author: 1DAVID S. GORBATY, Judge. 1LOVE, J.,

text:
    Charles ROUNDTREE and Betty Smith Roundtree v. THE NEW ORLEANS AVIATION BOARD, New Orleans International Airport and/or, The City of New Orleans, Powell Insurance Company and XYZ Insurance Company.
    No. 2002-CA-1757.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 9, 2003.

      Robert J. Young, III, Young, Richaud & Myers, New Orleans, LA, for Defendants/Appellants.
    Emile A. Bagneris, III, Ginger K. DeForest, Ungarino & Eckert, L.L.C., Me-tairie, LA, for Defendants/Appellees.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge TERRI F. LOVE, Judge DAVID S. GORBATY).
   1DAVID S. GORBATY, Judge.

Agricultural Excess and Surplus Insurance Company, both a direct defendant and third-party defendant, and G.P. Glyn-agin Enterprises, Inc., a third party defendant, appeal a- summary judgment rendered in favor of third-party plaintiffs, The New Orleans Aviation Board, New Orleans International Airport and/or the City of New Orleans, and defendants Hamp’s Enterprises, Inc., and Scottsdale Insurance Company. (The New Orleans Aviation Board, New Orleans International Airport and/or the City of New Orleans will be referred to herein coUectively as the New Orleans defendants.) For the fohowing reasons, we reverse the judgment of the trial court, and remand this matter for further proceedings.

FACTS:

On March 14, 1995, plaintiff Charles Roundtree was injured while working in the course and scope of his employment with Glynagin. Mr. Roundtree was inspecting a roof on a building owned by the New Orleans defendants in preparation for removal of asbestos shingles. As Mr. Roundtree probed the wood |?,below the roof shingles, the roof allegedly caved in, causing Mr. Roundtree to injure his knee.

One year later Mr. Roundtree and his wife filed suit against the New Orleans defendants, PoweU Insurance Company and XYZ Insurance Company. The New Orleans defendants answered the suit on their behalf and on behalf of their insurer, Americas Insurance Company. All liability was denied.

On April 26, 1999, the New Orleans defendants filed a third party demand against Glynagin and its insurer, alleging that an indemnification agreement existed between the New Orleans defendants, Hamp’s Enterprises, the contractor hired by the New Orleans defendants, and Glyn-agin, the subcontractor hired by Hamp’s. The New Orleans defendants averred in their petition that Glynagin contracted to defend the contractor (Hamp’s) and the owner of the building (New Orleans defendants) for or on account of any acts or omissions of Glynagin or its employees. Further, Glynagin’s insurer, Agricultural Excess and Surplus Insurance Company, had issued a policy of insurance naming Hamp’s and the New Orleans defendants as additional insureds. On June 1, 1999, an answer was filed on behalf of Agricultural denying that the policy of insurance to which the New Orleans defendants referred provided coverage as alleged, and, in fact, that the policy specifically excluded such coverage. The answer also denied that Glynagin owed indemnity to the New Orleans defendants.

l3On December 15, 2000, plaintiffs filed a Supplemental and Amended Petition for Damages adding Hamp’s, its insurer Scottsdale, and Agricultural as defendants. Plaintiffs alleged that Hamp’s was liable to plaintiffs pursuant to La. Civ. Code arts. 2315, 2316 and/or 2317. Specifically, plaintiffs alleged that Hamp’s failed to take adequate precautions to prevent Mr. Roundtree’s injuries.

On December 14, 2001, Scottsdale Insurance Company filed a Motion for Summary Judgment seeking its dismissal with prejudice from the suit on the grounds that Agricultural (and presumably its insured, Glynagin) had agreed to indemnify and defend the New Orleans defendants and Hamp’s. Alternatively, Scottsdale moved for summary judgment finding it and Agricultural to be co-primary insurers.

Agricultural, as direct defendant and third party defendant, and Glynagin, as third party defendant, also filed a Motion for Summary Judgment on January 16, 2002, arguing that neither Glynagin nor Hamp’s owed indemnification to the New Orleans defendants because neither the contract between Glynagin and Hamp’s nor the contract between Hamp’s and the New Orleans defendants provided indemnification for either Hamp’s or the New Orleans defendants’ own negligence. Rather, the indemnification agreement between Glynagin and Hamp’s provided only for indemnity in the event of Glynagin’s negligence.

14After a hearing on April 5, 2002, the trial court issued a judgment granting Scottsdale’s Motion for Summary Judgment and denying the motion filed on behalf of Glynagin and Agricultural.

In written reasons for judgment, the trial court explained that Glynagin owed a duty to defend and indemnify Hamp’s and the New Orleans defendants for or on account of any acts or omissions by Glyn-agin. Mr. Roundtree was in the course and scope of his job with Glynagin, performing the duties for which Glynagin had contracted with Hamp’s. The court found that there was “no contractual duty by The City to pre-inspect the roof before Glynagin, performed their services.” Thus, because Hamp’s was contractually indemnified by Glynagin, Hamp’s insurer, Scottsdale, had no contractual obligation in the case.

Although the trial court’s judgment does not specifically state that Scottsdale is dismissed from the lawsuit, the prayer contained in the motion for summary judgment requested the trial court to order Agricultural to defend Hamp’s and the New Orleans defendants, and to dismiss, with prejudice, Scottsdale. Thus, because summary judgment was granted, Scottsdale has been dismissed, with prejudice.

DISCUSSION:

Appellate courts review summary judgments de novo. Brown v. Connecticut General Life Ins. Co., 2000-0229, p. 2 (La.App. 4 Cir. 3/7/01), 793 So.2d 211, 212. A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. La.Code Civ. Proc. art. 966 B. Summary judgments |sare favored, and the rules regarding such should be liberally applied. Brown, supra.

A. The Contracts

The subcontract between Glynagin’s and Hamp’s indicates that the work to be performed by Glynagin is “asbestos removal” on the “Program 3, Airport Demolition” project. The pertinent portions of the subcontract read as follows:

7. The SUBCONTRACTOR agrees to defend and bear the cost of litigation in any action brought against the CONTRACTOR and/or OWNER for or on account of any acts or omissions of the said SUBCONTRACTOR, its agents or servants and further agrees to Indemnify or otherwise reheve the CONTRACTOR and/or OWNER from any judgment for damages or hens established as a result of such proceedings.
8. The SUBCONTRACTOR agrees to provide and furnish prior to the commencement of work and as a condition precedent thereto; evidence of insurance sufficient to cover it’s [sic] work under this Contract for Workmen’s Compensation, Public Liability and Property Damage Insurance, and such additional coverage as stated in Paragraph 20 herein:

Attached to the subcontract is a certificate of insurance indicating that Hamp’s Enterprises is an additional insured under a commercial general liability policy issued to Glynagin’s by Agricultural Excess and Surplus.

