author: 11 STEWART, J.

text:
    Douglas WOOD, Plaintiff-Appellant, v. Angel MARTIN and Tim Wilkinson, Defendants-Appellees.
    No. 37,856-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 2003.
    Rehearing Denied Jan. 22, 2004.

      Douglas Wood, In Proper Person.
    Angel Martin, In Proper Person.
    Tim Wilkinson, In Proper Person.
    Before BROWN, WILLIAMS and STEWART, JJ.
   11 STEWART, J.

Plaintiff, Douglas Wood (“Wood”), brought an action against prison officials, seeking damages for alleged malfeasance in denying his transfer to a work release facility. The trial court dismissed his petition, stating that the petition did not comply with the provisions of La. R.S. 15:1184, et seq., said provisions constituting part of the Prison Litigation Reform Act (PLRA). For the reasons set forth below, we affirm the trial court’s dismissal of Wood’s petition.

FACTS

In his petition, Wood asserts that on or about March 13, 2001, he became eligible for transfer to a work release facility, and that in August 2001 he applied for such a transfer. However, he alleges that on or about December 10, 2001, he was informed that Deputy Warden Angel Martin had denied his transfer; therefore, he filed a grievance under the Corrections Administrative Remedy Procedure (CARP), stating that there was no authority to deny his transfer because only the secretary of the Louisiana Department of Public Safety and Corrections could deny or approve the request. Wood further alleged that Warden Tim Wilkinson denied his grievance and “effectually condoned” the actions of Deputy Warden Martin. According to Wood, the actions of the defendants not only resulted in his loss of the right to be considered for work release, but also resulted in his loss of the potential for over one year’s wages that he could have earned and saved for his pending release. Accordingly, he filed suit seeking damages for what he termed a tort claim.

The record on appeal indicates that Wood went through the required three-step administrative remedy procedure, but his request for relief was denied at each step. The first-step respondent was Ann Boyd, the Records Supervisor who denied Wood’s complaint on December 20, 2001. The second-step respondent was Warden Tim Wilkinson who also denied Wood’s grievance on January 7, 2002, indicating to Wood that he was welcome to take his grievance to the Office of the Secretary of the Louisiana Department of Public Safety and Corrections. Wood did proceed to the third step as shown by the April 3, 2002, denial of his request for administrative remedy at the headquarters of the Department. The third-step denial indicated that the first and second level responses had been determined to be clear and concise and to have thoroughly addressed his issues; therefore, there was no basis for administrative intervention.

DISCUSSION

Initially, we observe that because the trial court dismissed this action a few days after it was filed, we have no answer on behalf of the defendants named in the petition, and we have no brief by any party in support of the trial court’s judgment. Furthermore, we have no reasons for judgment by the trial court, either oral or written, other than the notation that Wood’s petition did not comply with the provisions of the PLRA.

On appeal, Wood argues that the district court erroneously ruled that he failed to comply with the PLRA because the PLRA deals with lawsuits filed by prisoners concerning “the conditions of confinement or the effects of actions by governmental officials on the lives of persons confined in | prison.” Wood asserts that the court evidently dismissed his action based on the screening provisions found in La. R.S. 15:1184(B). However, Wood asserts that he filed suit against the wardens personally, not in their capacity as governmental officials, and that because their actions violated state law, they acted outside the scope of their employment and could not claim qualified immunity. Nevertheless, he stated in his appellate brief that he would not attempt to argue that his suit did not fall under the PLRA because that question was “irrelevant to this appeal.” Wood contended that he fully complied with the provisions of the PLRA.

Furthermore, Wood notes on appeal that an inmate must seek judicial review from an administrative denial within 30 days of the final ruling of the Department of Corrections. He then opines that the court may have been under the impression that his time limit had expired because he did not file his suit until several months after the third-step denial on April 3, 2002. However, he asserts that the 30-day limit did not apply to him because he had filed a suit for damages, and that under the provisions of La. R.S. 15:1177, suits like his are excluded from that time limit.

We begin our analysis of Wood’s legal argument with the observation that appeals are taken from the judgment, not the reasons for judgment. Becker v. Dean, 2003-2493 (La.9/26/03), 854 So.2d 864, 866. Thus, because we conclude that dismissal was proper in this case, it is not necessary for us to know the precise reasons behind the trial court’s judgment of dismissal.

We disagree with Wood’s argument that he was not required to seek judicial review of the final administrative decision within 30 days after receipt of the decision. While it is true that the provisions of La. R.S. 15:1177(A) exclude “decisions relative to delictual actions for injury or damages” from the adverse administrative decisions subject to the 30-day time limitation for seeking judicial review, the decisions made by the defendants herein were administrative decisions, and were not the decisions relative to delictual actions as contemplated by the statutory provisions.

The provisions of CARP, La. R.S. 15:1171 et seq., allow the Department of Public Safety and Corrections and each sheriff to adopt administrative remedy procedures at their correctional institutions for receiving, hearing, and disposing of any and all complaints and grievances by an adult or juvenile offender while the offender is within their custody or under their supervision. See La. R.S. 15:1171(A) & (B). The broad scope of such complaints and grievances includes, but is not limited to:

any and all claims seeking monetary, injunctive, declaratory, or any other form of relief authorized by law and by way of illustration includes actions pertaining to conditions of confinement, personal injuries, medical malpractice, time computations, even though urged as a writ of habeas corpus, or challenges to rules, regulations, policies, or statutes.

In Pope v. State, 99-2259 (La.6/29/01), 792 So.2d 713, the Louisiana Supreme Court held that those provisions of CARP that then allowed the Department of Public Safety and Corrections to exercise original jurisdiction in tort actions violated Article V, § 16(A) of the Louisiana Constitution which vests original jurisdiction over all civil and criminal matters with Louisiana’s district courts. The inmate plaintiff in Pope had suffered injuries that had nothing to do with prison disciplinary administrative proceedings, but instead suffered injuries that occurred while the inmate was performing demolition work at a correctional facility. The supreme court’s holding in Pope was directed at the application of CARP to such traditional tort matters, not to actions related to conditions of confinement.

In response to Pope, the Louisiana Legislature amended the provisions of CARP relating to judicial review of administrative acts and excluded “decisions relative to delictual actions for injury or damages.” As a result, such traditional tort actions are not subject to the more limited judicial review available in district court for administrative decisions. Instead, such del-ictual actions are governed by the pertinent provisions of La. R.S. 15:1177(C):

This Section shall not apply to delictual actions for injury or damages, however styled or captioned. Delictual actions injury or damages shall be filed separately as original civil actions.

Under the post-Pope statutory scheme, all complaints and grievances, including traditional tort claims seeking monetary relief, are subject to administrative procedures. This is clearly shown by La. R.S. 15:1172(B)(1) stating that an offender shall initiate his administrative remedies for a delictual action for injury or damages within 90 days from the day the injury or damage is sustained. However, regardless of the outcome of the administrative remedy proceedings for such claims, once such administrative review is complete, delictual actions for injury or damages then shall be filed separately as original civil actions not subject to the limited judicial review afforded other adverse administrative decisions. In other words, an administrative remedy decision on a true tort action, such as that involved in Pope, supra, does not limit a district court’s constitutional grant of original jurisdiction in any way. Such an administrative review nevertheless is required, apparently in hopes that an appropriate remedy, including the possible award of monetary damages, may be agreed upon without the necessity of litigation.

On the other hand, an inmate cannot utilize the statutory provisions reserved for traditional tort actions by simply phrasing as a tort complaint what in actuality is a complaint concerning conditions of confinement. The nature of a pleading is determined by its substance and not its caption. See La. C.C.P. art. 865; Peterson v. Toffton, 36,372 (La.App.2d Cir.9/18/02), 828 So.2d 160.

In Peterson, supra, plaintiff filed suit against the prison warden, prison employees, and the Department of Corrections, seeking punitive and compensatory damages for injuries he allegedly suffered in connection with disciplinary proceedings that resulted in his being subjected to ten days in isolation and a forfeiture of 30 days of good time. Although the plaintiff alleged his injuries were like those in Pope, supra, we held that his complaint arose from a dissatisfaction with the policies and disciplinary procedures of the correctional facility. We noted that the plaintiffs injuries, therefore, sought a remedy with respect to his conditions of confinement and that under the provisions of La. R.S. 15:1177(A), he was required to seek judicial review of any adverse administrative remedy decision within 30 days of receipt of that decision. Accordingly, because the record did not reveal evidence that the plaintiff followed the statutory procedures, we affirmed the trial court’s dismissal of the plaintiffs claim, stating that the trial court correctly utilized the judicial screening provisions of CARP and PLRA to dismiss the claim.

