author: JgFOGG, J.

text:
    ETHYL CORPORATION v. GULF STATES UTILITIES, INC.
    No. 2001 CA 2230.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 2, 2002.
    Writ Denied Dec. 19, 2002.

      David L. Guerry, Michael A. Patterson, Jennifer J. Vosburg, Baton Rouge, for Plaintiffs — Appellee Ethyl Corporation.
    Kenneth P. Carter, W.T. Tete, Eugene G. Taggart, Terrence G. O’Brien, Stephen T. Perrien, New Orleans, John A. Bray-mer, Baton Rouge, for Defendant — Appellant Entergy Gulf States, Inc.
    Before: FOIL, FOGG, and KLINE, JJ.

      . Retired Judge William F. Kline, Jr. is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   JgFOGG, J.

On appeal in this action for negligent misrepresentation, the defendant raises issues of subject matter jurisdiction, prescription, and liability. For the following reasons, we affirm, as amended.

FACTS AND PROCEDURAL HISTORY

Ethyl Corporation is a Virginia corporation that, among other things, produces specialty industrial and petroleum chemicals. Ethyl operated a chemical plant in Baton Rouge, Louisiana from 1942 to 1986. The plant was devoted principally to the production of a gasoline additive, tetrae-thyl lead, commonly known as lead “antiknock” compound.

Operation of the plant required large quantities of both steam and electricity, which Entergy Gulf States, Inc. (“Enter-gy”) (successor by merger to Gulf States Utilities, Inc.) supplied. Entergy is a public utility corporation that generates, transmits and distributes electricity in parts of Texas and Louisiana, and was the sole and monopoly provider of electric power to Ethyl’s plant.

Prior to 1981, Entergy served Ethyl’s electric requirements directly from a facility known as Louisiana Station, which was comprised of two units: Louisiana Station No. 1 and Louisiana Station No. 2. Louisiana Station 1 served only two customers, Ethyl and Exxon Corporation. The steam and the majority of the electricity consumed by these companies came from Louisiana Station 1, which produced steam and cogenerated electricity and was unregulated by the Louisiana Public Service Commission (“LPSC”). Both Ethyl’s and Exxon’s electric needs exceeded the amount of electricity that could be generated by Louisiana Station 1. Therefore, Entergy provided supplemental electricity from Louisiana Station 2, a generating station fueled by natural gas and regulated by the LPSC. Electricity, transmitted at 13.8 kV, was delivered directly from buses at Louisiana Station through underground feeders to these customers. Thirteen Ethyl-owned 13.8 kV | sunderground cables were directly connected to Entergy’s buses at Louisiana Station.

In the mid-1970’s, Entergy advised Ethyl that it intended to convert its transmission system from 13.8 kV to 230 kV, a less expensive way to move more power. In early 1975, Entergy informed Ethyl that Louisiana Station 2, which was approximately forty-five years old, would be shut down necessitating the construction of new electrical facilities to supply Ethyl’s requirements. Representatives of Ethyl and Entergy engaged in numerous conversations and meetings to discuss the various methods of meeting Ethyl’s electric requirements, and Entergy conducted a study of alternatives for service. In April of 1976, Entergy produced a report entitled “Alternative Electric Power Sources For Steam Products Customers At Louisiana Station As Steam Demand Is Reduced And Gas Contract Expires For LA STA. Units 7, 8, And 9” (“Alternatives Report”), and discussed parts of the report with Ethyl and Exxon. Entergy continually represented to Ethyl that its only source of reliable power was to take power from Entergy’s new 230 kV system, then reduce the voltage to 13.8 kV for use at Ethyl’s plant through a step down substation that would have to be constructed.

In March of 1979, Entergy informed Ethyl that it would no longer be able to supply the total of Ethyl’s requirements from the 13.8 kV buses at Louisiana Station after January 1, 1981. On August 28, 1979, representatives of Ethyl and Enter-gy met and reached an agreement as to quantities and delivery of regulated electric service through an electric substation to be built by Ethyl. A contract reflecting this agreement was executed on January 1, 1980.

Ethyl built the ECORP substation, which became operational in March of 1981 and was used through 1985 to receive electric service from Entergy’s facilities. Ethyl ceased to manufacture chemicals at its facility in August of 1985, after the Environmental Protection Agency severely limited the use of lead additives in Ugasoline. Ethyl dismantled the ECORP substation in 1987 and sold it as scrap.

On December 2, 1986, Ethyl filed suit against Entergy, seeking to recover the cost of the ECORP substation as well as compensation for Entergy’s alleged unauthorized use of the ECORP facility. It asserted claims of unjust enrichment and intentional or negligent misrepresentation. Entergy responded by raising exceptions of lack of subject matter jurisdiction and prescription, which were denied by the trial court. The matter proceeded to trial, and after presentation of the plaintiffs case, the defendant moved for a directed verdict as to the plaintiffs claim for unjust enrichment. The trial court granted the motion and dismissed the claim for unjust enrichment.

After hearing the matter, the jury returned a verdict in favor of Ethyl and against Entergy on Ethyl’s claim of negligent misrepresentation, awarding the sum of $4,146,229 in damages and assessing 75% of the fault to Entergy and 25% to Ethyl. On April 5, 2001, the trial court rendered judgment in accordance with the jury verdict as well as interest from the date of judicial demand. Entergy appeals.

SUBJECT MATTER JURISDICTION

Initially, Entergy asserts that the district court erred in overruling its declina-tory exception raising the objection of lack of subject matter jurisdiction. Entergy asserts that Ethyl’s claim is either a rate matter or a service matter, both of which are beyond the original jurisdiction of the district court and within the jurisdiction of the LPSC. Ethyl asserts that its cause of action is a tort claim for negligent misrepresentation properly within the jurisdiction of the district court.

Louisiana Constitution article V, § 16 vests the district courts with “original jurisdiction of all civil and criminal matters,” unless there is other jurisdictional authorization in the Constitution. LSA-Const. art. IV, § 21(B) establishes the LPSC Las an administrative agency within the executive branch and grants the LPSC the power to “regulate all ... public utilities” and “such other regulating authority as provided by law.” Specifically, the LPSC has original jurisdiction over subject matters that principally involve the right to fix and regulate the rates to be charged and the services to be furnished by a public utility. LSA-R.S. 45:1163. The legislature has never “provided by law” for the LPSC to exercise jurisdiction over other subject matters and areas of litigation in which public utilities are involved. Central Louisiana Elec. Co., Inc. v. Louisiana Public Service Com’n, 601 So.2d 1383 (La.1992) (hereinafter “CLECO”). Therefore, the district courts do not have jurisdiction over matters involving the fixing and regulating of rates and services by a public utility, and the LPSC does not have jurisdiction over other subject matters and areas of litigation in which public utilities are involved, such as tort actions and contract disputes. CLECO, 601 So.2d at 1386.

To resolve the issue of whether the LPSC or the district court has subject matter jurisdiction over a matter, it is necessary to initially determine the relief demanded by both parties. CLECO, 601 So.2d at 1386. In Daily Advertiser v. Trans-La, a Div. of Atmos Energy Corp., 612 So.2d 7, 16 (La.1993), the supreme court explained that “the manner in which plaintiffs couch their claims does not automatically vest jurisdiction in the district court; rather, the nature of the relief demanded is dispositive.” Where the essence of a claim is that a utility has charged too much for a service, jurisdiction lies with the LPSC; however, where the essence of the claim is that the utility did something else to injure the plaintiff, the claim is for | (¡damages, and jurisdiction lies with the district court. Daily Advertiser, 612 So.2d at 16. See Fremin’s Food & Furniture, Inc. v. Teche Electric Cooperative, Inc., 545 So.2d 998 (La.1989) (finding dispute between electric cooperative and its members regarding electric service within LPSC’s jurisdiction and reserving legal rights, if any, to damages); Milstead v. Louisiana Power and Light Co., 581 So.2d 1085 (La.App. 2 Cir.), writ denied, 587 So.2d 697 (La.1991) (dismissing the plaintiffs contractual claim which alleged rate overcharges and reserving plaintiffs right to assert claim for damages arising out of contract in district court); O’Niell v. Louisiana Power & Light Co., 558 So.2d 1235 (La.App. 1 Cir.1990) (holding that courts lack jurisdiction to alter rates or charges established by the LPSC and finding jurisdiction over, and adjudicating, claims requiring interpretation of certain contracts for electrical service); Edwards v. Louisiana Power and Light Co., 439 So.2d 442 (La.App. 1 Cir.1983) (finding jurisdiction with the LPSC over dispute concerning charges in excess of tariff and remanding the plaintiffs claim for damages to district court).

Ethyl claims that Entergy, through the dissemination of false or incomplete information, caused it to conclude that the construction the ECORP substation at a cost of $8,000,000 was essential to the existence of its business. Essentially, Ethyl asserts Entergy misled it into agreeing to construct the ECORP substation. Clearly, Ethyl’s claims rely on factual allegations that are separate from the rates and services over which the LPSC has jurisdiction. Rather, Ethyl’s claim is a tort action over which the district court has subject matter jurisdiction. The trial court correctly denied Entergy’s exception of lack of subject matter jurisdiction.

PRESCRIPTION

Entergy next contends that the trial court erred in denying its exception of prescription as to Ethyl’s claim for negligent misrepresentation. By its claim for negligent misrepresentation, Ethyl alleges misrepresentation and damage prior to 171980, leading to its expenditure of $8,000,000 to construct the ECORP substation, which went into service on April 1, 1981. Ethyl filed its original petition on December 4,1986 and its seventh amended petition, which added a claim for negligent misrepresentation, on July 21, 1999. En-tergy asserts that, because these pleadings were filed more than one year after the alleged delictual acts and alleged damage, Ethyl’s claims are prescribed on their face pursuant to LSA-C.C. art. 3492.

Ethyl concedes, that its claim is prescribed on the face of the petition, but asserts the trial court correctly applied the doctrine of contra non valentem. It asserts that it did not know of its claim for negligent misrepresentation until November 9, 1987, when it received documents in discovery that previously had been “concealed.”

The doctrine of contra non valen-tem prevents the running of liberative prescription where the cause of action is not known or reasonably knowable by *the plaintiff. Cole v. Celotex Corp., 620 So.2d 1154 (La.1993); Brunett v. Dep’t of Wildlife and Fisheries, 96-0535, 96-0536 (La.App. 1 Cir. 12/20/96), 685 So.2d 618, writ denied, 97-0186 (La.3/14/97), 689 So.2d 1385.

