author: hPEATROSS, J.

text:
    Clotiel P. HOUSTON, Plaintiff-Appellee, v. BLUE CROSS BLUE SHIELD OF LOUISIANA, Defendant-Appellant.
    No. 37,097-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2003.

      Sharp, Henry, Cerniglia, Colvin, Weaver & Hymel, L.L.C., by Patrick E. Henry, Susan T. Poole, for Appellant.
    Kitchens, Benton, Kitchens & Newell, by Graydon K. Kitchens, III, Paul E. Kitchens, John B. Benton, Jr., for Appel-lee.
    Before BROWN, GASKINS & PEATROSS, JJ.
   hPEATROSS, J.

In this action against Blue Cross Blue Shield of Louisiana (“BCBS”) for failure to timely pay benefits under a Cancer and Serious Disease policy (“CSD policy”), the trial court entered judgment in favor of Plaintiff, Bobby Ray Parker as Administrator of the Succession of Clotiel P. Houston, and against BCBS, awarding $10,100 for claims under the CSD policy; $10,100 in penalties under La. R.S. 22:657; and $10,000 in attorney fees. BCBS appeals, and Mr. Parker has answered the appeal. For the reasons stated herein, we amend the judgment of the trial court and, as amended, affirm.

FACTS

On December 2, 1999, Clotiel Houston was admitted to Minden Medical Center complaining of episodes of “all-over” jerking, right-side weakness and difficulty with speech and gait. ■ The emergency room examination revealed what appeared to be right side focal seizure activity. A CAT scan of her brain showed what Dr. Gerald Stell believed at the time to be evidence of a stroke. Ms. Houston remained in Min-den Medical Center until December 5, 1999.

On January 9, 2000, Ms. Houston was found by her family lying on the floor of her apartment, unable to get up or reach the telephone to call for help. She was again admitted to Minden Medical Center suffering from similar symptoms, i.e., seizures and right-side weakness. A second CAT scan showed a right parietal lesion, or tumor; and, on January 13, 2000, Ms. Houston was transferred to Willis-Knigh-ton Medical Center in Shreveport for surgery. A pathology report completed on February 28, 2000, indicated that Ms. Houston had a malignant brain tumor, which may | ghave been a metastatic cancer from an earlier battle with breast cancer. Ms. Houston was discharged from Willis-Knighton on February 8, 2000.

On March 20, 2000, however, she began having seizures again and was re-admitted to Minden Medical Center. On March 23, 2000, Ms. Houston was transferred to an assisted living center where she remained until her death on October 26, 2000.

It is not disputed that there was a BCBS Cancer and Serious Disease Policy in effect during the time of Ms. Houston’s treatment in 1999 and 2000. The policy provided benefits of $200 per day for hospital confinement and 50 percent of reasonable and customary health care charges, up to $3,500 per year.

On May 11, 2000, Bobby Ray Parker, Ms. Houston’s son, mailed certain documents to BCBS, including a BCBS claim form signed by him, Dr. Stell and the oncologist, Dr. Robert Nickelson; the pathology report generated by Delta Pathology Group; a copy of an itemized bill from Minden Medical Center for Ms. Houston’s hospitalizations in the year 2000; and an itemized bill from Willis-Knighton covering the 33-day period of hospitalization in the year 2000. In this correspondence, Mr. Parker advised BCBS that he was Ms. Houston’s son and requested that he be contacted should any additional information be necessary to process his mother’s claim. Although he did have his mother’s power of attorney, Mr. Parker did not include the document with his mailing to BCBS. This mailing was received by BCBS on May 15, 2000.

Is A BCBS claims processor determined that the May 11th mailing contained insufficient information to process the claim; according to BCBS, certain industry standard codes were not provided, nor was the claim on the correct form. BCBS, however, did not contact Mr. Parker for the needed information. Instead, on or about May 24, 2000, form letters requesting additional information were generated by the BCBS computer system and sent to the providers. This request went unanswered and a second request was made of the providers by BCBS in early June 2000. This request was also unanswered.

Also in June 2000, Mr. Parker telephoned BCBS to inquire about the status of the claim because he had not received any response from the insurance company. A BCBS representative advised Mr. Parker that a UB92 form was needed in order to process his mother’s claim. Mr. Parker attempted to obtain the UB92 from Dr. Stell’s office, but was informed that such document could not be generated because there was a zero balance on his mother’s account. An employee of Dr. Stell’s office, however, assisted Mr. Parker in obtaining documentation from Minden Medical Center, which they believed contained the necessary codes to process the claim. Accordingly, on June 27, 2000, Mr. Parker sent this additional documentation, including Dr. Stell’s records and reports from Minden Medical Center, to BCBS. In this correspondence, he advised BCBS the |4UB92 could not be generated because “this account has a zero balance.” He further advised, as he did in his letter of May 11th, that he was Ms. Houston’s son and that she was unable to handle her affairs.

On receipt of Mr. Parker’s second mailing, BCBS determined that it still did not have the necessary information to process the claim. Thereafter, BCBS sent additional form letter requests for information to the providers, which were also unanswered. At no time did BCBS attempt to contact Mr. Parker.

On July 27, 2000, Mr. Parker’s counsel sent a demand letter to BCBS, which was accompanied by a copy of the Power of Attorney in favor of Mr. Parker and signed by Ms. Houston. This correspondence was received by BCBS on July 31, 2000. At this point, a member of the legal department of BCBS, Ginger Alumbaugh, was assigned to investigate and handle the processing of Ms. Houston’s claim. Ms. Alumbaugh, however, was unsuccessful in obtaining the necessary information to process the claim.

Suit was filed on August 15, 2000, alleging that BCBS had failed to make timely payment under La. R.S. 22:657(A). The petitions claimed benefits due as follows:

Year WOO: 33 days in hospital at $200 per day = $6,600 + $3,500 for other services = $10,100
Year 1999: 3 days in hospital at $200 per day = $600 + $ of $5,385.46 (health care charges) or $2,692.73 = $3,292.73

Ms. Houston also sought penalties and attorney fees on the 2000 claims.

| [After suit was filed and Ms. Alum-baugh went on vacation, BCBS assigned BCBS Special Inquiries Representative Jennifer Rogers (self-described “troubleshooter”) to handle the matter. Ms. Rogers reviewed the file and, through telephone calls to the providers, quickly discovered that the providers had failed to supply the necessary information for claims processing because they had been paid in full by Medicare and Ms. Houston’s BCBS Medicare supplemental insurance policy. For this reason, the providers, unaware of the existence of a CSD policy, mistakenly believed that no further claims existed. Once Ms. Rogers resolved this misunderstanding, the following checks were issued by BCBS:

9/27/2000 —$5,619.33
9/28/2000 — $ 600
9/5/2001 — $ 3,600

None of the above described checks were cashed by Mr. Parker. The sum of the checks is $9,819.33, which is $280.67 short of the benefits claimed by Ms. Houston. As previously stated, Ms. Houston died in October 2000, and Mr. Parker was substituted as plaintiff in December 2000.

ACTION OF THE TRIAL COURT

At trial, BCBS argued that its delay in paying Ms. Houston’s claims was just and reasonable because no proper claim had been filed and, despite its efforts, it could not obtain the necessary information to complete the |ficlaims process. The trial court disagreed and, in its written opinion, emphatically opined that BCBS’s handling of this matter was “inexcusable.” The court found clear evidence that her treatment in the year 2000 was due to cancer. Further finding that the delay of nearly four and a half months from receipt of Mr. Parker’s first mailing and payment of the claim for 2000 was unjustified and unreasonable, the trial court awarded benefits for that year in the amount sought of $10,100. In addition, it found BCBS’s action and inactions to be arbitrary and capricious and assessed a penalty in the amount of $10,100 and awarded attorney fees in the amount of $10,000.

The trial court also found it unbelievable that the BCBS employees had no idea whether the Medicare supplement department coordinated with the medical insurance department; however, BCBS employees testified that one could get all of the information on a BCBS insured by entering the name into the computer. The trial court also noted the lack of evidence that BCBS ever requested a Power of Attorney from Mr. Parker or instructed him on what was necessary to process the claim. Relying on Crawford v. Blue Cross Blue Shield of Louisiana, 99-2503 (La.App. 1st Cir.11/3/00), 770 So.2d 507, writ denied, 00-3267 (La.2/16/01), 786 So.2d 98, the trial court held that it was incumbent on BCBS to respond to Mr. Parker’s counsel with instructions for proper submission of the claim. Noting how quickly Ms. Rogers was able to resolve the matter with little effort, the court stated that BCBS did “little or nothing ... other than to write several letters to the providers seeking more information” in more than four months’ time.

17Finally, regarding the claim for benefits for the 1999 treatment and hospitalization, the trial court found that no benefits were due for 1999 “because there was no showing that there was a pathological diagnosis of cancer as required by the CSD policy.”

DISCUSSION

BCBS raises the following assignments of error on appeal:

1. The trial court erred in its conclusion that Blue Cross Blue Shield of Louisiana was without reasonable grounds for failure to pay the claim of Plaintiff/Appellee within 30 days of the submission of materials on May 11, 2000, and/or June 27, 2000.
2. The trial court erred in its conclusion that Blue Cross Blue Shield of Louisiana was unreasonable in its refusal to communicate with Bobby Ray Parker regarding the processing of health care claims of Clotiel P. Houston without legal authority to so act.
3. The trial court erred in its conclusion that Blue Cross Blue Shield of Louisiana failed to take sufficient action to obtain the information necessary to process the claims on behalf of Plaintiff/Ap-pellee, Clotiel P. Houston.

The assignments of error all concern the determination of whether BCBS complied with La. R.S. 22:657, which states, in pertinent part:

§ 657. Payment of claims; health and accident policies; prospective review; penalties; self-insurers; telemedicine reimbursement by insurers
A. All claims arising under the terms of health and accident contracts issued in this state, except as provided in Subsection B, shall be paid not more than thirty days from the date upon which written notice and proof of claim, in the form required by the terms of the policy, are furnished to the insurer unless just and reasonable yrounds, such as would put a reasonable and prudent businessman on his guard, exist. The insurer shall make payment at least every thirty days to the assured during that part of the period of his disability covered by the policy or contract of insurance during which the insured is entitled to such payments. Failure to comply with the | ^provisions of this Section shall subject the insurer to a penalty payable to the insured of double the amount of the health and accident benefits due under the terms of the policy or contract duriny the period of delay, together with attorney’s fees to be determined by the court. Any court of competent jurisdiction in the parish where the insured lives or has his domicile, excepting a justice of the peace court, shall have jurisdiction to try such cases. (Emphasis added.)