The agreement between Hamp’s and the New Orleans defendants is entitled “Agreement for Structural Removal Services.” Pursuant to this agreement, Hamp’s was to remove twenty-six structures belonging to the New Orleans defendants. The pertinent |fiportions of the contract between Hamp’s and the New Orleans defendants read as follows:

6. Indemnification. The Contractor agrees to indemnify, defend by counsel acceptable to the Board and hold harmless the City of New Orleans, the New Orleans Aviation Board and its members, agents, officers, employees and the property of the Board, from any and all claims, demands, actions, lawsuits, liability, losses, damages or expense incurred by the Board resulting from the Contractor’s performance of its obligations under this Agreement, specifically including without limitations, any claim, liability, loss or damage arising: (a) by reason of injury to person or property from whatever cause, in the construction or removal or demolition work forming the subject of this Agreement; (b) by reason of the Contractor’s failure to perform any requirement imposed upon it by and [sic] duly authorized governmental agency or political subdivision; (c) because of the Contractor’s failure or inability to pay as they may become due any obligations incurred by the Contractor in the operations to be conducted by it on the property described in Exhibit “A”; (d) by use of any improper materials or equipment in the performance of the Contractor’s obligations under this Agreement; (e) by or on account of any act or omission by the Agreement [sic] in the performance of its obligation under this Agreement; (f) by reason of noise emission, vibration, dust, fumes, smoke, vapor and other effects heretofore or hereafter caused by the operations of aircraft over and across the property described in Exhibit “A”.
7. Liability Insurance. At all times the Contractor shall maintain the insurance described below for the mutual benefit of the Contractor and the Board against the following risk:
(a)the Contractor agrees to maintain and furnish certification of insurance evidencing comprehensive public liability 17and property damage (or other applicable coverages) insurance in the amount not less that [sic] Five Hundred Thousand Dollars ($500,000.00) combined single limit during the term of the Agreement to remove any house. Such insurance policies must name the City of New Orleans, the New Orleans Aviation Board (NOAB), its directors, officers and employees as “additional insureds” to the full extent of the Contractor’s insurance coverage, but in no event less than the required minimum coverage limit amount. Contractor agrees that all insurance policies shall provide that they will not be altered or canceled without thirty (30) days written notice to the Board.
(b) Contractor shall provide the Board certificate of insurance evidencing the following:
1. Workers’Compensation....
2.Commercial Automobile Insurance ....
(c) Any other insurance, in the amounts as may from time to time be reasonably required by the Board against other insurance hazards which at the time are commonly insured against in the case of operations similarly conducted.

B. Indemnity

The first issue to be addressed is whether Glynagin is bound to indemnify Hamp’s and/or the New Orleans defendants under the terms of the contract between Glynag-in and Hamp’s.

Appellants argue they owe no contractual indemnity to the New Orleans defendants or Hamp’s because the indemnification agreement does not provide indemnity for the indemnitees’ own negligence. Specifically, appellants argue that plaintiffs’ allege that the New Orleans defendants and/or Hamp’s are liable under theories of strict liability and/or negligence for the condition of the roof, and, therefore, the negligence and/or strict liability of Hamp’s and/or the New Orleans 1 Sdefendants is not covered by the indemnity agreement. We agree. The indemnity agreement between Glynagin and Hamp’s clearly does not require Glynagin to indemnify Hamp’s for Hamp’s own negligence and/or strict liability, nor the New Orleans defendants for their negligence and/or strict liability.

In Home Ins. Co. of Illinois v. National Tea Co., 588 So.2d 361, 364 (La.1991), the Supreme Court reiterated its holding in Polozola v. Garlock, 343 So.2d 1000, 1003 (La.1977):

A contract of indemnity whereby the indemnitee is indemnified against the consequences of his own negligence is strictly construed, and such a contract will not be construed to indemnify an indemnitee against losses resulting to him through his own negligent act, unless such an intention is expressed in unequivocal terms.

Further, the Polozola court held that the general rules of interpretation of other contracts apply in interpreting indemnity contracts:

[A construction that renders a contract virtually nugatory] should be avoided in favor of one that gives the clause effect. When there is doubt as to the true sense of the words of a contract, they may be explained be referring to other words or phrases used in making the same contract. Further, all clauses of a contract should be interpreted the one by the other, giving to each the sense that results from the entire agreement. Finally, when there is anything doubtful in agreements, including indemnity agreements, we must endeav- or to ascertain what was the common intention of the parties, rather than adhere to the literal sense of the terms.

Home Ins. Co. of Illinois, supra, citing Polozola, 343 So.2d at 1003 (citations omitted). When after applying the rules set forth above, i.e., the general rules of 1 construction of contracts, and interpreting the provisions of a contract as a whole, the intent of the parties to indemnify against negligence remains equivocal, a presumption or inference arises that the parties did not intend to hold the indemni-tee harmless from such liability. Home Ins. Co. of Illinois, supra.

The plain language of the indemnity agreement in question indicates that Glynagin agreed to defend Hamp’s in any action brought against Hamp’s for any acts or omissions of Glynagin. There is nothing in the entire contract between the parties to suggest that Glynagin agreed to indemnify either Hamp’s for Hamp’s own negligence or strict liability, or the New Orleans defendants for their own negligence and/or strict liability. Plaintiffs have alleged that Hamp’s was negligent for failing to warn Mr. Roundtree about the dangerous roof condition. That issue has yet to be decided. Thus, it was error for the trial court to order Glynagin to defend Hamp’s against the allegations made specifically against Hamp’s. In turn, it was error for the trial court to order Glynagin to defend the New Orleans defendants because Glynagin was not contractually bound to indemnify the New Orleans defendants in any way.

The most serious error committed by the trial court was its dismissal of Scottsdale from the lawsuit. Because we find that Glynagin does not owe indemnity to Hamp’s for Hamp’s own negligence, Scottsdale, as Hamp’s insurer, is bound to defend Hamp’s. Therefore, by dismissing Scottsdale from the lawsuit, Hamp’s is left without a defense. Further, if a jury finds Hamp’s negligent for Mr. Roundtree’s injuries, the original plaintiffs cannot recover from Scottsdale.

Thus, considering the above, we find that there exist genuine issues of fact concerning the negligence and/or strict liability of the parties making summary judgment in favor of Scottsdale on the issue of indemnity inappropriate.

|in C. Insurance

Appellants also argue that only Hamp’s is an additional insured covered by the Agricultural policy. Appellees counter that the Agricultural policy also contains an endorsement naming the building owner, i.e., the New Orleans defendants, as additional insureds.

The written reasons for summary judgment indicate that the trial court granted the motion based solely on its finding that Glynagin owed indemnity and a defense to Hamp’s and the New Orleans defendants. The reasons do not indicate that the trial court considered the issue of insurance coverage. Therefore, because we find that the trial court erred in finding that Glyn-agin owed indemnity to Hamp’s and/or the New Orleans defendants for those parties own negligence and/or strict liability, we remand this matter to the trial court for consideration of the issue of insurance coverage.

Accordingly, for the reasons discussed above, we reverse the judgment of the trial court ordering Glynagin to defend Hamp’s and the New Orleans defendants, and dismissing Scottsdale Insurance Company from the lawsuit. Further, we remand this matter for the trial court to consider the issue of insurance coverage.

REVERSED AND REMANDED.

LOVE, J., Concurs With Reasons.

1LOVE, J.,

Concurs With Reasons.

The Supreme Court in Berry v. Orleans Parish School Board, 2001-3283, p. 4 (La.6/21/02), 830 So.2d 283, 285, discussed the standard for indemnifying an indemni-tee for his own negligence:

In Perkins v. Rubicon, Inc., 563 So.2d 258 (La.1990), this court held that an indemnity contract will not be construed to indemnify an indemnitee against losses resulting to him through his own negligent acts unless such an intention is expressed in unequivocal terms:
A contract of indemnity whereby the indemnitee is indemnified against the consequences of his own negligence is strictly construed, and such a contract will not be construed to indemnify an indemnitee against losses resulting to him through his own negligent acts unless such an intention is expressed in unequivocal terms.
(Internal citations omitted)(Emphasis Added).

The plain language of the subcontract between Glynagin and Hamp’s clearly expresses the intention to indemnify Hamp’s for Glynagin’s negligence, not for any acts of negligence committed by Hamp’s. Further, there is no language in either the contract between Glynagin and Hamp’s or the contract between Hamp’s and the New Orleans defendants that Glynagin will indemnify the New Orleans defendants under any circumstances. The majority is correct in reversing the judgment of the trial court ordering Glynagin to defend Hamp’s and the New Orleans defendants.

      . The record indicates that an answer was not filed on behalf of Glynagin until February 18, 2002.

      . Pursuant to the indemnity agreement entered into between Hamp’s and the New Orleans defendants, Hamp’s insurer, Scottsdale, also assumed the defense of the New Orleans defendants. Thus, Scottsdale was also substituted as the New Orleans defendants’ insurer in place of the erroneously named Powell Insurance Company.