In the instant case, as in Peterson, the plaintiffs claim is styled as a tort claim, and Wood cites Pope, supra, as a basis for his petition for damages. However, as in Peterson, Wood’s “tort” claims arise directly from “the effects of actions by governmental officials on the lives of persons confined in prison.” See La. R.S. 15:1181(2) defining “prisoner suit.” Rather than being a traditional tort action that is not related to conditions of confinement, Wood’s claim arises directly from his dissatisfaction with decisions made by prison officials with respect to conditions of his confinement, i.e., whether he would be allowed to participate in a prison work release program. Instead of being based on traditional tort principles, the merits of the suit involved the application of statutory criminal procedure (La. R.S. 15:1111), and regulations of the Louisiana Department of Public Safety and Corrections. Moreover, Wood’s grievance did not seek tort damages, but sought to have him considered for the prison work release program.

Because Wood’s action herein is not a traditional tort action, but is a claim seeking a remedy with respect to his conditions of confinement, his claim was subject not only to administrative review, but also to the provisions concerning judicial review of administrative acts. In particular, sunder the provisions of La. R.S. 15:1177(A)(l)(a), he had to seek judicial review by filing his petition in the district court within 30 days after receipt of the notice of the final decision by the agency. The record indicates he did not do so. Therefore, his petition should have been dismissed. We also observe that the district court, either pursuant to the judicial screening provisions of CARP or PLRA, can dismiss a petition that fails to state a cognizable claim. See La. R.S. 15:1178 and 15:1188.

CONCLUSION

For the reasons set forth, the district court’s judgment is affirmed at appellant’s costs.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, STEWART, GASKINS, and CARAWAY, JJ.

Rehearing denied.

      . We note that in Welch v. Thompson, 20 F.3d 636 (5th Cir.1994), the court held that the statute, directing the Department of Public Safety and Corrections to determine which prisoners are eligible to participate in work release programs, did not create a liberty interest for a prisoner who was excluded from the work release program.


source: Caselaw Access Project

author: I ¶ STEWART, J.

license: Public Domain

text:
    Veda Beth TERRY and Carol Ann Flowers, Plaintiffs-Appellants, v. RED RIVER CENTER CORPORATION d/b/a Riverview Care Center, Defendant-Appellee.
    No. 37,991-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 2003.

      Peters, Ward, Bright & Hennessy by J. Patrick Hennessy, Shreveport, for Appellants.
    Lunn, Irion, Salley, Carlisle & Gardner by Ronald E. Raney, Shreveport, for Ap-pellee.
    Before BROWN, WILLIAMS and STEWART, JJ.
   I ¶ STEWART, J.

Plaintiffs appeal the trial court’s grant of the defendant, Riverview Care Center’s (“Riverview”), exception of prematurity. For the reasons expressed herein, we reverse and remand.

FACTS

Doris Lee (“Lee”), the mother of the plaintiffs, was a resident of the Riverview Care Center (“Riverview”) in Bossier City. Lee had suffered health problems for many years and in a directive executed on August 13,1996, she stated in part:

If at any time I should have an incurable injury, disease, or illness, or be in a continual comatose state with no reasonable chance of recovery, certified to be a terminal and irreversible condition by two physicians who have personally examined me, one of whom shall be my attending physician, and the physicians have determined that my death will occur whether or not life-sustaining procedures are utilized and where the application of life-sustaining procedures would serve only to prolong artificially the dying process, I direct that such procedures be withheld or withdrawn and that I be permitted to die naturally with only the administration of medication necessary to provide me with comfort care.

She also executed a second directive on June 8, 2001, which stated in part:

Comfort care will be provided which includes relief of pain, oral fluids, positioning, mouth care, treatment of fever, oxygen administration and suctioning.
Do not use a respirator.
Do not use dialysis.
Do not use feeding tube.
Do not use CPR.

Both directives were contained in Lee’s chart at Riverview. On April 28, 2002, between 9:30 p.m. and 10:00 p.m., employees of Riverview found Lee in her room. They described her as “unresponsive” and stated that they “were unable to stimulate her.” In opposition to her directives, these employees instituted efforts to revive Lee, including calling EMT’s who began CPR, intubation, manual ventilation, chest compression, an EKG, and the insertion of a tube down Lee’s left nostril. These procedures allegedly caused Lee to swell beyond recognition until her daughter, Veda Beth Terry arrived. Afterward, life support was discontinued, and Lee died..

Lee’s children brought suit under the Nursing Home Residents Bill of Rights (“NHRBR”), La. R.S. 40:2010.8, et seq., alleging that Riverview’s failure to follow Lee’s directives caused her and her children to suffer damages. Riverview filed an exception of prematurity contending that this matter should go before a medical review panel before coming to trial because the matters are covered under the Medical Malpractice Act (“MMA”). The trial court agreed with Riverview and granted the exception, and this appeal ensued.

DISCUSSION

Exception of Prematurity

The dilatory exception of prematurity is the proper procedural mechanism for a qualified health care provider to invoke when a medical malpractice plaintiff has failed to submit the claim for decision by a medical review panel before filing suit against the provider. Spradlin v. Acadia—St. Landry Medical Foundation, 98-1977 (La.2/29/00), 758 So.2d 116. Accordingly, a claim against a private qualified health care provider is subject to dismissal on a timely filed exception of prematurity if such claim has not first been screened by a pre-suit medical review panel. Id. Nursing homes are defined as “hospitals” for the purposes of falling under the ambit of the MMA. La. R.S. 40:1299.41A(4).

Medical Malpractice

The plaintiffs assert that the trial court erred in granting Riverview’s exception of prematurity because the conduct involved is not covered under the MMA, but is governed by Louisiana- negligence and breach of contract principles. We find that the recent case of Richard v. Louisiana Extended Care Centers, 02-0978 (La.1/14/03), 835 So.2d 460, provides guidance for determining whether this case is a medical malpractice case or a simple breach of contract or negligence matter. Specifically, the Richard court stated:

“While clearly an act of malpractice can occur in the rendition of professional services, the patient must still be in the process of receiving ‘health care’ from the doctor or hospital when the negligent rendition of professional services occurs. [Citation omitted] This means that the act or omission must have occurred ‘during the patient’s medical care, treatment or confinement.’ ”

In contrast, Riverview asserts that the trial court was correct in granting its exception of prematurity and finding that the plaintiffs’ claims fall under the MMA, thus requiring the plaintiffs to bring their case before a medical review panel prior to bringing suit in the district court based on the reasoning of Richard, supra.

As a threshold matter, Riverview contends that the allegations of the plaintiffs in the pleading are enough to require that this case be governed by the MMA. Article 13 of the original petition alleges in part:

(a) Failure to provide adequate and appropriate health care and protective and supportive services; (Emphasis theirs),
(c) Failure to monitor Doris Lee adequately.

While denying the substance of these allegations, Riverview avers that the plaintiffs’ own allegations assert that it was in the process of providing “health care” to Lee when the alleged damages occurred.

However, while making no determination of whether those allegations cited by Riverview falls under the ambit of the MMA, we find that the issue before this court is whether Riverview’s conduct is actionable under the NHRBR rather than the MMA. Although Richard limits allegations that can be brought directly to the district court pursuant to the NHRBR, there still remains a cause of action separate and distinct from the MMA for the failure of nursing homes to treat its residents with dignity and personal integrity. Hebert v. Chateau Living Center, LLC, (La.App. 5 Cir. 9/30/03), 857 So.2d 1183.

The record shows that the Riverview employees found Lee to be unresponsive to stimulation. Instead of calling 911 and initiating measures that were in direct violation of the directive, they were simply supposed to respect and follow the instructions that were on her chart which directed them not to perform CPR.

In analyzing whether the conduct at issue constitutes medical treatment for the purpose of being covered by the MMA, the Richard court cited with approval the six-part test of Coleman v. Deno, 01-1517 (La.1/25/02), 813 So.2d 303, for determining whether a negligent act by a health care provider is covered under the MMA, to wit:

1) whether the particular wrong is “treatment related” or caused by a dereliction of professional skill;
2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached;
3) whether the pertinent act of omission involved the assessment of the patient’s condition;
4) Whether an incident occurred ... within the scope of activities which a hospital is licensed to perform;
5) whether injury would have occurred if the patient had not sought treatment; and
6) whether the alleged tort was intentional.

Our analysis of the facts of this case leads us to conclude that the problems Lee experienced were not “treatment related” because the problems came as a result of Riverview’s failure to abide by Lee’s wishes not to be resuscitated by CPR. The fact that they “treated” her after they negligently acted does not bring this case under the MMA. Secondly, the directive stated that Riverview was not to perform CPR, and it is clear that it is not necessary to have a medical expert to determine whether the directive was ignored. There is no evidence to support the idea that Riverview’s failure to abide by Lee’s wishes came as a result of an assessment of her condition. There is no dispute that nursing homes are covered under the MMA, but we are not deciding whether Riverview performed a medical task and fell below the standard of care. Lastly, the plaintiffs do not contend that an intentional tort occurred; therefore, the sixth factor is inapplicable to this matter.