This statute was enacted to effect a speedy collection of just claims without diminution and without unnecessary delay and expense. Savarino v. Blue Cross Blue Shield of Louisiana, Inc., 98-0635 (La.App. 1st Cir.4/1/99), 730 So.2d 1083, citing Lopez v. Blue Cross of Louisiana, 397 So.2d 1343 (La.1981). The insurer is entitled to refuse or delay payment if such just and reasonable grounds for refusing or delaying exist. Rippon v. Variable Protection Administrators, Inc., 537 So.2d 262 (La.App. 4th Cir.1988), writ denied, 541 So.2d 833 (La.1989). The issue of whether just and reasonable grounds exist is a question of fact to be decided based upon the facts and circumstances of each case and the trial court’s findings, for purposes of determining whether penalties should be imposed, should not be disturbed unless they are clearly wrong. Holland v. Golden Rule Insurance Company, 96-264 (La.App. 3rd Cir.10/9/96), 688 So.2d 1186.

The provisions of La. R.S. 22:657 are penal in nature and are to be strictly construed. Morgan v. Golden Rule Insurance Company, 568 So.2d 184 (La.App. 2d Cir.1990), citing Colville v. Equitable Life Assurance Society of U.S., 514 So.2d 678 (La.App. 2d Cir.1987). Such penalties should not be assessed unless the refusal to pay is clearly arbitrary and 19capricious. Soniat v. Travelers Insurance Company, 538 So.2d 210 (La.1989).

As previously stated, the trial court in the case sub judice found that the delay in payment by BCBS of more than four months was not justified or reasonable, but was arbitrary and capricious. We find no error in this determination.

Once an insurer has notice that a claim exists, it has a duty to investigate that claim, Crawford, supra, and the burden shifts to the insurer to show just and reasonable grounds for the delay. Nerness v. Christian Fidelity Life Insurance Company, 98-1827 (La.App. 3d Cir.4/21/99), 733 So.2d 146. The CSD policy in the case sub judice provides that payment of benefits will be made to the member (subscriber) “upon receipt by [BCBS], in a form acceptable to [BCBS], of an itemized statement of the charges for the procedures performed, services or supplies used and the diagnosis submitted by the Physician or institution.” As previously stated, Mr. Parker’s May 11th mailing to BCBS included a BCBS claim form signed by himself and two doctors, the pathology report and itemized bills from both Minden Medical Center and Willis-Knighton. Finding this information to be insufficient, BCBS sent form letters to the providers to obtain additional information rather than contacting Mr. Parker as his letter requested. BCBS argues that it did not contact Mr. Parker because it had no power of attorney indicating that Mr. Parker had authority to conduct | inMs. Houston’s affairs. Ironically, however, when Mr. Parker telephoned BCBS almost two months later to inquire about the delay, the representative did communicate with him regarding Ms. Houston’s claim, advising him that a UB92 form and diagnostic codes were necessary before the claim could be processed. Mr. Parker was then told by Dr. Stell’s secretary that a UB92 could not be generated because the account had a zero balance. She did, however, assist Mr. Parker in obtaining the information from the hospital she believed necessary for BCBS to process the claim. Mr. Parker then forwarded this documentation to BCBS again stating in his letter that he was her son and that she could not handle her affairs. Very significantly, he also advised BCBS in this letter of June 27, 2000, that the reason he could not obtain a UB92 was because the balances on his mother’s accounts were zero.

Once again, BCBS determined that it still had insufficient information to process the claims; and, once again, BCBS did not contact Mr. Parker to make him aware of this, but sent more form letters to the providers, which went unanswered.

After the suit was filed, sometime at the end of August or the beginning of September, Ms. Rogers was assigned to handle the matter for BCBS. Ms. Rogers testified that she telephoned the providers to find out why they had not responded to any of BCBS’s written requests for information. She was told by the providers that, because Ms. Houston’s ^accounts had a zero balance and because they were unaware of the CSD policy, they believed no further benefits were due. Recall that Mr. Parker informed BCBS in his letter of June 27, 2000, that he could not obtain the requested form from the provider because the balance on his mother’s account was zero. Yet, it took another month and a half for a representative of BCBS to place a telephone call to the providers and discover that this was the problem and obtain what she stated to be the correct form and information. There is no dispute that, once Ms. Rogers received the form she sought, the claims were paid promptly.

Mr. Parker places great weight on the fact that Ms. Houston’s Medicare supplement policy was a BCBS policy and he submits, therefore, that BCBS had the information necessary to process the claims on the CSD policy from the claims filed on the Medicare supplemental policy. BCBS employees testified that putting Ms. Houston’s name into the computer would bring up all information about all policies and claims which she had made, including claims and payments made on the Medicare supplemental policy. These same employees also testified that there was no coordination between “their side” of BCBS and the Medicare supplement department. Ms. Rogers testified, however, that what is required for processing a claim on a Medicare supplemental policy is a Medicare Explanation of Benefits (“EOB”) which does not contain the specific revenue, procedure and diagnosis codes required for processing a claim on the CSD policy. She stated, therefore, that, while BCBS received an EOB and may have paid a claim under Ms. Houston’s Medicare supplemental policy, even with the |1?EOB it would not have had enough information to process a claim under the CSD policy. We, nonetheless, agree with the trial court that, had BCBS actively investigated the claims under the CSD policy, it would have discovered that it had received a Medicare EOB indicating that Medicare had paid in full the balances of Ms. Houston’s accounts for 2000, which meant that nothing was due from BCBS on the Medicare supplemental policy. This was a second, very simple means for BCBS to discover that the providers had been paid in full and that that was the reason they were not responding to additional requests for information.

The case sub judice is a striking example of a diligent, competent insured (son representing the insured) attempting to make a proper claim with the insurance company. Once it was in receipt of Mr. Parker’s June 27th mailing, BCBS had in its possession every possible medical record and form available to Mr. Parker concerning his mother’s diagnosis, treatment and hospitalization for cancer. At this point, BCBS certainly had sufficient notice and proof of a claim under the CSD policy. Indeed, Ms. Rogers testified that no new information was received by BCBS, only the form of the information was different.

Even if BCBS did not have the form (UB92) necessary to process the claim, as previously mentioned, Mr. Parker’s letter of June 27, 2000, clearly states why such form was unavailable and the receipt of a Medicare EOB indicating that the providers had been paid in full should have alerted BCBS to the problem, which could have been (and eventually was) quickly [ iaresolved through a telephone call to the providers. As the trial court stated, it is “inexcusable” that it then took another two months for Ms. Rogers to get involved and make this discovery, get the forms from the providers and process the claims.

BCBS would have us accept the notion that Mr. Parker’s inadequate mailings, followed by the providers’ failure to respond to several form letters requesting more information, provides just and reasonable grounds to delay the processing of the claims for more than four months. For the reasons outlined above, we disagree.

Further, BCBS stands behind the shield of confidentiality to argue that it could not contact Mr. Parker regarding Ms. Houston’s claim because it did not have a power of attorney in its possession. We find this argument to be disingenuous when, admittedly, a BCBS representative did in fact discuss the status of Ms. Houston’s claim with Mr. Parker when he called to inquire about the delay in payment. BCBS did not request a power of attorney during that conversation, nor did it contact Mr. Parker at any other time to request the same, despite his written request that BCBS contact him for any further necessary information.

An insured cannot be charged with having knowledge of the intricate maze of interdepartmental requirements of the insurance company. Crawford, supra. If correspondence is insufficient for submission of a claim, it is incumbent on the insurer to respond with proper instructions for proper submission of the claim. Id. Mr. Parker did his best to provide the information in the form necessary to process the claims and we believe he [ uwould have done more had he been requested to do so. BCBS’s poor handling of this matter supports the trial court’s finding that its failure to timely pay the claims was arbitrary and capricious; and, therefore, we find no error in the trial court’s imposition of penalties and attorney fees.

ANSWER TO APPEAL

Mr. Parker has answered the appeal, asserting the following assignments of error:

1. The trial court erred in failing to award any sums to Plaintiff for the hospitalization of his mother during the month of December 1999, despite the BCBS policy of insurance being in full force and effect and coverage for such confinement being owed.
2. The trial court erred in failing to award attorney fees against BCBS in the full amount shown to have been due despite the evidence produced by Plaintiff in support of his demands.

Mr. Parker further argues in his brief that BCBS’s appeal is frivolous and without merit warranting an additional imposition of penalties and attorney fees. Finally, also in his brief, Mr. Parker seeks additional attorney fees for the work performed on this appeal.

Benefits for 1999

The CSD policy states that “[n]o Health Care benefits shall be payable for treatment of Cancer unless there is a pathological diagnosis of Cancer.” As previously stated, the trial court found that no benefits were owing for 1999 “because there was no showing that there was a pathological diagnosis of cancer as required by the CSD policy.” After reviewing the testimony and documentary evidence, we find this conclusion to be clearly wrong.

|1RThe record contains a pathology report from Delta Pathology Group on specimens collected from Ms. Houston’s brain on January 17, 2000. It is not disputed that the report indicates the tumor was cancer. We acknowledge that, when Ms. Houston first presented at Minden Medical Center on December 2, 1999, suffering from seizures and right-side weakness, Dr. Stell believed she had suffered a stroke and treated her accordingly. At that time, he believed the lesion on her brain that was apparent on the CAT scan to be a stroke. Dr. Stell, accepted by the trial court as an expert in family practice with the competency to make diagnoses of cancer, testified, however, that the second CAT scan, done in January 2000, revealed the tumor in the same location as the lesion on the December 1999 CAT scan and her January 2000 symptoms of seizure, right-side weakness and difficulty with speech and gait were the same symptoms she had experienced a month earlier. For these reasons, in retrospect, he concluded that her problems in 1999 were caused by the cancerous brain tumor. The only reasonable conclusion from this evidence is that the December 1999 treatment and hospitalization were, in fact, caused by the cancer. We find that the January 2000 pathology report, coupled with Dr. Stell’s testimony, satisfies the condition that a “pathological diagnosis of cancer” exists for 1999. The judgment shall be amended accordingly to award benefits in the amount of $3,292.73 for 1999. No penalty or attorney fees, however, are warranted on the 1999 claims.

|1fiAttorney fees

Mr. Parker argues that the trial court erred in not awarding the full amount of attorney fees requested and proved. The total time requested was presented to the court with expert testimony from retired court of appeal Chief Judge Charles A. Marvin attesting to the reasonableness of those fees. Mr. Parker requests that the award for attorney fees be increased to $15,000.

