged in a nonfrivolous legal dispute. Brown, 98-1063 at p. 9, 721 So.2d at 890.

In written reasons for judgment, OWC determined that under La. R.S. 23:1201F, penalties and attorneys fees were appropriate in instances where a | sclaim is not reasonably controverted. OWC reasoned that because an employer’s right to take a Social Security offset had been expressly overruled in Al Johnson Constr. Co., Dillard’s could not reasonably controvert Critser’s entitlement to have the offset removed. We disagree.

In response to Critser’s attempt to modify the August 3, 1998 judgment, Dillard’s filed an exception of res judicata because it maintained that despite the change in the law, the August 3, 1998 judgment had become final and non-appealable. Dillard’s argument was based on the assumption that procedurally, Critser could not avail herself of the change in the law because her judgment had become final. A review of the pleadings in the record reveals that Dillard’s did not attempt to relitigate the issue presented in Al Johnson Constr. Co.

In Critser, this court was confronted with the novel issue of whether the modification powers set forth in La. R.S. 23:1310.8A(1) should apply to a judgment predating a specific change in the interpretation of a statutory provision as opposed to a change in the status of a claimant. In other words, Dillard’s exceptions of res judicata and no cause of action did not go to the merits of Critser’s attempt to modify her benefits, but whether there was a procedural avenue that would allow OWC to address the merits. Cf. Williams v. Regional Transit Authority, 546 So.2d 150, 161-62 (La.1989) (an employer’s decision to contest coverage was not unreasonable when the case involved an unusual issue not conclusively resolved by the jurisprudence at the time the claim was made). Because Dillard’s was not attempting to relitigate an issue previously addressed by the supreme court, | fiwe find that Dillard’s actions were not frivolous litigation. Moreover, we note that in the earlier opinion, we did not order Dillard’s to pay Critser’s benefits without the Social Security offset or to reimburse the offset that had been previously taken under the August 3, 1998 judgment. Rather, we remanded the matter to the OWC for further proceedings consistent with the opinion. Critser, 99-3113 at p. 9, 791 So.2d at 709.

CONCLUSION

For these reasons, OWC’s assessment of penalties and attorney fees was erroneous. The decision of the workers’ compensation judge is reversed, and all costs of the appeal are assessed to claimant, Debra Critser.

REVERSED.

      . Although the written reasons cite to La. R.S. 23:1202F as the applicable provision, such a reference is a typographical error. Penalties and attorney fees are addressed under section 1201F.


author: 1 .DOWNING, J. |! KUHN, Judge,

text:
    Sheila B. PITTMAN v. Chris Albert PITTMAN.
    No. 2001 CW 2528.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 2002.

      Dara L. Baird, Metairie, Counsel for Defendant/Relator Chris A. Pittman.
    Elisabeth M. Ramirez, Covington, Counsel for Plaintiff/Respondent Sheila B. Pittman.
    Before: KUHN, DOWNING and GAIDRY, JJ.
   1 .DOWNING, J.

Chris Albert Pittman appeals the denial of his motion for a new trial, which motion asserted that newly discovered evidence would prove that misrepresentations made by his former wife, Sheila B. Pittman, vitiated his consent to a stipulated community property partition judgment. For reasons that follow, we convert this appeal to an application for supervisory writs and deny.

FACTS AND PROCEDURAL HISTORY

Mr. and Mrs. Pittman obtained a judgment of divorce in January 1998. On July 26, 1999 the parties appeared and entered a stipulation and agreement on the record . resolving the partition of their community property. Mrs. Pittman’s attorney later submitted a conforming judgment, which the trial court signed on June 15, 2000.

Because notice of judgment was sent to an incorrect address for Mr. Pittman, he was not properly served. Mr. Pittman, however, learned of the judgment and filed a motion to vacate the judgment on August 31, 2000. Mrs. Pittman countered with an exception of improper use of summary procedure, alleging that claims for nullity or rescission should be brought by ordinary proceedings. These matters came on for hearing on November 13, 2000. On November 21, 2000 the trial court entered judgment dismissing Mr. Pittman’s motion to vacate but also ordering that he be properly served with the judgment of partition where he lived, reserving his right to ask for a new trial.

hOn November 21, 2000, Mr. Pittman filed a motion for a new trial on the basis of newly discovered evidence. The trial court denied the motion and this appeal followed. Mr. Pittman filed as assignment of error properly before us that the trial court committed error in failing to hold a hearing on his motion for new trial when the basis for the motion was new evidence that could not with due diligence have been ascertained before entry of judgment. He also alleges that the trial court erred as a matter of law in holding that a consent judgment cannot be overturned by a motion for new trial asserting the discovery of new evidence and in granting Mrs. Pittman’s exception of improper use of summary proceedings.