      . Paragraph 20 reads as follows: “The following additions, deletions and/or corrections to the above printed conditions are hereby acknowledged by both parties to form a part of this contract.” There is nothing noted below Paragraph 20.


source: Caselaw Access Project

author: 1BILLY HOWARD EZELL, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Thomas L. GARDNER.
    No. 02-1506.
    Court of Appeal of Louisiana, Third Circuit.
    April 30, 2003.

      David William Price, Kayla M. Blanchard — Romanach, Baton Rouge, LA, for Thomas L. Gardner.
    J. Reed Walters, District Attorney— 28th Judicial District Court, Jena, LA, for State of Louisiana.
    Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and BILLY HOWARD EZELL, Judges.
   1BILLY HOWARD EZELL, Judge.

Defendant, Thomas L. Gardner, is charged with first degree murder, a violation of La.R.S. 14:30. On August 5, 2002, Defendant filed a motion for an adequate bill of particulars or to quash the indictment. Defendant also filed a separate demand for “Bernard notice,” seeking information regarding victim impact evidence the State might use.

According to the Defendant, the court conducted a hearing on September 6, 2002, at which the State agreed to respond to both motions. On October 18, the State filed its responses. Then, on November 7, Defendant requested that the State respond in greater detail. At a hearing held on November 14, the trial court ruled the State’s responses were adequate.

Defendant filed a writ with this court, seeking relief from the lower court’s ruling. This court granted a stay on January 17, 2003, and called the case to the docket.

ASSIGNMENT OF ERROR NO. 1

In his first assignment, Defendant argues the trial court erred by refusing to order the State to clarify its bill of particulars. Specifically, Defendant alleges the predicate offenses listed in the bill of particulars are factually inconsistent and are listed disjunctively.

The indictment against Defendant reads as follows:

In the Twenty-Eighth Judicial District Court on the 12th day of December, 2001, the Grand Jury for the Parish of LaSalle, charges that Thomas L. Gardner has committed the offense of FIRST DEGREE MURDER in that between the dates of October 11 and October 18, 2001, while in LaSalle Parish, Louisiana, Thomas L. Gardner committed first degree murder of Karen Sue Roller, thereby violating LRS 14:30A(1);

| a At issue is the State’s “Answer to Motion for More Specific Bill of Particulars” that stated, in pertinent part:

NOW INTO COURT, through the undersigned District Attorney, comes the State of Louisiana, who does answer the request of the defendant for a more specific Bill of Particulars in the following manner, to-wit:
a.The acts enumerated in La.R.S. 14:80 A(l) consist of armed robbery and/or simple robbery.
More specifically, the State shows that the defendant is alleged to have, by the use of force or while armed with a dangerous weapon, to-wit: a knife, took [sic] several firearms belonging to the victim, Karen Sue Roller by the use of force while armed with a dangerous weapon.
Also the State will show that the defendant is alleged to have taken the weapons from the victim Karen Sue Roller by the use of force without being armed with a dangerous weapon thereby committing the offense of simple robbery.
b. The defendant is not alleged to have violated any of the provisions of La.R.S. 14:42.
c. The defendant is not alleged to have violated any of the provisions of La.R.S. 14:42.1,
d. As of this time, the State alleges that the defendant has violated Title 14 Section 60 and that after entering the residence of Karen Sue Roller, he armed himself with a dangerous weapon and committed a battery upon the person of Karen Sue Roller while he was in her residence.
e. See the answer to Paragraph a hereinabove.
a. More specifically, the defendant is accused of taking firearms.
b. From Karen Sue Roller.
c. Yes, the defendant is accused of using force and intimidation.
d. Yes.

|3The particulars just listed were provided in response to the following questions in Defendant’s motion:

A. Which of the acts enumerated in La.R.S. 14:30 A(l) is the accused alleged to have committed?
B. If the accused is alleged to have violated La.R.S. 14:42, which of the seven acts enumerated in La. R.S. 14:42 is the accused alleged to have committed?
C. If the accused is alleged to have violated La.R.S. 14:42.1, which of the two acts enumerated in La.R.S. 14:42.1 is the accused alleged to have committed?
D. If the accused is alleged to have violated La.R.S. 14:60, which of the three acts enumerated in La.R.S. 14:60 is the accused alleged to have committed?
E. If the accused is alleged to have violated La.R.S. 14:64:
a) What is he accused of taking?
b) From whom is he accused of taking such thing(s)?
c) Is he accused of using force or is he accused of using intimidation?
d) Is he accused of taking the thing from a person or from a person’s immediate control?

Previously noted earlier in this opinion, on November 14, 2002, the lower court ruled the State’s answer provided sufficient particulars. Defendant now argues the State’s language is unclear regarding whether the State is alleging he committed one, two, or all three of the predicate offenses, ie., armed robbery, simple robbery, or aggravated burglary.

The court finds that a plain reading of the answer reveals the State is alleging that an aggravated burglary occurred. The answer does not contain disjunctive language that would suggest otherwise.

However, as Defendant argues, it is not clear whether the State alleges he committed simple robbery, armed robbery, or both. Defendant observes the State used a short-form indictment, and quotes relevant language from State v. Mann, 250 La. 1086, 1094-95, 202 So.2d 259, 262 (1967)(emphasis added):

Lit is now well settled that when the state elects to use the short form indictment or information permitted by LRS 15:285, the accused is entitled to a bill of particulars setting out more specifically and in detail the offense charged. And this is particularly true when the alleged crime may be committed in a number of different ways. State v. Bessar et al., 213 La. 299, 34 So.2d 785 [(1948)], State v. Masino et al., 214 La. 744, 38 So.2d 622 [(1949)], State v. Holmes, 223 La. 397, 65 So.2d 890
[(1953)], State v. Picou, 236 La. 421, 107 So.2d 691 [(1958)], State v. Barnes, 242 La. 102, 134 So.2d 890 [(1961)], and State v. Howard, 243 La. 971, 149 So.2d 409 [(1963)]. Indeed, we have said on numerous occasions that the provisions of that section (LRS 15:235) which require the state to furnish further information by way of a bill of particulars, when so requested by the accused, renders the use of the short form amenable to constitutionally protected guaranties and safeguards. State v. Pete, 206 La. 1078, 20 So.2d 368 [(1945)]; State v. Chanet, 209 La. 410, 24 So.2d 670 [(1946)]; State v. Nichols, 216 La. 622, 44 So.2d 318 [(1950)]; State v. Holmes, supra, and State v. Barnes, supra.

Defendant also cites State v. Mason, 305 So.2d 523, 524-25 (La.1974), an aggravated arson case (emphasis added)(footnote omitted):

As defined by La.R.S. 14:51 (1964), aggravated arson is the “intentional damaging” of property “whereby it is foreseeable that human life might be endangered”, when committed by either of the following two methods: “[a] by any explosive substance or [b] setting fire to” the property.
Among the particulars the state refused to furnish, however, was that requested by interrogatory 15: “What was the alleged method or system used by the defendant to commit the alleged crime?” Since as previously noted, the crime may be committed by either of two methods (“by an explosive substance” or “by setting fire to”), the defendant was entitled to at least such information.
The short-form indictment has been attacked many times as inadequately meeting the constitutional requirement that an accused be informed of the nature and cause of the accusation against him, as required by La.Constitution, Art. I, Section 10 (1921). It has withstood such attack chiefly because of the requirement that, upon request of the defendant for a bill of particulars, the state must inform him of the essential facts constituting the offense with which charged, including more specific facts if the offense may be committed in a number of different ways.
RThus, under this jurisprudence, the defendant might be entitled to reversal because of the failure of the state to furnish him, if it knew, formal notice of which of the two statutory methods of committing the crime was the basis of the charge against him.