La. R.S. 22:657 specifies that, where penalties and attorney fees are awarded, the amount of attorney fees is to be determined by the court. Factors to be considered in awarding attorney fees include the knowledge and skill of the attorneys involved, the complexity of the issues inherent in the case, the amount of the controversy and the success of the party seeking the attorney fee. Morgan, supra, citing Goff v. John Hancock Mutual Life Insurance Company, 497 So.2d 747 (La.App. 3rd Cir.1986). The assessment of attorney fees is a factual determination to be made by the trial court and will not be disturbed on review unless shown to be clearly wrong. Morgan, supra, citing Lucito v. Louisiana Hospital Service Inc., 392 So.2d 700 (La.App. 3rd Cir.1980), and Slay v. Old Southern Life Insurance Company, 498 So.2d 1129 (La.App. 3rd Cir.1986), writ denied, 501 So.2d 235 (La.1987).

In the case sub judice, the trial court was presented with the evidence and testimony regarding the suggested reasonable and appropriate attorney fees in this matter. In its discretion, the trial court evaluated the evidence and awarded $10,000 in attorney fees. We cannot say that the trial court [ 17was clearly wrong in this exercise of discretion; and, therefore, we decline to increase the award on appeal.

Mr. Parker next asserts that BCBS’s appeal is frivolous and requests that this court award penalties and attorney fees accordingly. La. C.C.P. art. 2164 provides that this court may award damages for frivolous appeal; and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable. An appeal is not automatically deemed frivolous simply because it lacks merit. LePrettre v. Progressive Land Corp., 01-1660 (La.App. 3d Cir.6/19/02), 820 So.2d 1240. Rather, appeals are favored and an appeal is deemed frivolous, for purposes of an award of damages for frivolous appeal, only if it does not present substantial legal question; or if it is obvious either that its sole purpose is delay, or that appealing counsel does not seriously believe the view he or she has advocated. Hays v. Volentine, 29,555 (La.App.2d Cir.5/7/97), 694 So.2d 633; Joyner v. Wear, 27,631 (La.App.2d Cir.12/6/95), 665 So.2d 634, writs denied, 96-0040 and 96-0042 (La.2/28/96), 668 So.2d 370; Fudge v. Levine, 26,279 (La.App.2d Cir.12/7/94), 647 So.2d 405.

BCBS presented well-grounded arguments based on the factual determinations of the trial court. We do not find this appeal to be frivolous so as to warrant the imposition of a penalty and attorney fees.

Mr. Parker is, however, entitled to an increase in the attorney fees award for the work performed on appeal. The general rule is an increase in attorney fees is usually allowed where a party was awarded attorney fees by | isthe trial court and is forced to and successfully defends an appeal. Sims v. Sun Chemical Corp., 34,947 (La.App.2d Cir.8/22/01), 795 So.2d 439; Fontenot v. Flaire, Inc., 26,055 (La.App.2d Cir.8/17/94), 641 So.2d 1062. Stated another way, an increase in attorney fees for services rendered on appeal is appropriate when the defendant appeals and obtains no relief. Wallace v. State Farm Mutual Automobile Insurance Company, 36,099 (La.App.2d Cir.6/14/02), 821 So.2d 704.

Mr. Parker requested an increase in attorney fees for work performed on appeal in his timely answer to the appeal. His attorney filed a brief supporting the trial court’s judgment in part and raising an error in the judgment, which we found to be meritorious. He also presented oral argument before this court. We find that Mr. Parker is entitled to an award of additional attorney fees in the amount of $2,500.00 representing legal services required by this appeal.

DECREE

For the reasons stated herein, the judgment of the trial court is amended to add benefits for 1999 in the amount of $3,292.73. In addition, the award of attorney fees is amended to include an additional award of $2,500 in attorney fees for work on this appeal. As amended, the judgment of the trial court is affirmed. Costs are assessed to Defendant/Appellant Blue Cross Blue Shield of Louisiana.

AMENDED, AND, AS AMENDED, AFFIRMED.

      . A UB92 is a standard claim form used by hospitals to file claims with insurance companies. A different form is used by physician providers. Both forms, however, contain certain industry standard codes utilized by insurance companies in the processing of claims. Among these codes are revenue codes, diagnostic codes and procedure codes which allow the insurance company to determine which services are covered or excluded under a given policy.

      . The original petition sought benefits for the year 2000 only. By supplemental petition, Mr. Parker claimed benefits owing for his mother’s hospitalization and treatment in 1999.

      . Penalties and attorney fees were not sought for the 1999 hospitalization and treatment because no claim for benefits was made to BCBS for that year.

      . This payment was made over a year after the first two payments. Apparently, in September 2000, when Ms. Rogers requested information from the providers on all cancer-related treatment of Ms. Houston, the last 18-day hospitalization in Willis-Knighton was not included in the materials sent to her because this confinement was for rehabilitation and was not "coded” as cancer-related in the hospital records. Once this potential claim was brought to her attention, Ms. Rogers secured the hospital records on this 18-day stay and referred the matter to the BCBS medical review team to determine if coverage existed for this confinement. The medical review team determined that, even though the "code” for cancer was absent from the records, the rehabilitation was a result of the cancer and was, therefore, covered. Ms. Rogers then issued this final benefit check.

      . In fact, the claims processor who first saw Mr. Parker’s mailing testified in deposition that she would not have been concerned with, or even read, Mr. Parker's letter because it was her job to merely enter code information into the computer, which then generated the letter to the provider requesting additional information. She stated that it was not her job to read the correspondence and investigate the claim.

      . BCBS did pay $798 on the Medicare supplemental policy for 1999.

      . This figure represents three days hospitalization at $200 per day ($600) plus 50 percent of Dr. Stell's and Minden Medical Center's charges ($326.16 + $5,149.30 = $5,385.46 x .50 = $2,692.73) for a total of $3,292.73.


source: Caselaw Access Project

author: h GASKINS, J.

license: Public Domain

text:
    John Davis COLQUITT, Plaintiff-Appellant, v. CLAIBORNE PARISH, et al., Defendant-Appellee.
    No. 37,082-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2003.
    John D. Colquitt, In Proper Person.
    Before WILLIAMS, GASKINS and DREW, JJ.
   h GASKINS, J.

The plaintiff, John D. Colquitt, appeals from a trial court judgment that rejected his claims that the trial court denied him access to the court by denying him pauper status in a prior suit. We affirm.

FACTS

In January 2002, Colquitt filed suit against District Attorney Walter May, Jr., of the Second Judicial District, seeking $500,000 in damages and an immediate release from prison. Pursuant to the Prison Litigation Reform Act (PLRA), La. R.S. 15:1181, et seq., the trial court dismissed his petition for failure to state a claim upon which relief could be granted, denied his motion to proceed in forma pauperis, and ordered the rejection of any future civil actions submitted by Colquitt to the Claiborne Parish Clerk of Court unless he paid an advance deposit for court costs. In Colquitt v. Claiborne Parish, 36,260 (La.App.2d Cir.8/14/02), 823 So.2d 1103, we affirmed the dismissal of Col-quitt’s petition, but vacated that portion of the judgment concerning his ability to file in forma pauperis. We concluded that the PLRA did not apply to his suit against the district attorney because Colquitt’s action concerned the fact or duration of his confinement in prison, not the conditions of his confinement or the effects of actions by the district attorney on his life as a person confined in prison.

On August 23, 2002, Colquitt filed a petition against the Second Judicial District Court, the Town of Homer, and District Attorney May, ^alleging that the defendants had tried to stop Colquitt from gaming access to the court by not allowing him to file his prior action in forma pau-peris, thereby violating his constitutional rights. He again sought damages of $500,000 and release from custody. On September 18, 2002, the trial court, based on its prior decision as affirmed by this Court, dismissed Colquitt’s petition prior to docketing, but found that Colquitt should be allowed to proceed in forma pauperis. This appeal followed.

DISCUSSION

Contrary to Colquitt’s assertions, his constitutional right to access to the court has not been violated. In his prior action, the trial court reached the merits of his claims; the court reviewed the reasons why those claims, previously denied in post-conviction proceeding, were meritless. On appeal, we also reached the merits of Colquitt’s claims by affirming the trial court’s judgment pertaining to them.

The only other effect of the trial court’s judgment in the prior action was to deny Colquitt’s motion to proceed informa pau-peris, and to order future civil actions by Colquitt to be rejected if filed in forma pauperis. However, the judge’s conclusions concerning Colquitt’s ability to proceed in forma pauperis did not prevent Colquitt from appealing, and this Court then vacated that portion of the judgment concerning Colquitt’s ability to file in for-ma pauperis. Thus, he was not prevented from filing the instant action or any other such action in forma pauperis. To the contrary, the court found that he should be allowed to proceed in forma pauperis herein because the nature of his claim was one appropriately raised as a posbjconvic-tiong claim. Moreover, this Court has once again reached the merits of Colquitt’s claim on appeal. Under these facts, Col-quitt has suffered no damages or denial of court access.

CONCLUSION

For the reasons set forth above, the trial court’s judgment is affirmed at Colquitt’s costs.

AFFIRMED.

      . Colquitt has a lengthy history of litigation. Since 1996, he has filed more than 50 criminal writs, civil writs and civil appeals in this Court. Apparently he is currently serving a sentence of 10 years at hard labor for possession of a firearm by a convicted felon. See Colquitt v. Claiborne Parish Detention Center, 35,139 (La.App.2d Cir.10/12/01), 795 So.2d 1284, writ denied, 2001-3006 (La.9/13/02), 824 So.2d 1178.


author: I,STEWART, J. 11 DREW, J.,

text:
    Albert P. WOOD, Jr. and Lucy Wood, Plaintiffs-Appellees, v. Lamar SPILLERS, et al, Defendants-Appellants. Albert P. Wood, Jr. and Lucy Wood, Plaintiffs-Appellees, v. Centurytel, Inc., et al, Defendants-Appellants.
    Nos. 37,087-CA, 37,088-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2003.
    Rehearing Denied May 8, 2003.