The NHRBR was written in contemplation of issues like those before the court in the instant case. We conclude that the conduct at issue does not fall under the MMA; thereby, obviating the need to have this matter reviewed before a medical review panel.

CONCLUSION

For the reasons set forth above, the judgment of the trial court is reversed. Costs of this appeal are assessed to River-view.

REVERSED AND REMANDED.


author:
PEATROSS, J.
      h CARAWAY, J.,

text:
    Roy H. HARRISON, Jr., et al., Plaintiffs-Appellees, v. R.R. MORRISON & SON, INC., et al, Defendants-Appellees.
    No. 37,992-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 2003.

      Nelson, Zentner, Sartor & Snellings, by: Thomas G. Zentner, Jr., Meagher & Geer, PLLP, by: Laura J. Hanson, for Appellant, Federal Mutual Insurance Company.
    Hudson, Potts & Bernstein, LLP, by: Robert M. Baldwin, for Appellee, R.R. Morrison & Son, Inc.
    James Rodney Pierre, Jarvis M. Ant-wine, Bobby R. Manning, Langston Firm, L.L.C., by: Carlton L. Parhms, for Plaintiffs/Appellees.
    Guillory & McCall, by: William T. McCall, for Appellee, CIGNA Insurance Company.
    Simon, Peragine, Smith & Redfearn, by: James A. Burton, Daniel J. Caruso, Susan M. Caruso, for Appellee, OneBeacon Insurance Group.
    Perry Theriot, for State of Louisiana, Department of Environmental Quality.
    Daigle, Scofield & Rivera, by: Todd G. Crawford, for Cagle Brothers and C & J Pump Service, Inc.
    Hayes, Harkey, Smith & Cascio, by: Thomas M. Hayes, III, for Southern Tank Testers, Inc.
    Sessions, Fishman & Nathan, by: David Salley, J. Michael Monsour, for Steadfast Insurance Company.
    Lugenbuhl, Wheaton, Peck, Ranking & Hubbard, by: Ralph S. Hubbard, III, Cél-este Darmstadter Elliott, for Amicus Curiae Complex Insurance Claims Litigation Association.
    Before CARAWAY, GASKINS & PEATROSS, JJ.
   PEATROSS, J.

This appeal arises from a denial of Defendant Federated Mutual Insurance Company’s (“Federated Mutual”) motion for summary judgment and grant of Defendant R.R. Morrison & Son, Inc.’s (“R.R.Morrison”) motion for summary judgment. Federated Mutual now appeals the judgment of the trial court. For the reasons stated herein, we reverse and render.

FACTS

R.R. Morrison operates convenience stores throughout Mississippi, Louisiana and Tennessee, primarily selling gasoline. It is headquartered and has its principal place of business in Mississippi. R.R. Morrison insured its convenience stores through an insurance policy it purchased from Federated Mutual. On May 5, 1999, a leak was discovered in the underground gas storage tank at the R.R. Morrison store in Monroe, Louisiana.

On May 5, 2000, Roy Harrison, Jr. and a group of other landowners (“Plaintiffs”) filed suit against R.R. Morrison, claiming that gasoline from R.R. Morrison’s property had been leaking into the groundwater and surrounding soil of their property causing them bodily injury and loss of use and enjoyment of their property. Plaintiffs later joined Federated Mutual as a Defendant in the lawsuit against R.R. Morrison on the basis that Federated Mutual insured R.R. Morrison’s convenience store. Subsequently, R.R. Morrison filed a cross-claim against Federated Mutual, claiming that it had a duty to defend or indemnify R.R. Morrison in this action.

On November 15, 2002, Federated Mutual moved for summary judgment, claiming that it was not obligated to defend or indemnify R.R. Morrison in this case because of an absolute pollution exclusion found in subsection (f)(1)(a) of the insurance policy. The pollution exclusion clause provides that the insurance policy does not apply to:

f. (1) Bodily injury or property damage arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants:
(a) At or from any premises, site or location which is or was at any time owned or occupied by, or rented or loaned to, any insured;

The policy defines pollutants as:

Any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.

Federated Mutual asserted that the gasoline leakage is not covered by the insurance policy. Specifically, Federated Mutual argued that gasoline is a liquid contaminant that is covered under the definition of pollutants. Further, it argued that subsection (f)(1)(a) clearly excludes coverage of R.R. Morrison in this case since it, as the insured, owned and occupied the facility where the release of gasoline allegedly caused the injuries and damages to Plaintiffs.

At the hearing on the motion for summary judgment, Federated Mutual also argued that the trial court should apply Mississippi law and not Louisiana law to this case. Federated Mutual asserted that R.R. Morrison is a Mississippi corporation that has its headquarters in Mississippi and does most of its business in Mississippi and that the insurance policy was confected in Mississippi. Moreover, Federated Mutual insisted that, applying Mississippi law, the pollution exclusion would exclude its coverage in this case. Federated Mutual further contended that, even if the trial court applied Louisiana law, it was clear that the pollution exclusion would apply to exclude their coverage of the action at issue in this case.

R.R. Morrison also filed a motion for summary judgment, arguing that the pollution exclusion in the insurance policy is ambiguous as a matter of law and only excludes intentional pollution or environmental damages from coverage. In addition, R.R. Morrison contended that subsection (f)(1)(a) is ambiguous because it does not specifically refer to gas tanks on the site of its convenience store, whereas subsection (f)(1)(f) specifically refers to gas tanks, even though it is referring to off site gas tanks. R.R. Morrison argued that, since Federated Mutual did not specifically write into subsection (f)(1)(a) that gas tanks at its convenience store were excluded, then this subsection is ambiguous; and, therefore, R.R. Morrison asserted that the leak from its gas tanks is not excluded by subsection (f)(1)(a). Further, R.R. Morrison argues that it is ambiguous as to whether or not gasoline is covered under the definition of pollutants.

R.R. Morrison also argued that Louisiana law should apply based on what it alleges are the significant Louisiana contacts in the case and Louisiana’s strong interest in protecting its own citizens. In support of its argument, R.R. Morrison cited the facts that all Plaintiffs are Louisiana domiciliaries and citizens living in Louisiana at the time of the incident; the incident occurred on property situated in Louisiana and all of these parties were allegedly injured in Louisiana; Louisiana law applies to the merits of the case between Plaintiffs and R.R. Morrison; and Federated Mutual was sued directly in this case and made a party to this case by Plaintiffs under the Louisiana direct action statute allowing them to bring direct actions against R.R. Morrison’s insurers. R.R. Morrison argues that the trial court correctly found that Louisiana has the most significant interest to be protected such that Louisiana law should apply.

After the summary judgment hearing, the trial judge found that Louisiana law applied to this case. The trial judge concluded that the insurance policy was ambiguous and that the pollution exclusion did not preclude coverage of the claims made by Plaintiffs against R.R. Morrison. Granting both R.R. Morrison’s and Plaintiffs’ motion for summary judgment and ordering Federated Mutual to defend and indemnify R.R. Morrison, the trial judge held that the claims made by Plaintiffs against R.R. Morrison are covered under the general liability and commercial umbrella policies issued by Federated Mutual and are not excluded from coverage. Further, the trial judge ordered Federated Mutual to pay all sums that R.R. Morrison becomes legally obligated to pay as damages in this litigation subject to the limits of insurance and self-insured retention; to defend R.R. Morrison in and against the claims asserted by Plaintiffs and non-insurer defendants in this litigation; and to pay and reimburse to R.R. Morrison all attorney fees, costs and expenses in defense of the Plaintiffs’ and all non-insurer defendants’ claims as determined by the trial court by subsequent rule to show cause. Federated Mutual’s motion for summary judgment was denied. Federated Mutual now appeals, raising the following assignments of error (verbatim):

1. It was error for the trial judge to apply Louisiana law rather than Mississippi law to this controversy;
2. Having made the decision to apply Louisiana law, it was error for the trial court judge not to apply the factors defining the scope of the absolute pollution exclusion as set forth by the Louisiana Supreme Court in Doerr v. Mobil Oil Corp., 00-0947 (La.12/19/00), 774 So.2d 119;
3. It was error for the trial court judge to rule that Fedérated’s absolute pollution exclusion is ambiguous;
4. It was error for the trial court judge to rule that Federated has a duty to defend Morrison in the Harrison Action; and,
5. It was error for the trial court judge to rule that Federated has a duty to indemnify Morrison for any damages awarded in the Harrison Action when the nature and existence of those damages have not yet been determined and cannot yet be determined.