However, the Mason court went on to explain:

Nevertheless, interrogatory 11 indicates that the defendant already knew as much of the basis of the charge as did the state, as corroborated by the state’s response to this interrogatory and to interrogatory 13 (when ordered by the court to do so).
Interrogatory 11 requested of the state: “Please describe the type or exact substance believed used in the alleged commission of the crime.” When required by the court, counsel for the state “answered in open court that the State is not certain as to what substance was used in the commission of this crime.” Interrogatory 13 had asked if any weapons or substances used were in the possession of the state, and the court ordered “that if the State comes up with a substance that the defendants be allowed to analyze it in accordance with agreement with counsel for the State this date.”
The evidence shows the following: The crime was committed when two inmates came to a guard shack, one with a can of some substance, and one lighting a fire, and threw it in. The substance smelled like gasoline or diesel, and the substance exploded into fire, causing physical burn injuries to a correctional guard in the shack at the time.
The interrogatories indicate that the defendant knew that a substance had been used in committing the arson. The transcription of the proceedings by which the trial court required the state to furnish further particulars concerning the substance and to permit its chemical analysis further indicate that defense counsel was aware of the method of commission of the offense. See Tr. 82-90. Actually, under the circumstances, the factual method by which the crime was committed partook of both the statutory methods (damaging by explosive substance or by setting fire to) of commission of the crime.
Under these circumstances, we do not find reversible error in the court not ordering the state to answer interrogatory 15, although the issue is close. Further, we are unable to find an abuse of discretion in the court’s refusal to order other particulars furnished (which guard shack on the penitentiary premises was damaged?; how human life was endangered?; etc.); but we do think that the state’s refusal to furnish such particulars is questionable, in the light of the requirement that the accused be furnished such information of what the state intends to prove that the accused may prepare an adequate defense. See State v. Clark, 288 So.2d 612 (La.1974).

Id. at 525-26.

In more recent jurisprudence, this court explained:

A defendant is entitled to know the alleged method of the commission of an offense when several means of commission of an offense are specified by the statute. State v. Huizar, 414 So.2d 741 (La.1982). However, a motion for a bill of particulars is not a method for a defendant to obtain the state’s evidence. La.Code Crim.P. art. 484; State v. Gray, 351 So.2d 448 (La.1977). It is a tool for a defendant to become informed about the nature and cause of the charge against him. La.Code Crim.P. art. 484; State v. Huizar, 332 So.2d 449 (La.1976). The bill of particulars may not be used to discover the details of the evidence, that is, to know “exactly how,” the state intends to prove its ease. State v. Walker, 344 So.2d 990 (La.1977). There is no formula regarding the information the State must make available. The extent to which particulars are granted depends on the nature and complexity of the case. State v. Miller, 319 So.2d 339 (La.1975). Reversible error occurs when there is a failure to provide a defendant information “of the nature and cause of the accusation against [him].” State v. Atkins, 360 So.2d 1341, 1344 (La.1978), cert. denied, 441 U.S. 927, 99 S.Ct. 2041, 60 L.Ed.2d 402 (1979).

State v. Winston, 97-1183, p. 10 (La.App. 3 Cir. 12/9/98), 723 So.2d 506, 511, writ denied, 99-205 (La.5/28/99), 743 So.2d 659 (emphasis added)(alteration in original).

More recently, one of our sister circuits provided more detailed guidance, discussing a scenario roughly analogous to the present one:

In counseled assignment of error number one, defendant argues the trial court erred in refusing to quash the bill of information based on the state’s failure to designate the felony it alleged defendant intended to commit.
As previously noted, simple burglary is an unauthorized entry into any structure with the intent to commit a felony or a theft therein. See La. R.S. 14:62. In the instant case, the state used the short form indictment delineated by La. C.Cr.P. art. 465A(14), which did not specify defendant’s intended felony. Defendant filed a pro se motion to quash the bill of information due to this omission. The defense also filed a bill of particulars requesting that the state designate the specific felony it maintained defendant intended to commit at the time of his alleged unauthorized entry. In answer, the state indicated the intended felony was the commission or attempted commission of one or more of the following offenses: aggravated rape, forcible rape, simple rape, sexual battery, aggravated sexual battery, oral sexual battery, aggravated oral sexual battery, indecent behavior with juveniles, pornography involving juveniles, molestation of a juvenile, crime against nature, ^aggravated crime against nature, contributing to the delinquency of juveniles, and/or obscenity.
At a subsequent motion hearing, defendant argued the state’s answer was inadequate because he planned to assert an involuntary intoxication defense, which is applicable only to specific intent crimes. See La.R.S. 14:15(2). The list of crimes provided in the state’s response included both general intent and specific intent crimes. However, the state responded that it would be required to prove specific intent regardless of the underlying felony because one of the elements of simple burglary was the intent to commit a felony or theft. Thus, it was required to show that the unauthorized entry was made with that specific intent. The trial court ruled that the state’s answer to defendant’s bill of particulars was adequate.
Article I, § 13 of the Louisiana Constitution provides that in a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him. This requirement is intended to protect the accused’s right to prepare a defense and exercise fully his right of confrontation. The bill of information must therefore inform the defendant of the nature and cause of the accusation against him in sufficient detail to allow him to prepare for trial, as well as to allow the court to determine the admissibility of the evidence. See State v. Johnson, 93-0394 (La.6/3/94), 637 So.2d 1033, 1034-35. Properly used, a bill of particulars should inform the accused with particularity of all the essential facts relied upon to prove the crime charged and remove any doubt as to the crime charged. Hence, the accused will know the scope of his criminal activity so as to properly defend himself and eliminate any possibility of ever being charged again with the same criminal conduct. State v. Authement, 532 So.2d 869, 873 (La.App. 1st Cir.1988).
In the instant case, the state’s answer clearly informed defendant that the underlying felony alleged by the state was one of several sexual offenses. The bill of information, together with the state’s answers to the bill of particulars, was sufficient to inform defendant of the nature and cause of the accusation against him in enough detail to allow him to prepare for trial, to allow the trial court to determine the admissibility of evidence, and to eliminate any possibility of defendant ever being charged again for the same criminal conduct.
In arguing the bill of information should have been quashed, defendant relies on State v. Franks, 230 La. 465, 89 So.2d 39 (1956). In Franks, the Louisiana Supreme Court held that the bill of information charging the defendant with aggravated burglary was fatally defective because it failed to apprise him of the felony, which he intended to commit. 230 La. at 471, 89 So.2d at 41. However, Franks is clearly distinguishable in that the state failed in that case to ever designate the underlying felony; whereas, in the present case, the state indicated the | ¿underlying felony was one of several sexual offenses, thereby informing defendant of the nature of the charge against him.

State v. Schleve, 99-3019, pp. 11-13 (La.App. 1 Cir. 12/20/00), 775 So.2d 1187, 1196-97, writs denied, 01-210, 01-113 (La.12/14/01), 803 So.2d 983, 804 So.2d 647, cert. denied, — U.S. —, 123 S.Ct. 211, 154 L.Ed.2d 88 (2002) (emphasis added).

The court finds that, following Schleve, the state’s answer should be considered adequate. In Schleve, the state supplied a rather vague list of particulars, as each predicate offense it listed had its own unique set of elements. Nonetheless, the fact that all of them were sex offenses satisfied the first circuit. In this light, the court finds the Defendant in this case is in a better position than the defendant in Schleve. The court recognizes that the Defendant faces some ambiguity regarding whether the State is charging that he used a weapon in the course of the underlying robbery. However, Defendant does not have as extensive a list of potential charges, with differing elements, before him as Schleve did. The apparent core of the State’s case is the theory that Defendant made an unauthorized entry, then beat- and robbed the victim, killing her. Schleve may not be on all fours, because the defendant chose to focus on specific intent. However, the court finds that Schleve remains analogous to the present case. As a practical matter, Schleve faced some ambiguity regarding the underlying offenses, as does Defendant in the case at hand.

