author: I,WOODARD, Judge.

text:
    Alex M. LEGROS v. GREAT AMERICAN INSURANCE COMPANY OF NEW YORK, et al.
    No. CW02-1485.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 2003.

      Gregory P. Marceaux, Marceaux Law Firm, Lake Charles, Billy Edward Loftin, Jr., Attorney at Law, Lake Charles, LA, for Plaintiff/Respondent. Alex LeGros.
    Marshall M. Redmon, Virginia Y. Trai-nor, Phelps, Dunbar, L.L.P., Baton Rouge, LA, for Defendant/Applicant, U.S. Risk Brokers, Inc.
    Randell E. Treadaway, Jessica G. Roux, Reich, Meeks & Treadaway, L.L.C. Me-tairie, LA, for Defendant/Respondent, Great American Insurance Company of New York.
    Robert Edwin Torian, LaBorde & Neuner, Lafayette, LA, for Defendant/Respondent, Crick Insurance Agency.
    Court composed of BILLIE COLOMBARO WOODARD, MICHAEL G. SULLIVAN, and BILLY HOWARD EZELL, Judges.
   I,WOODARD, Judge.

U.S. Risk applied to this court for a supervisory writ, alleging that it can have no liability to Mr. LeGros for damages to his fishing vessel; therefore, the trial court erred in denying its motion for summary judgment. We find no error in the trial court’s decision and deny U.S. Risk’s writ, accordingly.

* ‡ * 5¡; *

The Plaintiff, Mr. Alex LeGros, a self-employed commercial fisherman, had just unloaded his catch at Don Bailey’s Fish House on June 5, 2001, when his vessel, M/V MISS ANGIE, caught fire. He and some of the deck hands and dock hands were able to extinguish the fire but not before it caused substantial damage to the vessel’s living quarters and pilothouse.

Accordingly, Mr. LeGros filed a claim with his insurance company to recover his loss. The insurance company denied recovery, both, because his policy had expired three days before the fire and because he had violated the trading warranty designation of “port risk,” which it claims voided the policy, even before its expiration date. Thus, Mr. LeGros filed suit against The Crick Agency, Inc. (Crick), U.S. Risk Brokers, Inc. (U.S.Risk), and Great American Insurance Company of New York, f/k/a American National Fire Insurance Company (Great American).

Great American, a foreign insurance company authorized to and doing business in Louisiana, issued Mr. LeGros a policy of limited coverage on the vessel from June 2, 2000 to June 2, 2001. Crick was his retail agent. Thus, Mr. LeGros communicated directly with Crick to obtain the policy, after which Crick contacted U.S. Risk, one of the intermediate wholesale brokers with whom it had a contract, and informed U.S. Risk of Mr. LeGros’ coverage needs. In turn, U.S. Risk communicated the information it obtained from Crick to various insurance companies, with whom it contracted, seeking a company that would agree to issue Mr. LeGros a policy. Great American agreed to issue the policy which consisted of hull insurance and protection and indemnity coverage. The policy contained the following “Trading Warranty:” “PORT RISK OUT OF COMMISSION CAMERON, LA.”

At the time Mr. LeGros sought the policy on the MTV MISS ANGIE, it was in port for repairs. Furthermore, he had been keeping it in port for a period of time | ^before this because of his divorce. Nevertheless, Mr. LeGros alleges that he told the Crick agent that the vessel would only be in port for a couple of weeks for repairs, after which he intended to start fishing again. On the contrary, the Crick agent alleges that Mr. LeGros knew that he was supposed to contact her before he took the vessel out of port and that she was not aware that he was using it until she tried to reach him to discuss the renewal of his policy and was informed that he was unavailable because he was out fishing.

When Mr. LeGros returned, he completed the renewal application and gave it to Crick. Crick submitted it to U.S. Risk, indicating that the delay in getting it to U.S. Risk was due to Mr. LeGros’ being out fishing. Facsimile records indicate that U.S. Risk passed along this information to Great American, at which time it, presuming that Mr. LeGros had been using the vessel named in the policy for his fishing voyages, told U.S. Risk that it would not be offering a renewal to Mr. LeGros, and, furthermore, there was no existing coverage because the present policy was warranted “port risk.” U.S. Risk informed Crick that Great American had declined to renew the policy and that it attempted to get a quote from other companies, but they declined to offer coverage. Whether Crick informed Mr. LeGros that his policy was not being renewed is disputed. The fire occurred on June 5, 2001, three days after the end of the policy term.

Mr. LeGros asserts that U.S. Risk breached its fiduciary duty to him. U.S. Risk moved for summary judgment, asserting that it can have no liability under the policy because it is not an insurer and that it can have no liability under a duty/ risk analysis because it owed no duty to Mr. LeGros. When the trial court denied U.S. Risk’s motion, it applied for a supervisory writ to this court. It contends that it can have no liability for Mr. LeGros’ loss, as a matter of law; thus, the trial court should have dismissed it from the case.

JaT * * * *

Duty

The policy, in question, is a marine insurance policy. Nevertheless, it is well settled that Louisiana law governs any contract to procure insurance. U.S. Risk asserts that an intermediate wholesale broker, such as itself, represents and is an agent of the insurer, rather than the insured. Accordingly, it alleges that it can have no liability to Mr. LeGros, as a matter of law.

“Whether an insurance broker, in a transaction, is acting as an agent of the insured or the insurer in a transaction is a question of fact to be determined from the particular circumstances of the case.” While the determination of whether a duty exists is a question of law, the determination in the instant case depends on the agency relationship between and among all of the parties. Whether an agency relationship exists between parties is a ques-< tion of fact and must be determined on the particular circumstances in each case. Accordingly, this issue cannot be disposed of on summary judgment.

Notwithstanding, U.S. Risk alleges that even if it had a duty to Mr. LeGros, it consisted, only, of using reasonable diligence in attempting to place the insurance requested and notifying the retail agent promptly in the event it is unable to do so, a duty which U.S. Risk avers it fulfilled. However, breach of a duty is a question of fact, dependent upon all the circumstances of a particular case and, therefore, inappropriately determined on summary judgment.

14Thus, Mr. LeGros should have the opportunity to demonstrate whether U.S. Risk owed him a duty, and if so, whether it breached that duty, which breach resulted in his failure to obtain insurance covering the vessel at the time of the loss and, therefore, contributed to the damages his lack of coverage caused.

Accordingly, we deny U.S. Risk’s writ, finding that the trial court was correct in denying summary judgment in its favor.

CONCLUSION

We agree with the trial court that disputed issues of material fact preclude U.S. Risk’s dismissal on summary judgment. Therefore, we deny its writ. We assigns costs to Applicant/U.S. Risk.

WRIT DENIED.

      . See La.R.S. 22:1379(9); See also Grubbs v. Gulf Int’l Marine, Inc., 625 So.2d 495 (La.1993).

      . Graham v. Milky Way Barge, Inc., 923 F.2d 1100 (5th Cir.1991).

      . McManus v. S. United Fire Ins., 00-1456, p. 6 (La.App. 3 Cir. 3/21/01), 801 So.2d 392, 396-97 (citing Tiner v. Aetna Life Ins. Co., 291 So.2d 774 (La.1974); Duhon v. Mid-American Cas. Co., 553 So.2d 1100 (La.App. 3 Cir.1989)).

      . Roberts v. Benoit, 605 So.2d 1032 (La.1991).

      . Venable v. U.S. Fire Ins. Co., 02-505 (La.App. 3 Cir. 10/30/02), 829 So.2d 1179.

      . Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270.


source: Caselaw Access Project

author: | WOODARD, Judge.

license: Public Domain

text:
    Billy A. BROWNING, et al. v. WEST CALCASIEU CAMERON HOSPITAL.
    No. CW03-332.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 2003.
    Writ Denied Feb. 13, 2004.

      Steven Broussard, Broussard & Hart, L.L.C., Lake Charles, LA, for Plaintiff/Respondent: Billy A. Browning.
    P. Scott Jolly, Watson, Blanche, Wilson & Posner, L.L.P., Baton Rouge, LA, for Defendant/Applicant: West Calcasieu Cameron Hospital.
    Court composed of BILLIE COLOMBARO WOODARD, MICHAEL G. SULLIVAN, and BILLY HOWARD EZELL, Judges.
   | WOODARD, Judge.

The Defendant, West Calcasieu Cameron Hospital, asserts that the trial court should have granted its motion for summary judgment because the Plaintiffs did not submit evidence sufficient to support a medical malpractice claim. We deny the Defendant’s writ.

* * *

On June 1, 1999, Mrs. Jewell Browning and her husband, Mr. Billy Browning, drove into Lake Charles to see a movie. According to Mr. Browning, his wife complained of pain in her left arm and shoulder on the way to the movie theater. He asked her if she needed to go to the hospital, but she allegedly responded: “Oh, it’s just bursitis.”