In April of 1976, Entergy produced its Alternatives Study. It is undisputed that it presented Ethyl with the first eighteen pages of that study and withheld the last four pages that contained the final conclusions and recommendations for future service to Ethyl. It is also undisputed that the information contained in the four withheld pages differed substantially from other information provided by Enter-gy to Ethyl concerning Ethyl’s continued electric service. In November of 1987 pursuant to a discovery request, Ethyl received the previously withheld pages. This information raised questions as to the accuracy of the assertion Entergy made to Ethyl throughout the late 1970’s that the building of a substation was the only feasible method to serve Ethyl’s electric needs.

Clearly, Ethyl did not have actual or constructive knowledge of the cause of action at the time the negligent misrepresentations are alleged to have been made, Land their first knowledge occurred in November of 1987. Consequently, we cannot say that the trial judge’s determination that Ethyl’s inaction was reasonable was in error.

Furthermore, LSA-C.C.P. art. 1153 provides: “When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.” Therefore, although Ethyl filed its claim for negligent misrepresentation more than one year after it acquired knowledge of the alleged act of misrepresentation, Ethyl’s seventh amended petition alleging negligent misrepresentation related back to its original petition and was timely. The trial court did not err in denying the exception of prescription.

NEGLIGENT MISREPRESENTATION

Entergy asserts that the judgment in favor of Ethyl on the claim of negligent misrepresentation is contrary to law and evidence. The tort of negligent misrepresentation pertains to failure to provide correct information about existing facts. In Louisiana, negligent misrepresentation cases are evaluated using the duty-risk analysis, Daye v. General Motors Corp., 97-1653 (La.9/9/98), 720 So.2d 654, which is employed on a case-by-case basis. Barrie v. V.P. Exterminators, 625 So.2d 1007 (La.1993). The plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant, and the risk of harm was within the scope of protection afforded by the duty breached. Smith v. Roussel, 2000-1028 (La.App. 1 Cir. 6/22/01), 809 So.2d 159.

Entergy admits that it had a duty to act as a reasonable person under the circumstances in negotiating this transaction. Entergy admits that, during the negotiations leading up to the contract of January 1, 1980, “it had a duty to exercise | ^reasonable care not to supply false or incorrect information to Ethyl” and that, once it supplied statements of fact to Ethyl, it undertook the duty to exercise reasonable care to assure that the factual data it supplied, “such as technical engineering data and cost estimates, were correct as statements of fact.” See Devore v. Hobart Manufacturing Co., 367 So.2d 836 (La.1979). Entergy asserts, however, that a failure to disclose complete information and the act of advocating a resolution most favorable to it do not constitute a breach of that duty.

Breach of duty is a question of fact, Mundy v. Dep’t of Health & Human Resources, 620 So.2d 811 (La.1993), subject to the manifest error standard of review. Stobart v. State through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993). “Generally, breach of a duty is the failure to exercise reasonable care under the circumstances.” FRANK L. MARAIST & THOMAS C. GALLIGAN, LOUISIANA TORT LAW § 6-1, at 139 (1996).

A review of the record demonstrates that the jury did not manifestly err in finding Entergy breached its admitted duty to act as a reasonable person. En-tergy was the monopoly provider of electricity, with the power to shut down Ethyl by providing less power than Ethyl required if Ethyl did not agree to utilize a substation. Such circumstances are not an ordinary arms length negotiation. Furthermore, the trial testimony of Edward Trahan, an electrical engineer employed by Ethyl, and the testimony and report of Whitfield A. Russell, Ethyl’s expert witness, support the conclusions that the construction of the substation by Ethyl was not necessary to the continuation of sufficient electric service and that Entergy did not provide correct information to Ethyl.

Once a duty and a breach thereof have been established, the trier of fact must determine if the breach is the legal cause of the plaintiffs injuries. The cause-in-fact inquiry is whether the harm to Ethyl would have occurred but for En-tergy’s misrepresentation or omission of material facts to Ethyl. Perkins v. Entergy Corp., 00-1372 (La.3/23/01), 782 So.2d 606. Causation is a question of fact. Brumfield v. Guilmino, 93-0366 (La.App. 1 Cir. 3/11/94), 633 So.2d 903, writ denied, 94-0806 (La.5/6/94), 637 So.2d 1056. The trier of fact’s determinations are entitled to great weight and cannot be disturbed absent manifest error or unless clearly wrong. LaBove v. Raftery, 2000-1394 (La.11/28/01), 802 So.2d 566; Rosell v. ESCO, 549 So.2d 840 (La.1989). The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart, 617 So.2d at 882. An appellate court should not substitute its opinion for the conclusions made by the trial court, which is in a unique position to see and hear the witnesses as they testify. In re: A.J.F., 00-0948 (La.6/30/00), 764 So.2d 47.

Entergy asserts that Ethyl’s reliance on the Alternatives Study and the information provided by Entergy concerning that study is not justifiable in view of Ethyl’s knowledge that Entergy had made only a very preliminary study. Entergy avers that it was incumbent upon Ethyl to do its own studies and arrive at its own conclusions, and the causal link between any misrepresentation by Entergy in April of 1976 and any pecuniary loss to Ethyl is weakened by the fact that Ethyl continued to make its own studies, proposals, and independent investigations of various alternatives.

The record reflects that Ethyl relied totally on Entergy’s statements that a new substation was its only source of adequate electric service in the future. Ethyl conducted a study of substation options only after Entergy advised it that a new substation had to be built. The only other study Ethyl conducted concerned cogeneration. The record also reflects that the decision by Ethyl to build ECORP was predicated upon statements of false information and non-disclosure of additional correct information by Entergy. Therefore, it follows that had Entergy not misrepresented to Ethyl that the only source of electricity to serve its plant was from luthe 230 kV system via a substation, Ethyl would not have incurred the expense to construct the facility. Considering the above, the factual conclusion of the jury that Entergy did not provide correct information to Ethyl during their negotiations in the mid-to-late 1970’s is supported by the evidence and is not manifestly erroneous.

COMPARATIVE NEGLIGENCE

The appellant also contends the trial court erred in charging the jury with the doctrine of comparative negligence rather that the doctrine of contributory negligence in this case. A pure comparative fault system was adopted by the Louisiana legislature in 1979 by Act 431, which became effective on August 1, 1980. Section 4 of Act 431 provides that the Act does not apply to claims arising from events occurring before the Act’s effective date. Relying on Cole v. Celotex, 599 So.2d 1058 (La.1992), Entergy avers that, because the conduct constituting the tort occurred prior to the effective date of Act 431 and resulted in the manifestation of damages after the Act’s effective date, pre-act contributory negligence law applies. We find that Entergy’s reliance on Cole is misplaced.

In Cole, the Louisiana Supreme Court reviewed the laws applicable to occupational disease cases based on injuries resulting from the occupational inhalation of asbestos. In that case, three former refinery workers filed suit in 1987, claiming the failure by some defendants to provide a safe workplace during their employment between 1945 and 1976 caused them to contract asbestosis. The court in Cole addressed the issue of whether the Louisiana Comparative Fault Law, enacted in 1979, applied retroactively to the case. Citing the “uniqueness” of asbestosis cases and pointing to the “lengthy temporal separation between the tortious conduct and the appearance of injury,” the court held that the law in effect during the time of the plaintiffs’ employment, that is contributory negligence, governed their 1987 actions, rather than the comparative fault principles established by the 1979 Louisiana Legislature. Cole, 599 So.2d at 1058.

| ^.Subsequently, in Walls v. American Optical Corp., 98-0455 (La.9/8/99), 740 So.2d 1262, the court limited the application of Cole by declining to extend Cole’s “tortious exposures doctrine” to a wrongful death action arising from the decedent’s exposure from 1964 to 1970 to silica dust that is created during sandblasting and his subsequent death in 1995 due to silicosis.

By asserting the applicability of Cole to the instant case, Entergy seeks the application of that jurisprudence to factual scenarios other than those involving harmful inhalants. For the reasons stated below by the court in Walls, we decline to extend that analysis to a cause of action for negligent misrepresentation.

Cole established the “exposure theory” for determining the applicable law within the context of the direct tort action and survival action. “[Gjeneral expressions, in every opinion, are to be taken in connection with the case in which those expressions are used.” Landgraf, 511 U.S. at 265, 114 S.Ct. at 1497, 128 L.Ed.2d at 252. Therefore, Cole’s rationale cannot apply to the instant case involving a wholly distinct cause of action for wrongful death.

Walls, 740 So.2d at 1273. Rather, the issue of whether comparative negligence applies to the instant case turns on a determination of when the plaintiffs cause of action for negligent misrepresentation accrued

Under Louisiana law, a cause of action accrues when the party has the right to sue. Louette v. Security Industrial Ins. Co., 361 So.2d 1348 (La.App. 3 Cir.), writ denied, 364 So.2d 564 (La.1978). “For a negligence cause of action to accrue, three elements are required: fault, causation and damages.” Cole, 599 So.2d at 1063, n. 15, citing Owens v. Martin, 449 So.2d 448 (La.1984). The plaintiff in a negligent misrepresentation action has no damage until it acts upon the misrepresentations. Whether the plaintiffs cause of action accrued prior to August 1, 1980 depends upon when the plaintiffs injury occurred. Walls, 740 So.2d at 1270.

Ethyl’s claim of negligent misrepresentation is based on Entergy’s failure to provide it with a complete report in the late 1970’s and its continual exclusion of the 113remaining parts of that report from Ethyl through the time Ethyl agreed to construct the ECORP substation in 1979 and executed a contract for electric service on January 1, 1980. However, the trial court determined that the damages and the cause of action accrued with completion of the ECORP substation in March of 1981, after the effective date of the amendment. The determination of when a cause of action accrues is a fact question. Aba- die v. Metropolitan Life Ins. Co., 00-344 and 00-856 (La.App. 5 Cir. 3/28/01), 784 So.2d 46, writs denied, 2001-1533, 2001-1534, 2001-1543, 2001-1544, 2001-1629, 2001-1853, 2001-1931 (La.12/14/01), 804 So.2d 642-644, cert. denied sub nom Territo v. Adams, 535 U.S. 1107, 122 S.Ct. 2318, 152 L.Ed.2d 1071 (2002). We find no manifest error in the trial court’s determination that the cause of action accrued in March of 1981. Therefore, the trial court properly gave the jury a charge for comparative negligence.

INTEREST

Finally, the appellant asserts the trial court erred in assessing interest from the date of judicial demand rather than the date Ethyl first made its claim for negligent misrepresentation. Louisiana is a fact-pleading jurisdiction; therefore, a party may be granted any relief that the facts constituting the claim would support. Mehta v. Baton Rouge Oil Co., Inc., 99-1773 (La.App. 1 Cir. 9/22/00), 768 So.2d 243.