Defendant cites City of Shreveport v. Bryson, 212 La. 534, 33 So.2d 60 (1947). Bryson involved a charge of driving while intoxicated. In discussing the bill of particulars, the court stated:

The section of the ordinance of the City of Shreveport under which relatrix was convicted enumerates and sets forth disjunctively two distinct offenses, and the affidavit in this case so charges. Under the provisions of the article of the Code of Criminal Procedure cited above, if these different offenses were connected with the same transaction and constituted but one act, they could be cumulated in the same count of an affidavit, but in that event they must be charged conjunctively and not | adisjunctively. This is true for the reason that a defendant in a criminal prosecution is entitled to know what accusation against him is relied upon by the prosecution, and, further, if the offenses are charged disjunctively or alternatively, the precise accusation against the defendant is left uncertain. Louisiana Constitution, Article I, Section 10; State v. Sullivan, 125 La. 560, 51 So. 588 [(1910)]; State v. Hood, 125 La. 563, 51 So. 589 [(1910)]; State v. Nejin, 140 La. 37, 72 So. 801 [(1916)]; Marr’s Criminal Jurisprudence of Louisiana (2d Ed.), Volume 1, Section 329, page 490.
For these reasons we are of the opinion that the motion to quash has merit, but we propose not to quash the affidavit but rather to remand the case under the authority of Article 252 of the Code of Criminal Procedure. This article, which deals with defects in an indictment that are not fatal, provides that no indictment shall be quashed, set aside, or dismissed for “any uncertainty ... therein”, and provides further that, if the court be of the opinion that any uncertainty exists therein, it may order the indictment to be amended to cure such defect. We shall therefore remand the case to the City Court of the City of Shreveport, Fourth Ward, Caddo Parish, for a new trial, with direction that before proceeding with such trial the lower court order the affidavit to be amended to charge the offense so that no uncertainty exists therein.

Bryson, 212 La. at 538-39, 33 So.2d at 61-62.

Bryson is a rather old case, and the underlying law has changed since 1947. In deciding the particulars were sufficient in the case before it, the Mason court explained in 1974:

The hypertechnicalities of the indictment jurisprudence of the past were based upon the historical circumstance that the indictment furnished the chief procedural pretrial notice of the nature and cause of the accusation. State v. Smith, 275 So.2d 733, 734-738 (concurring opinion) (La.1973). Correlative to this present-day relaxing of the hyper-technical requirements of the indictment and of its formal supplementation by bill of particulars (see also State v. James, La., 305 So.2d 514 [(1974)] (Docket No. 54,874), this day rendered), is an obligation on the part of the State, in the interest of assuring a fair trial, of assuring that the accused is furnished essential information concerning the charge, in order that he may adequately prepare what defense he has. Surprise and lawyer-tactics should play as little part in the outcome of criminal prosecutions as they do now in civil litigation.

Mason, 305 So.2d at 526 (emphasis added).

Schleve reflects a more modern view than Bryson of the law regarding bills of particulars. Bryson was the product of an earlier era of jurisprudence. The more |inrecent case, Schleve, held it was sufficient for the defendant to know he was charged with simple burglary, under circumstances in which he made an unauthorized entry into a structure with the intent to commit some, unspecified, sex offense. In the case sub judice, Defendant has been informed that he is charged with a homicide that occurred pursuant to a burglary and robbery.

In light of Schleve, the court finds the particulars in the present case are sufficient. For the reasons discussed, this assignment lacks merit.

ASSIGNMENT OF ERROR NO. 2

In his second assignment, Defendant argues the trial court erred by not requiring the State to give adequate notice of victim-impact evidence. According to Defendant, he filed a demand for Bernard Notice on August 5, 2002. On October 18, the State filed a response that stated, in pertinent part:

NOW INTO COURT, through undersigned counsel, comes the State of Louisiana who does respond to the Demand for the State of Louisiana v. Bernard notice in the following manner.
The State of Louisiana does notify the defendant of its intent to use victim impact testimony at a penalty phase hearing of this trial should the same become necessary.
The testimony as of . this time will consist of the following:
1. Mr. John Roller who was the husband of the victim.
2. Ms. Karen Sue Engles, the daughter of the victim.
As of this time, the State is attempting to discover whether or not any evidence exists of the nature that the defendant has requested being “the unsavory characteristics” of the victim. Should such evidence become known to the State, the same will be disclosed in a timely manner to the defendant.
In further response to the motion, the State shows that it will respond in complying with all relevant discoverable material to the defendant concerning the Bernard request.

| n Defendant states he filed a written objection on November 7, 2002. He requested that the State be ordered to provide more information regarding the substance of the witnesses’ testimony. As mentioned in the procedural history of this case, the trial court ruled the State’s answer was adequate on November 14, 2002.

Defendant cites State v. Bernard, 608 So.2d 966 (La.1992) for the principle that the State must give adequate pre-trial notice of victim-impact evidence. The Bernard court explained:

In order to provide general guidance to trial courts in capital sentencing hearings, we reiterate that some evidence of the murder victim’s character and of the impact of the murder on the victim’s survivors is admissible as relevant to the circumstances of the offense or to the character and propensities of the offender. To the extent that such evidence reasonably shows that the murderer knew or should have known that the victim, like himself, was a unique person and that the victim had or probably had survivors, and the murderer nevertheless proceeded to commit the crime, the evidence bears on the murderer’s character traits and moral culpability, and is relevant to his character and propensities as well as to the circumstances of the crime. However, introduction of detailed descriptions of the good qualities of the victim or particularized narrations of the emotional, psychological and economic sufferings of the victim’s survivors, which go beyond the purpose of showing the victim’s individual identity and verifying the existence of survivors reasonably expected to grieve and suffer because of the murder, treads dangerously on the possibility of reversal because of the influence of arbitrary factors on the jury’s sentencing decision. Whether or not particular evidence renders a hearing so fundamentally unfair as to amount to a due process violation must be determined on a case-by-case basis.
Finally, we reiterate that the use of victim impact evidence requires pretrial notice to the defense. This type of evidence does not go to proof of an essential element of the crime, and the defense, unless notified of the prospective use of such evidence, has no way of knowing that preparation will be necessary to meet this evidence. As in the use of other crimes evidence, the defense, upon request, is entitled to notice of the particular victim impact evidence sought to be introduced by the prosecutor and to a pretrial determination of the admissibility of the particular evidence.

Id. at 972-73 (footnote omitted).

| ^Defendant also cites State v. Higgins, 01-117 (La.App. 5 Cir. 3/28/01), 802 So.2d 685. The Higgins court stated:

Defendani/Relator seeks review of the trial judge’s denial of his request for a pretrial hearing to determine the admissibility of victim impact evidence in a death penalty case for which defendant is charged with first degree murder. Defendant also sought to limit the number of victim impact witnesses. The trial judge denied the requests and reserved defendant’s objections for the penalty phase, at which time a ruling could be made.
To show its compliance with the requirements of Bernard, the state listed ten relatives of the victim, and presented general, conclusory statements regarding their testimony. We conclude the absence of particular statements prevents the trial judge from making the pretrial determination of admissibility as contemplated by Bernard. We are mindful, however, of the Louisiana Supreme Court’s disapproval of an eviden-tiary hearing at which victim impact witnesses are called to testify. State v. Miller, 99-0192 (La.9/6/00), 776 So.2d 396, cert. denied, 531 U.S. 1194, 121 S.Ct. 1196, 149 L.Ed.2d 111 (2001). Thus, the trial judge correctly refused to conduct such an evidentiary hearing and the writ application is denied insofar as the trial court’s ruling in that regard. However, the writ application is granted insofar as the trial judge denied any pretrial determination of the admissibility of victim impact evidence.
IT IS ORDERED that the trial judge’s ruling denying defendant’s request for a pretrial determination of the admissibility of victim impact evidence be and is hereby vacated and set aside.
IT IS FURTHER ORDERED that the case be remanded with instructions to the trial judge, to order, pretrial, the state to submit to defendant written, signed statements by the witnesses as to the testimony to be offered, and to allow defendant a reasonable period of time, pretrial, to make objections, if deemed necessary, to the statements, including any objection to the number of witnesses.

Higgins 802 So.2d at 685-86 (footnote omitted).