DISCUSSION

Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action and the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. NAB Natural Resources, L.L.C. v. Willamette Industries, Inc., 28,555 (La.App.2d Cir.8/21/96), 679 So.2d 477. Interpretation of an insurance contract is usually a legal question that can be properly resolved in the framework of a motion for summary judgment. Robinson v. Heard, 01-1697 (La.2/26/02), 809 So.2d 943.

Choice-of-Law

First, La. 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.

Since we do not find any specific statutory choice-of-law rules applicable in this case, we must examine the choice-of-law rules set forth in the Code. Under La. C.C. art. 3515, the general Louisiana conflicts of law provides:

Except as otherwise provided in this Book, an issue in a case having contacts with other states is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.
That state is determined by evaluating the strength and pertinence of the relevant policies of all involved states in the light of: (1) the relationship of each state to the parties and the dispute; and (2) the policies and needs of the interstate and international systems, including the policies of upholding the justified expectations of parties and of minimizing the adverse consequences that might follow from subjecting a party to the law of more than one state.

In specific concern to the Louisiana conflicts of law regarding conventional obligations, such as insurance contracts, La. C.C. art. 3537 provides:

Except as otherwise provided in this Book, an issue in a case having contacts with other states is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.
That state is determined by evaluating the strength and pertinence of the relevant policies of the involved states in the light of: (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 Article 3515, as well as the policies of facilitating the orderly planning of transactions, of promoting multi-state commercial intercourse, and of protecting one party from undue imposition by the other.

In determining whether Mississippi or Louisiana policies would be most seriously impaired if its law were not applied, we will look to the strength and pertinence of these factors set forth in the codal articles.

Federated Mutual argues that our court should apply Mississippi law and not Louisiana law in this case. We agree with Federated Mutual’s argument and find that the law of the State of Mississippi would be most seriously impaired if its law was not applied in this case. The relationship of the State of Mississippi to each party is stronger than the relationship of the State of Louisiana to each party. The purpose of the insurance policy was to insure the assets and activities of a Mississippi corporation. R.R. Morrison is a Mississippi corporation that has its headquarters in Mississippi, its primary place of business is in Mississippi and an important fact to our court is that the insurance policy was negotiated and executed in Mississippi.

Further, the policies and needs of the interstate system, including the policies of upholding the justified expectations of the parties and of minimizing the adverse consequences that might follow from subjecting a party to the law of more than one state, weigh in favor of applying the law of the State of Mississippi. The insurance policy insures R.R. Morrison’s operations in a number of states, but both parties should have expected Mississippi law to apply, considering their strong contacts to that state. If we were to subject Federated Mutual to the laws of Louisiana, then adverse consequences could occur. The application of Louisiana law to the policy could result in the negation of a contract that Federated Mutual confected under the laws of another state.

In addition, 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 business of the parties, all favor applying the law of the State of Mississippi. As previously stated, the insurance policy was negotiated and formed in Mississippi. R.R. Morrison’s primary place of business and headquarters is in the State of Mississippi. The performance of the contract included whatever states in which R.R. Morrison operated, but the State of Louisiana has no connection to the insurance policy other than the fact that it is one location among many that is considered the object of the contract.

Also, the nature, type and purpose of the insurance policy are in favor of applying the law of the State of Mississippi. Louisiana courts have often interpreted insurance policies according to the law of the state where the policy was issued. See Dreisel v. Metropolitan Property and Cas. Ins. Co., 01-2705 (La.App. 1st Cir.12/20/02), 836 So.2d 347, writ denied, 03-0199 (La.3/28/03), 840 So.2d 575; Montgomery v. Farmers Texas County Insurance Co., 34,628 (La.App.2d Cir.5/9/01), 786 So.2d 306; Zuviceh v. Nationwide Ins. Co., 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; Anderson v. Oliver, 97-1102 (La.App. 3d Cir.1/7/98), 705 So.2d 301, writ denied, 98-0755 (La.5/8/98), 718 So.2d 434; Shell Oil Company v. Hollywood Marine, Inc., 97-106 (La.App. 5th Cir.10/15/97), 701 So.2d 1038. Mississippi has a legitimate interest in regulating insurance policies executed in Mississippi, especially when an insurance policy is issued to a Mississippi business insuring all its activities. The purpose of the insurance policy in this case was to insure all the activities of R.R. Morrison, a Mississippi business. The integrity of an insurance policy is a substantial and real interest. Zuviceh, supra. The fact that Congress has allowed fifty states to have their own uniform system of regulations governing insurance strongly suggests that this is a legitimate public purpose. Id.

Moreover, the policy of facilitating the protection of one party from undue imposition by the other weighs in favor of applying the law of the State of Mississippi in the instant ease. It would be an undue imposition on Federated Mutual by R.R. Morrison if the law of the State of Louisiana was applied. Federated Mutual negotiated and executed the insurance policies in the State of Mississippi, fully expecting that state’s law to apply to the insurance policy, no matter where R.R. Morrison operated its business. We will not impose on Federated Mutual a finding that its insurance policy will be subject to interpretation under the law of the State of Louisiana, which is only one of among many states where R.R. Morrison operates and whose connections to the insurance policy are minimal in comparison to the State of Mississippi’s connections to the policy.

Finally, we are not persuaded by R.R. Morrison’s use of In re Combustion, Inc., 960 F.Supp. 1056 (W.D.La.1997), in support of its argument that Louisiana law should apply in this case. That case involved the issue of what law must apply in a direct action suit by a class of Louisiana plaintiffs, allegedly injured in Louisiana by the acts of Louisiana domiciliaries or long-time residents. R.R. Morrison is incorporated and has its principal place of business in Mississippi. It is neither a Louisiana domiciliary nor a long-time resident. Moreover, the court in In re Combustion found that Louisiana was the only state having a genuine interest in the disputes over the insurance policies and we make no such finding here. We hold that the law of the State of Mississippi would be most seriously impaired if it were not applied; and, therefore, Mississippi law will be applied to this case. Since we find that Mississippi law will apply, we preter-mit discussion of Federated Mutual’s second assignment of error.

Application of Mississippi Law

Federated Mutual argues that, under Mississippi law, it had no duty to defend R.R. Morrison. It asserts that the pollution exclusion clause is not ambiguous and that gasoline is clearly a pollutant as same as defined in the policy. We agree.

Under Mississippi law, the interpretation of insurance policy language is a question of law. Johnson v. Preferred Risk-Auto. Ins. Co., 659 So.2d 866 (Miss.1995). The relationship between an insurance company and its insured is contractual in nature, with the rights and duties set out by the provisions of the insurance policy. State Farm Mutual Auto. Ins. Co. v. Universal Underwriters Ins. Co., 797 So.2d 981 (Miss.2001). Like all other contracts, insurance policies which are clear and unambiguous are to be enforced according to their terms as written. Hare v. State, 788 So.2d 277 (Miss.1999). The plain terms of the insurance contract should be binding and controlling. Id. Terms used in insurance policies are given their ordinary and popular definition. Blackledge v. Omega Ins. Co., 740 So.2d 295 (Miss.1999). The bounds of the English language will not be strained by imparting meaning to common words beyond ordinary use. Allstate Ins. Co. v. Moulton, 464 So.2d 507 (Miss.1985). More recently, the Mississippi Supreme Court has held that:

When insurance policy language is clear and unambiguous, this Court will not adopt a strained interpretation in order to create |-nonexistent coverage that the insurer otherwise has not assumed. Where the terms of an insurance policy-are clear, plain and explicit, the Court should not give a forced construction of the policy. Titan Indemnity Co. v. Estes, 825 So.2d 651 (Miss.2002).

In the case sub judice, we find that, applying Mississippi law, subsection (f)(1)(a) of the insurance policy excludes coverage of the alleged gas leakage in this case. The pollution exclusion clause as set forth in subsection (f)(1)(a) dictates that insurance coverage did not apply to bodily injury or property damage arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants at or from any premises, site or location which is or was at any time owned or occupied by, or rented or loaned to R.R. Morrison. Pollutants are defined in the insurance policy as any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. We note that three federal cases, applying Mississippi law, have found that this same policy language is not ambiguous and clearly excluded coverage in the case of diesel fuel and paint and glue fumes as pollutants. See Breese v. Hadson Petroleum (USA), Inc., 955 F.Supp. 648 (M.D.La.1996); American States Ins. Co. v. Nethery, 79 F.3d 473 (5th Cir.1996); American States Ins. Co. v. F.H.S., Inc., 843 F.Supp. 187 (S.D.Miss.1994).