      The Boles Law Firm, by Michael L. DuBos, P. Herman Wessels, for Defendants-Appellants, CenturyTel, Inc. and American Motorists Ins. Co.
    Johnson, Stiltner & Rahman, by Patricia J. Delpit, for Intervenor-Appellee, La. Workers’ Compensation Corp.
    Dollar Laird, by Johnny E. Dollar, for Plaintiffs-Appellees, Albert P. Wood, Jr. and Lucy Wood.
    Nelson, Zentner, Sartor & Snellings, by David H. Nelson, for Defendants-Appel-lees, Lamar Spillers and Steve Sowers.
    Before STEWART, PEATROSS and DREW, JJ.
   I,STEWART, J.

CenturyTel of Northwest Louisiana, Inc., (“CenturyTel”), the defendant herein, appeals a jury verdict awarding damages to the plaintiff, Albert P. Wood, Jr., for injuries he sustained when a telephone cable dropped onto the vehicle he was driving. In two assignments of error, CenturyTel asserts that the jury verdict should be reversed because the evidence does not support a finding that it was negligent, and in the alternative, that an award for future medical expenses should be reversed because there is no evidence to support this award. Because we find the jury’s finding of negligence to be manifestly erroneous, we hereby reverse the judgment against CenturyTel.

FACTS

On May 18, 1999, Albert P. Wood, Jr., was driving a tractor/trailer rig with an attached flatbed trailer in an easterly direction along 1-20 in Lincoln Parish. As Wood proceeded from under the Choud-rant overpass, the front of his vehicle was struck by a telephone cable which suddenly dropped to a height of six feet. The impact caused Wood to lose control of his vehicle and veer off the road into a line of trees. He was trapped in his vehicle and had to be removed by rescue workers. He sustained injuries to his left hand and arm. Earlier that morning, Wood passed the same area without incident, and just prior to the accident, he observed an 18-wheeler ahead of him clear the area without encountering any obstruction.

The cable which struck Wood’s vehicle was part of a system that had been constructed in 1987 to provide telephone and internet dial-up services to the Choudrant area. An engineering firm designed and supervised the [¡^construction, then the Rural Electric Association, a federal agency now known as the Rural Utility Services, inspected the system before it was put into service by CenturyTel. The cable weighed approximately 996 pounds and spanned 382 feet across 1-20. It was supported by a north pole measuring 8 inches in diameter and a south pole measuring 10 inches in diameter. Each pole was driven 8 feet into the ground. In addition, each pole was anchored by a guy wire connected to the top of the pole by a “through bolt” and secured to the ground by a buried anchor rod assembly. The supporting guy wire was positioned at a 45 degree angle to the pole. The anchor rod assembly consisted to two 10 foot sections of pipe joined at a threaded collar and screwed into the ground. Guy Middleton, CenturyTel’s area supervisor, testified that a failure occurred at the coupling of the two segments of pipe underground. The top segment was pulled out from underground, the through bolt connecting the guy wire to the north pole ripped straight out the top of the pole, and the top half of the south pole split and fell to the ground.

Alleging theories of negligence and strict liability, Wood filed suit against Cen-turyTel. The negligence theory was based on CenturyTel’s failure to properly inspect, maintain, or repair its telephone cable lines.

Wood also filed suit against Lamar Spil-lers and Steve Sowers. Spillers owned property north of 1-20 near where the north pole and guy wire assembly were located. On the morning of the accident, Spillers andUSowers, who worked for Spil-lers, had been bushhogging the area around the north pole and guy wire assembly. Wood alleged that either Spillers or Sowers struck the guy wire assembly or pole while bushhogging. Both denied doing so at trial. Spillers also testified that the area around the north pole and anchor rod assembly was sometimes wet and that the pole had a slight lean, which he surmised was due to its location and the fact that it “had a load on it.” However, Spil-lers had not observed any change in the pole’s lean over the years.

The jury determined that neither Spil-lers nor Sowers was negligent and rejected Wood’s claims against them. The jury also rejected the theory of strict liability against CenturyTel upon finding no defective or unreasonably dangerous condition in CenturyTel’s installations. However, the jury found CenturyTel to have been negligent, assessed all the fault against it, and awarded damages totaling $150,633.

CenturyTel filed a motion for judgment notwithstanding the verdict seeking to overturn the jury verdict in toto, or in the alternative, that portion awarding future medical expenses. The trial court denied the motion. On appeal, CenturyTel assigns as error the jury’s finding of negligence and the award of future medical expenses.

DISCUSSION

A jury’s factual findings may not be set aside on appeal unless such findings are manifestly erroneous or clearly wrong. Stobart v. State Through DOTD, 617 So.2d 880 (La.1993); White v. Wal-Mart Stores, Inc., 32,621 (La.App.2d Cir.3/3/00), 753 So.2d 995, writ denied, 2000-1222 (La.6/23/00), 765 So.2d 1041. To reverse the jury’s factual findings, an appellate court must view the record in its entirety and find that the record establishes that no reasonable factual basis exists for the jury’s findings and that such findings are manifestly erroneous or clearly wrong. Stobart, supra. The issue to be resolved is not whether the trier of fact was right or wrong, but whether its conclusion was reasonable. Id. Where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.

Our law provides that every act of man that causes damage to another obliges him by whose fault it happened to repair it. La. C.C. art. 2315. This obligation encompasses acts of negligence. La. C.C. art. 2316. Whether a defendant is liable for negligent conduct is analyzed by application of the duty/risk analysis. Harris v. Godwin, 28,245 (La.App.2d Cir.4/8/96), 671 So.2d 1278. The duty/risk analysis consists of the following four inquiries:

1. Whether the defendant had a duty to conform his conduct to a specific standard.
2. Whether the defendant breached this duty because he failed to conform his conduct to the appropriate standard.
3. Whether the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries.
4. Whether the defendant’s substandard conduct was a legal cause of the plaintiffs injuries.

Mathieu v. Imperial Toy Corp., 94-0952 (La.11/30/94), 646 So.2d 318; Colgate v. Mughal Brothers, Inc., 36,754 (La.App.2d Cir.1/29/03), 836 So.2d 1229; Harris v. Godwin, supra. All four inquiries must be answered in the affirmative for the defendant to be found negligent and determined | fjliable for the plaintiffs damages. Colgate v. Mughal Brothers, Inc., supra; Harris v. Godwin, supra.

The plaintiff who alleges negligence has the burden of proving his case by a preponderance of the evidence. A preponderance of the evidence exists when the direct and circumstantial evidence, taken as a whole, shows that the fact sought to be proved is more probable than not. Colgate v. Mughal Brothers, Inc., supra; Aetna Life and Cas. Co. v. Solloway, 25,-462 (La.App.2d Cir.1/19/94), 630 So.2d 1353, writ denied, 94-0575 (La.4/22/94), 637 So.2d 162.

Wood sought to prove that CenturyTel was liable either because of negligence in failing to inspect, maintain, or repair its telephone cable lines or because of strict liability under La. C.C. arts. 2317 and 2317.1, which pertains to damage occasioned by some defect in the cable installation. The jury rejected the claims under La. C.C. arts. 2317 and 2317.1 when they found no defect or unreasonably dangerous condition in the cable installation. Wood did not appeal the jury’s determination as to his claims under La. C.C. arts. 2317 and 2317.1. As such, only the jury’s finding of negligence is before this court pursuant to the assignment of error asserted by Cen-turyTel.

CenturyTel argues that there is no factual basis in the record to support a finding of negligence. It contends that the jury’s finding of no'defect or unreasonably dangerous condition precludes a finding of negligence on the basis of a failure to maintain, inspect, or repair the cable installation. In the absence of some defect, there is no causal connection | (¡between the failure to inspect, maintain, or repair and the incident which injured Wood.

In response, Wood argues that the jury’s finding is supported by the evidence which shows that CenturyTel failed to inspect its installation in the years preceding this accident and this failure to inspect was negligent. Wood argues that failure to inspect was negligent because the installation was located in a wet area as evidenced by the presence of rust on the segment of pipe buried underground, and because the north pole had been leaning toward the interstate over the years as noted by Lamar Spillers. Wood contends that the jury drew upon its ordinary life experiences to conclude that a cable weighing almost 1,000 pounds does not suddenly drop in the absence of negligence, that CenturyTel was the party responsible for the cable installation, and that CenturyTel is best able to explain how the incident occurred. Wood argues on appeal that the jury applied the doctrine of res ipsa loqui-tur to reach the verdict.

We do not find res ipsa loquitur applicable in this instance. Res ipsa lo-quitur is a rule of circumstantial evidence by which the defendant’s negligence is inferred where the facts indicate this to be the probable cause of the injury and where there is an absence of other plausible explanations by credible witnesses. Cangelosi v. Our Lady of the Lake Med. Ctr., 564 So.2d 654 (La.1989); Boudreaux v. American Ins. Co., 262 La. 721, 264 So.2d 621 (La.1972). Application of res ipsa lo-quitur requires the plaintiff to sufficiently exclude the inference of his own responsibility or the responsibility of others, beside the defendant’s, in causing the accident. Cangelosi, supra; Gautreaux v. W.W. Rowland Trucking Co., Inc., 99-1002 (La.App. 5th Cir.2/29/00), 757 So.2d 87, writ denied, 2000-0915 (La.5/12/00), 761 So.2d 1291. Wood did not base his case at trial on this doctrine. He did not request instruction to the jury on application of res ipsa loquitur, and the jury was not instructed on such. Also, Wood argued that parties other than CenturyTel may have been responsible for causing the accident. The possibility that either Sowers or Spil-lers hit the north pole or guy wire while bushhogging was presented at trial as an equally plausible explanation for what may have occurred. These factors preclude application of the res ipsa loquitur doctrine on appeal as an explanation of the jury’s verdict.

Wood’s negligence theory was based on CenturyTel’s alleged failure to inspect, maintain, or repair the cable installation. The evidence establishes that CenturyTel did not have a specific policy for inspecting the cable installation. However, Guy Middleton, the area supervisor for CenturyTel, explained that he supervised thirteen men and that there was an ongoing practice to visually inspect and provide maintenance as needed when problems were observed. Middleton testified that he passed the area where the incident occurred on an almost daily basis and that he never observed any problem with the cable. He also testified that he had measured the height of the cable a couple of years prior to the accident in preparation for a house move and that it was 22 feet over the interstate. Moreover, Middleton explained that because it appeared a failure occurred in the portion of the guy wire assembly buried underground, an inspection | ¡¡would have not have led to the discovery of any underground problem. Middleton did not know of any utility company which dug up buried anchor assembly systems for purposes of regular inspections.