After the movie, they visited their daughter, Theresa Helton. At Theresa’s house, they talked for a little while with Theresa and her husband. Afterwards, they went to visit their other daughter, Patricia Stump. On the way to Patricia’s house, they stopped by Burger King, where Mrs. Browning had a Whopper and a soda. Soon after they arrived at her house, Patricia asked her mother if she wanted to go for a short walk around the neighborhood. On the way back to the house, Mrs. Browning told Patricia that she was not feeling well.

When they got back to the house, Patricia remembered her mother saying “she was weak and hot.” Patricia asked her if she wanted to go to the hospital, but she refused. Patricia called for an ambulance at 7:28 p.m. when her mother began throwing up.

It took approximately three minutes for an ambulance dispatched from West Calca-sieu Cameron Hospital (WCCH) substation to arrive at the scene. The two ambulance attendants, Chris Weaver and Brent Andrepont, were EMT-Paramedics certified in CPR and ACLS (Advanced Cardiac Life Support). Chris was the driver of the ambulance, and Brent “took the lead.” According to Chris, they “work as a team,” but Brent did most of the interacting with Mrs. Browning and her family.

The initial ambulance-run-report Brent filled out indicates that Mrs. Browning needed an ambulance because she was experiencing “Syncopal Episodes” with nausea Land vomiting. During his deposition, he noted that “Syncopal” simply meant passing out or fainting. Another section of the report states the following:

Present Finding: Upon arrival found 57 year-old Caucasian female seated on couch. Noted vomitus on floor. Patient stated had eaten burger from Burger King approximately one hour prior to going for a walk. Patient denied any chest pain or any medical history. Patient stated that when she returned to the house, she became dizzy, light-headed, and nauseated. Husband stated he assisted her to the floor in kitchen. Patient’s skin cool and diaphoretic [or sweaty]. Patient AOX3. Patient stated she felt she was fine after vomiting. Blood pressure was taken[.] ... Patient again stated felt fine and refused transport to hospital for evaluation.

Brent explained that “AOX3” meant that, upon their arrival, Mrs. Browning was “alert and oriented times three, person, place, and time.”

In addition to the symptoms listed in the report, Patricia alleges that her mother informed the paramedics that “she was having a hard time breathing.” Mr. Browning also asserts that he told one of the paramedics on the scene that his wife felt a pain earlier that day in her left arm and shoulder.

When Brent and Chris arrived on the scene, Brent assessed the situation and took Mrs. Browning’s pulse. However, according to Patricia and Mr. Browning, Patricia had to ask them to take her mother’s blood pressure before Chris actually did so. After she vomited, Mrs. Browning told the paramedics she felt better, but Patricia noticed that “her face was growing pale.” Then, Brent asked her about her medical history, after which he told Mrs. Browning that she probably suffered a heat related injury.

Mr. Browning said the paramedics kept telling his wife: “You’re going to be all right, Mrs. Browning.” When Brent asked for permission to transport her to a hospital, she refused. Even though there is conflicting testimony regarding the total number of times and the manner in which he asked her this, Mrs. Browning clearly refused any and all attempts made by the paramedics to transport her to a hospital.

Next, Brent asked Mrs. Browning to sign a form to document the fact that she refused transport. After the paramedics left, Patricia helped her mother into the bathtub. Mrs. Browning returned to the living room after her bath and laid down on the couch. Within a couple of minutes, she was gasping for breath and shaking. Patricia immediately called for an ambulance. The second ambulance-run-report | ¡¡indicates that it was 8:00 p.m. when Chris and Brent returned. The second report also states the following:

Present Finding: Upon arrival found 57 year-old Caucasian female lying supine on couch pulseless [and hardly breathing]. No CPR in progress. Patient had been dizzy and nauseated earlier this evening. Patient moved to the floor. Cardiac monitor shows ventricular fibrillation. Patient is pale and [sweaty] but warm. Negative abdomen distention. Patient is incontinent. Pupils equal at four millimeters and non-reactive. No available history or findings at present.

Immediately, they placed Mrs. Browning on a cardiac monitor. At 8:06 p.m., the monitor recorded ventricular fibrillation which, according to Brent, meant her heart was “just quivering” and lost its normal rhythm. They started CPR and shocked her once. At 8:08 p.m., her regular heart rhythm had returned and her pulse progressively got better. They transported her to St. Patrick Hospital, where she died the following morning at 4:00 a.m. from a heart attack.

On November 22, 1999, the Plaintiffs filed a complaint with the Patient’s Compensation Fund. On July 25, 2001, after reviewing all assertions of liability, a medical review panel unanimously held that the evidence presented did not support a conclusion that Chris Weaver, Brent Andre-pont, or WCCH failed to comply with the appropriate standards of care.

On August 1, 2001, the Brownings filed a petition for damages with the trial court. They alleged that WCCH is liable for their EMTs’ negligence: (1) in not obtaining and documenting Mrs. Browning’s refusal according to WCCH’s protocols; (2) in failing to warn her of the potential seriousness of her medical condition; (3) in failing to place her on a cardiac monitor on the first run; (4) in failing to transport her to a hospital on the first run; (5) in failing to assess her medical condition properly and completely; and (6) for any other acts of negligence proven at a trial on the merits.

WCCH responded by filing a pleading-titled: “Exceptions of Non-Conformity, Improper Cumulation, No Right or Cause of Action, Res Judicata, Alternative Motion for Summary Judgment.” The trial court determined that it should treat all of these claims as a single motion for summary judgment, which the court denied on February 10, 2003.

UWCCH appeals, asserting that the trial court erred: (1) by failing to rule that it is entitled to immunity under La.R.S. 40:1233; (2) by not finding that the Brown-ings must produce expert evidence to substantiate a medical malpractice claim; and (3) in failing to rule that Mrs. Browning waived her claims and those that her family could raise on her behalf.

Standard op Review

Appellate courts generally review motions for summary judgment de novo, under the same criteria governing the trial court’s consideration of the appropriateness of summary judgment. Therefore, we must conduct a de novo review of the record to determine if its denial of summary judgment was proper.

Summary Judgment

A summary judgment is appropriate only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.”

Louisiana Code of Civil Procedure Article 966 provides the standard for considering motions for summary judgment. The 1996 amendments to that article and the post-amendment jurisprudence clearly suggest that summary judgment grants are now favored. Specifically, La.Code Civ.P. art. 966(C) provides:

(1) After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.
(2) The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential |Belements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

In Hayes v. Autin, this court determined that the burden to show that no material issues of fact exist remains with the movant, but this burden shifts to the adverse party once the movant has made a prima facie showing that the motion should be granted. However, “[i]f qualifying evidence is submitted in opposition to a motion for summary judgment which creates a dispute as to a genuine issue of material fact, the motion for summary judgment should be denied.” Immunity

Louisiana Revised Statutes 40:1233(A) provides:

(1) Any emergency medical person certified pursuant to the provisions of this Subpart who renders emergency medical care to an individual while in the performance of his medical duties and following the instructions of a physician shall not be individually liable to such an individual for civil damages as a result of acts or omissions in rendering the emergency medical care, except for acts or omissions intentionally designed to harm, or for grossly negligent acts or omissions which result in harm to such an individual. Nothing herein shall relieve the driver of the emergency vehicle from liability arising from the operation or use of such vehicle.
(2) The immunity granted to emergency medical personnel by the provisions of this Subpart shall extend to parish governing authorities, police departments, sheriffs’ offices, fire department, or other public agencies engaged in rendering emergency medical services and its insurers with respect to such emergency medical services unless the emergency medical personnel employed by such agencies would be personally liable under the provisions of Paragraph (1) of this Subsection.

| fi(Emphasis added.) Thus, our legislature gave emergency medical personnel immunity from liability only under certain circumstances. In order for the immunity to apply, the EMT must: (1) render emergency medical care to an individual while in the performance of his medical duties, and (2) he must be following the instructions of a physician. Nevertheless, the immunity from liability does not apply, inter alia, to grossly negligent acts or omissions that result in harm to an individual.

WCCH believes it is entitled to immunity for their paramedics’ actions, even though Chris and Brent admit that they had no direct contact with a physician while on the first ambulance run. Notwithstanding, WCCH asserts that Chris and Brent were acting under indirect medical direction, which is equivalent to following the instructions of a physician.

In Ambrose v. New Orleans Police Department Ambulance Service, the fourth circuit found two EMTs to be following the instructions of a physician when they acted according to protocols or a prescribed set of instructions which physicians of the Orleans Parish Medical Society had established. Thus, the Ambrose court held that an EMT who followed established protocols while in the performance of his medical duties could only be liable for intentionally harmful or grossly negligent acts or omissions. The court further held that the two EMTs involved were grossly negligent.

In that case, our supreme court reversed, holding that the fourth circuit’s finding of gross negligence was clearly wrong. However, it obviously agreed with the fourth circuit’s assertion that the plaintiffs must prove that the defendants were grossly negligent in order to recover in light of the limited immunity provided to these EMTs who were acting pursuant to protocols. On this issue, our supreme court stated:

|7In order to prevail, plaintiffs must prove that the EMTs owed a duty to [the decedent], that the EMTs’ acts or omissions caused his death or were the cause in fact of [his] loss of a chance of survival, and that the EMTs’ acts or omissions were either intended to inflict harm or were grossly negligent. It is not enough for plaintiffs to prove simply that the EMTs acted negligently. Plaintiffs here must prove that defendants’ actions or omissions were grossly negligent or intentionally designed to harm. The law, as required by the above quoted statute, thus accords emergency medical personnel a limited immunity from civil damages.[]

No one claims that Chris and Brent’s actions were intentionally designed to harm Mrs. Browning; thus, we will focus on the remainder of the standard.