Although a number of cases cite Bernard, there are few on point with the present case. Defendant’s references to Bernard and Higgins appear to state the existing law regarding notice of victim-impact evidence. Pursuant to these cases, the court finds that the State’s Bernard notice to Defendant was not adequate, as notice of particular victim-impact evidence was not provided.

|iaThus, the court finds this assignment has merit. Pursuant to Higgins, the court finds that the case is remanded with instructions to the trial court to order the State to provide Defendant with “written, signed statements by the witnesses as to the testimony to be offered, and to allow defendant a reasonable period of time, pretrial, to make objections.” Id.

CONCLUSION

The trial court’s ruling that the State provided adequate particulars is affirmed. The trial court’s ruling that the State’s Bernard notice to Defendant was adequate is reversed, and the case is remanded for further proceedings in accordance with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.


author: 1THIBODEAUX, Judge.

text:
    James PENDER, et al. v. NATCHITOCHES PARISH HOSPITAL.
    No. 01-1380.
    Court of Appeal of Louisiana, Third Circuit.
    May 7, 2003.

      René J. Pfefferle, Watson, Blanche, Wilson & Posner, Baton Rouge, LA, for De-fendani/Appellant, Natchitoches Parish Hospital.
    Edwin Dunahoe, Thomas, Dunahoe & Thomas, Natchitoches, LA, for Plaintiffs/Appellees, James Pender, et al.
    Hodge O’Neal III, O’Neal Law Offices, Monroe, LA, for Plaintiffs/Appellees, James Pender, et al.
    Court composed of ULYSSES GENE THIBODEAUX, OSWALD A. DECUIR, and ELIZABETH A. PICKETT, Judges.
   1THIBODEAUX, Judge.

The Louisiana Supreme Court remanded this case to us for reconsideration in light of its decision in Richard, ex rel. Deville v. Louisiana Extended Care Centers, Inc., 02-0978 (La.1/14/03); 835 So.2d 460. Our initial opinion affirmed the trial court judgment denying the hospital’s exception of prematurity. We concluded that a nursing home patient who died after a fall from a wheelchair did not have to first submit her claim to a medical review panel since her claim was predicated on a violation of the Nursing Home Residents’ Bill of Rights (the “NHRBR”), as set out in La.R.S. 40:2010.8. We determined the claim was not subject to the Louisiana Medical Malpractice Act (the “LMMA”), such that it must first be presented to a medical review panel under La.R.S. 40:1299.47(B)(l)(a)(i). Pender v. Natchitoches Parish Hospital, 01-1380 (La.App. 3 Cir. 5/15/02); 817 So.2d 1239 (Pender I).

Richard held that medical malpractice claims against a nursing home qualified under the LMMA must be brought pursuant to the provisions of the LMMA. However, the supreme court remanded the case to the trial court for its determination of whether the Richard plaintiffs allegations of negligence are medical malpractice claims under Louisiana law. A violation of the NHRBR by a nursing home, according to Richard, can also be an act of medical malpractice subject to presentation before a medical review panel. Thus, a nursing home violating the NHRBR does not automatically mean a plaintiff bringing a claim against the nursing home can bypass presentation of that claim before a medical review panel pursuant to the LMMA. As we interpret the supreme court’s remand order of March 21, 2003, our initial opinion improperly concluded that a violation of the NHRBR does not invoke the provisions of the LMMA such that the plaintiffs claim is premature due |?to the failure to present the case to a medical review panel. We must determine whether the alleged violation of the NHRBR in Pender I also constituted medical malpractice, thus requiring submission to a medical review panel.

I.

FACTS AND PROCEDURAL HISTORY

The facts of this case were set out in Pender I:

On July 28, 2000, Mrs. Edna Pender was admitted as a patient to the Natchi-toches Parish Hospital Long Term Care Unit (hereinafter “Hospital”), a nursing home facility, for general care and treatment. Plaintiffs James Pender, Vivian Darlene Tims, Sonja Faye Welch, Jessie Strebeck, and Vicki Feazell are the children of Mrs. Pender. They allege that on August 28, 2000, Mrs. Pender was left alone and unrestrained in her wheelchair at the Hospital. She fell from the wheelchair, struck her head on the floor, and fractured her skull. Mrs. Pender was then transported to Schumpert Medical Center in Shreveport, where she died that same day.
Plaintiffs filed two petitions against the Hospital. On March 1, 2001, they filed a “Petition to Impanel Medical Malpractice Review Panel” with the Patient’s Compensation Fund Oversight Board against the Hospital in its capacity as a qualified health care provider. The plaintiffs allege that prior to the time of her admission, Mrs. Pender had physical problems including challenges with balance, a history of falling, a history of mental confusion, and residual left-sided weakness. They submit that these ailments were brought to the attention of the Hospital staff and that, in addition, the Hospital performed further evaluations and assessments of its patient. The need for adequate restraints and precautions was allegedly reiterated by the plaintiffs to the Hospital. They contend that the death of Mrs. Pender was caused by the negligent and inappropriate treatment rendered by the Hospital, including its alleged failure to properly attend, restrain, supervise, and monitor Mrs. Pender, and leaving her in an unrestrained and unattended position with knowledge of her propensity to fall. In this petition, the plaintiffs requested the impaneling of a medical malpractice review panel.
|aOn March 22, 2001, the same plaintiffs filed a second petition against the Hospital, in its capacity as the operator of the Natchitoches Parish Long Term Care Unit. This petition was entitled “Petition to Enforce Rights Under Residents’ Bill of Rights (La.R.S. 40:2010, et seq.),” and alleges the same facts and circumstances as set out in the petition dated March 1, 2001. In this petition, however, plaintiffs do not request a medical review panel, nor do they allege specific acts of negligence. Rather, the petition alleges that the death of Mrs. Pender was caused by the violation of the terms, conditions, and provisions of La.R.S. 40:2010.8, and that the action is brought pursuant to La.R.S. 40:2010.9. The plaintiffs also allege that their damages include the wrongful death of their mother, as well as her pain and suffering.
On April 24, 2001, the Hospital filed a dilatory exception, claiming status as a qualified health care provider within the meaning of the Medical Malpractice Act, La.R.S. 40:1299.41 et seq., and that it was therefore entitled to avail itself of La.R.S. 40:1299.47(B)(l)(a)(i), requiring the submission of the alleged claims to a medical review panel. Since the claim was not presented to a panel, the Hospital claimed prematurity and, alternatively, that the plaintiffs’ petition states no right or cause of action. The trial court denied these exceptions. The Hospital appealed the district court’s judgment.

Pender, 817 So.2d at 1240-41.

On appeal, we affirmed the trial court’s judgment in favor of the plaintiffs holding that the submission of the alleged claims against the hospital was not necessary. The supreme court in Richard affirmed this court’s holding that medical malpractice claims against a nursing home qualified under the LMMA must be brought pursuant to the provisions of the LMMA. In light of the Richard decision, we must determine if the claim of these plaintiffs must likewise be brought pursuant to the provisions of the LMMA. It is clear from Richard that a plaintiffs allegations of negligence must be medical malpractice claims under Louisiana law to invoke the provisions of the LMMA. In the present case, the violation of the NHRBR could very [4well have been not only a violation of the NHRBR but also an act of medical malpractice.

II.-

LAW AND DISCUSSION

In Pender I, we found that the Hospital’s arguments were compelling. The Hospital suggested:

that the plaintiffs’ allegations against the nursing home are essentially allegations of medical malpractice, and fall squarely within the definition of medical “malpractice,” defined in the Act as “any unintentional tort or breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient....”

Pender, 817 So.2d at 1242.