Even if we were to conclude that Centu-ryTel had a duty to inspect, maintain, and repair its cable installations, the record does not establish by a preponderance of the evidence that CenturyTel either breached this duty or that any breach caused the injury that occurred. No testimony was offered by Wood to show that CenturyTel’s regular practice, as described by Middleton, was substandard with regard to inspections and maintenance of these cable installations. Instead, Wood relies on testimony indicating that the north and south poles were different sizes, that the north pole leaned slightly toward the interstate, that the north pole was located in an area that was sometimes wet, and that there was rust on the pipe buried underground as part of the north pole’s anchor rod assembly to prove that a problem existed and that CenturyTel failed to find it and correct it. Reliance on such evidence to prove negligence presupposes that there was some defect which caused the accident and that CenturyTel could have discovered and corrected this defect had it exercised reasonable care by inspecting the installation. However, this supposition was rejected by the jury when they denied Wood’s strict liability claims.

In Armstead v. Central Louisiana Electric Company, Inc., 308 So.2d 870 (La.App. 3d Cir.1975), a similar situation was presented. Armstead was injured when a vehicle in which he was riding struck a guy line that obstructed the path. The guy line sagged across the road when a rotten pole | flbroke during normal weather conditions. Another contributing factor was that an unknown third person had detached guy lines connected to the rotten pole sometime prior to the accident. Two utility companies were found to have been negligent for failing to inspect, to discover these defects, and to repair the defects which caused the accident. The court concluded that the rotten pole and disconnected guy wires caused the pole to collapse and the line to sag across the road, thus creating an unreasonable risk of harm to passing motorists.

While the record in Armstead, supra, established specific defects which caused the accident, the record in the case before us does not. Neither the north pole nor the south pole was shown to be rotten. Neither the slight lean in the north pole nor the location of this pole in an area that was sometimes wet was shown either to have presented an unreasonably dangerous condition that should have been detected by an inspection or to have caused the accident. The negligence of the utility companies in Armstead, supra, was based on there being defects which were shown to have caused the accident and which could have been found and repaired if there had been an inspection. In the case before us, there was no such showing.

In Joseph v. Entergy, 2000-2213 (La.App. 4th Cir.2/13/02), 811 So.2d 54, writ denied, 2002-0744 (La.5/10/02), 815 So.2d 846, Entergy was found liable under the theory of negligence for injuries sustained by the plaintiff when a corroded 626 pound metal light standard fell during a storm. There was expert testimony that severe corrosion contributed to the [flight standard giving way during the storm. The court found that Entergy had both a public and contractual duty to maintain the light standard so as to ensure public safety. The court further found that Entergy breached its duty by not maintaining the light standard and by allowing it to go unpainted for several years during which time the corrosion developed to such an extent as to pose a danger to the public. Moreover, Entergy had notice of problems with the light standard, particularly reports that it was in need of paint and repair.

In the instant case, there was no showing that CenturyTel had notice of any problems with its cable installation. Most importantly, there was no expert testimony to show that any of the alleged problems with the cable installation — the location of the north pole in an area that was sometimes wet, the presence of rust on the underground segments of pipe that made up the anchor rod assembly, the slight lean of the north pole, or the different diameters of the north and south poles— caused the incident which resulted in injury to Wood. Wood argues that the jury could reasonably conclude from this evidence that CenturyTel was negligent in failing to inspect its installation and in thereby allowing corrosion to develop to such an extent that the leaning pole gave way causing the cable to suddenly drop. This conclusion can only be reached through surmises and speculation, which are insufficient to prove negligence by a preponderance of the evidence. See Colgate v. Mughal Brothers, Inc., supra; Cangiano v. Forte Hotels, Inc., 2000-40 (La.App. 5th Cir.10/31/00), 772 So.2d 879, writ denied, 2000-3254 (La.01/26/01), 782 So.2d 636; Leger v. Citron Ford, Inc., 589 So.2d 23 (La.App. 1st Cir.1991).

Upon our review of this record, we do not find that Wood met his burden or proving negligence by a preponderance of the evidence. The jury’s finding was manifestly erroneous. This is not an instance of there being two permissible views of the evidence. Rather, the evidence presented at trial does not support the view that CenturyTel was negligent due to its failure to inspect, maintain, or repair its cable installation. We must, under these circumstances, reverse the jury verdict and judgment rendered in accordance therewith. The assignment of error pertaining to the award of future medical expenses is rendered moot by reversal of the verdict.

CONCLUSION

For the reasons mentioned, we hereby reverse the jury verdict and judgment of the trial court awarding damages to Albert P. Wood, Jr. Costs are assessed to the appellee.

REVERSED.

DREW, J., concurs with written reasons.

11 DREW, J.,

concurring:

This factual scenario waddles and quacks like strict liability, an issue not before us. I must concur in this harsh result which requires Mr. Wood (and his compensation carrier) to unfairly bear the entire burden of an accident for which he was blameless.

APPLICATION FOR REHEARING

Before STEWART, GASKINS, PEATROSS, DREW, and MOORE, JJ.

Rehearing denied.

      . Wood’s petition erroneously referred to CenturyTel of Northwest Louisiana, Inc., and its insurer, American Motorists Insurance Company as CenturyTel, Inc., and Kemper Insurance Companies.


author: J^MOORE, J.

text:
    STATE of Louisiana, Appellee, v. Carl E. FRAZIER, Jr., Appellant.
    No. 37,010-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2003.

      Leroy Smith, Jr., Tallulah, for Appellant.
    Richard Ieyoub, Attorney General, William R. Coenen, Jr., District Attorney, Johnny R. Boothe, Penny Wise Douciere, Assistant District Attorneys, for Appellee.
    Before STEWART, CARAWAY and MOORE, JJ.
   J^MOORE, J.

The State charged Carl E. Frazier Jr. by bill of information with attempted armed robbery, La. R.S. 14:27, 64. Frazier waived trial by jury. On the day of trial, the State moved to amend the bill to charge that Frazier attempted to rob Teresa Temple, a cashier, rather than Trak Food Store in Winnsboro. The district court denied Frazier’s motion for continuance, allowed the amendment and, after receiving evidence, found him guilty as charged. The court sentenced him to seven years at hard labor. Frazier now appeals, contesting the denial of his motion for continuance and the sufficiency of the evidence. For the reasons expressed, we affirm.

Factual Background

On the afternoon of February 14, 2000, Captain Willie Turner of the Madison Parish Sheriffs Office was in Winnsboro on business. Driving an unmarked car, he stopped at Trak Food Store, a convenience store on Hwy. 4. He parked on the side of the building, got out of his car and walked to the front sidewalk. At that instant he saw someone come from around the back of the store. This was a black male, pulling an orange or red ski cap down over his face and walking toward the front door. Dep. Turner took a good look at him and then reached for his revolver. Seeing this, the man in the ski cap spun around and darted back behind the building. Dep. Turner then entered the store, confirmed that the clerk, Teresa Temple, was all right, and told her to call 911. Dep. Turner described the suspect’s appearance, clothing and direction of travel to Dep. Todd Roberts, who was patrolling nearby.

| ¡.Deputy Roberts drove down Mauld Road, a street that ran behind Trak Food Store. About 100 yards away, he saw and stopped Frazier, who matched Dep. Turner’s description, clothing and direction of travel. Frazier consented for Dep. Roberts to look inside a bag he was carrying; in it, Dep. Roberts found a pistol and a ski cap. Dep. Roberts placed Frazier under arrest, gave him his Miranda rights and drove him to the sheriffs office.

At the sheriffs office, Dep. Tim Pylant again gave Frazier his Miranda rights. Frazier waived them and gave a statement confessing that he and a friend, Desmond Jackson, had planned to rob the store. According to this statement, Jackson gave him the handgun, a .380 automatic, told him to rob the store, and dropped him off there; but after the deputy spotted him, he “took off running.” Another deputy corroborated that a citizen had called to report seeing a car circling the store; the car turned out to be Jackson’s blue Mazda.

Discussion: Sufficiency of the Evidence

By his second assignment of error, Frazier urges the evidence was insufficient to support the conviction for attempted armed robbery. He contends that the intended victim did not see a weapon in his hand, and in fact he never entered the store. He further argues that there were two clerks in the store, and the State failed to prove which one he intended to rob. Finally, he contends there was no proof of specific intent.

l3When issues are raised on appeal as to both the sufficiency of the evidence and one or more trial errors, the appellate court first reviews the sufficiency. This is because the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that the State proved all the elements of the offense beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App. 2 Cir. 4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

To convict a defendant of attempted armed robbery, the State must prove that the defendant, with the specific intent to commit armed robbery, did or omitted an act for the purpose of and tending directly toward the taking of anything of value belonging to another, from the person of another or in the immediate control of another, by the use of force or intimidation, while armed with a dangerous weapon. La. R.S. 14:27, 64; State v. Musgrove, 33,977 (La.App. 2 Cir. 12/15/00), 774 So.2d 1155, writ denied, 01-0356 (La.9/28/01), 798 So.2d 112.

Frazier’s confession proves, beyond a reasonable doubt, that he had the specific intent to commit an armed robbery. When asked what he was doing at the store, he said, “I was gonna you know stick it up but I changed my mind.” He described how Jackson asked him to “go riding,” then gave him a gun and told him to rob the store; he got “right on back of the store” but changed his mind when he saw the officer. These admissions, with thejjcorroborating evidence of Dep. Turner, establishes the essential element of specific intent. State v. Broaden, 99-2124 (La.2/21/01), 780 So.2d 349, cert. denied, 534 U.S. 884, 122 S.Ct. 192, 151 L.Ed.2d 135 (2001); State v. Kunzman, 31,976 (La.App. 2 Cir. 5/5/99), 741 So.2d 112.

Deputy Turner established that in furtherance of the plan, Frazier was at the scene, walking toward the front door of Trak Food Store and donning a ski mask to conceal his identity. Only the deputy’s timely arrival frustrated the planned robbery. It is immaterial that Frazier did not know which cashier he was actually going to rob, or that she did not yet see him. After Frazier fled the scene, he was found carrying an automatic handgun. These acts are more than mere preparation; they tend directly toward the taking of anything of value belonging to another, from the person of another or her immediate control, by the use of force or intimidation, while armed with a dangerous weapon. The evidence is sufficient beyond a reasonable doubt to convict Frazier of attempted armed robbery. This assignment does not present reversible error.