In its original petition, Ethyl alleged, in pertinent part, that Entergy planned to close part of Louisiana Station and that the only viable option for continued electric service for Ethyl was for it to construct a substation. These allegations are insufficient to grant relief for a claim for negligent misrepresentation. Therefore, the trial court erred in assessing interest from the filing date of the original petition.

However, in its third amending petition, Ethyl reiterated the above allegations and added a claim identified as intentional misrepresentation, alleging that Entergy “intentionally concealed ... alternatives” and “the availability of | uother options to provide power to Ethyl’s plant” from Ethyl. The facts asserted in support of this new cause of action are sufficient to grant relief for a cause of action for negligent misrepresentation. Therefore, we will amend the judgment to award interest for the date the third amending petition was filed, April 25, 1988. See Livingston v. Southern Scrap Material Co., Inc., 486 So.2d 210 (La.App. 1 Cir.1986).

CONCLUSION

For the foregoing reasons, the judgment of the trial court is amended to award interest from April 25, 1988, and affirmed, as amended. Costs are assessed against Entergy Gulf States, Inc.

AFFIRMED, AS AMENDED.

      . Although other claims were made during the years leading up to trial, only these were presented to the jury.

      . In its entirety, Section 21(B) provides:
      (B) Powers and Duties. The commission shall regulate all common carriers and public utilities and have such other regulatory authority as provided by law. It shall adopt and enforce reasonable rules, regulations, and procedures necessary for the discharge of its duties, and shall have other powers and perform other duties as provided by law.


source: Caselaw Access Project

author: LPER CURIAM.

license: Public Domain

text:
    CAMERON PARISH POLICE JURY and Earnestine T. Horn v. Honorable Fox McKEITHEN, in His Capacity as Secretary of State of Louisiana.
    No. 2002 CE 2242.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 30, 2002.
    Writ Denied Nov. 2, 2002.

      Glenn W. Alexander, Cameron Parish District Attorney, Cameron, Joseph A. De-lafield, Lake Charles, for PlaintiffiAppel-lee, Cameron Parish Police Jury.
    J.B. Jones, Jr., Jennifer A. Jones, Cameron, for Plaintiff/Appellee, Earnestine T. Horn.
    BEFORE: FOIL, FITZSIMMONS, PETTIGREW, JAMES and PATTERSON, JJ.

      . Hon. A. Clayton James, retired, and Michael A. Patterson are serving as judges pro tempore by special appointment of the Louisiana Supreme Court.

   LPER CURIAM.

Can a parish police jury, by local referendum, designate a river or waterway as one on which gaming activities can be conducted on a riverboat when the Louisiana Legislature has not made such a designation? In our opinion, it cannot.

FACTUAL BACKGROUND

The owners and operators of the Isle of Capri negotiated with the Cameron Parish Police Jury (CPPJ) to move one of the two riverboats located in Calcasieu Parish to Cameron Parish. IOC — Cameron, LLC entered into an economic development agreement with the CPPJ for the development and operation of a riverboat or dockside gaming facility in Cameron Parish. On September 9, 2002, the CPPJ adopted a resolution calling for an election to designate portions of Sabine Lake and Sabine River “a designated river or waterway for the conducting of gaming activities on a [riverboat]” and to authorize berthing of a riverboat upon which gaming is conducted. The election was set for the day of the general election, November 5, 2002.

On September 12, 2002, Dan Flavin, the Louisiana State Representative for District 36, which includes Cameron Parish, asked the Louisiana Attorney General for an opinion on the legality of conducting the local referendum without authorization by the Louisiana Legislature. In his request he opined that the election was “illegal and/or premature.” In response, the CPPJ and Earnestine T. Horn, an elector and taxpayer from Cameron Parish, (plaintiffs) filed suit in district court in Cameron Parish against Fox McKeithen, the Louisiana Secretary of State. The suit sought 1) a declaratory judgment that the CPPJ has full legal authority to call and hold the referendum election, that the CPPJ used the correct legal procedure to call the election, that gaming on the lower Sabine River would be legal if the voters in Cameron Parish voted favorably on the propositions, and that the development contract is valid and legal; 2) a temporary restraining order prohibiting McKeithen ‘from failing to take all steps and acts necessary’ to place the propositions on the November 5, 2002 ballot and ‘from taking any steps or performing any acts that would cause [the propositions] to be removed from the ballot’; 3) a mandatory injunction in the form and substance of the temporary ^restraining order; and 4) a final mandatory injunction in the form and substance of the temporary restraining order.

McKeithen filed, inter alia, an exception alleging Cameron Parish was an improper venue for the action. The trial court overruled all of the exceptions, heard the case, and issued a preliminary injunction against McKeithen. McKeithen appealed to-the Louisiana Third Circuit Court of Appeal, which heard the case on an expedited basis. The third circuit ruled that proper venue was in East Baton Rouge Parish and transferred the case to the Nineteenth Judicial District Court. Cameron Parish Police Jury v. McKeithen, 2002-1202 (La.App. 3d Cir.10/14/02), 827 So.2d 666.

Plaintiffs amended the petition after the transfer, adding a prayer for an alternative writ of mandamus. McKeithen filed myriad exceptions, all of which were denied by the trial court. After an expedited hearing, the trial court overruled all of McKeithen’s exceptions and rendered judgment on the alternative writ of mandamus, directing McKeithen to “take all steps and acts necessary to place [the propositions] on the ballot for the election of November 6, 2002” and further “enjoining and restraining [McKeithen] from taking any steps or performing any acts that would cause [the propositions] to be removed from the ballot.” However, the trial court failed to rule on the declaratory judgment.

LAW AND ANALYSIS

McKeithen now appeals to this court. We note at the outset that while this is not an election suit within the definition of LSA-R.S. 18:1409A(1), we have chosen to give it expedited treatment because of the importance of this matter and the impending election. See Uniform Rules-Courts of Appeal, Rule 2-11.2; City of Baker School Board v. La. Dept. of Elections, 2002-1905 (La.App. 1st Cir.9/11/02), 835 So.2d 541.

McKeithen has filed in this court a plethora of peremptory exceptions raising the objections of no cause of action, no right of action, and nonjoinder of a party. We shall first address his exception raising the objection of no |4cause of action on the ground that there is no basis in Louisiana law to compel an elected official to violate state law, and thus there is no basis for a preliminary injunction or writ of mandamus to compel McKeithen to place an illegally called proposition on the ballot.

Louisiana Constitution article XII, § 6(B) provides that the legislature shall define and suppress gambling. The legislature defined gaming activities allowed on designated rivers and waterways in LSA-R.S. 27:43. Subsection B(l) of that statute designates certain rivers and waterways as those upon which a gaming operator is authorized to conduct gaming operations. The lower Sabine River is not among those designated waterways.

Subsection B(2) provides for the designation of additional waterways. Louisiana Revised Statute 27:43B(2)(b)(i) is the portion of this statute crucial to the resolution of the issue in this case, i.e., whether a parish police jury, by local referendum, can designate a river or waterway as one on which gaming activities can be conducted on a riverboat when the Louisiana Legislature has not made such a designation. It provides in pertinent part:

At any time after the inclusion of a river or waterway has been proposed by an act of the legislature, the governing authority of any parish which borders the proposed river’s or waterway’s banks may order, by resolution, an election to permit voters in such parish to decide the question of whether the berthing of a riverboat upon which gaming is conducted on such river or waterway shall be authorized. [Emphasis added.]

Plaintiffs rely on subsection B(2)(a), which provides that the addition of a designated waterway shall be effective only after approval by voters in an election held, “pursuant to this Paragraph,” in any parish that borders the proposed river’s or waterway’s banks. But subsection B(2)(b)(i) is part of Paragraph B(2). Thus, a local referendum pursuant to Paragraph B(2) can be held only after the legislature has designated the river or waterway as one upon which a gaming operator is authorized to conduct gaming operations.

The CPPJ’s attempt to hold a referendum on riverboat gaming issues without a prior designation by the legislature is illegal and invalid. A local governing body cannot usurp the legislature’s constitutional duty to define and suppress gambling. |s Plaintiffs seek to force the Secretary of State to place these illegal propositions on the ballot of the November 5, 2002 election. No one has a cause of action to force a public official to perform a prohibited or illegal act. For this reason, McKeithen’s peremptory exception raising the objection of no cause of action is sustained. Because of our ruling on this ex-ception, we pretermit discussion of the remaining issues.

CONCLUSION

Because we find that the CPPJ cannot force the Secretary of State to place on the ballot of a local election propositions designating a river or waterway as one on which gaming activities can be conducted on a riverboat when the Louisiana Legislature has not made such a designation, we reverse the decision of the trial court. The Alternative Writ of Mandamus and Preliminary Writ of Injunction are hereby dissolved. Pursuant to our decision in this matter, any actions previously taken by the Secretary of State in placing these propositions on the absentee ballot or any other ballot are hereby declared null and void. Costs in the sum of $2,194.74 are assessed to plaintiffs, Cameron Parish Police Jury and Earnestine T. Horn.

PEREMPTORY EXCEPTION RAISING THE OBJECTION OF NO CAUSE OF ACTION SUSTAINED; REVERSED; MANDAMUS AND INJUNCTION DISSOLVED.

      . We may consider the peremptory exception filed for the first time in this court if pleaded prior to the submission of the case for a decision and if proof of the exception appears of record. LSA-C.C.P. art 2163.


author: WHIPPLE, J.

text:
    William Joseph SHAMP v. Jennifer Jiles JEZEK.
    No. 2002 CU 1346.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2002.

      Charlotte A. Pugh, Denham Springs, for Plaintiff/Appellant, William Joseph Shamp.
    Paul M. Hebert, Jr., Baton Rouge, for Defendant/Appellee, Jennifer Jiles Jezek.
    Before: CARTER, C.J., WHIPPLE and CIACCIO, JJ.

      . Judge Philip C. Ciaccio, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   WHIPPLE, J.

Plaintiff, William Joseph Shamp, appeals from a judgment of the Family Court of East Baton Rouge Parish (“Family Court”) granting defendant’s, Jennifer Jiles Jezek’s, motion to transfer jurisdiction of this child custody and visitation matter to the District Court of Tom Green County, State of Texas. For the following reasons, we affirm the trial court’s judgment transferring jurisdiction herein.