Chris and Brent were rendering emergency medical care to Mrs. Browning while performing their medical duties. However, before they are granted the limited immunity La.R.S. 40:1233 provides, WCCH must prove that they actually followed the instructions of a physician given to them indirectly through WCCH’s standing protocols.

During his deposition, Brent stated that the EMTs are “supposed to pass on everything” to a doctor. He explained:

You have ... direct and indirect medical direction. Direct would be direct communication [via] radio and phone. Your indirect is your standard order or procedure, protocols. Your guidelines on how you usually practice.
... You work under either your indirect or your direct medical direction.

WCCH argues that Chris and Brent were following the instructions of a physician on the first ambulance run because they were following established protocols before and after Mrs. Browning refused transport to a hospital. Brent acknowledged that WCCH’s requires its EMTs to learn and know these protocols. However, the Brownings have produced solid evidence to support their claim that Chris and Brent did not follow the hospital’s protocols for obtaining and documenting a patient’s written refusal on the first ambulance run.

Specifically, WCCH requires their paramedics to complete an “Acknowledgment of Patient’s Refusal of Care” form in order “[t]o provide ^documentation of a patient’s refusal of care for themselves or a member of their family.” According to WCCH’s protocols for executing this form, the paramedics must “[r]emember that this form is a legal document and should be completed in its entirety. This document should be completed and then read to the patient and then signed by the patient.” (Emphasis added.) The form states:

I admit that the above refusal is against the advice of the personnel of West Cal-casieu Cameron Hospital Ambulance Service who have advised me of the dangers which may result from my refusal including, and not limited to the following:_
I realize that my refusal may cause or increase danger to myself or the patient. Nevertheless, I assume the risk and accept the consequences of my refusal. Furthermore, I do forever release and give up any claim, demand or action against West Calcasieu Cameron Hospital Ambulance Service, and any and all persons employed by or responding with any fire unit, rescue squad, police or ambulance unit, and do hereby covenant and agree to hold such persons and entities harmless from any claim, demand, loss or action, by myself, the patient, or any person claiming by or through myself or the patient for any alleged act or omission in the care or treatment of the patient in compliance with the refusal. This release is binding on my heirs, executors, and assigns.

(Emphasis added.)

In the blank, Brent filled in: “Advised to suck on ice chips, take a tepid water bath to cool down and relax.” Under this, Chris later wrote: “Possible heat related disorder versus syncope of unknown etiology versus possible cardiac problem.” According to Brent, Chris filled this information in after Mrs. Browning signed it. Conversely, Chris maintains that he included this notation before they asked her to sign the refusal form.

Brent admitted that he did not read the refusal form “word for word” to Mrs. Browning before she signed it, but he did remember advising her of what was stated in the form. Specifically, he testified: “I advised her that this was a release from medical responsibility. She had already been advised of the possibilities of what we were looking at.... [T]o me it presented as a heat related injury.” Therefore, regardless of when Chris filled in the disputed language on the refusal form, Brent Jjjihade it clear that he did not remember advising her of the fact that she may have a heart related condition.

When Brent was asked if he told Mrs. Browning her condition could be life threatening, he responded: “I don’t recall telling her that.” This is consistent with the testimony of Patricia who believes the paramedics should have told her mother that she was “possibly having heart problems.” Mr. Browning also remembered the paramedics telling his wife “that it was heat related.” In fact, Chris is the only person on the scene who recalls any type of discussion that could have suggested to Mrs. Browning or her family that she might have something other than a heat related disorder. Chris alleges that he told her she may have a heart condition and that it could be life threatening, but no one else, including Brent, substantiates this.

WCCH’s protocol also states that their employees are to “list a detailed list of possible injuries, illness, and outcomes of refusal of care or transport.” (Emphasis added.) Thus, if Brent’s memory is correct, the refusal form Mrs. Browning signed contained no warning, whatsoever, since he simply “advised [her] to suck on ice chips” and to “[t]ake a tepid water bath to cool down and relax.” Even after Chris added the disputed language to the refusal form, it still lacked any advice concerning specific possible dangers or “outcomes of [her] refusal of care or transport.”

The established protocol further states that the people who witness the completion of the form “should be someone other than ambulance personnel.” Chris and Brent were the only people who signed as witnesses to the form. This is obviously a clear violation of WCCH’s written guidelines, given that they could have easily asked others on the scene to witness the completion of the form.

WCCH also required Chris and Brent to use all their efforts to “convince” Mrs. Browning that she needed to seek medical treatment and/or transport. WCCH’s rules state: “All effort to convince the patient to seek medical treatment and/or transport should be exhausted before the refusal form is attempted.” However, when Brent was asked if he tried to convince her to go to a hospital, he answered:

It is not my job to convince you. All I’m there ... to do is to inform you of the possible injury or medical condition that you have. And if you are coherent enough and you can make your decision ... it’s your decision whether you consent to ... [being] treated and transported.

|inMr. Browning was asked whether the paramedics recommended to his wife that she go to the hospital. He answered: “They didn’t recommend it. They just asked her if she wanted to go.” When his daughter, Patricia, was asked if the paramedics tried to convince her mother to go to a hospital, she said: “No.”

Given the foregoing factual disputes, it would be improper for this court to decide whether these EMT’s adhered to WCCH’s protocols. Therefore, it is up to the trier of fact to resolve this issue at a trial on the merits.

Burden op Proving a Medioal Malpractice Claim

The claimant has the burden of proving the validity of their medical malpractice claim. Louisiana Revised Statutes 9:2794(A) provides:

[ T]he plaintiff shall have the burden of proving:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, or chiropractic physicians within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3)That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

Thus, according to La.R.S. 9:2794(A), any medical malpractice claimant must establish, by a preponderance of the evidence: (1) the defendant’s standard of care; (2) the defendant’s breach of that standard of care; and (3) a causal connection between the breach and the claimant’s injuries.

| ^Expert Testimony

WCCH submits that the Brownings must produce expert evidence to prove their medical malpractice claim. Accordingly, WCCH believes the trial court should have granted it a summary judgment given the Brownings’ failure to present expert testimony regarding: (1) WCCH’s standard of care; (2) the hospital’s violation of that standard of care; and (3) the causal connection between its alleged negligence and the Plaintiffs injuries.

Expert Testimony on the Standard of Care and Breach of That Standard

Louisiana Revised Statutes 9:2794(B) gives any party to a suit the right to subpoena any physician, without his or her consent, for a deposition or testimony at trial to establish a health care provider’s standard of care. However, the statute is silent on the necessity of experts.

In Pfiffner v. Correa, our supreme court pointed out that while a majority of Louisiana courts have held that expert testimony is necessary, others have held that it is not absolutely required. The latter merely state that the standard of care and a breach of that standard are “best determined from the testimony of other experts in the field.” Therefore, such testimony is persuasive, but not always needed.

The jurisprudence has recognized various situations that do not necessitate medical malpractice plaintiffs to proffer expert evidence. The Pfiffner court listed a few examples:

Expert testimony is not required where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient’s body, from which a lay person can infer negligence. Failure to attend a patient when the circumstances demonstrate the serious consequences of this failure, and failure of an on-call physician to respond to an emergency when he knows or should know that his presence is necessary are also examples of obvious negligence which \ require no expert testimony to demonstrate the physician’s fault. Likewise, where the defendant/physician testifies as to the standard of care and his breach thereof, or the alleged negligence consists of violating a statute and/or the hospital’s bylaws, (violation of LSA-R.S. 40:2113.4 which imposes a duty on a hospital to make emergency services available to all persons in the community without regard to income or insurance protection and hospital bylaws establishing duties for on-call physicians), expert testimony is also unnecessary to establish a malpractice elaim.[]
(Emphasis added.) Thus, the trier of fact does not need expert testimony to establish a defendant’s standard of care nor does it need expert testimony to determine whether the defendant breached that standard when the medical and factual issues are such that the trier of fact could perceive negligence in the charged defendant’s conduct as well as any expert could, or when objective evidence, including the defendant’s testimony, demonstrates a breach of the standard. However, if the matter does not involve an instance of obvious negligence, the plaintiff must establish the standard of care and its breach through the testimony of an expert witness.

WCCH’s protocols give their EMTs certain guidelines to follow when procuring a patient’s refusal. These protocols clearly provide the applicable standard of care WCCH expected Chris and Brent to use on the first ambulance run. Therefore, under the circumstances, the Brownings did not need to proffer expert evidence on that issue.

In Landry v. Clement, this court held that a hospital’s negligence could be inferred when the claimants establish that the hospital’s employees clearly violated the hospital’s written rules, regulations, bylaws, or policies.