Motion for Continuance

By his first assignment of error Frazier urges the district court erred in allowing the State to amend the bill of information from attempted armed robbery of the Track Food Store to attempted armed robbery of Teresa Temple. Frazier concedes that he did not object to the amendment, but asked for a continuance on grounds that the amendment prejudiced him by destroying his major defense to the charge. He cites no authority in support of this argument, but asserts that the State did not list Ms. Temple as a | ¡^witness. After the court denied the continuance, defense counsel asked for an instanter subpoena of Ms. Temple.

The original bill of information charged Frazier with attempted armed robbery by “attempting to rob Trak Food Store, located on La. Hwy. 4, while armed with a dangerous weapon * * * on or about February 14, 2000.” On the day of trial, the State moved to amend the bill to reflect that the victim was “Teresa Temple, a cashier” at Trak Food Store.

The court may permit an amendment to the substance of the bill before trial begins. La.C.Cr.P. art. 487 A; State v. Ignot, 29,745 (La.App. 2 Cir. 9/24/97), 701 So.2d 1001, writ denied, 99-0336 (La.6/18/99), 745 So.2d 618. If the defendant can show that he has been prejudiced by the amendment to the charge against him, he is entitled to a continuance. La. C.Cr.P. art. 489. Continuance is proper when needed to protect the defendant from surprise or prejudice which may result from the amendment. State v. Ignot, supra. However, the burden is on the defendant to show prejudice; a bare allegation of prejudice will not suffice. Art. 489; State v. Cleveland, 25,628 (La.App. 2 Cir. 1/19/94), 630 So.2d 1365. Moreover, the district court has great discretion in granting or denying a continuance under these circumstances; the ruling will not be disturbed on appeal absent a showing of abuse of that discretion. State v. Ignot, supra.

The original bill of information clearly advised Frazier of the offense charged, the name and location of the business where it occurred, and the date. Although it is technically deficient, it fairly informed Frazier of the charge against him. State v. Stephenson, 33,662 (La.App. 2 Cir. 8/23/00) 766 So.2d 642, writ denied, 00-2686 (La.8/31/01), 795 So.2d 1204. The district court also noted that the police report, which had been made available to defense counsel through discovery, listed the cashier’s name. Since Frazier never entered the store, Ms. Temple was in no position to give surprising or prejudicial testimony. On these facts, the district court did not abuse its discretion in denying the motion for continuance. State v. Ignot, supra; State v. Woods, 97 0800 (La.App. 1 Cir. 6/29/98), 713 So.2d 1231, writ denied, 98-3041 (La.4/1/99), 741 So.2d 1281. This assignment does not present reversible error.

Conclusion

We have reviewed the entire record and find nothing we consider to be error patent. La.C.Cr.P. art. 920(2). For the reasons expressed, the conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

      . Desmond Jackson pled guilty to attempted first degree robbery and received a seven-year sentence which this court affirmed in an unpublished opinion, State v. Jackson, 36,176 (La.App. 2 Cir. 8/14/02), 826 So.2d 1203.


author: I .WILLIAMS, J.

text:
    Frances Turner WEST, on behalf of her minor son, Lamareo J. West, and Sherry Lambert WEST, on behalf of her minor children, Jamarea Lambert West and Beau Lambert West, Plaintiff-Appellant, v. Johnnie WATSON, Beatrice Watson, Howard Watson, Specialty Risk and Associates, and Lloyd’s Underwriters at London, Jointly and in Solido, Defendant-Appellee.
    No. 37,100-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2003.

      S.P. Davis, for Appellant.
    John C. Turnage, Shreveport, for Appel-lee, Johnnie Watson.
    John C. Anderson, Robert W. Fenet, Baton Rouge, J. Konrad Jackson, for Ap-pellee, Lloyd’s London.
    Before WILLIAMS, CARAWAY and DREW, JJ.
   I .WILLIAMS, J.

Plaintiffs appeal from a summary judgment in favor of the defendant, Certain Interested Underwriters at Lloyd’s, London (“Lloyd’s”). The trial court held that an “intentional injury exclusion” provision precluded coverage for a shooting death which occurred on the property of the insured. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On August 15, 1999, Johnnie Watson (“Watson”) shot and killed Jimmy Lee West (iCWest”). The shooting occurred on the property of Watson’s mother, Beatrice, with whom Watson lived. West’s children sued Johnnie and Beatrice Watson and Ms. Watson’s homeowners’ insurance carrier, Lloyd’s.

Thereafter, the trial court granted Lloyd’s motion for summary judgment. Plaintiffs appealed, and this Court reversed the judgment, remanding the case to the trial court to allow the plaintiffs to depose Watson. West ex re. West v. Watson, 35,278 (La.App.2d Cir.10/31/01), 799 So.2d 1189, writ denied, 01-3179 (La.2/8/02), 808 So.2d 140. Prior to the taking of his deposition, Watson pled guilty to manslaughter. After Watson was deposed, Lloyd’s reurged its motion for summary judgment. The trial court again granted the motion and dismissed Lloyd’s from the lawsuit.

The insurance policy in question contains the following provisions:

DEFINITIONS

In this policy, “you” and “your” refer to the “named insured” shown in the Declarations and the spouse if a resident of the same household. “We,” “us,” and “our” refer to the Company providing this insurance. In addition certain words and phrases are defined as follows:
3. “Insured” means you and residents of your household who are:
a. Your relatives; ...
5. “Occurrence” means an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period, in:
a. “Bodily injury”; or
b. “Property damage.”

Further, the policy contains an intentional injury exclusion for liability coverage. That exclusion provides:

SECTION II — EXCLUSIONS
1. Coverage E — Personal Liability and Coverage F — -Medical Payments to Others do not apply to “bodily injury” or “property damage”:
a. Which is expected or intended by one or more “insureds”...

Among the exhibits relied upon by Lloyd’s in seeking summary judgment was the Boykin colloquy entered when Watson pled guilty to manslaughter on January 18, 2001. Watson was originally charged with second degree murder.

The transcript of the guilty plea reflects, in part:

Court: Will the D.A. state the facts.
Mr. Edwards, Assistant District Attorney: Your Honor, on or 13about August 15th, 1999, Johnny Bell Watson, Jr., committed the offense of manslaughter; in that, he did with specific intent to either kill or to inflict great bodily injury upon Jimmy West did, in fact, kill Jimmy West on that date. And, at the time of the offense, it was committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of self-control and cool reflection; and that, at the time of the homicide, the Defendant’s blood had not actually cooled and an average person’s blood would not have cooled at the time the homicide was committed. Specifically, on that date, in Shreveport, Louisiana, the defendant is (sic) neighbors of Jimmy West. Mr. West fives across — lived across the street from the Defendant. There had been numerous occasions in the past where the defendant had called the police on Jimmy West regarding noise violation — or noise violations of parties that Jimmy West would have in his house.
On this particular date, the defendant had called the police on at least two occasions on that night regarding noise violations going on at the residence of Jimmy West.
On that night at approximately nine o’clock in the evening, the defendant was backing his car out of the driveway and stopped on the street along the curb. Jimmy West and a(sic) associate of Jimmy West, a Steven Anderson, observed the defendant in his vehicle.
They approached the defendant’s vehicle, and they were in that — they were yelling and announcing in a loud language how upset they were that the defendant had called the police on them. And, as they approached the defendant’s vehicle, the defendant fired approximately five or six shots at the individuals. Three of these shots did hit Jimmy West, and it was the third of these shots that resulted in Jimmy West’s death, in that it went through and destroyed his kidney, and he died of blood loss from that event.
The defendant was later interviewed by the police detectives. He stated that he never saw a weapon on either individual. He said that Jimmy West was holding his hand funny and he might have a weapon, but he never saw a weapon. He admitted that he never gave any threats or warnings to either individual to get away from his car. He just started shooting as they approached his vehicle.
He also admitted that these individuals had called him names | ¿before in the past and no violence had ever occurred to him before from these two individuals. He also admitted to firing as they were also in the process of running from his vehicle. All these facts occurred in Caddo Parish.
Court: Are those facts correct?
Johnnie B. Watson, Jr. (Watson): Yes, sir.
Court: Is your decision to plead guilty your own decision?
Watson: Yes, sir.
Court: Has anyone forced you or coerced you to plead guilty?
Watson: No, sir.
Court: Do you understand and have your attorneys ... explained to you the nature and elements of the crime of manslaughter?
Watson: Yes, sir.
Court: Do you understand that is what you are pleading guilty to?
Watson: Yes, sir.
Court: Have they also explained to you the nature of the crime of second degree murder, which you were originally charged with?
Watson: Yes, sir.
Court: Do you have any questions about what you are pleading guilty to?
Watson: No, sir.
Court: Do you have any questions about anything?
Watson: No, sir.

At his September 5, 2002 deposition, the attorneys questioned Watson about the shooting incident. Watson testified that he had just backed out of his mother’s driveway and on his way to work, when he saw | sJimmy West and another man, Steve Anderson, break out of a crowd of nine or ten people and begin walking toward him. Watson refused to give a numerical estimate of the distance between him and West when he began shooting; he referred to a wall in the room where the deposition was held that one attorney roughly estimated to be 30 to 35 feet away. Watson further testified that “he stepped out of his car before he began shooting.”

The pertinent portions of the deposition testimony read as follows:

Q: Now, at the time that you began to fire the shots, Mr. Watson, did you intend to kill Jimmy West, did you intend to kill Steve Anderson, or did you intend to scare them or to warn them? What was going on in your mind? What was your intent?
A: My intent was to stop them.
Q: Okay. It was to stop them?
A: I wasn’t trying to kill nobody.
Q: Okay. So your intent was to — if you could have shot him in the leg or shot him in the foot or shot him anywhere to stop him from coming towards yon is what you are saying; is that correct?
A: Like I say, it happened so fast. Hell, I just started shooting.
Q: I understand. Were you afraid?
A: Yeah, I was afraid. That’s why I started shooting.
Q: What were the lighting conditions where you were sitting in your car to where Jimmy West and Steve Anderson were up the street? I know it was dark. What was it like? Were the streets well lit? Was it dark? Could you clearly see who you were looking at or you could not?
A: To tell you the truth, I was surprised I hit the guy. And when he — the detective told me he had so many — from the position that I hit him, I was surprised, because, hell, I was just shooting.
IiíQ: You were just shooting? You were not directly aiming at him or any specific body?
A: Yeah, I was directly aiming at him, but I could hardly see that night. And I was surprised I hit him so many times, to tell you the truth.
Q: Now, once you were firing your weapon, what did Johnny-Jimmy West, I’m sorry, and Steve Anderson do? Did they stay at the area where they were or did they run, or what did they do?
A: When I initially started shooting, the Anderson guy took off running, which means he took off running in the east direction. And when I started shooting at Jimmy, and obviously I hit him, it looked like he was trying to move in an upward position or something.
Q: An upward position?
A: Like trying to turn or run.
Q: Okay. Did you see him run?
A: Like I say, it happened so fast, you know. It was just a split of a second. Like I said, I just started shooting.