FACTS AND PROCEDURAL HISTORY

The parties hereto are the biological parents of P.S., now three years old. P.S., the child whose custody is at issue herein, was born on July 24, 1999. Although the parties sporadically and briefly resided together, they never married. However, Mr. Shamp was present at the child’s birth and signed a formal acknowledgement of paternity. Shortly thereafter, in early October of 1999, Ms. Jezek moved to San Angelo, Texas with the infant and her three children born from a previous marriage. On October 18, 1999, Mr. Shamp filed suit against Ms. Jezek in the Family Court of East Baton Rouge seeking to “confirm” his paternity of P.S., and upon “verification of paternity,” to establish visitation.

Mr. Shamp eventually dismissed his request for paternity testing and in a stipulated judgment signed on February 8, 2000, the parties agreed that joint custody should be awarded, with Ms. Jezek designated as the domiciliary parent, and that the parents would subsequently confect or have the court establish a visitation plan. Almost seven months later, on August 7, 2000, the Family Court signed a judgment establishing an interim visitation schedule. Pursuant to the Family Court’s judgment of December 6, 2000, a permanent visitation schedule eventually was established.

On December 7, 2000, Mr. Shamp filed a rule for contempt, re-calculation of child support, and other relief, including a demand that the Family Court retain exclusive jurisdiction of this matter. In response, on January 23, 2001, Ms. Jezek filed a motion in the Family Court requesting that the court transfer the matter to Texas, contending that as of December 7, 2000, she had filed an “Original Petition to Modify Possession Rights and Duties of Conservators” in the District Court of Tom Green County, Texas in the matter entitled “In the Interest of [P.S.], A Minor Child” under Cause No. D-00-1424-F.

Both Mr. Shamp’s rule requesting that the Family Court of East Baton Rouge retain exclusive jurisdiction and Ms. Jez-ek’s motion to transfer the matter to Texas were not heard by the Family Court until November 13, 2001. A decision was rendered and entered into the minutes on November 26, 2001, and a judgment in conformity therewith was signed on January 17, 2002, granting the motion to transfer the matter to Texas.

Mr. Shamp appeals, contending that the Family Court erred in transferring the matter to Texas, as the Family Court retained exclusive and continuing jurisdiction under either LSA-R.S. 9:355.17 and/or LSA-R.S. 13:1700, et seq. and/or the Parental Kidnapping Prevention Act (“PKPA” or “the Act”).

DISCUSSION

On appeal, Mr. Shamp contends that the transfer of this matter to San Angelo, Texas will assure prejudicial results against him and in Ms. Jezek’s favor. Additionally, he asserts that because she relocated the minor child to Texas without his express consent or approval, he should not be forced to litigate this matter in Texas. Ms. Jezek counters in brief that she did not request a transfer to gain judicial favor, but, rather, because Louisiana was no longer a convenient forum for her to litigate these proceedings.

In support of his argument that the Family Court erred, Mr. Shamp cites LSA-R.S. 9:355.17 which provides as follows: “If the court grants authorization to relocate, the court may retain continuing, exclusive jurisdiction of the case after relocation of the child as long as the non-relocating parent remains in the state.” Contending that LSA-R.S. 9:355.17 applies and is controlling herein, Mr. Shamp cites Bonar v. Bonar, 2000-232 (La.App. 5th Cir.8/29/00), 768 So.2d 194.

In Bonar, the appellate court determined that it was not necessary to file a petition seeking the court’s authority to relocate pursuant to LSA-R.S. 9:355.17 where the parties had previously stipulated in a consent judgment that “this agreement and judgment is to be given full faith and credit, and that neither party shall attack in any other court the provisions set forth herein.” Bonar, 2000-232 at p. 3, 768 So.2d at 196.

However, in the instant case, there is no stipulation that jurisdiction was to remain in Louisiana; Ms. Jezek did not seek the Family Court’s authorization to relocate; and Mr. Shamp does not challenge her relocation. Instead, on appeal, Mr. Shamp is not challenging Mr. Jezek’s physical relocation to Texas with the child, but the Family Court’s transfer of jurisdiction of this matter. Thus, LSA-R.S. 9:355.17, on its face, is not truly determinative herein.

However, Mr. Shamp also contends the PKPA applies herein and is determinative of jurisdiction of this matter. He argues that the Family Court erred in transferring the matter to Texas based upon its erroneous application of the Uniform Child Custody Jurisdiction Act (“UCCJA”), codified as LSA-R.S. 13:1700, et seq., in contravention of the provisions of the PKPA.

28 U.S.C. § 1738A, entitled “Full faith and credit given to child custody determinations” and referred to as the “Parental Kidnapping Prevention Act,” provides, in pertinent part:

(a) The appropriate authorities of every State shall enforce according to its terms, and shall not modify except as provided in subsections (f), (g) and (h) of this section, any custody determination or visitatión made consistently with the provisions of this section by a court of another State.
(b) [Definitions omitted]
(c) A child custody or visitation determination made by a court of a State is consistent with the provisions of this section only if—
(1) such court has jurisdiction under the law of such State; and
(2) one of the following conditions is met:
(A) such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child’s home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;
(B) (i) it appears that no other State would have jurisdiction under subpara-graph (A), and (ii) it is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child’s present or future care, protection, training, and personal-relationships;
(C) [Emergency provisions omitted]
(D) (i) it appears that no other State would have jurisdiction under subpara-graph (A), (B), (C), or (E), or another State has declined to exercise jurisdiction on the ground that the State whose jurisdiction is in issue is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that such court assume jurisdiction; or
(E)the court has continuing jurisdiction pursuant to subsection (d) of this section.
(d) The jurisdiction of a court of a State which has made a child custody or visitation determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant.
(e) [Notice provisions omitted]
(f) A court of a State may modify a determination of the custody of the same child made by a court of another State, if—
(1) it has jurisdiction to make such a child custody determination; and
(2) the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.
(g) A court of a State shall not exercise jurisdiction in any proceeding for a custody or visitation determination commenced during the pendency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody or visitation determination.
(h) A court of a State may not modify a visitation determination made by a court of another State unless the court of the other State no longer has jurisdiction to modify such determination or has declined to exercise jurisdiction to modify such determination.

As stated in the legislative preamble of the PKPA, the Act was enacted to:

(b) ... establish a national system for locating parents and children who travel from one such jurisdiction to another and are concealed in connection with such disputes, and to establish national standards under which the courts of such jurisdictions will determine their jurisdiction to decide such disputes and the effect to be given by each such jurisdiction to such decisions by the courts of other such jurisdictions.

The general purposes of the Act are to:

1) promote cooperation between State courts to the end that a determination of custody and visitation is rendered in the State which can best decide the case in the interest of the child;
2) promote and expand the exchange of information and other forms of mutual assistance between States which are concerned with the same child;
3) facilitate the enforcement of custody and visitation decrees of sister States;
4) discourage continuing interstate controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child;
5) avoid jurisdictional competition and conflict between State courts in matters of child custody and visitation which have in the past resulted in the shifting of children from State to State with harmful effects on their well-being; and
6) deter interstate abductions and other unilateral removals of children undertaken to obtain custody and visitation awards.

As amended Pub.L. 105-374, § 1, Nov. 1998, 112 Stat. 3383; Pub.L. 106-386, Div. B, Title III, § 1303(d), Oct. 28, 2000, 114 Stat. 1512. (Emphasis added.)

Congress designed the PKPA to remedy the defects of the UCCJA with a uniform federal statute. Meade v. Meade, 812 F.2d 1473, 1476 (4th Cir.1987). The PKPA imposes a duty on the states to enforce a child custody determination entered by a court of a sister state if the determination is consistent with the provisions of the Act. Thompson v. Thompson, 484 U.S. 174, 175-177, 108 S.Ct. 513, 514-515, 98 L.Ed.2d 512 (1988). Generally, once a state exercises jurisdiction consistently with the provisions of the Act, no other state may exercise concurrent jurisdiction over the custody dispute even if it would have been empowered to take jurisdiction under state law, and all states must accord full faith and credit to the first state’s ensuing custody decree. Thompson, 484 U.S. at 175-177, 108 S.Ct. at 514-515, 98 L.Ed.2d at 512. Thus, the PKPA preempts the UCCJA, LSA-R.S. 13:1700 et seq., in the event of concurrent jurisdiction. Atkins v. Atkins, 623 So.2d 239, 242 (La.App. 2d Cir.1993).

In the instant matter, the Family Court stated in its reasons for judgment that “[t]he issue before the Court is whether or not it is appropriate for this Court to assert subject matter jurisdiction.” Mr. Shamp argues that the Family Court erred by concluding that it was “inappropriate” for the Family Court in Louisiana to maintain jurisdiction by erroneously determining that Texas was the “home state” of the minor child and incorrectly applying the less stringent standards enlisted in the UCCJA rather than the preemptive provisions of the PKPA under Bonar. He contends that, pursuant to the provisions of the PKPA, more particularly 28 U.S.C. § 1738A(d), Louisiana retains exclusive jurisdiction because one parent (Mr. Shamp) continues to reside in Louisiana and P.S. has some connection with the decree state. While we agree that the PKPA is controlling herein, we disagree that the PKPA dictates that jurisdiction remain in Louisiana, given the facts as established in the record and considered by the Family Court in its decision to transfer jurisdiction.

The record reflects that in October of 1999, Ms. Jezek moved to Texas after the birth of P.S. On October 18, 1999, Mr. Shamp filed suit in the Family Court of East Baton Rouge Parish to “verify” his paternity of P.S. Eventually, the parties’ respective rights were established under a custody order and visitation schedule formulated in the Family Court of East Baton Rouge Parish.

At the hearing, Ms. Jezek stated that she initially moved to Baton Rouge because her former husband had been transferred there by his employment with the WMCA. However, after the move to Baton Rouge, she and her husband subsequently divorced. She stated that she first considered moving back to Texas when her former husband moved to Jacksonville, Florida after their divorce. She stated she had attended high school and college in Texas and considered it her home. Further, she testified while she has no relatives in Louisiana, she has extended family, including two sisters and nieces, who reside in the state of Texas, factors which affected her decision to move. One of her sisters resided in San Angelo, Texas. She stated that her sister helped her find employment and a home in San Angelo. Her sister also assisted her in caring for P.S. and her other three sons on those occasions when the children became sick and unable to attend school. She testified that one of the main reasons she moved to Texas with the children was that her former husband left her in financial straits after their divorce. In particular, she stated that he had filed bankruptcy proceedings, resulting in the foreclosure of her home in Baton Rouge.