The objective evidence and testimony of the witnesses support the Brownings’ contention that Chris and Brent failed to adhere to the hospital’s protocols on obtaining and documenting a patient’s refusal. Furthermore, if proven, the EMTs’ failure to observe WCCH’s established protocols is evidence of their obvious | ^negligence. Consequently, the trier of fact does not need an expert’s assistance to understand that this alleged failure constitutes negligence.

Therefore, we find that the Brownings, even without the submission of expert testimony, presented sufficient evidence to establish that they could satisfy their evi-dentiary burden of proving WCCH, through its EMTs, breached its standard of care at a trial on the merits.

Expert Testimony on Causation

The Plaintiffs must demonstrate by a preponderance of the evidence that a causal nexus exists between WCCH’s fault and Mrs. Browning’s death. The Pfiffner court noted that there are “cases in which there are obvious unnecessary delays in treatment which constitute medical malpractice and where causation is evident.” Furthermore, our supreme court recognized that the factfinder does not always need expert testimony to prove that a patient’s death is causally connected to an unreasonable delay in diagnosis and treatment of that patient.

Moreover, in Estate of Adams v. Home Health Care of Louisiana, the supreme court recently set aside an appellate court’s ruling granting a healthcare provider summary judgment when the plaintiff did not provide expert testimony to prove the defendant’s negligence (failing to call the attending doctor when the condition worsened) caused the damages (amputation). Our supreme court found such evidence to be unnecessary and, thus, explained:

Causation is an issue of fact that is generally decided at the trial on the merits. As the dissenting judge on the intermediate court noted, the admitted negligence clearly caused some damages, even if it merely hastened the amputation by one day. Plaintiffs damages for pain and suffering during the period of negligence, for aggravation of her medical condition, and for loss of any chance of saving her foot or of delaying the amputation is more appropriately decided by trial on the merits, even if plaintiff’s case regarding the amount of damages is considerably weakened by the dearth of expert testimony.[j

114(Emphasis added.)

Chris admitted that Mrs. Browning’s refusal to go to the hospital might have jeopardized or compromised her health. He also acknowledged that he believed her ventricular fibrillations occurred between the first and second ambulance run.

During his deposition, Brent was asked whether, in hindsight, he thought Mrs. Browning was having a heart attack or a forerunner to a heart attack when he examined her on the first ambulance run. He answered: “After looking at this and knowing what happened, she possibly could be.” In addition, both paramedics recognized that if they had taken her to the hospital on that first run, she would have been placed on a cardiac monitor that could have detected the presence of any heart condition immediately. Moreover, while it is true that Brent denied this, Mr. Browning remembers Brent telling him: “Mr. Browning, we messed up. We should have transported your wife the first time and I’m really sorry.”

Thus, whether Chris and Brent’s failures, including their failure to adhere to WCCH’s protocols and their alleged failure to inform Mrs. Browning of the possibility that she may have a heart condition, bear a causal connection to her eventual death is an inappropriate question at the summary judgment stage.

We find the Brownings’ failure to proffer expert evidence to prove causation unimportant at this stage in the proceedings, even though, ultimately, its absence may weaken their case, since the delay in diagnosing and treating Mrs. Browning’s heart condition was surely a factor in bringing about her eventual demise. Clearly, she would have received immediate emergency medical care for her heart condition much sooner if she had agreed to transport.

Thus, we find that the Brownings did not need to present expert testimony to prove the existence of a causal connection between WCCH’s alleged negligence and Mrs. Browning’s death.

Waiver

hsWCCH alleges that Mrs. Browning waived her claims and any claims brought on her behalf against the hospital by signing the refusal form presented to her by the paramedics on the first ambulance run.

Louisiana Civil Code Article 2046 provides a general rule of construction that “[w]hen the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” As a general rule, the intent of the parties is determined from the four corners of the written instrument, and a court will ordinarily find extrinsic evidence inadmissible either to explain or to contradict the terms of the instrument.

However, extrinsic evidence can be considered to determine what differences the parties intended to settle when disputes over the scope of a compromise agreement arise. Moreover, the courts have recognized exceptions to this rule’s application when substantiative evidence is presented establishing either: (1) the re-leasor was mistaken as to what she was signing, even though fraud was not present; or (2) the releasor did not fully understand the nature of the rights she released or did not intend to release certain aspects of her claim.

Further, La.Civ.Code art. 3073 explains that a compromise agreement regulates, only, those differences the parties clearly comprehend, unless the differences are the necessary consequence of what is expressed in the agreement. It further mandates that a compromise agreement cannot be extended to those differences the parties never intended to be included in the agreement. In Brown ex rel. Brown v. Drillers, Inc., our supreme court noted:

In applying the rule of construction set forth in LSA-C.C. Art. 3073, courts are guided by the general principle “that the contract must be construed as a whole and in light of attending events and circumstances.” Thus, the intent which the words of the compromise instrument express in light of the surrounding circumstances at the time of execution of the agreement is controlling.L]

|1fi(Emphasis added.)

The refusal form, itself, reveals crucial omissions which are at the heart of informed consent, and, thus, on its face, vitiates the same; namely:

I admit that the above refusal is against the advice of the personnel of West Cal-casieu Cameron Hospital Ambulance Service who have advised me of the dangers which may result from my refusal including, and not limited to the following:
(Emphasis added.) Chris and Brent never included on Mrs. Browning’s refusal form the specific possible dangers or possible outcomes that might result from her refusal of care or refusal of transport, thus, her signature on this refusal form does not evidence her waiver of claims against WCCH.

Furthermore, WCCH adopted strict rules for their EMTs to follow when attempting to obtain a patient’s refusal. The evidence and testimony presented suggest that Chris and Brent failed to adhere to all of them. In addition, we documented a few of the many factual issues that are still in dispute regarding the procedures they used to procure Mrs. Browning’s signature on the refusal form. As such, the trier of fact must first attempt to resolve some of these issues and, only after this is done, can there be an enlightened ruling on whether Mrs. Browning, in light of attending events and circumstances, could have clearly comprehended the nature of the rights she released.

Thus, we find that this issue is not conducive to summary judgment.

^CONCLUSION

Considering the many factual disputes, the trial court correctly denied the Defendant’s motion for summary judgment. We decline the writ and assess all costs to the Defendant-Applicant.

WRIT DENIED.

      . Potter v. First Fed. Sav. & Loan Ass’n of Scotlandville, 615 So.2d 318 (La.1993).

      . La.Code Civ.P. art. 966(B); Hayes v. Autin, 96-287 (La.App. 3 Cir. 12/26/96), 685 So.2d 691, 694, writ denied, 97-281 (La.3/14/97), 690 So.2d 41.

      . Hayes, 685 So.2d 691.

      . Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 19 (La.2/29/00), 755 So.2d 226, 237.

      . Kyser v. Metro Ambulance, Inc., 33,600 (La.App. 2 Cir. 6/21/00), 764 So.2d 215, writ denied, 00-2212 (La.10/27/00), 772 So.2d 650.

      . 627 So.2d 233 (La.App. 4 Cir.1993).

      . Id.

      . Id.

      . Ambrose v. New Orleans Police Dep’t Ambulance Serv., 93-3099 (La.7/5/94), 639 So.2d 216.

      . Id. at 219.

      . Pfiffner v. Correa, 94-924, 94-963, 94-992 (La.10/17/94), 643 So.2d 1228.

      . Id.

      . Id. at 1233 (quoting Broadway v. St. Paul Ins. Co., 582 So.2d 1368, 1373 (La.App. 2 Cir.1991)).

      . Id.

      . Id.

      . Id. at 1233-34 (citations omitted).

      . Id.

      . Thomas v. Southwest La. Hosp. Ass’n, 02-645 (La.App. 3 Cir. 12/11/02), 833 So.2d 548, writ denied, 03-476 (La.4/25/03), 842 So.2d 401.

      . 97-852 (La.App. 3 Cir. 4/15/98), 711 So.2d 829, writs denied, 98-1281, 98-1331 (La.6/26/98), 719 So.2d 1061, 719 So.2d 1288.

      . 643 So.2d at 1234.

      . Id.

      . 00-2494 (La.12/15/00), 775 So.2d 1064.

      . Id. at 1064-65.

      . See Id. See also Parker v. Harper, 01-548 (La.App. 3 Cir. 10/31/01), 803 So.2d 76.

      . See Estate of Adams, 775 So.2d 1064.

      . Brown ex rel. Brown v. Drillers, Inc., 93-1019 (La.1/14/94), 630 So.2d 741.

      . Ortego v. Dep’t of Transp. & Dev., 96-1322 (La.2/25/97), 689 So.2d 1358.

      . Wiley v. Rapides Reg'l Med. Ctr., 02-1439 (La.App. 3 Cir. 6/12/03), 847 So.2d 752.

      . 630 So.2d at 748 (citation omitted); Ryland v. St. Mary’s Residential Training School, 03-27 (La.App. 3 Cir. 4/30/03), 843 So.2d 1237.