In Coleman v. Deno, 01-1517 (La.1/25/02); 813 So.2d 303, the supreme court set out six factors for determining whether specific conduct by a qualified healthcare provider constitutes “malpractice” under the LMMA. The LMMA governs if (1) the wrong is treatment related or is caused by a dereliction of professional skill; (2) expert medical evidence is required to determine whether the appropriate standard of care was breached; (3) the pertinent act or omission involved an assessment of the patient’s condition; (4) the incident occurred in the context of a physician-patient relationship or was within the scope of activities which a hospital is licensed to perform; (5) the injury occurred because the patient sought treatment; and (6) the tort alleged was unintentional. The dissenting opinion in Pender I noted that Coleman was essentially a review of the facts after a full trial on the merits of the case. We find that the record in this case is inadequate for this court to make a determination of whether the alleged violation of the NHRBR also constituted medical malpractice Rand therefore subject to the provisions of the LMMA based on the Coleman factors. Thus, we remand the case to the trial court for a full evidentiary hearing on the exceptions of prematurity and no right of action, focusing on the applicability of the Coleman factors to the particular facts of this incident.

III.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is reversed and set aside. This case is remanded to the district court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.


author: 1SYLVIA R. COOKS, Judge.

text:
    Charles C. ROQUE, Jr. v. SHELL BEACH TRUCKING.
    No. 02-1305.
    Court of Appeal of Louisiana, Third Circuit.
    May 7, 2003.

      George A. Flournoy, Flournoy, Doggett & Losavio, Alexandria, LA, for Plaintiff/Appellee, Charles C. Roque, Jr.
    Michael S. Coyle, Coyle & Green, L.L.C., Ruston, LA, for Defendant/Appellant, Shell Beach Trucking & American Interstate Ins. Co.
    Court composed of SYLVIA R. COOKS, BILLIE COLOMBARO WOODARD, and BILLY HOWARD EZELL, Judges.
   1SYLVIA R. COOKS, Judge.

In this workers’ compensation case, the employer and insurer appeal the judgment of the Office of Workers’ Compensation awarding multiple penalties and attorney fees in favor of the claimant. For the following reasons, we affirm, as amended.

FACTS

Charles Roque, Jr., was injured on June 30, 2000 when he slipped and fell off the top of his truck while attempting to cover his load of wood chips from exposure to the falling rain. Roque was in the employ of Shell Beach Trucking when the accident occurred. Roque immediately reported the fall to his supervisor, but attempted to continue working. On July 6, 2000, he went to the emergency room at Natchi-toches Parish Hospital complaining of severe pain. Roque received a shot for the pain, and attempted to return to work. He worked through July 13, 2000, when he notified his employer he could no longer drive his truck because of back pain.

Roque filed a disputed claim for compensation with the Office of Workers’ Compensation (OWC) naming Shell Beach Trucking and its insurer, American Interstate Insurance Company, as defendants. At issue was whether Roque was entitled to workers’ compensation benefits for July 14, 2000, whether he is entitled to penalties and attorney fees for that day’s worth of benefits, and whether he is entitled to penalties and attorney fees for other untimely payments of medical expenses. Ro-que also contended when he received his first compensation check it was not for a full seven days of benefits as owed.

The parties stipulated at trial that Ro-que was engaged in the course and scope of his employment with Shell Beach Trucking when he fell from his truck. His average weekly wage at that time was $643.23 per week, and he was being paid | ¡.maximum benefits up until the time of trial. It was also stipulated that a medical expense for Dr. Stephen Wheat was not paid timely. Roque requested a penalty for the defendants’ failure to pay this bill timely.

In accordance with the stipulation, the workers’ compensation judge (WCJ) awarded Roque $2,000.00 in penalties for the late payment to Dr. Wheat, but declined to award any penalties for any other alleged late payment of medical bills.. The WCJ found Roque failed to forward the disputed bills to the employer or insurer, opting instead to call the bill department of the medical providers and requesting they bill the employer or insurer. The WCJ concluded Roque failed to prove the employer or insurer failed to pay the bills within sixty days of receipt.

The WCJ did not accept the employer’s arguments that it reasonably controverted Roque’s claim to benefits for the one day of July 14, 2000. The WCJ found the employer was “well aware” of the last day Roque worked. A penalty of $2,000.00 was awarded for the employer’s failure to pay benefits for this day.

The WCJ also concluded that Roque’s first indemnity check was not for the full seven days of benefits as required. The court also awarded a $2,000.00 penalty for this failure. The court then awarded $7,000.00 as attorney fees for the work performed by Roque’s attorney on all the issues before the OWC.

The defendants appealed the OWC’s judgment, asserting the following assignments of error:

1. The WCJ committed reversible error in awarding multiple penalties in this matter;
2. The WCJ committed reversible error in finding that the first indemnity check should have been for seven days;
3. The WCJ committed reversible error in failing to find that defendants reasonable controverted Roque’s claim that he was entitled to benefits for July 14, 2000;
|34. The WCJ committed reversible error in awarding the employee a penalty and attorney fees for the late payment of Dr. Wheat’s medical bill;
5. The WCJ committed reversible error in awarding excessive attorney fees in this case.

ANALYSIS

Defendants’ first assignment of error asserts the WCJ erred in imposing multiple penalties. We disagree. The Louisiana Supreme Court recently settled this issue finding “La.R.S. 23:1201(F) provides multiple penalties for multiple violations of compensation and medical benefits claims.” Fontenot v. Reddell Vidrine Water District, 02-0439 (La.1/14/03), 836 So.2d 14.

Second, defendants urge the WCJ erred in finding the first indemnity check should have been for a full seven days rather than six days. La.R.S. 23:1201(B) provides that the first installment of compensation payable for temporary total disability shall become due on the fourteenth day after the employer or insurer has knowledge of the injury, on which date all such compensation then due shall be paid. The record is clear the initial payment was not for a full week of benefits, but was for six days.

In Brown v. Texas-LA Cartage, Inc., 98-1063 (La.12/1/98), 721 So.2d 885, a similar factual scenario was presented. In Brown the first payment was only for five days rather than a full week. The employer in Brown claimed the partial payment was due to its internal policy of only issuing checks on Wednesday. While the court noted the value of an existing payment policy to ensure the timely and accurate issuance of compensation benefits, it nonetheless concluded “such a policy cannot contravene statutory requirements ...” Id. at 892. The court in Brown found the partial payment contravened the statutory requirements of La.R.S. 23:1201(B) and Rwarranted the imposition of penalties and attorney fees. The WCJ did not err in finding the defendants did not reasonably controvert its obligation imposed by statute to pay benefits for the full week; and, thus, it did not err in awarding penalties and attorney fees for this failure.

Defendants also argue the WCJ committed reversible error in failing to find it reasonably controverted Roque’s claim that he was entitled to benefits for July 14, 2000. The WCJ gave the following reasons for awarding a penalty against defendants in this instance:

With respect to the one day of benefits, July 14th of 2000, the employer argues that they reasonably controverted Mr. Roque’s claim to benefits for that day asserting that in Mr. Roque’s deposition even he wasn’t sure of his last day of work and pointed to some documentation from the employer. However, the documentation of the employer demonstrates that the last day Mr. Roque was paid wages was July 13th of 2000.
The employer was well aware of the last day Mr. Roque worked. There was conflicting evidence in that the-the documentation of wages showing last payment of wages being July 18th and then a document with an entry for July 14th, that information could have easily been corrected, ascertained and found out by American Interstate Insurance Company from someone other than Mr. Charles Roque, that is, the employer who didn’t testify at this trial. No one from the employer testified.
The Court concludes therefore that American Interstate did not reasonable contest Mr. Roque’s testimony and evidence that he did not work on July 14th of 2000 and therefore would be entitled to benefits for that day. The Court would award a two thousand dollar penalty for failing to pay that day’s worth of benefits.

We find the factual findings of the WCJ were not manifestly erroneous, and his conclusion on this issue will not be disturbed.

Next, defendants contend the WCJ erred in awarding a penalty and attorney fees for the late payment of Dr. Wheat’s medical bill. Defendants argue the penalty should be paid to Dr. Wheat and not the employee. We disagree. La.R.S. 23:1201(F)(3) provides that “any additional compensation paid by the employer or 1 ^insurer pursuant to this Section shall be paid directly to the employee.” R.S. 23:1201(F)(4) provides the only exception to this rule:

(4)In the event that the health care provider prevails on a claim for payment of his fee, penalties as provided in this Section and reasonable attorney fees based upon actual hours worked may be awarded and paid directly to the health care provider.