In the instant case, it has been alleged by Plaintiffs that gasoline from R.R. Morrison’s property escaped from the underground storage tank, causing them property damage and bodily injury. We find that the pollution exclusion clause in subsection (f)(1)(a) excludes insurance coverage of any pollutant that escapes from R.R. Morrison’s property and causes injury to another. Pollutants are defined in the insurance policy as any liquid contaminant. We further find that gasoline is a liquid contaminant within the plain meaning of pollutant in the insurance policy. Since we find that the language in the insurance policy is not ambiguous and is not open to more than one interpretation, the plain meaning of the policy should control. Federated Mutual’s insurance policy excludes coverage of the claims against R.R. Morrison; and, thus, Federated Mutual’s motion for summary judgment must be granted. We reverse the trial court’s judgment denying summary judgment to Federated Mutual and its judgment granting summary judgment to R.R. Morrison. In light of our conclusion, we pretermit discussion of Federated Mutual’s fourth and fifth assignments of error.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting R.R. Morrison & Son, Inc.’s motion for summary judgment and denying Federated Mutual Insurance Company’s motion for summary judgment is reversed. Federated Mutual’s motion for summary judgment is granted. Costs of this appeal are assessed to Defendant, R.R. Morrison & Son, Inc.

REVERSED AND RENDERED.

CARAWAY, J., concurs with written reasons.

h CARAWAY, J.,

concurring.

I respectfully concur in the majority opinion. While subsection (f)(1)(a) can exclude coverage in this case, I would find that the more specific provision, subsection (f)(1)(f), quoted in footnote 2 of the majority’s opinion, applies and expressly governs this case. Therefore, the issues of Doerr v. Mobil Oil Corp., 00-0947 (La.12/19/00), 774 So.2d 119 concerning the application of a general pollution exclusion provision, which are apparently treated differently under Mississippi law, are avoided.

Under both states’ laws, contractual interpretation of an insurance policy involves essentially the reading of the policy language. Subsection (f)(l)(f)’s language unambiguously applies to the leak in this case. Under that subsection, the phrase “which are ... owned, leased, installed, removed, tested, repaired or filled by ... insured, tvherever located ” modifies “tanks” or “piping.” The exclusion clearly applies to those tanks, and if those tanks cannot be on premises owned, leased or serviced by Morrison because subpara-graphs (a)(b) and (d) also speak to those premises, then subsection “f’ is virtually meaningless under the interpretation asserted by R.R. Morrison. Its argument that subsection “f” only covers jobber site tanks fails to see that subsections (b) and (d) can be construed to apply to those same jobber sites operated by others and serviced by Morrison. Yes, there is some overlap in subsection (f)(l)(a)-(f), yet this does not mean that there is an ambiguity. Since subsection (f)(1)(f) can apply, this is clearly not a Doerr situation because we are dealing with a very specific exclusion for gasoline tank leakage.

      . Plaintiffs filed a separate motion for summary judgment against Federated Mutual, adopting R.R. Morrison's grounds and reasons for summary judgment.

      . The pollution exclusion clause (f)(1)(f) provides that insurance coverage is excluded for:
      f. (1) Bodily injury or property damage arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants:
      (f) At or from any tank, piping, pumps or dispensers at premises, sites or locations in addition to those described in subpara-graphs (a), (b), (d) or (e), which are or were at any time owned, leased, installed, removed, tested, repaired or filled by or on behalf of any insured, wherever located (except at residences primarily used for dwelling purposes) which contain, transport or dispense or are designed to contain, transport or dispense:
      (i) motor fuels;
      Motor fuels are defined in the policy as:
      Petroleum or a petroleum-based substance that is typically used in the operation of a motor or engine, including but not limited to gasoline, aviation fuel, number one or number two diesel fuel, or any grade of gasohol.

      . La. C.C. art. 3518 provides:
      For the purposes of this Book, the domicile of a person is determined in accordance with the law of this state. A juridical person may be treated as a domiciliary of either the state of its formation or the state of its principal place of business, whichever is most pertinent to the particular issue.
      A corporation is defined as a juridical person. See La. C.C. art. 24.

      . "Gasoline" is defined as "a volatile, inflammable, liquid mixture produced by the distillation of petroleum, used as a fuel, solvent, etc.” NEW WEBSTER'S DICTIONARY 165 (1992). (Emphasis added.) "Contaminant” is defined as "something that contaminates.” "Contaminate” is defined as "to soil, stain, corrupt, or infect by contact or association; to render unfit for use by the introduction of unwholesome or undesirable elements.” WEBSTER’S THIRD INTERNATIONAL DICTIONARY 491 (1993).

      . Even if a Doerr analysis for subsection (f)(1)(a) was necessary, that subsection still applies to exclude coverage. A sophisticated gasoline distributor and convenience store owner, like R.R. Morrison, understood by 1995 that its greatest threat for being a polluter was from underground storage tanks. By the time these tanks were installed, the EPA and DEQ had their regulatory thumbs firmly pressed on all owners of USTs. Next, the policy expressly recognizes motor fuel spills as pollutants whether subsection (f)(1)(f) applies or not. R.R. Morrison did not spill Drano on the floor of its convenience store, and it cannot be compared to the Parish of St. Bernard in Doerr. R.R. Morrison understood itself to be a potential polluter because of the very risk which materialized in this case.


author: BROWN, C.J.

text:
    STATE of Louisiana in the Interest of D.R.P. a/k/a D.S.L., Plaintiffs-Appellants.
    No. 38,200-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 2003.

      Richard Ducote & Associates, by Richard L. Ducote, Jeannine A. Provencher, New Orleans, for Plaintiffs/Appellants.
    Hamilton & Hamilton, by John Clay Hamilton, Oak Grove, for Defendant/Ap-pellee.
    Kimberly Lamp, In Proper Person, for Defendant/Appellee.
    Joy Raehelle Jackson, for D.R.P.
    Before BROWN, PEATROSS, and DREW, JJ.
   BROWN, C.J.

Maternal grandparents have appealed from the trial court’s dismissal of their latest attempt to obtain custody of their eight-year-old grandson. Their petition was described by the trial court as “... a rather unique perhaps ingenious combination of ... a ‘Child in Need of Care’ proceeding with ... allegations that Louisiana has jurisdiction under the Uniform Child Custody Jurisdiction Act because of ... an emergency.” Finding no error, we affirm.

Brief Factual Background

The grandparents, Richard and Marian Pearson, had been granted visitation for the month of July 2003 with the child after losing custody of the boy to his father, Scott Lamp, in an action in the Fifth Judicial District Court, West Carroll Parish, Louisiana. See Lamp v. Lamp, 36,919 (La.App.2d Cir.12/11/02), 833 So.2d 1224. On August 1, 2003, at the end of their summer visitation, the Pearsons filed a petition for adjudication of a child in need of care and a motion for an emergency protective order in the Sixth Judicial District Court, East Carroll Parish, Louisiana. On August 6, 2003, a hearing was held; the only issue addressed by the trial court was jurisdiction. The court found that: Arkansas was the home state of the child; any investigation into allegations of abuse occurring in Arkansas should be conducted in that state; and, any request for a modification of custody should be heard in either the child’s home state, Arkansas, or the Fifth Judicial District Court. The trial court dismissed the Pearsons’ petition and denied their request for alternative relief.

Discussion

Louisiana adopted its version of the Uniform Child Custody Jurisdiction Act (“UCCJA”), La. R.S. 13:1700 et seq., in 1978. The primary purposes of the UC-CJA are to avoid jurisdictional competition among the states, and to promote resolution of custody disputes by the forum most likely to have the greatest amount of relevant information about the case. Bradford v. Bradford, 33,985 (La.App.2d Cir.11/01/00), 772 So.2d 302; Lopez v. Lopez, 27,330 (La.App.2d Cir.09/27/95), 661 So.2d 665.

In order for Louisiana to have jurisdiction over proceedings involving a minor child, one of the jurisdictional requirements of the UCCJA must be met at the time the petition is filed. Broadway v. Broadway, 623 So.2d 185 (La.App. 2d Cir. 1993). In preferential order, the bases for jurisdiction under the UCCJA are: (1) home state; (2) significant connection, plus evidence regarding the best interest of the child; (3) emergency; and (4) default jurisdiction (no other state has jurisdiction or has declined it). La. R.S. 13:1702(A)(1)-(4); Renno v. Evans, 580 So.2d 945 (La.App. 2d Cir.1991).

The home state is automatically given jurisdiction because theoretically, “the court of the home state is in the best position for evidence gathering and for exercising continuity of control so that when the home state has jurisdiction, courts of other states should generally defer to and cooperate with that jurisdiction.” Revere v. Revere, 389 So.2d 1277, 1279 (La.1980). In the instant case, it is uncontroverted that Arkansas is the child’s home state.