      . See Brown ex rel. Brown, 630 So.2d 741.


author: hWOODARD, Judge.

text:
    STATE of Louisiana v. Collins J. KONKLE.
    No. CA03-512.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 2003.
    Writ Denied Feb. 20, 2004.

      Jeffery L. Brunson, Special Assistant District Attorney, Lafayette, LA, for State/Appellant.
    J. Clay Lejeune, Crowley, LA, for Defendant/Appellee: Collins J. Konkle.
    Court composed of BILLIE COLOMBARO WOODARD, MICHAEL G. SULLIVAN, and BILLY HOWARD EZELL, Judges.
   hWOODARD, Judge.

On appeal, the State of Louisiana argues that a Michigan support order, brought under the Uniform Interstate Family Support Act (UIFSA) to collect arrearages the Defendant owed, should be valid and enforceable in Louisiana. The trial court declined to register this foreign support order. We affirm.

* * *

In 1979, Mr. Collins Konkle and Mrs. Geraldine Ann Davy had a child, who was born in the State of Michigan. The couple married a month later. In 1981, the family moved to Louisiana, then, decided to move to Texas a year afterwards. They separated two years later. Soon after their separation, Mrs. Konkle and her child moved back to Michigan. Mr. Kon-kle chose to settle in Louisiana.

In 1983, she initiated child support proceedings in the State of Michigan under the Uniform Reciprocal Enforcement of Support Act (URESA). Michigan filed a petition to initiate support proceedings in Louisiana. On September 23, 1983, a Louisiana court ordered Mr. Konkle to pay $100.00 per month in support. Under URESA procedure, Louisiana sent the order to Michigan, the initiating jurisdiction. Later, Mr. Konkle voluntarily agreed to increase his support obligation to $150.00 per month.

In 1985, Mrs. Konkle filed a petition for divorce in Michigan. However, Mr. Kon-kle did not answer the petition or make an appearance of any kind in that action. On August 6, 1985, a Michigan court entered a default judgment against him under which it ordered him to pay $50.00 per week in child support.

By an order dated June 12, 1997, a Louisiana court closed child support proceedings against Mr. Konkle when it found that his child had reached the age of majority and that he did not owe any arrears.

On January 15, 2002, Mrs. Konkle filed, through the State of Florida, her new domicile, a motion to register a foreign support order under UIFSA in Louisiana. She filed this motion to collect arrearages owed under the Michigan order entered in 1985.

This matter was set for trial on July 5, 2002, at which time the trial court declined to register the foreign support order. Specifically, it found that: (1) Louisiana had assumed jurisdiction in 1983; (2) the Defendant in good faith had |2fulfilled his obligation under the Louisiana order(s); and (3) the Michigan court violated his due process rights when it ordered him to pay a default judgment without giving him notice and an opportunity to be heard.

On appeal, the State of Louisiana asserts that the trial court erred: (1) in rendering judgment without affording counsel an opportunity to present evidence; (2) in considering the Louisiana order(s) to reach its holding despite the absence of any motion or request that the order(s) be admitted in evidence; and (3) in failing to give the Michigan order full faith and credit.

Opportunity to Present Evidence

Before the hearing on State’s motion to register the foreign support order, the trial court held a pre-trial conference. At this conference, Mr. Konkle’s counsel told the trial court his client had advised him that he had no knowledge of the Michigan divorce proceedings and/or the resulting divorce/ehild support order that Mrs. Konkle initiated in 1985.

According to the State, immediately after hearing this, the trial court denied registration of the Michigan order. Thus, the State believes the trial court relied solely and exclusively on Defense counsel’s oral statements and, thus, went beyond the evidence to reach its factual conclusions.

In its per curiam opinion, the trial court strongly denies this contention and relates that the following took place in the pretrial conference:

[ T]he two attorneys presented the issues and advised the court that the only evidence would be the suit record, the law of the various states involved as well as a few documents purporting to show, inter alia, service of process on defendant in the Michigan proceeding. Neither side presented a witness list.
The court informed counsel that if they had nothing more as evidence the ruling would be in favor of defendant, as the record, the law, and the documents failed to prove that the Michigan order warranted registration in this state. Both counsel confirmed that they indeed had no other evidence. Hence, the parties agreed to submit the matter on the evidence offered at the pre-trial conference. The court reviewed the record, the documents, and the law and proceeded to hearing in open court.

IsThe trial transcript further reveals that the trial court took notice of the suit record and relevant law before ruling on the motion. It reads as follows:

BY THE COURT:
After reviewing the record and reviewing the various applicable law, because the laws change from URESA to UIFSA, and after reviewing them and recognizing them, this Court denies the request from the State of Michigan.

Afterwards, when it asked counsel if they wanted to make an oral argument, they declined. The trial court also allowed the State to admit in the record all the documents it chose to offer as evidence except photocopies of statutes. In fact, at the hearing, the trial court explicitly stated to State’s counsel: “You can put everything in except the law.” Yet, the State only offered and filed in the record service documents that were previously presented to the trial court during the pre-trial conference.

It is undeniable that the trial court gave State’s counsel ample opportunity to present his evidence, but he was simply not prepared to do so. It is also clear from the record that it did not rely, solely, upon Defense counsel’s oral statements to reach its factual conclusions.

Notably absent from the State’s offerings were certain documents that it, now, seeks to have considered for the first time on appeal. These documents, which were acquired post-hearing, include an “Acknowledgment of Service,” dated March 5, 1985, and a February 12, 1985 letter from the State of Michigan’s Office of Friend of the Court with an attached questionnaire.

It is well settled law “that an appellate court is prevented from considering evidence which is not part of the record.” Thus, the State’s exhibits acquired after the hearing are beyond the scope of our review.

|4JudiCially Noticed Facts

The State does not contest the prior order(s)’ accuracy; rather, it complains that the trial court improperly considered the prior Louisiana child support order(s) without a motion ordering them to be admitted in evidence; and that when the parties made no request or motion to admit them in evidence, the trial court could not go beyond the evidence by taking judicial notice of the other proceedings.

Thus, we must determine whether its apparent taking of judicial notice of prior Louisiana child support order(s), not in evidence, was permissible.

Louisiana Code of Evidence Article 201 provides, in part:

A. Scope of Article. This Article governs only judicial notice of adjudicative facts. An “adjudicative fact” is a fact normally determined by the trier of fact.
B. Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either:
(1) Generally known within the territorial jurisdiction of the trial court; or
(2) Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
C. When discretionary. A court may take judicial notice, ivhether requested or not.

(Emphasis added.)

According to La.Code Evid. art. 201, a Louisiana child support order would only contain adjudicated facts because facts in a court order are “normally determined by the trier of fact,” and they are “not subject to reasonable dispute.” This article also states that a court acts within its discretion when it takes judicial notice of adjudicated facts “whether requested or not.” Furthermore, in Long v. Minton, this court recently took judicial notice, on its own motion, of pleadings filed in a separate suit.

| sGiven this court’s Long decision, we find that a Louisiana trial court can properly take judicial notice of prior Louisiana child support order(s), even when no party moves to admit them in evidence. Thus, we hold the trial court, in the instant ease, clearly acted within its discretion when it took judicial notice, on its own motion, of prior Louisiana child support order(s).

Full Faith and Credit

The State alleges that the trial court incorrectly denied the Michigan order full faith and credit and that this was due to the trial court’s failure to allocate a presumption of validity to the Michigan order.

“[F]ull faith and credit is not due if the court in the foreign forum lacked jurisdiction over the parties or the subject matter of the controversy.” This court in Holden v. Holden explained:

The law utilized to determine whether the foreign court had jurisdiction is the law of the forum state rendering the original judgment. However, where a party contends that the law of the foreign state applies but does not introduce or demonstrate what the law of that state is with respect to the relevant issues, it is presumed that the law of the foreign state on the questioned point is the same as the existing law of Louisiana.

The burden of undermining such a judgment generally rests upon the party attacking its validity.

Although Mr. Konkle claims the Michigan court lacked jurisdiction over him at the time because it entered a default judgment without giving him actual notice or an opportunity to be heard, he failed to offer any evidence of the applicable Michigan law on this point. Thus, we must presume that Michigan law on personal jurisdiction ] /or an action to recover past due child support payments is the same as the law currently existing in Louisiana.

Louisiana Revised Statutes 13:3204(A) provides the requirements for service of process when using the Long Arm Statute:

A certified copy of the citation and of the petition in a suit under R.S. 13:3201 shall be sent by counsel for the plaintiff, or by the plaintiff if not represented by counsel, to the defendant by registered or certified mail, or actually delivered to the defendant by commercial courier, when the person to be served is located outside of this state or by an individual designated by the court in which the suit is filed, or by one authorized by the law of the place where the service is made to serve the process of any of its courts of general, limited, or small claims jurisdiction.

In the instant case, there is no evidence that Mr. Konkle received notice of the hearing or a copy of the default judgment. Since he was never served, the Michigan tribunal lacked jurisdiction over him and, thus, had no authority to issue its order. Accordingly, we do not owe its order full faith and credit.