Throughout the deposition, Watson repeatedly denied that he had intended to kill West. He testified that he believed West had “something” in his hand as he came toward him.

The trial court issued verbal reasons for judgment in support of its grant of summary judgment. The court stated, in pertinent part:

It states very clearly in the colloquy on the Boykinization that he admitted that he did with specific intent to either kill or inflict great bodily injury on Jimmy West (sic) in fact kill him.
He also admits that he was shooting at him as he was running away from the vehicle. Now, (sic) a deposition taken later he denies some of that. But I think we’re in the situation of the defendant trying to create his own dispute of material fact and I don’t think that’s allowed. And so (sic) grant the motion for summary judgment.

|7Plaintiffs now appeal from the summary judgment dismissing Lloyd’s as a defendant.

DISCUSSION

A motion for summary judgment is proper when the pleadings, depositions, answers to interrogatories and omissions on file, together with any affidavits submitted, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. When reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law on the facts before the court, summary judgment is warranted. See LSA-C.C.P. art. 966(B); Bijou v. Alton Ochsner Medical Foundation, 95-3074 (La.9/5/96), 679 So.2d 893. The mover has the burden of establishing the absence of a genuine issue of material fact. If the mover will not bear the burden of proof at trial on the matter, then he is required to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim or action. LSA-C.C.P. art. 966(C)(2).

The party opposing summary judgment cannot rest on the mere allegations of his pleadings, but must produce factual support which could satisfy his evidentiary burden at trial. LSA-C.C.P. art. 966(C)(2). Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. NAB Natural Resources v. Willamette Industries, Inc., 28,-555 (La.App.2d Cir.8/21/96), 679 So.2d 477.

In Row v. Pierremont Plaza, L.L.C., 35,796 (La.App.2d Cir.4/3/02), 814 So.2d 124, writ denied, 02-1262 (La.8/30/02), 823 So.2d 952, this court stated:

Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion and all doubt must be resolved in the opponent’s favor.... Furthermore, as noted by the supreme court ... the trial court cannot make credibility determinations on a motion for summary judgment. It is not the function of the trial court on a motion for summary judgment to determine or even inquire into the merits of the issues raised. Additionally, the weighing of conflicting evidence has no place in summary judgment procedure.

814 So.2d at 128.

In Breland v. Schilling, 550 So.2d 609 (La.1989), the supreme court interpreted an intentional injury exclusion almost identical to the exclusion in this case. The court stated:

[W]hen minor bodily injury is intended, and such results, the injury is barred from coverage. When serious bodily injury is intended, and such results, the injury is also barred from coverage. When a severe injury of a given sort is intended, and a severe injury of any sort occurs, then coverage is also barred. But when minor injury is intended, and a substantially greater or more severe injury results, whether by chance, coincidence, accident, or whatever, coverage for the more severe injury is not barred. Whether a given resulting bodily injury was intended “from the standpoint of the insured” within these parameters is a question of fact. Such factual determinations are the particular province of the trier of fact, in this instance the trial jury.

The insured’s subjective intent or expectation must be determined not only from the insured’s words before, at the time of, and after the pertinent conduct, but from all the facts and circumstances bearing on such intent or expectation. Yount v. Malsano, 627 So.2d 148 (La.1993); Great American Insurance Company v. Gaspard, 608 So.2d 981 (La.1992). The insurer 1 gbears the burden of proving the applicability of the intentional injury exclusion. Yount, supra.

Watson’s guilty plea was not a plea of nolo contendere under LSA-C.Cr.P. art. 556.1, but was instead, a guilty plea to a lesser and included offense under LSA-C.Cr.P. art. 558. It is thus competent evidence in this civil context. LSA-C.E. art. 410(A)(2); Shephard v. Scheeler, et al., 96-1690 (La.10/21/97), 701 So.2d 1308. In the course of the guilty plea, Watson admitted to manslaughter and, in this context, he admitted to having the specific intent to kill or to inflict great bodily harm upon the victim. Although we do not believe that such a plea is conclusive of the issue, in his deposition, Watson admitted that “I was directly aiming at him ...” and expressed surprise only that he “hit him so many times.” Watson must have had a subjective belief that West’s death or grievous injury that could produce death was substantially certain to follow from the shooting. Watson aimed and fired several shots at West. With his admission that he was aiming at West while he was shooting at him, Watson’s deposition testimony fails “to produce factual support sufficient to establish that plaintiffs will be able to satisfy their evidentiary burden of proof at trial,” LSA-C.C.P. art. 966(C)(2), despite Watson’s protestations that he did not intend to kill West. Further, we observe that Watson could have no justifiable belief that any insurance policy would cover his criminal actions; indeed, Watson left his car to shoot and kill West. We further agree that the shooting could not be an “occurrence” as defined in the policy, the shooting was clearly not an accident.

^CONCLUSION

For the foregoing reasons, the trial court’s summary judgment in favor of the defendant, Certain Interested Underwriters at Lloyd’s, London, is affirmed. Costs of this appeal are assessed to the appellants.

AFFIRMED.

      . In their petition, the plaintiffs are listed as follows: Frances Turner West, on behalf of her minor son, Lamareo J. West and Sherry Lambert West, on behalf of her minor children, Jamarea Lambert West and Beau Lambert West.


author: hKOSTELKA, Judge Pro Tempore.

text:
    HANOVER AMERICAN INSURANCE COMPANY, Plaintiff-Appellant, v. TRIPPE MANUFACTURING COMPANY, Chubb Insurance Company, Gary Godard d/b/a Godard Tv Service and Commercial Union Insurance Company, Defendants-Appellees.
    No. 37,060-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2003.

      Bienvenu, Foster, Ryan & O’Banion By John W. Waters, Jr., David E. Walle, New Orleans, for Appellant.
    Mayer, Smith & Roberts By Caldwell Roberts, Caldwell Roberts, Jr., Shreveport, for Appellees, Trippe Manufacturing Company and Federal Insurance Company.
    O’Neal Walsh & Associates By Matthew T. Lofaso, William J. Mitchell, II, Baton Rouge, for Appellee/Third-Party Defendant, Maida Development Company.
    Bernard, Cassisa, Elliott & Davis By Howard B. Kaplan, Metairie, for Appel-lee/Third-Party Defendant, Magnetek, Inc.
    Before WILLIAMS, CARAWAY and KOSTELKA (Pro Tempore), JJ.
   hKOSTELKA, Judge Pro Tempore.

Hanover American Insurance Company (“Hanover”) appeals the grant of summary judgment in favor of Trippe Manufacturing Company (“Trippe”) and Federal Insurance Company (“Federal”). Trippe also files an answer to Hanover’s appeal. For the following reasons, the judgment of the trial court is reversed.

Facts

This products liability lawsuit arises from fire damage to a building owned by Mr. and Mrs. James T. Strong (the “Strongs”) which was leased to Easy Way, Inc. (“Easy Way”), a company owned by the Strongs. As a result of the fire, the building was destroyed, as was all of Easy Way’s inventory. Additionally, Easy Way’s business was interrupted, allegedly resulting in lost profits and extra expense. The Strongs and Easy Way were insured by Hanover, which, as subrogee to the Strongs and Easy Way, brought this lawsuit.

Hanover named as a defendant, Trippe, the designer and manufacturer of an unin-terruptible power supply (“UPS”), a device which provided electrical power to Easy Way’s computer file server in the event of a power interruption. Hanover specifically claimed that the UPS was unreasonably dangerous in its construction and composition and in its design. Hanover further claimed that Trippe failed to warn of the alleged defects of the UPS. Also made a defendant was Trippe’s insurer, Federal. Trippe later named | gas third-party defendants, Magnetek, Inc. (“Magnetek”), the manufacturer of the transformer used inside the UPS, and Maida Development Company (“Maida”), the manufacturer of another component part used inside the UPS.

Trippe, Magnetek and Maida each filed separate motions for summary judgment. In its Motion for Summary Judgment, Trippe maintained that Hanover lacked sufficient evidence to carry its burden of proof under the Louisiana Products Liability Act. After oral arguments on the motions for summary judgment, the trial court granted Trippe’s motion and dismissed the motions of Magnetek and Mai-da as moot upon Trippe’s dismissal from the lawsuit. The trial court’s judgment also dismissed Trippe’s third-party claims against Magnetek and Maida. This appeal by Hanover ensued. Additionally, Trippe answered the appeal, requesting that the third-party demands against Magnetek and Maida be reinstated in the event its summary judgment is reversed.

Discussion

Hanover appeals the grant of summary judgment in Trippe’s favor and argues that material facts are in dispute, making summary judgment improper in this case. Specifically, Hanover maintains that its expert opinions are contrary to Trippe’s expert opinion regarding the cause of the fire and the defective nature of the UPS and that the trial court erred in assessing the conflicting expert opinions on those issues.

lain determining whether summary judgment is appropriate, appellate courts review the evidence de novo. Reynolds v. Select Properties, Ltd., 93-1480 (La.04/11/94), 634 So.2d 1180. Summary judgments are now favored. La. C.C.P. art. 966(A)(2). Nonetheless, both the evidence and all inferences drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in his favor. Willis v. Medders, 2000-2507 (La.12/08/00), 775 So.2d 1049; South Central Bell Telephone Co. v. Sewerage and Water Bd. of New Orleans, 94-1648 (La.App. 4th Cir.03/16/95), 652 So.2d 1090, writ denied, 95-0949 (La.05/19/95), 654 So.2d 1090. Ultimately, the burden of proof remains with the mover who must meet the initial burden of making a prima facie showing of entitlement to summary judgment. See, Mark Tatum and Judge William Norris, III, Summary Judgment and Partial Judgment in Louisiana: The State We’re In, 59 La. L.Rev. 131, 141 (1998). Taking into account these standards, we find that summary judgment is improper in the case sub judice.