At the hearing and on appeal, Mr. Shamp contends that Ms. Jezek’s motives were malicious and that the move and transfer of jurisdiction were designed by her to force him to marry her or to gain favorable treatments. On review, we find no merit to these assertions. As the record demonstrates, the parties were not romantically involved at the time Ms. Jez-ek moved and the parties clearly had no intentions of resuming their relationship. Ms. Jezek testified that during the pregnancy, she realized that the relationship was not “working out” and Mr. Shamp suggested that she move then. She stated that the only reason she stayed in Louisiana during the pregnancy was to maintain her medical insurance benefits. She candidly admitted that although she had not informed Mr. Shamp of the exact date of her move, he was aware that she was searching for a home and a job in San Angelo, and she informed him that she had given her two-week notice to her employer. She stated that she informed him that she had to be out of her house by the 15th of 'the month because that was when the rent was due. Ms. Jezek further stated that she did not advise Mr. Shamp of the exact date of her move because she did not want him to cause any problems or make a scene in front of her children.

Ms. Jezek testified that it was a financial strain to continue to return to Louisiana for litigation of these proceedings and that up until the time of the hearing, she had returned to Louisiana approximately every two months for court appearances. Each appearance required her to take time off from work and make arrangements to leave her children.

Under the PKPA, a state court is required to enforce a child custody or visitation order entered by a foreign state court and, generally, cannot modify the order if the foreign state court initially had jurisdiction and continued to exercise jurisdiction to modify its own order under the laws of its state. 28 U.S.C. § 1738A(a), (d), and (h). However, as noted above, under the PKPA, such jurisdiction is retained until the initial state declines jurisdiction as permitted by subsections (f) and (h) of the Act. In re Marriage of Wiseman and Dorshorst, 316 Ill.App.3d 631, 636, 737 N.E.2d 325, 330, 249 Ill.Dec. 935, 940 (2000). As Ms. Jezek correctly argues, this is a discretionary call to be made by the issuing court after consideration of all relevant facts and circumstances.

The PKPA was designed to prevent jurisdictional conflicts and competition between states over child custody and in particular to deter parents from abducting children for purposes of obtaining custody awards. Holm v. Smilowitz, 83 Ohio App.3d 757, 769, 615 N.E.2d 1047, 1054 (1992). In the instant matter, we find no error by the Family Court.

There is no jurisdictional conflict in the case sub judice, as the Louisiana Family Court properly declined to continue to exercise jurisdiction, as permitted by the Act, and reasonably concluded that Texas was a more appropriate forum. The objective of the PKPA to provide interstate cooperation in resolving child custody disputes has been met and the “full purpose and objective of Congress” in enacting the legislation has neither been violated nor obstructed under the facts of this case. See Holm, 83 Ohio App.3d at 769, 615 N.E.2d at 1055.

Considering the circumstances presented herein, and the provisions of the PKPA and the above jurisprudence, we find no abuse of discretion by the Family Court in declining to exercise continuing jurisdiction in Louisiana and in transferring jurisdiction to Texas.

We find no merit to this assignment.

CONCLUSION

For the above and foregoing reasons, the January 17, 2000 judgment of the Family Court granting Ms. Jezek’s motion to transfer is affirmed. Costs of this appeal are assessed against the appellant, William Joseph Shamp.

AFFIRMED.

CARTER, J., concurs.


author: I ¡WHIPPLE, J.

text:
    Floyd ISAAC v. Vanterry LATHAN d/b/a T & T Subcontractors, Hungry Hobo Restaurant, Inc., Wurster Oil Company and Petron, Inc.
    No. 2001-CA-2639.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2002.

      Vijay Venkataraman, Baton Rouge, for Plaintiff/Appellee, Floyd Isaac.
    Charles A. Schutte, Baton Rouge, for Defendant/Appellant, Petron, Inc.
    L.D. Sledge, Baton Rouge, for Defendant, Vanterry Lathan d/b/a T & T Subcontractors.
    Before: CARTER, C.J., WHIPPLE and CIACCIO, JJ.

      . Judge Philip C. Ciaccio (retired), Fourth Circuit Court of Appeal, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   I ¡WHIPPLE, J.

In this workers’ compensation dispute, defendant Petron, Inc. appeals the OWC judgment, awarding plaintiff, Floyd Isaac, temporary total disability benefits, medical benefits, penalties pursuant to LSA-R.S. 23:1171.2 and 23:1201 and attorney’s fees pursuant to LSA-R.S. 23:1201. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On September 30, 1995, Floyd Isaac, while employed as a laborer by Vanterry Lathan d/b/a/ T & T Subcontractors (“La-than”), was injured in the course and scope of his employment. On that date, Isaac was performing cement finishing work on a parking lot at the Hungry Hobo Restaurant in Henderson, Louisiana.

Petron, Inc. had entered contracted to perform construction and renovation work on the restaurant. Petron, as general contractor, then subcontracted with Lathan, Isaac’s employer, to perform the cement work for the parking lot. While Isaac was performing his job, a co-worker, David Ellis, suddenly struck him in the head with a claw hammer. Isaac was treated in the emergency room of Gary Memorial Hospital where the wound on his head was sutured. A CT scan performed at a later date revealed that Isaac had also suffered a skull fracture. Following the work injury, neither Lathan nor Petron paid Isaac any workers’ compensation indemnity or medical benefits.

Amost three years later, on September 23, 1998, Isaac filed a disputed claim for compensation against Lathan. Thereafter, Isaac amended his claim to name Petron, among others, as an additional defendant. Petron responded by filing a peremptory exception raising the objection of prescription, contending that because Isaac’s claim was not filed until more lathan one year after his injury, his claim for workers’ compensation benefits had prescribed.

In opposition to the exception, Isaac noted that on September 24, 1996, less than one year after the injury, he had filed a petition for damages arising out of this incident in the Sixteenth Judicial District Court and that Petron had been named as a defendant in that suit. Isaac further noted that Petron was not dismissed as a defendant in the tort suit until October 9, 1998, subsequent to Isaac’s filing of the present workers’ compensation claim. Accordingly, Isaac asserted, the filing of the tort suit had interrupted prescription as to Petron, and his workers’ compensation claim was timely filed.

Following a hearing on the exception, the workers’ compensation judge denied the exception. Thereafter, the matter proceeded to trial against Lathan and Petron. Petron stipulated that it was Isaac’s statutory employer pursuant to LSA-R.S. 23:1061. Following trial, the workers’ compensation judge rendered judgment in favor of Isaac and against Petron and La-than, awarding Isaac temporary total disability benefits for the period of September 30, 1995 through October 23, 1995, and reimbursement of medical expenses incurred. Additionally, the workers’ compensation judge ordered defendants to pay penalties pursuant to LSA-R.S. 23:1171.2 and 23:1201, as well as attorney’s fees pursuant to LSA-R.S. 23:1201.

Petron appeals, contending that the workers’ compensation judge erred in denying its exception of prescription and in awarding penalties and attorney’s fees. Isaac answered the appeal, contending that the workers’ compensation judge erred in ruling that his right to temporary total disability 14benefits terminated on October 23, 1995, despite medical evidence that he could perform “no work until release[d] by neurosurgery.” Isaac also seeks an increase in the sum of attorney’s fees awarded to reflect the additional work performed in defending this appeal.

PRESCRIPTION (Assignment of Error No. 1)

In its first assignment of error, Pe-tron contends that the workers’ compensation judge erred in denying its exception of prescription, asserting that the filing of the tort suit did not interrupt prescription against it as to Isaac’s workers’ compensation claim.

Louisiana Revised Statute 23:1209 provides a one-year prescriptive period for workers’ compensation claims. Because Isaac’s disputed claim for compensation was filed more than one year after the work injury, the action had prescribed on its face. In such a circumstance, the plaintiff carries the burden of proving that prescription was interrupted, suspended or renounced. Gary v. Camden Fire Insurance Company, 96-0055, p. 3 (La.7/2/96), 676 So.2d 553, 555.

Louisiana Civil Code article 3462 provides that prescription is interrupted when suit is filed in a court of competent jurisdiction. The interruption of prescription resulting from the filing of suit in a court of competent jurisdiction within the prescriptive period continues as long as the suit is pending. LSA-C.C. art. 3463.

Applying these principles, the Louisiana Supreme Court in Parker v. Southern American Insurance Co., 590 So.2d 55, 56-57 (La.1991), held that prescription on a tort action by an employee against an employer was interrupted by the filing of a prior worker’s compensation action where both actions were based on the same occurrence, ie., the accidental injury and ^[¿corresponding monetary liability of the employer, and the employér had notice of the factual elements of the action.

Similarly, in Scott v. Sears, Roebuck and Co., 99-0571, pp. 5-6 (La.App. 1st Cir.12/22/00), 778 So.2d 50, 53-54, this court held that where an employee timely filed a claim for workers’ compensation benefits against her employer and that claim had not yet been dismissed, prescription remained interrupted with regard to her subsequently-filed tort claim against the employer.

In the reverse situation, where a tort suit was filed prior to the workers’ compensation claim, the Fifth Circuit Court of Appeal has similarly held that the employee’s filing of a tort suit against his statutory employer interrupted prescription as to a subsequently-filed workers’ compensation claim by the employee against the statutory employer. Bruce v. Becnel, 98-1349, p. 4 (La.App. 5th Cir.10/13/99), 747 So.2d 647, 649-650, writ denied, 99-3250 (La.1/28/00), 753 So.2d 830. In Bruce, the employee filed a tort suit in Civil District Court for the Parish of Orleans against his statutory employer, which was still pending against the statutory employer when the employee filed a disputed clam for compensation. The appellate court held that when the employee filed his disputed claim for compensation against the statutory employer, prescription was interrupted by the tort suit which the employee had filed against him in Orleans Parish. Accordingly, on appeal, the court concluded that the employee’s workers’ compensation claim against the statutory employer was not barred by prescription. Bruce, 98-1349 at p. 4, 747 So.2d at 649-650.

Similarly, the Fourth Circuit Court of Appeal has held that prescription is interrupted as to the employee’s workers’ compensation claim against his employer where a timely claim in tort detailed the factual | fisituation and alleged tortious conduct upon which the suit was based and the compensation claim arose out of the same set of circumstances. See Cryer v. Tenneco Oil Company, 615 So.2d 1070, 1071-1072 (La.App. 4th Cir.1993).

Also, the Second Circuit Court of Appeal has held that where an employee is injured in one distinct accident, the timely filing of a tort demand against the employer interrupts prescription on a workers’ compensation demand that is later made against the same employer. See Burrier v. Malmac Energy Corporation, 592 So.2d 1370, 1372 (La.App. 2nd Cir.1992).