We find that the trial court did not err.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s denial of the State’s motion to register the Michigan court’s support order. We assess all costs to the State Appellant.

AFFIRMED.

      . State v. Batiste, 96-526, p. 5 (La.App. 3 Cir. 12/11/96), 687 So.2d 499, 502, writ denied, 97-174 (La.6/30/97), 696 So.2d 1003 (citing State v. Aubrey, 609 So.2d 1183 (La.App. 3 Cir.1992)).

      . La.Code Evid. art. 201(C).

      . 01-1361 (La.App. 3 Cir. 3/6/02), 809 So.2d 1242, writ denied, 02-896 (La.5/31/02), 817 So.2d 96.

      . Miles v. Perroncel, 598 So.2d 662, 667 (La.App. 3 Cir.1992) (citing U.S. Const. art. IV, § 1); Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 64 S.Ct. 208, 88 L.Ed. 149 (1943); Byrum v. Hebert, 425 So.2d 322 (La.App. 3 Cir.1982); Holden v. Holden, 374 So.2d 749 (La.App. 3 Cir.1979).

      . 374 So.2d at 751 (citation omitted); Byrum, 425 So.2d 322.

      . Id.

      . See Id.

      . See Miles, 598 So.2d 662.

        .See Id.


author: h COOKS, Judge.

text:
    CONOCO, INC. v. HALTER-CALCASIEU, L.L.C., et al.
    No. 03-00136.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 19, 2003.
    Writ Denied March 12, 2004.

      James H. Hohenstein, Haight, Gardner, Holland & Knight, L.L.P., New York, NY, William B. Swift, Swift, Spears & Harper, L.L.P., Lake Charles, LA, for Appellant: CITGO Petroleum Corporation.
    Hugh Ramsey, Straub Terriberry, Carroll & Yancey, New Orleans, LA, Gregory W. Belfour, Jones, Tete, Nolen, Fonti & Belfour, L.L.P., Lake Charles, LA, for Appellant: ConocoPhillips Company.
    James B. Doyle, Woodley, Williams, Boudreau, Norman, Brown & Doyle, L.L.C., Lake Charles, LA, for Appellee: Halter-Calcasieu, L.L.C., et al.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   h COOKS, Judge.

In this consolidated appeal, the appellants, CITGO Petroleum Corporation and ConocoPhillips, Inc., seek to reverse the judgment of the lower court granting summary judgment in favor of the appellees, and further seek entry of summary judgment in their favor on the issue of liability. Alternatively, CITGO and Conoco request this court vacate the judgment and remand the case to the district court for trial on the issues of whether appellees’ actions constituted ultrahazardous activity and/or intentional tort. For the following reasons, we affirm.

FACTS

On June 13, 2000, Halter-Calcasieu, L.L.C. (hereafter Halter) floated the Cal-casieu Dry Dock No. 4, which it operated, to the middle of the Calcasieu River for the purpose of retrieving a disabled vessel and bringing it back to shore for repairs. To accomplish this end, Halter sank the drydock with the intention of lifting the disabled vessel. Once the drydock was sunk, the disabled vessel was moved into position over the drydock’s submerged deck. The drydock’s ballast tanks were then emptied, which ordinarily would cause it to rise and lift the vessel clear of the water. However, in this instance the drydock did not rise and remained in the middle of the river, effectively blocking traffic from moving up and down the river. Efforts to raise the drydock were unsuccessful and it was eventually declared a total loss and destroyed during the salvage operation.

On October 10, 2000, ConoeoPhillips, Inc. filed suit in the Louisiana Fourteenth Judicial District Court (hereafter 14th JDC) alleging economic loss and other inconvenience as a result of the drydock’s mishap, and the temporary blocking |gof the Calcasieu River. This river affords the only marine access to the Port of Lake Charles and to the property of several riparian owners, including Conoco and CITGO Petroleum Corporation. No property damage or physical injury was alleged by Conoco. The suit by Conoco was grounded exclusively on Louisiana state law.

On December 13, 2000, the defendants filed a Petition for Exoneration from or Limitation of Liability pursuant to the Limitation of Liability Act, 46 U.S.C.App. § 183 et seq., in U.S. District Court. The Federal Court issued an order enjoining any actions in other forums.

Conoco then filed a motion to dismiss the Limitation Petition on the basis that the drydock was not a vessel. CITGO filed an identical petition. The Federal Court directed that the motions be converted to motions for summary judgment.

In view of the prescriptive period under Louisiana law, CITGO obtained permission from the Federal Court to lift the Limitation Act stay to allow CITGO to file an action in the 14th JDC. CITGO then filed its Petition for Damages in the district court on April 11, 2001, against the Halter defendants. Following CITGO’s ^filing, the matters were consolidated.

On June 13, 2001, the Federal Court issued a Memorandum Ruling concerning CITGO’s and Conoco’s summary judgment motions. In re Halter-Calcasieu, L.L.C., 2001 WL 1435468 (W.D.La.2001). The Federal Court held that Halter was not entitled to the limitation of liability because it failed to establish that the drydock was a vessel under Title I, § 3 of the United States Code. Thus, it concluded that its admiralty jurisdiction did not apply to the drydock.

On August 9, 2001, defendants filed their Exceptions and Answers to Conoco’s petition in the 14th JDC. On October 2, 2001, defendants also filed Exceptions and Answers to CITGO’s petition.

On November 6, 2001, the Bankruptcy Court lifted the stay to await a merit determination of Conoco’s and CITGO’s claims by the 14th JDC. The stay was not lifted to allow execution upon any resulting judgments, requiring Conoco and CITGO to return to bankruptcy court in order to collect upon any possible judgments.

At the beginning of argument in the 14th JDC, counsel for the Halter defendants informed the trial judge of its intention to remove the litigation to the federal court 14based on bankruptcy law. On December 4, 2001, defendants removed the actions pending in the 14th JDC to Federal Court, based on the applicability of various bankruptcy statutes. Conoco and CITGO opposed the removal and moved for remand and abstention. On May 14, 2002, the Federal Court granted the motions to remand and abstain.

On August 12, 2002, Conoco and CITGO filed their Joint Motion for Partial Summary Judgment for Liability Only. Defendants opposed the motion, filing a cross-motion for Summary Judgment and asserted exceptions of no cause and no right of action. Hearings on the motions were held, and in a judgment dated December 7, 2002, the trial court denied the Joint Motion for Partial Summary Judgment for Liability Only filed by Conoco and CITGO. The trial court also granted the Halter defendants’ cross-motion for Summary Judgment finding the “presence of the dock on the river bottom was an obstruction of navigation and that admiralty law would apply.” The trial court also found the pleadings and evidence insufficient to support a finding of an intentional tort or ultrahazardous activity.

Conoco and CITGO have appealed the trial court’s judgment, asserting the fol-. lowing assignments of error:

(1) The district court erred in finding that maritime law rather than Louisiana law applied in the case, and specifically, that this dispute was between riparian landowners whose rights are protected by Louisiana Civil Code arts. 656-658;
(2) The district court erred in not following the earlier determination of the Federal District Court that admiralty jurisdiction did not attach to Halter’s drydock;
| s(3) The district court erred in excluding evidence and in denying the opportunity to prove at trial Halter’s actions constituted an intentional tort and ultra-hazardous activity.

ANALYSIS

CITGO and Conoco both argue the trial court erred in finding that maritime law, rather than Louisiana law, governs this case. Both point to the decision rendered on June 13, 2001 by the Federal Court, finding Halter failed to establish that the drydock was a vessel under Title I, § 3 of the United States Code. As noted, the issue before the federal court was whether the drydock was a “vessel” under maritime law and thus whether Halter’s action for exoneration from or limitation of liability under the Limitation of Liability Act, 46 U.S.C.App. § 181 et seq., was appropriate. The Limitation Act allows a vessel owner to limit liability for damage or injury to the value of the vessel or the owner’s interest in the vessel. The federal court narrowly ruled in the limitation action that defendants were not entitled to pursue relief under the Limitation Act because they could not establish that the drydock was a vessel, a prerequisite to liability limitation.

The district court examined the Federal Court’s finding that the drydock was not a vessel and specifically found this holding was not a “determinative point” on the question of whether maritime law applied in this matter. We too are not persuaded by CITGO and Conoco’s argument that the ruling by the Federal Court in a collateral claim amounts to a “law of the case” finding on the question of maritime jurisdiction. We also note the Federal Court specifically held “Halter’s Summary Judgment Motion should be decided by [the 14th Judicial District Court].” In re Halter-Calcasieu, p. 3.

| ¡^Whether a tort action is maritime in nature and governed by admiralty jurisdiction hinges on it satisfying two tests. The first, the locality test, is met if the tort occurred on navigable waters or the injury suffered on land was caused by a vessel on navigable waters. Grubart v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995); 46 U.S.C.App. § 740. The second test is met when the tort bears a “significant connection to a traditional maritime activity.” This test consists of two prongs: (1) the incident must have a “potentially disruptive impact on maritime commerce,” and (2) “the general character” of the “activity giving rise to the incident” shows a “substantial relationship to traditional maritime activity.” Id. 513 U.S. at 534, 115 S.Ct. at 1048, quoting Sisson v. Ruby, 497 U.S. 358, 363-65, 110 S.Ct. 2892, 2896, 111 L.Ed.2d 292 (1990).