That exception, however, is not applicable here because Dr. Wheat did not file a claim for payment of his fee. Therefore, the exception does not apply and the WCJ was correct in awarding the penalty and attorney fees to Roque for the late payment.

Defendants also assert the WCJ awarded an excessive amount in attorney fees to Roque. We find the attorney fees awarded were reasonable, given the nature of the case, the degree of skill and ability exercised by the attorney, and the successful result obtained by Roque. See Langley v. Petro Star Corp. of La, 01-0198 (La.6/29/01), 792 So.2d 721.

Roque answered defendant’s appeal, asserting the WCJ erred in not awarding penalties for other untimely paid medical bills. The record reveals there are two additional bills which were paid late.

Roque received medical treatment from Natchitoches Parish Hospital on June 31, 2001. The record established the adjuster received the bill on July 26, 2001. Thus, the sixty day period required payment by September 26, 2001. The bill was not paid until October 31, 2001, which the insurer justified by arguing there was a request for additional information which was not received until October 9, 2001.

Roque received treatment from Dr. Geoffrey Collins on January 23, 2001 through January 30, 2001. The insurer received the bill on March 26, 2001, requiring payment by May 26, 2001. The bill was not paid until July 5, 2001, again because the insurer stated its request for additional information was not received until June | fi22, 2001.

At trial, counsel for Roque requested “production of any and all documents in writing where they have written to the medical providers and—and requested additional information in order to pay the bills.” Counsel for the insurer replied “there’s one in the — in D-3.” We reviewed the exhibits, in particular D-3, and find there is a standard letter from the insurer requesting “corresponding medical reports for each date of service” and stating that the “charges were not itemized.” However, upon further review, this letter was for a bill submitted for medical service rendered on July 20, 2000 through July 31, 2000. This bill was paid within the sixty day period. The record contains no written documentation of any request for the two late payments in question. Although the insurer argues it should be excused from the penalty for failure to pay within the sixty day period, we find any request by the employer for additional medical records can and should be done in an expeditious manner within the sixty day time period. Therefore, we find an additional $2,000.00 penalty is warranted for each late payment.

Roque also has requested additional attorney fees for the work necessitated by this appeal. An increase in attorney fees is warranted on appeal when the appellant unsuccessfully appeals, and the appeal necessitates additional work. Sinegal v. Able Glass Co., Inc., 95-10 (La.App. 3 Cir. 10/11/95), 663 So.2d 393. We will award Roque an additional $3,000.00 for the work performed by his counsel on appeal.

DECREE

For the foregoing reasons, the judgment of the Office of Workers’ Compensation is affirmed. The judgment is amended to award an additional $4,000.00 in penalties for the two untimely paid medical bills. The judgment is also amended to award an additional $3,000.00 in attorney fees to Charles Roque, Jr. All |7costs of this appeal are assessed to defendants-appellants.

AFFIRMED, AS AMENDED.


author: 1PICKETT, Judge.

text:
    Tanya HANKS, Individually and on behalf of her Minor Child, NIcholas Hanks, v. COLUMBIA WOMEN’S & CHILDREN’S HOSPITAL, Francis J. Cardinale, M.D., and Louisiana Medical Mutual Insurance Company.
    No. 02-1433.
    Court of Appeal of Louisiana, Third Circuit.
    May 7, 2003.

      J. Minos Simon, LTD., Lafayette, LA, for PlaintifftApplicant, Tonya Hanks.
    C. Scott Carter, New Orleans, LA, for Intervenor/Respondent, C. Scott Carter, APLC Pickett, Judge.
    Court composed of BILLIE COLOMBARO WOODARD, ELIZABETH A. PICKETT and BILLY HOWARD EZELL, Judges.
   1PICKETT, Judge.

FACTS

Tanya Hanks, individually and on behalf of her minor son, filed suit against Columbia Women’s and Children’s Hospital for medical malpractice. After a medical review panel found the hospital did commit malpractice, the hospital tendered $100,000.00 and the Louisiana Patient’s Compensation Fund (PCF) was substituted as the defendant. In her original petition for damages filed on July 9, 2001, Hanks requested a “trial by jury of all the issues of fact involved herein.” On August 13, 2001, C. Scott Carter, A Professional Law Corporation, filed a petition for intervention in this suit seeking attorney fees. His petition alleges that he is owed money for work performed as counsel to Hanks in this malpractice action.

On September 24, 2002, Carter filed a Motion to Sever the Trial of the intervention from the trial on the principal demand, citing La.Code Civ.P. art. 1038. Hanks filed an exception to the motion, claiming that a severance would result in two jury trials, one on the principal demand and one on the intervention, which is impermissible.

Following a hearing on the Motion to Sever and Peremptory Exception thereto, the court granted the Motion to Sever. The court ruled the parties would try the merits of the main demand to a verdict and then retain the jury for the trial of the intervention.

Tonya Hanks sought a supervisory writ with this court, which was granted for consideration of the merits in an unpublished writ disposition issued by this court on January 24, 2003. All proceedings in the lower court have been stayed pending further action of this court.

I ASSIGNMENT OF ERROR

In her sole assignment of error, the plaintiff-relator Tonya Hanks alleges the following:

Given the existence of a timely demand for a jury trial as to all issues involved, made by plaintiffs, does a district court commit reversible error, where it compels plaintiffs to two (2) jury trials, one as to the principal demand and another as to a incidental demand?

DISCUSSION

The relator argues the trial court’s order violates La.Code Civ.P. art. 1736, which states:

The trial of all issues for which a jury trial has been requested shall be by jury, unless the parties stipulate that the jury trial shall be as to certain issues only or unless the right to trial by jury as to certain issues does not exist; however, except as otherwise provided under the provisions of Article 1562, there shall be one trial.

The relator argues that by severing the main demand from the incidental demand, there will be two jury trials, which the final clause in the article specifically prohibits. (La.Code Civ.P. art. 1562 is inapplicable in the matter before us.)

The relator cites Arrington v. McCarty, 136 So.2d 119 (La.App. 3 Cir.1961), in support of her argument. That case, however, does not address the issue before this court. In Arrington, the court held that if a request is made for a jury trial on the principal demand, any incidental demands may also be tried by a jury subject to the provisions of La.Code Civ.P. art. 1735 (now 1736), which requires that there be only one trial. The court in Arrington stated:

The question of whether the incidental issues now before us should be referred to the merits and tried at the same time the case is tried on the merits, or whether for other legal reasons a separate trial by jury of the issues presented here should be ordered, is not now before us. We do hold, however, that since a jury trial has been ordered in this case, then the incidental issues here presented may also be tried by jury, |asubject to the provisions of LSA-C.C.P. Article 1735 and other laws on that subject.

Id. at 122.

This court has held that “the trial court can order separate trials and render separate judgments on the principal and incidental demands, if it appears that fairness and orderly procedure would best be achieved by separate trials.” Doyle v. Picadilly Cafeterias, 576 So.2d 1143, 1149 (La.App. 3 Cir.1991).

The trial court has indicated he intends to hold a bifurcated proceeding, wherein the same jury would be used but the incidental demand would not be presented to the jury until a judgment has been returned on the main demand. This is in accordance with the provisions of La.Code Civ.P. art. 1038, which specifically allows a court to order the separate trial of principal and incidental actions.

Although Articles 1736 and 1038 appear to conflict, they can be reconciled. We find the trial court’s ruling does just that. The trial court’s ruling allows the principal and incidental demands to be presented to the jury separately so as to insure fairness and an orderly presentation. It does not violate Article 1736’s prohibition against two separate jury trials, however, because, in fact, both the principal and incidental demands will be presented to the same jury and at the same trial. The court is simply bifurcating the proceeding. We do not find the trial court erred in so ruling. Therefore, the relator’s writ application is denied and the ruling of the trial court is upheld in all respects.

WRIT DENIED.