Here, Hanover relies on the opinion of its retained experts as well as circumstantial evidence which it argues created material issues of fact regarding the cause of the fire and its claim of the defective construction or composition of the UPS. Hanover’s experts appear by depositions filed as exhibits to pleadings made part of the record. Trippe’s expert appears by |4affidavit filed in support of its Motion for Summary Judgment. On appeal, Hanover argues that the expert opinions of the parties are conflicting, signifying a disputed material fact at issue, which makes summary judgment in this case improper. We agree.

One material fact at issue is the initial dispute of whether the fire was caused or ignited by the UPS. Specifically, Trippe argues that the fire was caused by a source external to the UPS. Hanover, on the other hand, maintains that the fire was ignited by the UPS due specifically to internal defects in the device. In ruling on Trippe’s Motion for Summary Judgment, the trial court stated that “[A]ll agree that [the fire re-enactment testing] showed clearly that the problems with the UPS was [sic] post ignition. That has not been disputed by [Hanover] and neither today in argument nor in [b]rief has [Hanover’s attorney] really strongly urged that he has expert testimony in support of his position. ...” Despite this finding by the trial court, the record reflects the opposite, and Hanover has expert testimony contrary to Trippe’s position. The issue of whether the UPS burned as a result of the fire (which would make the “problems with the UPS” post-ignition problems) or whether the UPS itself ignited the fire are indeed contested facts in this litigation, despite the trial court’s statement to the contrary.

In its Statement of Undisputed Facts, Trippe claims that it is undisputed, after a joint destructive inspection of the UPS and the transformer within it, that the “faults” or arcing of the copper wire in the transformer occurred after the ignition of the fire and could not be the | ^source of the fire. In other words, Trippe takes the position that the fire was ignited somewhere other than by the UPS. This fact is reiterated in the opinion of Trippe’s expert, Robert Bartlett (“Bartlett”), in his affidavit attached to Trippe’s Motion for Summary Judgment. Bartlett states that the arcing or “faults” discussed by Montgomery in his deposition “... were all post-ignition arcing events or faults which occurred when the supporting structure of the UPS began to melt and deform due to the heat of the surrounding fire causing the transformer to sink downward and come into contact with the electrical leads .... ” coming out of the UPS battery, which remained energized during the fire. Notably, other than what is contained in this affidavit, there is no elaboration by Bartlett regarding his opinion, i.e., there is no deposition testimony. There is no official report of the “joint destructive inspection” referred to in Bartlett’s affidavit attached to Trippe’s motion (other than reference to it by Trippe and Bartlett) which would support the statements of supposed fact made by Bartlett.

On the other hand, Hanover’s experts opine that the fire originated with the UPS. Hanover had two experts examine the scene shortly after the fire. Snow specialized in the investigation of fire scenes, having investigated ninety to one hundred fires a year since 1984 and opined as to the origination point of the fire. In his deposition, Snow stated that the investigation by the State Fire Marshal ruled out arson as a cause of the fire. This is undisputed by Trippe. He also described his particular investigation of the scene, explaining how he used a small shovel and his hand to go through the burned wood and other debris at the scene until he reached the | fiarea of the heaviest fire damage. Assessing the fire damage and burn pattern, Snow determined the location where it appeared the fire had originated. Once in the general area of origination, and through the process of elimination, he was left with the UPS as the source of the fire.

Hanover’s other expert, Montgomery, also investigated the scene of the fire with Snow. Montgomery, an electrical engineer with experience in fire investigations, specialized in the identification of “electrical anomalies that have the potential to generate heat sufficient to ignite a fire.” As to the UPS, Montgomery specifically noted that its internal copper wiring had melted or “beaded” ends, indicating a higher internal heat, because “copper melts at a temperature that is higher than flame temperatures of ordinary fires.” Montgomery eliminated the other electrical devices in the vicinity of the UPS as being the cause of the fire, explaining that they were damaged by “invasive heat from an outside source” and agreed with Snow that the fire originated with the UPS.

In addition to the general claim regarding the UPS as the cause of the fire, Hanover specifically claims that the UPS was defective and Trippe is liable under the Louisiana Products Liability Act (“LPLA”), La. R.S. 9:2800.51 et seq., which establishes the exclusive theories of liability for manufacturers for damage caused by their products. La. R.S. 9:2800.52; See also, Jurls v. Ford Motor Co., 32,125 (La.App.2d Cir.01/06/00), 752 So.2d 260. A manufacturer is hable for damages proximately caused by an unreasonably dangerous product when the damages arose from a reasonably anticipated use of the product. La. R.S. 9:2800.54(A). A product may be adeemed unreasonably dangerous due to its composition or construction, its design, the manufacturer’s failure to provide an adequate warning, or the product’s failure to conform to an express manufacturer’s warranty. La. R.S. 9:2800.54(B); Ashley v. General Motors Corp., 27,851 (La.App.2d Cir.01/24/96), 666 So.2d 1320. The plaintiff bears the burden of proving the alleged defect. La. R.S. 9:2800.54(D); Jurls, supra; Ashley, supra.

In order to prove a product is unreasonably dangerous in construction or composition, it fnust be shown that at the time the product left the manufacturer’s control, it deviated in a material way from the manufacturer’s specifications or performance standards for the product, or if the product deviated from otherwise identical products made by the same manufacturer. La. R.S. 9:2800.55.

In Montgomery’s deposition, he explains his opinion regarding defects in the UPS which could have ignited the fire. After surveying the scene of the fire, Montgomery prepared his report. Then, subsequent to that report, but prior to his deposition, Montgomery studied the schematic diagram of the UPS. Based on these considerations, Montgomery opined that the ignition source of the fire was the UPS.

Specifically, in examining the UPS, Montgomery identified three “faults” in the device. Although he could not determine with specificity which of the three was the ignition source (due to severe fire damage to the |swiring in the UPS), he opined that a short circuit in the UPS caused the “fault” which ignited the fire. Montgomery discussed precautions that could be taken in order to prevent such a short circuit from occurring. Montgomery also noted that after he reviewed the schematic of the UPS, he became aware that it contained metal oxide varistors, which he referred to as “MOVs.” Montgomery stated, “[The MOV] will ignite whatever combustibles the conductor is going through, ...” noting that it was a serious problem for the industry.

In his affidavit, Bartlett, also an electrical engineer, stated that he examined the UPS remains removed from the fire, a UPS identical to the UPS involved in the fire, and the electrical schematic diagram of the UPS. He opined that the electrical design of the UPS met all applicable standards of electrical engineering design. Further, he stated that he was unable to identify any deviation in the construction of the UPS.

First, we note that a trial court is not to weigh the opinion testimony or evaluate the credibility of experts in determining whether to grant or deny a motion for summary judgment. If the opinions of the experts conflict, then the motion for summary judgment should be denied because there would exist a “genuine issue as to material fact.” La. C.C.P. art. 966(B). Moreover, when the party opposing the summary judgment motion submits expert opinion evidence that would be admissible and that is sufficient to allow a reasonable juror to conclude the expert’s opinion on a material fact more likely than not is true, the court should deny the summary judgment 13motion. Willis, supra at 1049, citing, Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.02/29/00), 755 So.2d 226. Here, it is clear that the experts have differing views regarding the cause of the fire and the potential defectiveness of the UPS.

Second, although Trippe argues that Hanover has failed to present factual support for one or more elements essential to its claims under the LPLA, we find that this is not the case. Hanover presented sufficient circumstantial evidence to prove that a defect in the composition or construction of the UPS may have ignited the fire. Although we cannot infer the existence of a defect solely from the fact that an accident occurred, a manufacturing defect may be established by circumstantial evidence. Juris, supra; see also, Frank L. Maraist and Thomas C. Galligan, Jr., Louisiana Tort Law, § 15-9, 371 (1996). Moreover, circumstantial evidence may establish the existence of a genuine issue of material fact. Norton v. Claiborne Elec. Co-op, Inc., 31,886 (La.App.2d Cir.05/05/99), 732 So.2d 1256, writs denied, 99-1737 (La.10/01/99), 748 So.2d 443 and 99-1823 (La.10/01/99), 748 So.2d 454, citing, Lyons v. Airdyne Lafayette, Inc., 563 So.2d 260 (La.1990). As discussed, Snow opined that the fire originated with the UPS. Montgomery opined regarding what he considered defects in the construction or composition of the UPS. Although Hanover does not clearly state what the performance standard might be for the UPS, obviously that standard does not include igniting a fire in normal operation. Trippe’s assertion that Hanover has presented no evidence to prove a deviation in construction or composition is incorrect. Thus, considering the evidence | ^presented, and that such evidence on summary judgment should be construed in favor of Hanover, we conclude that summary judgment in this case was improper.

Finally, in its answer to appeal, Trippe argues that its claims against Mai-da and Magnetek should be reinstated in the event its Motion for Summary Judgment is reversed. In its Judgment, the trial court dismissed Trippe’s claims against Maida and Magnetek as moot as a result of the summary judgment in favor of Trippe. In light of our decision herein, Trippe’s claims against Maida and Magne-tek are reinstated.

Conclusion

Considering the foregoing, the summary judgment granted in favor of Trippe Manufacturing Company and Federal Insurance Company is hereby reversed, with Trippe and Federal to bear the costs of appeal. Additionally, the Judgment dismissing the claims against Maida Development Company and Magnetek, Inc. is also reversed.

REVERSED.

      . Chubb Insurance Company was originally named as Trippe's insurer, but Federal was subsequently substituted and answered the lawsuit. Trippe and Federal are collectively referred to herein as "Trippe.”

      . Although it is spelled various ways throughout the record, "Magnetek” is the spelling used by the company itself, which we presume to be correct.

      . Hanover had two experts, Daniel Snow ("Snow”) and James Montgomery ("Montgomery”), investigate the fire scene. Snow's deposition appears as Exhibit "A” to the Opposition to Motions for Summary Judgment filed by Hanover. That same pleading also references Montgomery’s deposition as being Exhibit "B,” and specific page references to the deposition are even made therein. However, that deposition was apparently excluded as an exhibit to that pleading in the record. It was made part of the record as an exhibit to Maida’s Motion for Summary Judgment; thus, Montgomery's deposition is a part of the record before us and may be considered on appeal.

      . Although Hanover makes various claims raider the LPLA, we address only the one claim regarding the construction and composition of the UPS. The evidence presented on this point fails to show that Hanover could prove any of the alternate prerequisites under the LPLA.

      . Although Montgomery's actual report was somehow excluded from the record, his deposition also expresses his opinion regarding the precise cause of the fire.

      . Sometime after Montgomery's deposition, Trippe named Maida, manufacturer of the MOV, as a third-party defendant.