Turning to the case before us, we first note that the tort claim in which Petron was named as a defendant was filed by Isaac in a court of competent jurisdiction and proper venue. In the petition, Isaac outlined the facts giving rise to his injuries, ie., being struck in the head with a hammer by a co-worker while working on the construction' site of the Hungry Hobo Restaurant. Moreover, Petron made a general appearance in that suit, and Isaac’s tort claim against Petron was not dismissed until after the workers’ compensation claim was instituted.

Accordingly, where both the tort action and workers’ compensation action against Petron were based on the same occurrence, i.e., the work-related injury and corresponding monetary liability of Petron, and where Petron had notice of the factual elements of thé action, we find no error in the workers’ compensation judge’s conclusion that the timely-filed tort action interrupted prescription as to Isaac’s subsequent workers’ compensation claim against Petron. This assignment of error lacks merit.

| AWARD OF PENALTIES AGAINST PETRON PURSUANT TO LSA-R.S. 23:1171.2 (Assignment of Error No. 2)

Petron further contends that the workers’ compensation judge erred in assessing penalties against it pursuant to LSA-R.S. 23:1171.2, based upon a finding that it was solidarily hable with Lathan for this penalty.

Pursuant to LSA-R.S. 23:1168, an employer must provide security to insure that compensation benefits are paid by any of several methods, including securing insur-anee or qualifying as a self-insured employer. Louisiana Revised Statute 23:1171.2 provides that “[t]he amount of weekly compensation provided in this Chapter shall be increased by fifty percent in any case where the employer has failed to provide security for compensation as required by R.S. 23:1168.” Because LSA-R.S. 23:1171.2 requires the payment of additional workers’ compensation benefits when an employer fails to comply with LSA-R.S. 23:1168, this court has characterized it as a penal statute which must be strictly construed. Hurt v. Superior Cable Installation, Inc., 99-2982, p. 6 (La.App. 1st Cir.5/12/00), 762 So.2d 705, 708, writ not considered, 2000-1950 (La.9/29/00), 769 So.2d 549.

The record before us reveals that La-than did not have workers’ compensation insurance at the time of the incident in question and was not qualified as a self-insured employer. However, Petron contends on appeal that it was unaware that Lathan did not have workers’ compensation insurance in effect at the time of the incident, nor was there any evidence that Petron itself had violated the provisions of LSA-R.S. 23:1168. Accordingly, Petron asserts that there was no basis for holding Petron hable in solido for the penalty owed by Lathan.

Petron argues that while it is solidarily liable with Lathan, pursuant to LSA-R.S. 23:1061, for any workers’ compensation benefits due, section |s1061 imposes soli-dary liability only to the extent of benefits owed, and not for any penalty that may be owed independently by Lathan for violating LSA-R.S. 23:1168. Thus, Petron argues, because there is no evidence that Petron itself violated LSA-R.S. 23:1168 and because there is no legal basis for holding it liable in solido for Lathan’s violation of this law, the workers’ compensation judge erred in ordering Petron to pay the penalty imposed pursuant to LSA-R.S. 23:1171.2.

With regard to Petron’s liability as Isaac’s statutory employer for any penalty benefits owed, LSA-R.S. 23:1061(A)(1) provides that a statutory employer “shall be granted the exclusive remedy protections of R.S. 23:1032 and shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him.” (Emphasis added).

Thus, the direct and statutory employers are solidarily liable for the entire amount of compensation owed. Gales v. Gold Bond Building Products, 493 So.2d 611, 615 (La.1986); Felan v. F & F Trucking, Inc., 97-983, p. 11 (La.App. 3rd Cir.2/4/98), 708 So.2d 430, 437, writ denied, 98-0595 (La.4/24/98), 717 So.2d 1172.

In considering the language of LSA-R.S. 23:1171.2, even under a strict construction, we note that the statute clearly provides that the amount of weekly compensation shall be increased by 50% where the employer has to provide security for compensation. Notably absent from this statute is any language limiting the obligation to pay this increase in weekly compensation to the immediate offending employer. By contrast, LSA-R.S. 23:1201, another penalty statute, specifically provides that the penalty therein shall be ^imposed upon the employer or insurer, “depending upon fault.” LSA-R.S. 23:1201(F)(1).

Accordingly, given the plain language of LSA-R.S. 23:1171.2 and its absence of any language limiting this obligation to the immediate offending employer, and given the statutory employer’s solidary liability for the entire amount of compensation owed, we find no error by the worker’s compensation judge in holding Petron solidarily liable for the 50% increase in weekly compensation benefits awarded herein.

AWARD OF PENALTIES AND ATTORNEY’S FEES AGAINST PETRON PURSUANT TO LSA-R.S. 23:1201 (Assignments of Error No. 3, 4, 5 & 6)

In these assignments of error, Petron contends that the workers’ compensation judge erred in awarding penalties and attorney’s fees against Petron for its failure to timely pay weekly indemnity benefits and medical expenses. Upon finding that Petron had failed to reasonably controvert Isaac’s claims for weekly indemnity benefits and medical benefits, the workers’ compensation judge awarded Isaac penalties in the amount of $2,000.00 and attorney’s fees in the amount of $2,000.00 for failure to timely pay indemnity benefits. Additionally, the court awarded Isaac penalties in the amount of $2,000.00 and attorney’s fees in the amount of $6,000.00 for failure to timely pay medical expenses.

Louisiana Revised Statute 23:1201(F) provides for the imposition of a twelve percent penalty on compensation and medical benefits that the employer or insurer fails to pay timely, together with reasonable attorney’s fees for each disputed claim. Parfait v. Gulf Island Fabrication, Inc., 97-2104, p. 16 (La.App. 1st Cir.1/6/99), 733 So.2d 11, 24. However, penalties and attorney’s fees are not to be assessed when the employee’s right to such benefits has been reasonably controverted by the employer or |ininsurer. LSA-R.S. 23:1201(F)(2); Parfait, 97-2104 at p. 16, 733 So.2d at 24. A claim is reasonably controverted if the employer or insurer had sufficient factual and medical information to reasonably counter the factual and medical information presented by the claimant. Parfait, 97-2104 at p. 16, 733 So.2d at 24. Whether the refusal to pay benefits warrants the imposition of penalties and attorney’s fees is a factual question which will not be disturbed upon review in the absence of manifest error. Parfait, 97-2104 at pp. 16-17, 733 So.2d at 24.

Failure to Pay Weekly Indemnity Benefits

On appeal, Petron argues that because it was unable to accurately calculate Isaac’s average weekly wage, as Lathan contended that no benefits were due, and because the evidence of the employer and claimant were “totally contradictory,” it was not obligated to make payment of any indemnity benefits. We find no merit to these arguments.

First, with regard to Petron’s alleged inability to determine Isaac’s average weekly wage and corresponding compensation rate, the record before us contains no specific evidence of any efforts made by Petron to obtain this information from its subcontractor or any other source or of any factual information or basis upon which Petron relied in refusing to pay any benefits. Moreover, Petron’s alleged confusion as to Isaac’s exact wage certainly did not entitle Petron to refuse to pay Isaac any compensation at all.

Petron also suggests in its brief to this court that it was justified in refusing to pay Isaac any compensation benefits because it had relied upon the representation of Lathan, Isaac’s direct employer, that there was a valid In defense to any claim for benefits by Isaac. Again, the record is devoid of any information or factual basis upon which- Petron relied in controverting this claim and concluding that no benefits were owed to Isaac. While Pe-tron asserts that it took the depositions of Isaac and Lathan, there is no evidence that it conducted any further investigation into the incident or that it deposed or questioned any of the witnesses to the incident.

With regard to the testimony of Isaac and Lathan, Isaac testified that he was simply performing his job when, for no apparent reason, Ellis, a co-worker, suddenly hit him in the head with a hammer. Isaac denied that he had engaged in any type of verbal exchange with Ellis prior to the incident and further denied that he knew Ellis outside of the work setting. Moreover, although Isaac named, numerous witnesses to this incident, there is no evidence of record to suggest that Petron questioned any of those individuals in an attempt to establish the validity or lack thereof of the claim, or the existence of any defense. Additionally, while Lathan suggested that Isaac and Ellis had experienced problems working together in the past, he acknowledged that at no time did he witness Isaac as the aggressor in this incident.

Based upon our review of the record, we conclude the finding of the workers’ compensation judge that Petron had failed to reasonably controvert this claim is amply supported by the record. Accordingly, we find no error in the workers’ compensation judge’s award to Isaac of penalties and I ^.attorney’s fees for Petron’s unwarranted refusal to pay weekly compensation benefits due Isaac.

Failure to Pay Medical Expenses

Pursuant to LSA-R.S. 23:1201(E), medical benefits shall be paid within sixty days after the employer or insurer receives written notice thereof. On appeal, Petron contends that the workers’ compensation judge erred in awarding penalties and attorney’s fees for its failure to pay Isaac’s medical expenses where “Isaac failed to present any evidence that he ever submitted the medical bills to Lathan, much less Petron.” On review, we find no basis for Petron’s assertion.

Instead, the record before us contains correspondence dated February 8, 2001 and February 12, 2001, from Isaac to Pe-tron through which Isaac submitted medical bills he had incurred for payment by Petron. Both of these documents are marked “Hand Delivered,” and Petron offered no evidence to contradict Isaac’s assertion that these medical bills were hand delivered to Petron through counsel on the dates indicated. Moreover, the parties stipulated that as of the date of trial in this matter, June 25, 2001, no medical expenses had been paid to Isaac. Accordingly, we find no merit to Petron’s argument that the workers’ compensation judge committed manifest error in awarding penalties and attorney’s fees for Petron’s failure to timely pay medical benefits to Isaac.

LENGTH OF AWARD OF TEMPORARY TOTAL DISABILITY BENEFITS (Isaac’s Answer to Appeal)

In his answer to this appeal, Isaac contends that the workers’ compensation judge erred in awarding temporary total disability benefits only through October 23, 1995, when the medical evidence established that 113he had been restricted from work “until release by neurosurgery,” and had never thereafter been released to return to work by a neurosurgeon.

A claimant who seeks worker’s compensation benefits on the basis he is temporarily totally disabled must prove by clear and convincing evidence, without taking pain into consideration, that he is unable to engage in any employment or self-employment. LSA-R.S. 23:1221(1)(c); Bolton v. Grant Parish School Board, 98-1430, p. 4 (La.3/2/99), 730 So.2d 882, 885. While the worker’s compensation laws are to be construed liberally in favor of the claimant, that interpretation cannot lessen the claimant’s burden. Disability can be proven by medical and lay testimony. The workers’ compensation judge must weigh all the evidence, medical and lay, in order to determine if the claimant has met his burden of proof. Bolton, 98-1430 at p. 4, 730 So.2d at 885.