There seems little doubt the “locality test” is satisfied in the present case. The drydock was moved into the Calcasieu River ship channel in order to dock a damaged vessel. The Calcasieu River ship channel is a navigable waterway. CITGO and Conoco argue the proper locus of the tort was at their “land-based riparian-located refinery.” We disagree. In Harp v. Pine Bluff Sand & Gravel Co., 98-1634 (La.App. 3 Cir. 11/24/99), 750 So.2d 226, a tug boat damaged a bridge over the Black River in Concordia Parish. The plaintiffs in Harp filed suit alleging they “suffered severe and grave economic damages to individuals and businesses ..., lost sales, inconvenience, increased transportation cost and lost time from work as a result of the closure of the bridge.” Id. at 227. This court held the plaintiffs failed to state a cause of action based on Robins Dry Dock v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927), because they did not suffer any physical damage to their own property.We are |7also convinced the second test is met in this case. The purpose of moving Halter’s drydock into the middle of the channel to retrieve the disabled vessel and bring it back to shore for repairs is an activity which has a “substantial relationship to traditional maritime activity.”

Robins, supra., set forth the principle that a plaintiff will be denied recovery for economic loss based on state law, absent a showing of a physical injury to a proprietary interest. In Robins, the charterer of a steamship sued for his lost profits when his propeller was damaged by the defendant drydock. The replacement of the propeller required the steamship to remain in drydock for two extra weeks. The charterer sued for the loss of use of the vessel for that period. The Robins court denied recovery stating:

... no authority need be cited to show that, as a general rule, at least, a tort to the person or property of one man does not make the tort-feasor liable to another merely because the injured person was under a contract with that other unknown to the doer of the wrong. The law does not spread its protection so far. (Citation omitted)

Id., 275 U.S. at 309, 48 S.Ct. at 135.

The United States Fifth Circuit sitting en banc in State of Louisiana, et al. v. M/V Testbank, 752 F.2d 1019, 1023 (5th Cir.1985), examined the ruling in Robins, noting it “was a pragmatic limitation imposed by the Court upon the tort doctrine of foreseeability.” In Testbank two vessels collided with each other on the Mississippi River Gulf Outlet and caused a chemical spill, resulting in the closure of that outlet for several weeks. Suits were filed by shipping companies, fishermen, restaurants, marinas and other businesses to recover for the economic loss they suffered from the closure of the outlet. Stressing the Robins “pragmatic limitation” on foreseeability lRthe fifth circuit refused “to abandon physical damage to a proprietary interest as a prerequisite to recovery for economic loss in cases of unintentional maritime tort.” Id. at 1020. Our court in Harp, 750 So.2d at 230, noted that the “courts have remained dedicated to the principal set forth in Robins and have been reluctant to recognize claims based solely on harm to the interest of business expectancy.” Because CITGO and Conoco did not suffer any physical injury, their claims for purely economic loss must be denied.

CITGO and Conoco argue their claims arose from their status as riparian landowners who were damaged by the actions and omissions of another riparian landowner who failed to conduct its land-based business activity as a shipyard in a reasonable and prudent manner. They argue the blockage of the river by the sunken dry dock effectively denied all riparian landowners of the use of their waterfront property.

In support of this argument, CITGO and Conoco rely on Shaughnessy v. P.P.G. Indus., Inc., 795 F.Supp. 193 (W.D.La.1992), pointing out the Shaughnessy court found the Robins rule did not preclude a fishing guide from recovering economic losses resulting from the pollution of bodies of water caused by the discharge of contaminants from the defendant’s property. The court found Shaughnessy, who operated a fishing guide service, did “have physical impact, if not damage,” from the defendant’s action. The court noted that “Shaughnessy has rights protected by Civil Code Article 656, which provides that ‘[t]he owner of the servient estate may not do anything to prevent the flow of water [and the] owner of the dominant estate may not do anything to render the servitude more burdensome’ ” Id. at p. 196. The court in]^Shaughnessy stressed that it felt the wrong committed by the defendant in that case was “decidedly land based for which the tort of nuisance exists.” The court also concluded Shaughnessy was “entitled to treatment as a commercial fisherman,” and thus exempted from the proprietary or physical injury requirement of Robins as set forth in Testbank and Union Oil Company v. Oppen, 501 F.2d 558 (9th Cir.1974).

We find Shaughnessy is inapplicable to the case at hand. The activity complained of in Shaughnessy, the pollution of adjacent waterways by a land based chemical plant, was specifically held “decidedly land based.” The drydock in this case blocked traffic in the middle of the Calcasieu River. Further, the court in Shaughnessy found the claimant belonged to a specific category, i.e, commercial fishermen, which was exempted from the Robins rule. CITGO and Conoco are entitled to no such protection.

In the case of In re: Complaint of Transocean Offshore (U.K.), Inc., 2001 WL 1490867 (E.D.La.), the plaintiffs sought damages against a vessel owner when an anchor on a drilling rig was left hanging and drug the sea floor, damaging a pipeline. The claimants did not have any ownership or proprietary interest in the pipeline that was damaged, but sought damages in the form of lost product and delayed production. The plaintiffs attempted to avoid the Robins rule by arguing that their situation fell within an exception, specifically that they were exercising a public right granted to them. In support of this argument they cited Shaughnessy. In finding Shaughnessy inapplicable the Transocean court stated:

This Court however, is not persuaded by these cases, but rather believes the situation presented herein is more anala-gous to the more recent case, Reserve Mooring, Inc. v. American Commercial Barge Lines, 1999 WL 1080317 (E.D.La.) reversed, 251 F.3d 1069 (5th Cir.2001). In Reserve Mooring, the plaintiff operated a mooring facility pursuant to a permit granted by the U.S. Army Corps of Engineers. While the accident did not cause any physical damage to the mooring facility, the site had to be closed due to the salvage operations of the sunken barge, which resulted in lost income. The District Court found that while plaintiff did not own the mooring block, it did have a permit to operate; therefore, it was held that plaintiff did possess a proprietary interest and allowed recovery for economic damages. Id. The Fifth Circuit, however, reversed that ruling stating that it “has not retreated from TESTBANK’s physical injury requirement.” Reserve Mooring, 251 F.3d at 1071. The Court noted:

[ m]erely because other vessels were unable to moor at Reserve’s facility for a period of time, however, does not mean that Reserve has suffered physical injury entitling it to recover purely economic losses.
Id. As such, it was held that under Test-bank, physical injury to a proprietary interest is a prerequisite to recovery of economic damages in cases of unintentional maritime tort; thus, the claim for purely economic damages was denied. Id.

We find Transocean and Reserve Mooring more analogous to the instant case and likewise find no reason to depart from the well-settled holdings of Robins and Test-bank.

The claims of CITGO and Cono-co under state law are based on the existence of a legal servitude created by La. Civ.Code art. 665, which states:

Servitudes imposed for the public or common utility, relate to the space which is to be left for the public use by the adjacent proprietors on the shores of navigable rivers, and for the making and repairing of levies, roads, and other public or common works.

CITGO and Conoco also assert a cause of action arising from the duties imposed on property owners by La. Civ. Code art. 667, which reads in pertinent part:

Although a proprietor may do with his estate whatever he pleases, still he cannot make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him. However, if the work he makes on his estate deprives his neighbor of enjoyment or causes damage to him, he is answerable for In damages only upon a showing that he knew or, in the exercise of reasonable care, should have known that his works would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care....

The law only prevents riparian owners from placing improvements on its land if the placement of the improvements obstructs the navigable stream. Lake Providence Port Commission v. Bunge Corporation, 193 So.2d 363 (La.App. 2 Cir.), writ denied, 250 La. 269, 195 So.2d 147 (La.1967). It is not alleged that any works or improvements made on Halter’s property obstructed the river. Rather, it is alleged that it was Halter’s use of a movable, the drydock, which caused the obstruction, and the obstruction was occasioned by Halter’s failure to maintain the drydock. CITGO and Conoco argue that Halter’s act of moving the drydock to the center of the river in order to repair a vessel is a violation of a servitude rather than an act of negligence. This interpretation of a servitude statute is not favored by the courts. In Meyers v. Denton, 99-574 (La.App. 3 Cir. 10/6/99), 747 So.2d 633, 638, writ denied, (La.2/18/00), 754 So.2d 974, we stated as follows:

In Warner v. Clarke, 232 So.2d 99, 102 (La.App. 2 Cir.), writ denied, 255 La. 918, 233 So.2d 565 (1970) that court stated:
Our courts have repeatedly held that the riparian servitudes are not subject to a broad and liberal construction, as contended by the plaintiffs, but exist “only for that which is incident to the nature and the navigable character of the stream washing the land of such proprietor.” Herbert [Hebert] v. T.L. James & Company, Inc. et al., 224 La. 498, 70 So.2d 102, 106 (1953), quoting from Carollton [Carrollton] R. Company v. Winthrop, 5 La.Ann. 36 (1850); Lake Providence Port Commission v. Bunge Corporation, [(]La.App. [2 Cir. 11/29/66) ], 193 So.2d 363.
Thus, construing the above law, riparian servitudes, being in derogation of private property rights, must be strictly construed in ^accordance with the law and not given a broad, liberal interpretation. Warner, 232 So.2d 99.