DISCUSSION

The 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. Morrison v. Dillard Department Stores, Inc., 99-2060, p. 2 (La.App. 1 Cir. 9/22/00), 769 So.2d 742, 744, writ denied, 00-3379 (La.2/02/01), 784 So.2d 646. An application for supervisory writs is the proper procedure to raise the denial of a motion for a new trial. See Axcess Global Communication of America Corp., v. Matsushita Electric Industrial Co., Ltd., 2001-2677 (La.2/01/02), 807 So.2d 222. Normally a party should appeal the merits of the case rather than the denial of a motion for new trial. In this instance, however, because the basis of Mr. Pittman’s motion for new trial is the assertion of newly discovered evidence and an appeal from the merits would not provide him relief and could result in irreparable harm, we will consider this appeal as an application for supervisory writs from the denial of the motion for new trial.

Further, while a stipulated judgment is normally not appealable, La. C.C.P. art.2085, it can be appealed when a party indicates his consent was |4vitiated. Polk v. Polk, 98-1788, p. 3 (La.App. 3 Cir. 3/31/99), 735 So.2d 737, 739. “[U]nder LSA-C.C. art. 3079 and interpretative jurisprudence, contracts of compromise may be vitiated by error of fact bearing on the principal cause, and may be rescinded whenever there exists an error on the matter in dispute.” Succession of Morvant, 578 So.2d 549, 554 (La.App. 3 Cir. 1991). In order for the trial court to determine whether or not Mr. Pittman’s consent was vitiated, it would have to take evidence. In order to take evidence after rendering a final judgment, the trial court would have to grant a motion for a new trial.

A motion for a new trial does not require a contradictory hearing unless there is a clear showing, by affidavit, “of facts ... reasonably calculated to change the outcome or reasonably believed to have denied the applicant a fair trial.” Cleary v. LEC Unwired, L.L.C., 2000-2532, p. 8 (La.App. 1 Cir. 12/28/01), 804 So.2d 916, 922.

Accordingly, we analyze the trial court’s actions to assist us in determining the relief to which Mr. Pittman is entitled.

Mr. Pittman’s alleged new evidence supporting his entitlement to a contradictory hearing on his motion for new trial included, in general terms, claims that Mrs. Pittman misrepresented her financial condition as an inducement to him to accept certain disadvantageous terms in their stipulated judgment and that she never intended to reimburse him for one-half of the community debts as provided in the stipulated judgment.

In denying Mr. Pittman’s motion for new trial, the trial court reasoned that these claims could only be raised by ordinary proceeding, and not by a motion for new trial. The trial court stated, “It has to be to annul the judgment on fraud and ill practices. Here we are quite a number of months after stipulation was entered into and now — judgments would never be final |Kif you could do what you’re trying to do without showing it was fraud or ill practices.”

In so holding, the trial court committed legal error. As this court stated in Terry v. Terry, 612 So.2d 808, 809 (La.App. 1 Cir.1992), “The Louisiana Code of Civil Procedure provides three methods of seeking modification of a judgment in the trial court: a motion to amend judgment, a motion for a new trial, and an action for nullity of judgment. See LSA C.C.P. arts.1951, 1971 and 2001-2006 respectively.” “The Louisiana Supreme Court has also recognized that, on its own motion, and with the consent of the parties, the trial court may amend a judgment substantively.” Frisard v. Autin, 98-2637, p. 7 (La.App. 1 Cir. 12/28/99), 747 So.2d 813, 818. A proper vehicle for a substantive change in a judgment is a timely motion for new trial or a timely appeal. Terry, 612 So.2d at 809.