The workers’ compensation judge’s factual findings as to disability and length thereof in a workers’ compensation case are entitled to great weight and should not be disturbed absent manifest error. Gordon v. Sandersons Farms, 96-1587, p. 8 (La.App. 1st Cir.5/9/97), 693 So.2d 1279, 1285.

On review of the record, we note that the form of the medical evidence presented in this case is less than ideal. No doctors testified either in person or by deposition. Instead, the parties relied on the medical records, including hospital records that are entirely handwritten and are difficult to read. Yet, we have carefully reviewed these records and Isaac’s testimony and agree they provide a reasonable factual basis for the workers’ compensation judge’s finding that Isaac failed to prove by clear and convincing evidence that he was entitled to temporary total disability benefits after October 23,1995.

| uThe record reflects that when examined at Earl K Long Memorial Hospital on October 18, 1995, Isaac was restricted from work “until release by neurosurgery.” However, as noted by the workers’ compensation judge, in the same patient instructions setting forth the work restriction, Isaac was further instructed to attend a neurosurgery appointment at Charity Hospital in New Orleans on October 23, 1995. Thus, the workers’ compensation judge concluded the work restriction was specifically related to the October 23, 1995 follow-up neurosurgery appointment scheduled for Isaac at Charity Hospital.

The workers’ compensation judge further noted that when Isaac attended the neurosurgery appointment at Charity Hospital on October 23, 1995, no specific treatment or medications were prescribed. Additionally, no further work restrictions were given. These records contain a notation indicating that Isaac was to return to the clinic on October 30, 1995 for a noon appointment. Whether he was to return to the Charity clinic or the Earl K. Long clinic, the medical records do not indicate that he returned to Charity at the scheduled time for any further follow-up.

Instead, the Earl K. Long records indicate that Isaac did not return for any further treatment until May 13, 1996. Moreover, as noted by the workers’ compensation judge, Isaac had worked three consecutive days with John Lathan, performing cement finishing work in April of 1996, following his neurosurgery appointment at Charity.

In concluding that Isaac had failed to establish by clear and convincing evidence his entitlement to temporary total disability benefits after October 23, 1995, the workers’ compensation judge found that the 11Bwork restriction from Earl K. Long, which specifically referred to a scheduled neurosurgery appointment, could not sustain a claim for temporary total disability benefits for six years. The judge further found that Isaac had not kept “continuing treatment obligations,” noting that he failed to keep some appointments.

The workers’ compensation judge noted that Isaac had sought treatment three or four times a year to obtain prescriptions for headaches or occasionally for a followup CT scan. However, at no point after the initial post-accident work restriction was there any mention in the medical records of whether Isaac could or could not work.

Considering the foregoing, we find that there is a reasonable basis in the record for the workers’ compensation judge’s finding that Isaac did not prove by clear and convincing evidence that he was physically unable to engage in any employment after October 23, 1995. Accordingly, the workers’ compensation judge’s finding that Isaac failed to prove a disability after October 23, 1995 is not manifestly erroneous.

ADDITIONAL ATTORNEY’S FEES ON APPEAL (Isaac’s Answer to Appeal)

In his answer to appeal, Isaac further requests that this court award additional attorney’s fees for the work performed by his counsel in defending this appeal. Generally, an increase in attorney fees should be awarded when a party who was awarded attorney fees in the trial court is forced to and successfully defends an appeal. Bergeron v. Watkins, 98-0717, p. 10 (La.App. 1st Cir.3/2/99), 731 So.2d 399, 405.

However, we find that the awards granted herein adequately compensate for the work performed herein, including briefs filed on appeal. Accordingly, we decline to award additional attorney’s fees in this appeal.

^CONCLUSION

For the above and foregoing reasons, the July 17, 2001 judgment is affirmed in its entirety. Costs of this appeal are assessed against Petron, Inc.

AFFIRMED.

      . Petron was also awarded indemnity from Lathan pursuant to a cross-claim it had filed against Lathan. See LSA-R.S. 23:1261 (B) and 23:1063. However, that portion of the judgment is not at issue in this appeal,

      . While Petron does not allude to the defenses upon which it allegedly relied, we note that pursuant to LSA-R.S. 23:1031(0) and (D) (prior to redesignation as subsections (D) and (E) by Acts 1997, No. 315, sec. 1), an injury shall not be considered as having arisen out of the employment and is thereby not covered by the provisions of the workers' compensation laws if the injured employee was engaged in horseplay at the time of the injury or if the injury arose out of a dispute with another person or employee over matters unrelated to the injured employee's employment.

      . At that time, he was instructed to take Ibuprofen as needed for headaches and was again referred to Charity in New Orleans, where an appointment was scheduled for August 23, 1996.


author: |,CARTER, C.J.

text:
    Alga MILLER, Pearl Miller, Dalton Miller, Vergis Adams, Rita Adams, Anita Miller, Wilbert Miller and Opal Miller v. SUPERIOR SHIPYARD AND FABRICATION, INC., Chris J. Guidry, Louisiana Farm Bureau Mutual Insurance Company, Ulysses Hunter, T.T.C. Illinois, Inc., Lexington Insurance Company, State Farm Mutual Automobile Insurance Company and Allstate Indemnity Company.
    No. 2001-CA-2683.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2002.

      J.B. Jones, Jr., Cameron, for Plaintiffs-Appellants, Alga Miller, et al.
    Barry Boudreaux, Houma, Patrick J. McShane, Frederick J. Greschner, Jr., New Orleans, for Defendant, Superior Shipyard and Fabrications, Inc.
    Mark C. Dodart, Nora B. Bilbro, New Orleans, for Defendant, Lexington Insurance Company.
    Isaac H. Soileau, Jr., New Orleans, for Defendant, T.T.C. Illinois, Inc. and Credit General Insurance Company.
    Harold J. Lamy, New Orleans, for Defendant, Ulysses Hunter.
    Thomas L. Hutchinson, New Orleans, for Defendants, Louisiana Farm Bureau Mutual Ins. Co. And Chris Guidry.
    Cheri T. Burlett, New Orleans, for Defendant, Chris Guidry.
    Michael G. Gee, Thibodaux, for Defendant, State Farm Mutual Automobile Ins. Co.
    Christopher E. Lawler, Metairie, for Defendant-Appellee, Allstate Insurance Company.
    Before: CARTER, C.J., WHIPPLE, and CIACCIO, JJ.

      . Hon. Philip C. Ciaccio, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   |,CARTER, C.J.

The issue raised in this appeal is whether insurance coverage is available under a business auto policy. The trial court found that there was no coverage, and for the following reasons, we affirm.

BACKGROUND

This matter arises from an accident that occurred on August 11, 1998, on the premises of Superior Shipyard and Fabrication, Inc. (Superior) in Golden Meadow, Louisiana. A part-time maintenance employee for Superior, Alga Miller (Miller), was run over by a welding truck owned and operated by a sub-contractor employee, Chris Guidry (Guidry), who performed welding services exclusively for Superior’s boat repair business. Guidry owned, operated and maintained his own welding equipment and vehicle. He provided liability insurance for his vehicle that he used while performing his welding services. Guidry was paid an hourly wage. Superior considered the wage to include payment for Guidry’s labor as well as a fee for the use of his welding equipment. There was no written contract between Superior and Guidry outlining the terms of payment or employment.

Allstate Insurance Company (Allstate) was brought into the litigation as the business auto insurer for Superior. Allstate denied coverage for the accident, contending that Guidry’s vehicle was not an insured vehicle and that Guidry was not an insured under the Allstate policy issued to Superior. Allstate and plaintiffs filed cross-motions for summary judgment on the coverage issue. After a hearing, the trial court found that there was no coverage under the policy, denied plaintiffs’ motion for summary judgment, granted Allstate’s motion for summary judgment, and dismissed 14AlIstate. Plaintiffs appeal, arguing that the trial court erred in determining the coverage issue.

SUMMARY JUDGMENT AND INSURANCE POLICIES

An appellate court reviews a trial court’s decision to grant a motion for summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Shelton v. Standard/700 Associates, 2001-0587, p. 5 (La.10/16/01), 798 So.2d 60, 64-65. Interpretation of an insurance policy is usually a legal question that can be properly resolved by means of a motion for summary judgment. American Deposit Ins. Co. v. Myles, 2000-2457, p. 5 (La.4/25/01), 783 So.2d 1282, 1286. However, summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy under which coverage could be afforded when applied to the undisputed material facts shown by the evidence supporting the motion. Reynolds v. Select Properties, Ltd., 93-1480, p. 2 (La.4/11/94), 634 So.2d 1180, 1183.

The burden of proof on a motion for summary judgment is on the movant. LSA-C.C.P. art. 966(C)(2). An insurer seeking to avoid coverage through summary judgment must prove that some exclusion applies to preclude coverage. Gaylord Chemical Corporation v. ProPump, Inc., 98-2367, p. 4 (La.App. 1 Cir. 2/18/00), 753 So.2d 349, 352. However, when determining whether a policy affords coverage for an incident, the insured bears the burden of proving the incident falls within the policy’s terms. See Doerr v. Mobil Oil Corp., 2000-0947, p. 5 (La.12/19/00), 774 So.2d 119, 124, modified on other grounds on reh’g, 2000-0947 (La.3/16/01), 782 So.2d 573.

DISCUSSION

In the instant case, Allstate has shown and plaintiffs do not dispute that Guidry’s vehicle was not listed as a covered auto because it was not specifically described in the | .¡policy. It is also undisputed that Guidry was not listed as a named insured or insured driver in the policy issued to Superior. Thus, plaintiffs had the burden to show that Guidry was an insured or that Guidry’s vehicle somehow qualified as an “insured auto” as defined in the policy, in spite of the fact that it was not listed in the policy.

Plaintiffs argue that the Allstate policy affords coverage to Guidry under two endorsements to the policy adding liability coverage for rental vehicles and hired autos. Plaintiffs rely on a provision in the hired autos endorsement that added to who was an insured under the policy. That provision provided, in pertinent part:

While any covered “auto” described in the Schedule or in the Declarations is rented or leased to you and is being used by or for you, its owner or anyone else from whom you rent or lease it is an ‘insured’ but only for that covered “auto.” (Emphasis added.)