An exception to the preferential consideration given to the child’s home state is continuing jurisdiction, which is retained by the state that rendered the original custody order, as long as it has not relinquished jurisdiction and jurisdiction requirements of the UCCJA are met at the time modification is sought. Holdsworth v. Holdsworth, 621 So.2d 71 (La.App. 2d Cir.1993); Gay v. Morrison, 511 So.2d 1173 (La.App. 4th Cir.1987), writ denied, 515 So.2d 1108 (La.1987). (Emphasis added). We note that as of September 17, 2003, the Fifth Judicial District Court, West Carroll Parish, Louisiana, after a conference with the judge of the Circuit Court of Benton County, Arkansas, relinquished jurisdiction as to “any future matters involving this case.” Therefore, continuing jurisdiction does not apply.

Second in preferential rank is “significant connection” jurisdiction. Renno, supra. This criterion provides a basis for jurisdiction if it is in the child’s best interest to determine custody in Louisiana, the child and at least one parent have significant connection to Louisiana, and the maximum amount of evidence concerning the child is available in Louisiana. Johnson v. Johnson, 31,038 (La.App.2d Cir.09/23/98), 718 So.2d 629; Broadway, supra.

Under the circumstances of the instant case, we do not find that it is in the best interest of the child for this state to exert jurisdiction on a “significant connection” basis. Before the boy’s father, Scott Lamp, obtained custody, the child’s presence in Louisiana with his grandparents was not with the consent of the child’s father, who hired investigators and searched for his ex-wife and son over a four-year period. In Lamp, supra, this court recognized that the Pearsons bore a “significant amount of responsibility” for the situation, having “gone to considerable lengths to eradicate all vestiges of [the father] and his family” from the child’s life, including a petition to change the child’s name from Lamp to Pearson alleging that the whereabouts of the father was unknown. Id. at 1232. Upon locating his son, rather than seizing the child and hiding with him (as had been done by the mother and grandparents), Scott Lamp immediately filed for custody, first in Arkansas and then in the Fifth Judicial District Court in Louisiana. A protracted custody dispute ensued, with Scott being given custody of his son, with whom he had not had any meaningful contact since the child was 18 months old. The child’s connection to Louisiana under these circumstances cannot be classified as “significant” such that jurisdiction would be appropriate and, as noted by the trial court, the only current connection with Louisiana was the child’s summer visitation with his grandparents.

Thus, the only possible basis for jurisdiction in this matter would be emergency. As noted by the court in Dillon v. Medellin, 409 So.2d 570 (La.1982), emergency jurisdiction is reserved for extraordinary circumstances and exists only if required by the immediate needs of the child due to abandonment, mistreatment, abuse or neglect. See also Renno, supra; Sullivan v. Mitchell, 99-946 (La.App. 5th Cir.01/25/00), 750 So.2d 1173; State in the Interest of Fischer, 95-2007 (La.App. 4th Cir.12/28/95), 666 So.2d 724. Under this provision, jurisdiction can be conferred when the child is present in this state and there exists an emergency requiring the child’s immediate protection. Kelly v. Gervais, 567 So.2d 593 (La.1990); Renno, supra. (Emphasis added).

More than conclusory allegations are required. Douglas v. Douglas, 528 So.2d 699 (La.App. 2d Cir.1988). Any alleged emergency must be serious, significant, immediate and based upon credible evidence. Dillon, supra. Furthermore, emergency jurisdiction is temporary; it must be asserted at the time there is a danger to the child and applies only if the child has urgent, immediate and serious needs requiring assertion of jurisdiction. Dillon, supra; Renno, supra. (Emphasis added).

The trial court did not err in finding no basis for the exercise of emergency jurisdiction in this matter. In the custody case in the Fifth J.D.C. permanent custody was awarded to the father effective January 1, 2003. In March 2003, the Pearsons filed abuse allegations with Arkansas authorities. Thereafter, the Pearsons waited until the “last possible moment”, the last day of their month-long summer visitation, to file their child in need of care petition with the Sixth J.D.C. As noted by the trial court, their petition alleged abuse that occurred in Arkansas; however, the allegations were not particular as to dates. Considering the history of this custody matter, the trial court raised questions of forum shopping. As the trial court stated, “If there is abuse occurring in Arkansas it seems to this Court that Arkansas would be the most appropriate place ... to investigate and protect the child if necessary.” We agree.

Conclusion

For the reasons set forth above, the judgment of the trial court is affirmed. Costs are assessed to petitioners-appellants.


author: DREW, J. BROWN, C.J.,

text:
    STATE of Louisiana, Appellee, v. Ray MASON, Appellant.
    No. 37,486-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 2003.

      Louisiana Appellate Project, by Paula Corley Marx, Lafayette, for Appellant.
    John Schuyler Marvin, District Attorney, Robert Lane Pittard, Carl Leroy Ek-endahl, Assistant District Attorney, for Appellee.
    Before BROWN, PEATROSS and DREW, JJ.
   DREW, J.

Ray Mason was convicted of armed robbery with a firearm, La. R.S. 14:64 and 64.3, adjudicated a second felony offender upon stipulation thereto, and sentenced to the minimum 49^ years at hard labor, without benefit of probation, parole, or suspension of sentence. Mason did not appeal the conviction, which is affirmed. The trial court’s adjudication of Mason as an habitual offender and the enhanced sentence based thereon are vacated. The matter is remanded for further proceedings, including the trial court advising the defendant of his rights relative to an habitual offender proceeding, a plea, and resen-tencing (whether or not adjudicated).

FACTS

On October 17, 2000, Mason and Daryl-on D. Green ordered pizzas by telephone, to be delivered to a vacant house on Joannes Street in Bossier City. When the pizzas were delivered, Mason put a gun to the deliveryman’s head and robbed him of approximately $48.00. The two then stole the victim’s van.

This less-than-perfect crime was solved by Caller I.D. The telephone call was traced to the apartment of Mason’s cousin, who identified Mason and Green as the ones who ordered the pizza. The victim picked out Mason’s photograph in a photographic lineup. Mason’s fingerprints were found inside the victim’s van. Mason surrendered to the police, and after being advised of his Miranda rights and signing a rights waiver form, he gave a statement admitting to being involved in the robbery.

A jury convicted Mason of armed robbery. Thereafter, the state filed an habitual offender bill of information, alleging that Mason was a second felony offender. Mason was arraigned on the habitual offender bill on July 1, 2002, the somewhat cryptic minutes reflecting:

Defendant Mason present in open Court, with counsel Ross Shacklette, waived arraignment and entered a plea of not guilty to Multiple Offender, trial is set for August 19, 2002, remand is passed to August 19, 2002. (Stinson)

The adjudication hearing actually began on December 2, 2002, at which time Mason, through counsel, stipulated that he was a second felony offender. The trial court sentenced Mason to the minimum sentence of 49/é years at hard labor, without benefit of probation, parole, or suspension of sentence.

At no time did the trial court advise Mason of any rights related to an adjudication hearing, i.e., including:

• right to remain silent;
• right to a formal hearing; and
• right to require the state to prove his identity.

The defendant did reply affirmatively when the trial court asked the defendant if the stipulation was his wish. Next, the trial court advised the defendant that if he entered a guilty plea, he would bracket his sentencing exposure for armed robbery from a minimum of 49/é years to a maximum of 198 years, all without benefit of probation, parole, or suspension of sentence. The defendant responded in the negative when asked if anyone had made any promises or any threats to induce him to admit to being a second felony offender. The trial court adjudicated the defendant to be a second felony offender, and imposed the minimum statutory sentence.

On appeal, the defendant argues his habitual offender adjudication was invalid because the trial court failed to advise him of his right to remain silent, and other rights in connection with the hearing and plea to the multiple offender bill. The state argues the trial court adequately advised the applicant of his rights prior to his plea, and that any failure to advise the applicant of his right to remain silent was harmless error.

DISCUSSION

Mason’s sole complaint is that the trial court erred in accepting his admission to being a second felony offender without properly advising him of rights, including his right to a hearing, and his right to remain silent during that hearing. The state argues that the proceedings were fundamentally fair, and the alleged error was harmless error.

In an habitual offender proceeding, the state is required to prove only a prior felony conviction and that the defendant is the person convicted of the earlier offense. State v. Johnson, 31,448 (La.App.2d Cir.3/31/99), 747 So.2d 61, writ denied, 99-1689 (La.11/12/99), 749 So.2d 653, U.S. cert. denied.