Even so, a motion for a new trial does not always necessitate a contradictory hearing. Sonnier v. Liberty Mutual Ins. Co., 258 La. 813, 821, 248 So.2d 299, 302 (La.1971). But where the motion for new trial presents “the possibility that a contradictory motion might develop grounds for the trial judge to change his mind about his rulings ...,” the Code of Civil Procedure may “clearly require” that a motion for new trial be set for contradictory hearing. Sonnier, 258 La. at 821-822, 248 So.2d at 302-303. Accordingly, we review the motion for new trial and attendant affidavits to analyze whether “the allegations in the motion were such as would ‘clearly require’ a contradictory hearing.” Evans v. Ivy, 428 So.2d 886, 888 (La.App. 1 Cir.1983).

|fiIn his motion for new trial and attending affidavits, Mr. Pittman alleges that he discovered evidence subsequent to the entry of the stipulated judgment that he could not, with due diligence, have obtained before or during trial. Particularly, he alleges that on the date assigned for trial, when the stipulations were entered, Mrs. Pittman materially misrepresented her financial status, stating that she was broke when she had in fact inherited several hundred thousand dollars. Mr. Pittman alleges he relied on these misrepresentations to his detriment in attempting to reach a settlement on the partition of community property and would not have entered the proposed settlement had he known Mrs. Pittman’s true financial status. He alleges as fact that on the day the stipulations were entered, he could not have “accurately” known of Mrs. Pittman’s inheritance from her father, who died five days prior to the entry of the stipulated judgment.

Mr. Pittman further alleges that Mrs. Pittman never intended to pay him $30,000 to $40,000 she owed him and that she had no intent of honoring a stipulation that she would not contact community creditors. He further alleges that she apparently had other income and assets, which would have negated her representations of poverty.

These allegations, if true, do not state adequate grounds to establish that it was an abuse of discretion to deny Mr. Pittman a contradictory hearing on his motion for new trial. Although, the trial court was mistaken legally in its opinion that a motion for new trial was not the proper procedure, it was not an abuse of the court’s discretion to deny the motion for new trial where Mr. Pittman had an adequate remedy at law. The issues presented were new and would require additional discovery and a trial. A separate proceeding, although not required, could be a better procedural 17vehicle for raising these issues. An appellate court should not substitute its own opinion for that of the trial court when there are alternative remedies.

DECREE

For the forgoing reasons, we find the ruling of the trial court was not erroneous.

WRIT DENIED.

GUIDRY, J., concurs in the result.

KUHN, J., concurs and assigns reasons.

|! KUHN, Judge,

concurring.

I concur in the result. The trial court properly denied the motion for new trial. The record fails to establish peremptory grounds for a new trial under La. C.C.P. art.1972 or that there is a “good ground” for a new trial under La. C.C.P. art.1973. The facts alleged in Mr. Pittman’s affidavit supporting his motion for new trial have no bearing on the validity of the compromise between the parties. The compromise effected a partition of the parties’ community property and has the force of law between the parties. La. C.C. art. 3078. It may be rescinded in only four cases: 1) error in the person, 2) error on the matter in dispute, 3) fraud or 4) violence. La. C.C. art. 3079. The allegations do not demonstrate any of these situations.

The fact that Mrs. Pittman may have inherited separate funds upon the death of her father has no bearing on the “matter in dispute,” which was a division of the parties’ community property. Further, La. C.C. art.1949 provides that “Error vitiates consent only when it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party.” The circumstances alleged by Mr. Pittman do not suggest that Mrs. Pittman should have known that Mr. Pittman would not have entered into the compromise if he had known that she had inherited property upon her father’s death. See the Revision Comments following La. C.C. art.1949.

The fact that Mrs. Pittman may not have disclosed her “true financial status” prior to the compromise was a normal means of negotiation rather than any type of fraud or ill practice.

|2Mr. Pittman’s appeal, converted by the majority to a writ, cannot be considered as an appeal of the initial judgment of partition of the community property. That judgment, now final, is not appealable at this time. Furthermore, as demonstrated by the conversion of the appeal to a writ, the only error raised by Mr. Pittman is that the trial court erred in denying the motion for a new trial. Denial of the writ is the correct result.

      . Mr. Pittman also appeals the denial of his motion for contempt against Mrs. Pittman. The judgment appealed, however, does not dispose of this issue. It merely resets the hearing on this issue to a later date. In fact, nothing in the record before us indicates that the contempt matter has yet been adjudicated. Accordingly, we dismiss Mr. Pittman’s appeal insofar as it questions the trial court’s denial of the motion for contempt.

      . Mr. Pittman assigns as error the trial court's ruling that his "motion to vacate” was an improper use of summary proceedings. Without addressing whether Mr. Pittman was attempting to employ impermissible procedures, we agree that a motion to vacate is not an acceptable procedure for reforming judgments. We can find no authority under Louisiana law allowing a judgment to be modified or rescinded by a motion to vacate.