The endorsement further provides an additional description of “auto” in the schedule as follows:

All automobiles leased to the Named Insured for a term of not less than one year wherein the Named Insured has agreed in an automobile lease agreement to furnish automobile insurance. (Emphasis added.)

In addition, plaintiffs rely on the language in the rental vehicle endorsement that provides, in pertinent part: ■

Any “rental vehicle” that is rented by an “insured” under a written rental agreement will be considered a covered “auto.” (Emphasis added.)

That endorsement also adds the following language to the definitions section of the policy:

“Rental vehicle” means a motor vehicle of the private passenger, pick-up or van type, not used for business purposes, other than farming or ranching, if:
a. Not used for transporting persons for hire,
b. Owned by a person engaged in the business or leasing vehicles that are rented or leased without a driver, to persons other than the owner, and is registered in the name of such owner. (Emphasis added.)

We have thoroughly reviewed the policy language and evidence offered in support of both motions for summary judgment, and it is clear that there was no written rental agreement between Superi- or and Guidry for Superior’s use of Gui-dry’s vehicle. | fi Additionally, there was no lease agreement wherein Superior agreed to furnish insurance on Guidry’s vehicle. We note that the affidavits offered by plaintiffs set forth only ultimate conclusions that Superior rented Guidry’s vehicle. However, supporting and opposing affidavits shall be made on personal knowledge and set forth facts that would be admissible in evidence. See LSA-C.C.P. art. 967. Ultimate facts and conclusions of law contained in supporting affidavits cannot be considered for purposes of summary judgment. See Lafayette Ins. Co. v. C.E. Albert Construction Co., Inc., 95-0048, p. 2 (La.App. 4 Cir. 9/15/95), 661 So.2d 1093, 1095, writ denied, 95-2465 (La.1/5/96), 666 So.2d 296.

We find no merit to plaintiffs’ argument that the payment of wages made to Guidry for labor and the use of his welding equipment constituted a “rental” or “hiring” of Guidry’s vehicle. There is no evidence of any agreement (written or oral) between Superior and Guidry that Superi- or was renting or leasing Guidry’s vehicle. Plaintiffs rely on a copy of an invoice detailing the hours Guidry worked. The invoice does not establish that any agreement was ever reached between Superior and Guidry regarding the rental of Gui-dry’s vehicle. The handwritten invoice contained a notation at the bottom: “$10— Labor” and “$10 — Equipment.” Guidry testified that he did not personally make the notation on the invoice and he did not know who had written it. Superior’s owner, Brent Duet, testified that he assumed that Guidry had written the notation on the invoice, but he did not know who had actually written it. Since the evidence does not establish who made the written notation or the meaning/intent of the words, the invoice cannot be considered as proof of a rental agreement between Superior and Guidry regarding Guidry’s vehicle. Furthermore, Guidry’s vehicle does not meet the policy definition of a “rental vehicle” because it was used for business purposes and Guidry was not engaged in the business of leasing vehicles without a driver. Thus, the “rental vehicle” endorsement does not provide coverage in this instance.

The meaning of “leased” or “hired” vehicles revolves around whether the alleged lessee exercised dominion, control or the right to direct the use of the vehicle. The fact 17that wear and tear and use of equipment may have been factored into an amount paid to a subcontractor or employee does not make the vehicle a hired or leased auto. See Green v. Bobby A. Freeman Estate, 99-1262, p. 6 (La.App. 3 Cir. 4/5/00), 759 So.2d 201, 205; Gore v. State Farm Mut. Ins. Co., 26,417, p. 5 (La.App. 2 Cir. 1/25/95), 649 So.2d 162, 165, writ denied, 95-0481 (La.4/21/95), 653 So.2d 555. Even if it could be proven that the wages paid to Guidry included a reimbursement of expenses for the use of his vehicle, this still does not constitute a “hiring” or “leasing” of his vehicle. See Dupre v. Maynard, 96-1183, p. 5 (La.App. 1 Cir. 3/27/97), 692 So.2d 36, 39, writ denied, 97-1508 (La.9/26/97), 701 So.2d 986; Johnson v. Continental Cas. Co. (on rehearing), 167 So. 114, 115 (La.App. 2 Cir.1936). When a vehicle is leased, the lessee has complete control over it to use as he sees fit. Id. at 114-115.

The evidence reveals that Superi- or exercised no control regarding Guidry’s vehicle. Deposition testimony of Guidry and Superior owner, Brent Duet, established that no one at Superior ever drove or requested permission to drive Guidry’s vehicle. Guidry was responsible for maintaining and insuring his own vehicle. Gui-dry was the only driver of his vehicle while it was located on Superior’s premises. Guidry never left his vehicle at Superior’s premises when he finished his work. A Superior supervisor instructed Guidry as to which boat he was to perform his welding services on each day. However, Superior had no control over how Guidry performed the welding services or how he operated his welding equipment or his vehicle. There were no conditions or terms fixed under which Guidry’s vehicle was to be used. If Guidry were to leave the employment of Superior, his vehicle and welding equipment would go with him. Superior could not keep the equipment or the vehicle and put another welder into it.

In order for Guidry’s vehicle to constitute a hired, leased or rented vehicle within the meaning of the policy language, we believe there must have been a separate contract by which the vehicle was leased, rented or hired to the named insured, Superior, for its exclusive use or control. See Sampay v. Morton Salt Co., 482 So.2d 752, 758 (La.App. 1 Cir.1985), writ granted, 488 So.2d 684 (La.1986), appeal dismissed, 496 So.2d 315 (La.1986). Plaintiffs produced no evidence of any such ^contract or agreement. We find plaintiffs’ arguments to the contrary unpersuasive. For these reasons, there is no coverage under the policy issued by Allstate to Superior for Guidry’s alleged negligence.

CONCLUSION

We affirm the trial court’s judgment grant of summary judgment in favor of Allstate Insurance Company and against plaintiffs, dismissing Allstate from the lawsuit. All costs of this appeal are to be paid by pláintiffs-appellants.

AFFIRMED.

      . Miller subsequently died, and his adult children were substituted as plaintiffs in the lawsuit to assert claims for their father’s alleged wrongful death.

      .There are many defendants named in the lawsuit; however, only Superior, Guidry and Allstate are pertinent to this appeal..

      . Plaintiffs appealed both the denial of their motion and the granting of Allstate's motion. However, the denial of a motion for summary judgment is not an appealable judgment. Therefore, the trial court’s certification that the judgment was final and appealable was ineffectual regarding the denial of plaintiffs' motion for summary judgment. See LSA-C.C.P. art. 968; Belanger v. Gabriel Chemicals, Inc., 2000-0747, p. 5 (La.App. 1 Cir. 5/23/01), 787 So.2d 559, 563, writ denied, 2001-2289 (La.11/16/01), 802 So.2d 612. Nevertheless, because both motions involve the same coverage issue, our review will encompass both motions. See Pitts v. Fitzgerald, 2001-0543, p. 5 (La.App. 1 Cir. 5/10/02), 818 So.2d 847, 850 n. 8.


text:
    COMMERCIAL CAPITAL HOLDING CORPORATION d/b/a Commercial Capital Management v. L.L.P. & D. MARINE, INC.
    No. 2001 CA 2531.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2002.
    Ronnie J. Berthelot, Baton Rouge, for Plaintifl/Appellee, Commercial Capital Holding Corporation d/b/a Commercial Capital Management.
    Patrick W. Gray, Lafayette, for Defendant/Appellant, L.L.P. & D. Marine, Inc.
    Before: CARTER, C.J., WHIPPLE, and CIACCIO, JJ.

      . Hon. Philip C. Ciaccio, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   |,CARTER, C.J.

L.L.P. & D. Marine, Inc. (defendant) seeks to annul a default judgment rendered against it in favor of Commercial Capital Holding Corporation d/b/a Commercial Capital Management (plaintiff), contending that plaintiff failed to present a prima facie case. For the following reasons we vacate the trial court’s judgment and remand this case for further proceedings.

A plaintiff seeking to obtain a default judgment must establish the elements of a prima facie case with competent evidence, as fully as though each allegation of the petition had been denied. The competent evidence must be sufficient to convince the court that it is probable plaintiff would prevail on a trial on the merits. La. C.C.P. art. 1702A; Cornish v. Doctors Care, LLC, 02-0285, p. 4 (La.App. 4th Cir.6/12/02), 819 So.2d 1158, 1161.

Plaintiff alleges in its petition that it is a creditor of Camors Engine Company; that Camors owes plaintiff a sum in excess of $10,264.13; that Camors is a creditor of defendant; that Camors sold to plaintiff Camors’s accounts receivable, including debts owed by defendant to Ca-mors evidenced by four invoices; and that defendant therefore owes plaintiff $10,264.13, the total of those four invoices.

In support of its default judgment, plaintiff relies on the four invoices, two demand letters, an account acceptance schedule, an account receivable purchase agreement, and the affidavit of Bill R. Young, plaintiffs vice-president. In that affidavit Young averred that defendant’s account file was under his care, custody, and control; that he had reviewed the records; that the records show defendant owed $10,264.13, and that all of the allegations in the petition were true and correct to the best of his information, knowledge, and belief.

The four invoices attached to the account acceptance schedule are also attached to the petition. Curiously, however, the copies of the invoices attached to the petition also contain other information that makes it unclear whether these debts were actually owed by defendant. Attached to invoice number 9779 is a form stating the work was performed for Coastal Ventures. Attached to invoice number 9791 are two forms, one listing work for defendant and another listing work for Coastal Ventures. There are two | .¡copies of invoice 9760 attached to the petition. One is addressed to Fleet Operators but has a note handwritten at the bottom stating: “Credit on 9-8-00 Billed to Fleet Operators — should have been billed to LLP & D.” The other is addressed to defendant. The form describing the services rendered, however, lists the customer as Fleet Operators. Only invoice 9786 lists defendant on both the invoice and the attached form.

Nowhere in the record is there any explanation of these discrepancies in the invoices. The petition states: “Invoice number 9760 was billed to another entity in error; however, L.L.P. & D. does owe the sums stated on invoice number 9760.” Mr. Young’s naked statement in his affidavit that the allegations of the petition are true and correct is insufficient to clothe these discrepant invoices with reliability. For this reason, we find that plaintiff has failed to establish the elements of a prima facie case with competent evidence sufficient to convince the court that it is probable plaintiff would prevail on a trial on the merits. The default judgment in plaintiffs favor is hereby vacated, and this case is remanded to the trial court for further proceedings. Plaintiff is cast for all costs of this appeal.

VACATED AND REMANDED.