We find the articles on servitudes and neighboring estates do not create a separate right of action that is not subject to the rale established in Robins and Test-bank.

Intentional Tort/Ultra-hazardous Activity.

CITGO and Conoco argue even were maritime law to apply here, they are not prevented by Robins and Testbank from proceeding against Halter. They contend at the very least they are entitled to a trial on the issues of whether Halter committed an intentional tort or was engaged in ultra-hazardous activity. Testbank specifically noted it did “not address intentional tort or ultra-hazardous activity.” Testbank, 752 F.2d at 1023.

The Louisiana Supreme Court has concluded a party has committed an intentional act only when one of two things is true: (1) the actor “consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct”; or (2) the actor “knows that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result.” Cole v. Department of Public Safety & Corrections, 01-2123, p. 30-31 (La.9/4/02), 825 So.2d 1134, 1140. It is well established that “mere knowledge and appreciation of a risk does not constitute intent.” Reeves v. Structural Preservation Systems, 98-1795, p. 9-10 (La.3/12/99), 731 So.2d 208, 213. Even gross negligence does not meet the intentional act requirement. See In re Hunter, 02-1975 (La.8/19/02), 823 So.2d 325. While Halter’s decision to sink the drydock, which obviously was in poor condition, |13might constitute gross negligence, the record simply does not show that it constituted an intentional tort.

Ultra-hazardous activities are determined as a matter of policy, after a balancing of claims and interests, a weighing of the risk and the gravity of harm, and the consideration of the individual and societal rights and obligations. Kent v. Gulf States Utilities Co., 418 So.2d 493 (La.1982); Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971). Such activities have included pile driving, storage of toxic gas, blasting with explosives, and crop dusting with airplanes. Id.

The courts of this state have generally adopted a three-prong test for the determination of the existence of an ultra-hazardous activity. Bartlett v. Browning-Ferris Industries, Chemical Services, Inc., 96-218 (La.App. 3 Cir. 11/6/96), 683 So.2d 1319. The court described the test in Burton v. Conoco Offshore, Inc., 93-599, p. 4-5 (La.App. 5 Cir. 2/9/94), 631 So.2d 1374, 1377, as follows:

Our brothers of the First Circuit implemented the United States Fifth Circuit three-prong test in determining whether an activity is ultrahazardous, to-wit: “(1) the activity must relate to land or some other immovable; (2) the activity itself must cause the injury, and the defendant must be engaged directly in the injury-producing activity; and (3) the activity must not require substandard conduct to cause injury.” Triplette v. Exxon Corp., supra, [554 So.2d 1361] at 1362 [La.App. 1st Cir.1989] (citing Perkins v. F.I.E. Corp., 762 F.2d 1250, 1267-68 ([5th Cir.]1985)).

The record here contains no evidence that the third prong is satisfied in this matter. There is no indication a drydock cannot be safely operated if due care is exercised. In fact, it is apparent that the use for which Halter relied on the drydock is a common practice, and if in proper condition would not cause harm to the residents of the area |14in which it is situated. Therefore, the evidence does not support a finding that operation of the drydock was an ultra-hazardous activity. Accordingly, we find no error in the district court’s grant of the exception of no cause of action.

Failure to Consider Evidence

Conoco asserts that the district court erred in failing to consider the affidavit and report of Ian Cairns, a marine surveyor. The trial court limited Cairns’ expert testimony to that which he personally observed. The excluded evidence is relied upon by Conoco to establish that the fault of Halter constituted ultrahazardous and/or intentional activity.

Conoco relies on the Louisiana Supreme Court’s decision in Independent Fire Insurance Co. v. Sunbeam Corp., (La.2/29/00), 755 So.2d 226, in support of its argument that the affidavit and report should have been admitted by the district court.

La.Code Civ.P. art. 967 requires that affidavits “shall be made on personal knowledge ...” That article does not require trial courts to accept conclusory assertions by an expert witness. The court in Independent Fire cited with approval Hayes v. Douglas Dynamics, Inc., 8 F.3d 88 (1st Cir.1993), cert. denied, 511 U.S. 1126, 114 S.Ct. 2133, 128 L.Ed.2d 863 (1994), which noted that “where an expert presents ‘nothing but conclusions — no facts, no hint of an inferential process, no discussion of hypotheses considered or rejected,’ such testimony will be insufficient to defeat a motion for summary judgment.” Independent Fire, 755 So.2d at 233. We find no error on the trial court’s part in excluding this evidence.

DECREE

For the foregoing reasons, the judgment of the district court is affirmed. All |1Rcosts of this appeal are assessed equally to the appellants, CITGO Petroleum Corporation and ConocoPhillips, Inc.

AFFIRMED.

      . Named as defendants were Halter, Friede Goldman Halter, Inc., Friede Goldman Offshore Texas, Limited Partnership, Certain Subscribing Underwriters on Cover Note 22402/1/2/CCICF issued through Newman, Martin & Buchan Ltd., including certain Interested Underwriters at Lloyd's, London and Certain Subscribing London companies, Commercial Union Insurance Company P.L.C., Zurich Specialties (London) Ltd. and the Marine Insurance Company Ltd.

      . On April 19, 2001, one of the defendants, Friede Goldman Halter, filed a bankruptcy petition in the Biloxi Bankruptcy Court. The following day, Friede Offshore, filed for similar relief. Halter had not filed such a petition, therefore the Limitation Act proceeding against it continued in Federal Court. On May 21, 2001, Halter filed a motion for summary judgment in the Limitation Petition action. Halter argued that the CITGO and Co-noco claims were precluded by maritime precedent. CITGO and Conoco filed oppositions to this motion.
      On June 1, 2001, Halter filed its Chapter 11 petition in the Biloxi Bankruptcy Court. However, notice of this filing was not given to CITGO and Conoco’s counsel as well as Halter's Louisiana counsel. On June 8, 2001, Conoco filed its Amended Petition for Damages in the 14th JDC against the defendants. The Federal Court lifted the Limitation act stay to allow Conoco to amend its pleading in the 14th JDC to add Halter’s underwriters as parties. CITGO also filed a First Amended Petition for Damages.

      . For the disposition of the companion case, see CITGO Petroleum Corp. v. Halter-Calcasieu, L.L.C. et al., 03-137 (La.App. 3 Cir. 01/19/03), 865 So.2d 823.

      . CITGO and Conoco .then filed motions for relief in the Biloxi Bankruptcy Court. On July 24, 2001, the court ordered that the CITGO and Conoco motions be consolidated. The court allowed the action in the 14th JDC to proceed to obtain responsive pleadings from the Underwriters and to conduct discovery regarding insurance coverage. The court also modified the automatic stay to ratify all actions taken and pleadings filed in the 14th JDC. The bankruptcy court also directed the parties to report no later than October 24, 2001, so it could determine the balance of CITGO's and Conoco’s motion for relief from the bankruptcy stay.

      .CITGO and Conoco have each filed an appeal, but for purposes of discussion their assignments of error have been combined when appropriate.

      . Commission of an intentional tort or being engaged in ultra-hazardous activity are expressly excluded from the proprietary or physical injury requirement set forth in Robins/Testbank.


author: COOKS, Judge.

text:
    CITGO PETROLEUM CORPORATION v. HALTER-CALCASIEU, INC., L.L.C., et al.
    No. 03-00137.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 19, 2003.
    Writ Denied March 12, 2004.
    Hugh Ramsey Straub, Terriberry, Carroll & Yancey, New Orleans, LA, Gregory W. Belfour, Jones, Tete, Nolen, Fonti & Belfour, L.L.P., Lake Charles, LA, for Appellant, ConocoPhillips Company.
    James H. Hohenstein, Haight, Gardner, Holland & Knight, L.L.P., New Orleans, NY, William B. Swift, Swift, Spears & Harper, L.L.P., Lake Charles, LA, for Appellant, CITGO Petroleum Corporation.
    James B. Doyle, Woodley, Williams, Boudreau, Norman, Brown & Doyle, L.L.C., Lake Charles, LA, for Appellee, Halter Calcasieu, L.L.C., et al.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   COOKS, Judge.

For the reasons assigned in the companion case of Conoco, Inc. v. Halter-Calcasieu, Inc., L.L.C., et al., 03-136 (La.App. 3 Cir. 11/19/03), 865 So.2d 813, we affirm the judgment of the trial court in docket number 2001-1911. All costs of this consolidated appeal are assessed equally to the appellants, ConocoPhillips Company and CITGO Petroleum Corporation.

AFFIRMED.