Before accepting a defendant’s admission that he is a multiple offender, the trial judge must specifically advise the defendant of his right to a formal hearing, his right to require the state to prove his identity as a multiple offender, and his right to remain silent. La. R.S. 15:529.1(D).
A trial court’s failure to properly advise a defendant of his rights under the Habitual Offender Law constitutes patent error on the face of the record and requires that the habitual offender’s adjudication and sentence be vacated.

State v. Odom, 34,054 (La.App.2d Cir.11/1/00), 772 So.2d 281, 288 (Citations omitted.)

This court has held that the trial court committed harmless error by failing to read the habitual offender bill of information in court and failing to inform the defendant of his right to remain silent at habitual offender hearings, where the defendant exercised his right to remain silent, had a full evidentiary hearing, and was well aware of the convictions being used against him. State v. Odom, supra.

La. R.S. 15:529.1(D)(l)(a) requires that the Defendant be advised of the specific allegations contained in the habitual offender bill of information and his right to a formal hearing at which the State must prove its case. Implicit in this requirement is the additional requirement that the Defendant be advised of his constitutional right to remain silent. Generally, the failure of the trial court to advise the Defendant of his right to a hearing and his right to remain silent is not considered reversible error where the Defendant’s habitual offender status is established by competent evidence offered by the State at a hearing rather than by admission of the Defendant. However, when the guilt of the Defendant is proven by his own stipulation or admission to the habitual offender bill of information without having been informed of his right to a hearing or his right to remain silent, by either the trial court or his attorney, there is reversible error.

State v. Bell, 03-217(La.App. 5th Cir.5/28/03), 848 So.2d 87, 90.

The transcripts of the arraignment and the habitual offender hearing reflect that the trial court did not advise Mason of any rights relative to an habitual offender proceeding. We affirm the conviction of armed robbery. However, we are constrained to follow State v. Bell, supra, and we must:

• vacate the trial court’s finding that the defendant is a second felony offender,
• vacate the enhanced sentence, and
• remand the case for a new habitual offender plea, further proceedings, and resentencing (whether the defendant is adjudicated or not).

DECREE

The conviction is AFFIRMED. The adjudication and enhanced sentence as an habitual offender are VACATED. The case is REMANDED for a new habitual offender proceeding and resentencing.

BROWN, C.J., dissents with written reasons.

BROWN, C.J.,

dissenting.

This defendant was represented at all times by court appointed counsel. He pled not guilty, went to trial, and was convicted by a jury. At that trial, defendant remained silent. He did not testify or present any defense, other than arguing the state’s failure to prove guilt beyond a reasonable doubt. On July 1, 2002, he was arraigned on a multiple offender bill of information. At that arraignment defendant’s attorney stated that, “We would enter a — enter a denial and request a— request a hearing on that (multiple offender bill) matter.” After defendant voiced agreement with his attorney’s statement, the trial court stated, ‘We’ll have the multiple offender trial then set for August the 19th and show the sentencing passed to that same date.”

On December 2, 2002, the multiple offender trial was called. Defendant’s attorney stated that defendant “informed me that he — that he desires to stipulate the existence of a prior conviction in Caddo Parish.” The trial court specifically asked defendant if that was his desire and then informed him of the consequences of such an admission, in particular, that, “you would be facing a minimum of 49]é years without benefit of probation of parole or suspension of sentence ...” Defendant further stated, in response to questions by the court, that his guilty plea was freely given, was not coerced, and was not the result of any promises.

Obviously, defendant knew he had a right to a hearing — he was there for a hearing that he specifically requested. From his initial appearance, as well as his jury trial, defendant understood his right to remain silent and the prosecutor’s obligation to prove his guilt. In the jury selection process this was repeated numerous times.

If the trial court’s failure to -recite the required mantra was error, such error, in this case where defendant suffered no prejudice, was harmless .and should not dictate a reversal. State v. Bush, 31,710 (La.App.2d Cir.02/24/99), 733 So.2d 49, writ denied, 99-1010 (La.09/03/99), 747 So.2d 536.

I respectfully dissent.


author: |, LOLLEY, J.

text:
    Ricky Dale MARTIN, Plaintiff-Appellant, v. Cynthia Anderson MARTIN (Harrison), Defendant-Appellee.
    No. 37,958-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 2003.
    Rehearing Denied Jan. 22, 2004.

      Gary A. Bowers, for Appellant.
    Cynthia Anderson Martin (Harrison), In Proper Person.
    Before DREW, MOORE and LOLLEY, JJ.
   |, LOLLEY, J.

Cynthia Anderson Martin (Harrison) (“Harrison”) appeals a judgment of the First Judicial District, Caddo Parish, Louisiana, in favor of her previous husband, Ricky Dale Martin (“Martin”). For the following reasons, we affirm.

Facts

The underlying facts of this case have previously been recited in Martin v. Harrison, 37,891(La.App.2d Cir.09/26/03), 855 So.2d 950 (“Martin I”) and will not be repeated herein, except to note that during Martin’s and Harrison’s marriage, they had two children, a son and daughter.

During the course of the proceedings in the Caddo Parish Juvenile Court (“juvenile court”) which were the subject of Martin I, Martin filed a petition to accrue past due child support. The juvenile court dismissed Martin’s petition, without prejudice, and relinquished jurisdiction to the First Judicial District Court for Caddo Parish (“district court”) to address the child support arrearage. Martin then filed a petition in district court seeking to accrue past due child support he claimed to be in excess of $4,000 as well as one-half of various medical expenses incurred on behalf of the children. Previously, the district court, in its Judgment on Rules dated March 23, 2001, had ordered Harrison pay Martin $475.42 per month in child support as well as “any all [sic] costs for medical, dental, orthodontic, and prescriptive drug expenses that are not covered by insurance to be borne equally between the parties.”

The district court rendered judgment in favor of Martin, ordering Harrison pay accrued past due child support in the amount of $4,067.89 and one-half of unpaid medical expenses incurred on behalf of the children in the amount of $882.91, assessing attorney’s fees against Harrison in the amount of $500, and finding her to be in contempt of court, for which she received a suspended 45-day jail sentence, except for 24 hours. Additionally, her driver’s li-cence was suspended. This appeal by Harrison ensued.

Discussion

Harrison appears in this appeal in proper person. She has not listed any assignments of error, nor does she clearly articulate any issues to be in error. However, Harrison appears to argue four issues: (1) the district court did not have jurisdiction over the child support issue in light of the pending juvenile court proceedings; (2) the district court erred in finding her in contempt; (3) the district court erred in ordering her to pay certain medical bills; and (4) the district court erred in suspending her driver’s license.

Jurisdiction of the district court

Harrison argues that the district court did not have subject matter jurisdiction over this matter in light of the pending juvenile court proceedings. Primarily, this argument by Harrison is made moot by our holding in Martin I. For the reasons stated therein, the actions of the juvenile court were declared null and set aside. The entire juvenile court proceeding was dismissed, the orders vacated, and the case remanded to the district court for further proceedings. Thus, there is no juvenile court proceeding which would have subject matter jurisdiction over this issue between Martin and Harrison.

Moreover, contrary to Harrison’s assertions, the district court had subject matter jurisdiction over this issue. Martin’s claim for accrued arrearages of child support stemmed from the district court’s Judgment on Rules dated March 23, 2001; thus, the district court would obviously retain its exclusive jurisdiction over a matter pertaining to its own judgment. Incidentally, Harrison availed herself to the jurisdiction of the district court by filing her own claims after Martin’s filings were made.

Contempt

Harrison also argues that she was not in contempt of court in failing to pay her child support, because her medical condition caused her to be unemployed; thus, she did not willfully fail to pay the court ordered child support.

Clearly, Louisiana law specifically provides that disobedience of a court order for the payment of child support is an express ground for which a court can hold a delinquent party in contempt of court. Fink v. Bryant, 2001-0987 (La.11/28/01), 801 So.2d 346, citing La. R.S. 13:4611, which specifically states, in pertinent part, as follows:

(1) The supreme court, the courts of appeal, the district courts, family courts, juvenile courts, and the city courts may punish a person adjudged guilty of a contempt of court therein, as follows:
(d) For any other contempt of court, including disobeying an order for the payment of child support or spousal support or an order for the right of custody or visitation, by a fine of not more than five hundred dollars, or imprisonment for not more than three months, or both.

A proceeding for contempt in refusing to obey the trial court’s orders is not designed for the benefit of the litigant, though infliction of a punishment may inure to the benefit of the mover in the rule. The object of the proceeding is to vindicate the dignity of the court. Mizell v. Mizell, 37,004 (La.App.2d Cir.03/07/03), 839 So.2d 1222.

The trial court is vested with great discretion in determining whether a party be held in contempt for disobeying the court’s order, and its decision will only be reversed when the appellate court can discern an abuse of that discretion. Mizell, supra, citations omitted.

In support of her argument that her medical condition made her unable to secure employment, Harrison offered into evidence a Medical Expenses Report from her pharmacy regarding the multitude of medications she takes, allegedly for her medical conditions. Harrison also filed with the district court a letter from a physician delineating her various medical conditions. Finally, she testified that her health problems prevented her from securing employment.

However, the evidence at trial refutes Harrison’s claims that she was not willful in failing to make her child support payments, leading to the district court’s reasonable conclusion that she was in contempt. First, Harrison testified that part of the reason she stopped making child support payments to Martin is that she was not allowed unsupervised visitation with her child. Further, she explained that prior to the juvenile court’s order for supervised visitation, her husband had loaned her money to meet her child support obligation. Once the juvenile court ordered supervised visitation only, Harrison’s husband stopped loaning her the funds to make her child support payments. Second, although Harrison claimed to be looking for employment and claimed to have proof of such a job-search, she was unable to provide the court any evidence of her efforts. Finally, she admitted to traveling extensively with her husband, easily leading to a reasonable conclusion that ob~ taining employment and keeping same might not have been a paramount concern to Harrison. So considering, it was not an abuse of the trial court’s discretion to find Harrison in contempt of court for failing to make her child support payments as previously ordered.

Medical payments

Harrison also argues that the trial court erred in ordering her to pay one-half of the children’s medical bills (amounting to $882.91) that were not covered by health insurance. Harrison maintains that Martin failed to provide proof that the medical expenses for which he sought reimbursement had indeed been submitted to his health insurance and actually denied.

At the trial, Martin testified that he was seeking reimbursement for eight different medical expenses, one-half of which totaled $882.91. Martin stated that the medical expenses represented the balance of bills which either exceeded his health insurance coverage or were not covered by his health insurance. Although Harrison argues that Martin offered no proof that the medical expenses had not been covered by insurance, clearly the trial court, assessing the credibility of both parties, believed the testimony of Martin and ordered Harrison to pay one-half of the claimed medical expenses. Such a determination lies within the discretion of the trial court. See Holdsworth v. Holdsworth, 621 So.2d 71 (La.App. 2d Cir.1993). This holding was not in error.

Suspension of driver’s license

Finally, Harrison argues that the district court erred in suspending her driver’s license and did so only due to the continuous argument of Martin’s counsel. The record does reflect that initially the district court had denied the request to suspend Harrison’s driver’s license. However, after argument by Martin’s counsel regarding the issue, the district court reneged on its initial determination and suspended Harrison’s driver’s license. Such a finding was not in error.

La. R.S. 9:315.32 states, in pertinent part, as follows:

A. (l)(a) In or ancillary to any action to make past-due child support executory, for contempt of court for failure to comply with an order of support, or a criminal neglect of family proceeding, the court on its own motion or upon motion of an obligee or the department shall, unless the court determines good cause exists, issue an order of suspension of a license or licenses of any obligor who is not in compliance with an order of child support.... (Emphasis added).

Notably, the statute mandates that the suspension “shall” be ordered unless good cause exists for not making the suspension. After hearing argument advanced on the issue of the suspension of Harrison’s driver’s license, the district court concluded that suspension of Harrison’s license was warranted. The district court noted the Louisiana legislative intent to penalize those parties who are in noncompliance with child support orders by suspending licenses. Furthermore, the district court acknowledged that such a suspension serves as an impetus to those not in compliance to become current in their support. Other than Harrison’s objection that she would not be able to get to court, to her doctor, and to the pharmacy to purchase her medication, there was no “good cause” articulated that would prevent the statutorily mandated suspension. Notably, Harrison did not argue at the hearing that such a suspension would prevent her from working, an argument that the district court itself considered. Furthermore, as reflected by the record, we do not consider Martin’s counsel’s behavior in arguing the issue on behalf of his client as inappropriate — Martin’s counsel was performing his job by simply acting as a zealous advocate on behalf of his client. The suspension of Harrison’s driver’s license was not in error.

Conclusion

For the foregoing reasons, the judgment in favor of Ricky Dale Martin and against Cynthia Anderson Martin Harrison is hereby affirmed with costs of this appeal being assessed to Harrison.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, CARAWAY, DREW, MOORE, and LOLLEY, JJ.

Rehearing denied.

      . Their son was emancipated by Act of Emancipation by Notarial Act dated April 16, 2003.

      . Interestingly, in Martin I, Harrison argued that the juvenile court did not have subject matter jurisdiction over the sexual abuse charges involving Martin’s and Harrison’s daughter, and in that case, jurisdiction lay with the district court. Ultimately, we agreed.

      . The district court, noting that it could imprison Harrison for three months, sentenced her to a forty-five day prison term, all of which was suspended except for twenty-four hours.

      . As explained by Martin, some of the medical expenses were those incurred in connection with the claims of sexual abuse committed against their daughter.

      . Pursuant to La. R.S. 9:315.31(6) " ‘DQicense’ means any license, certification, registration, permit, approval, or other similar document evidencing admission to or granting authority for any of the following: ... (b) to operate a motor vehicle.”


author: | THIBODEAUX, Judge. DECUIR, J.,

text:
    Rodney G. DELANEY v. CITY OF ALEXANDRIA.
    No. 2003-864.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2003.

      Randall Gordon Wells, Joseph Rodney Messina, Baton Rouge, LA, for Plaintiff/Appellant — Rodney G. Delaney.
    Lewis Olivier Lauve, Jr., Bussey & Lau-ve, LLC, Alexandria, LA, for Defendant/Appellee — City of Alexandria.
    Court composed of ULYSSES GENE THIBODEAUX, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   MEMORANDUM OPINION

| THIBODEAUX, Judge.

In this workers’ compensation proceeding, Rodney Delaney appeals a judgment of the Office of Workers’ Compensation granting the City of Alexandria’s exception of res judicata. The essential facts are not disputed. We affirm.

Mr. Delaney filed a Disputed Claim for Compensation on March 26, 1997, under docket number 97-02010. The only bona-fide dispute was to “[e]nforce the settlement made between the parties.” Mr. Delaney alleged that the City of Alexandria, his employer, had reneged on an agreement to settle his claim for $45,000.00. In response, the City filed an answer denying that an agreement had been reduced to writing or had been recited in open court and was capable of being transcribed. Shortly thereafter, the City of Alexandria filed a motion for summary judgment on the basis that any alleged settlement had never been reduced to writing. Thus, there was no binding agreement.

In Mr. Delaney’s pretrial statement of June 9, 1997, the only issues to be litigated were the existence of an enforceable settlement agreement and attorney fees and costs. A judgment granting the employer’s motion for summary judgment was signed on July 22, 1997. That judgment was never appealed and is now final. The claimant, Mr. Delaney, requested a status conference on December 5, 2001, under docket No. 97-02010. Shortly thereafter, on December 20, 2001, Mr. Delaney filed another Disputed Claim for Compensation. In that claim, the only bonafide dispute was “disability status.”

The City’s exception of res judicata filed on January 14, 2002, requested a dismissal of all claims under docket number 97-02010. The City argued that the workers’ compensation claim had been dismissed on July 22, 1997. The summary judgment granted at that time had the effect, the City argued, of barring all subsequent claims sought to be asserted in that matter. The City’s assertion was that the entire matter was dismissed with prejudice. The Office of Workers’ Compensation granted the City’s exception of res judicata and signed a judgment on April 18, 2002, under docket number 97-02010.

While we agree that the exception of res judicata was properly granted, we do not sanction the City’s argument that all subsequent claims sought to be asserted were dismissed by the summary judgment granted on July 22, 1997. However, there were no disputes or causes of action existing regarding indemnity or medical benefits. Thus, these were not subject to res judicata. Louisiana Revised Statutes 18:4231(2) states:

If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.

Mr. Delaney, however, seeks to resurrect disability issues in docket number 97-02010. However, that lawsuit has already been dismissed by summary judgment. A subsequently filed claim under docket number 01-09355 has also been dismissed via an exception of prescription. That has not been appealed and is also final. The issue of.a settlement agreement was litigated and fully adjudicated. It is now conclusive. That claim cannot be resurrected. See La.R.S. 13:4231(3).

For the foregoing reasons, we affirm the Office of Workers’ Compensation judgment granting the City of Alexandria’s exception of res judicata.

AFFIRMED.

DECUIR, J., concurs and assigns reasons.

DECUIR, J.,

concurs.

I agree with the result reached by the majority. However, the majority opines that the exception of res judicata does not apply to indemnity or medical benefits in this case. This court having determined that the exception of res judicata was properly granted, I believe the majority’s speculation on other issues is dicta. The res judicata effect of a judgment is determined by Louisiana Revised Statute 13:4231 and the issues of indemnity and medical benefits are not before this court.