author: J¿rHOMAS F. DALEY, Judge.

text:
    Patrick McGEHEE v. SEVILLE SQUARE CONDOMINIUMS HOMEOWNERS ASSOCIATION, Lewis Sabrier and Scottsdale Insurance Company.
    No. 02-CA-719.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2002.
    Gregory J. McDonald, Bienvenu, Foster, Ryan & O’Bannon, New Orleans, LA, for Defendant/Appellee, Scottsdale Insurance Company.
    Scott W. McQuaig, W. Chad Stelly, Colette C. Ranatza, McQuaig & Stelly, Me-tairie, LA, for Plaintiff/Appellant.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY, and SUSAN M. CHEHARDY.
   J¿rHOMAS F. DALEY, Judge.

The plaintiff, Patrick McGehee, Jr., has appealed the grant of summary judgment in favor of the defendant. 'For the reasons that follow, we affirm.

FACTS:

In his deposition, plaintiff testified that he is a cab driver. In the early morning hours of September 25, 1999, he heard a report of a fellow cab driver being attacked. As he was driving along Airline Highway in Metairie, he spotted a man fitting the description of the attacker riding in another cab. He alerted his dispatcher, who called the police. He followed that cab to the Seville Square Condominiums located at 4101 Hessmer Street. As the suspect exited the vehicle, plaintiff got out of his cab and approached the suspect. The suspect started to run “like he was going to go into the complex.” Plaintiff testified that he followed the suspect in order to see where he was | agoing so he could alert police. While walking along the pathway along side of the complex, plaintiff fell, breaking his leg.

Plaintiff filed suit against Seville Square Condominiums Homeowners Association and their insurer, Scottsdale Insurance Company, (Scottsdale) alleging that he tripped and fell on broken and/or lose concrete and that the defendants had failed to maintain the premises in a safe condition, failed to warn of the dangerous condition, and failed to properly light the premises. Only Scottsdale was served, and it answered with a general denial. Scottsdale then filed a Motion for Summary Judgment that was granted by the trial court. Plaintiff filed this timely appeal.

LAW AND DISCUSSION:

It is well settled that a Motion for Summary Judgment should be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966. Article 966 provides that the mover has the initial burden to show that no genuine issue of material fact exists. If, as in this case, the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The nonmoving party then must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. La. C.C.P. art. 966(C)(2). If the nonmoving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. Id.

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s determination of whether a summary judgment is 14appropriate. Reynolds v. Select Properties Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180.

In its Motion for Summary Judgment, Scottsdale argues that there is no evidence that the pathway where plaintiff fell was unreasonably dangerous or was defective. They contend that plaintiffs injury was due to his own lack of due care for his own safety. Scottsdale states that if plaintiff had looked down at the ground where he was walking, he would have seen the alleged crack and could have avoided it. Scottsdale attached the affidavit of Louis Sabrier, president of the Seville Square Homeowners Association, to its motion. Mr. Sabrier stated that the area where plaintiff claims to have fallen is the driveway and that it was well lit at the time of the incident. He further stated that there are only minor cracks along this driveway, that the cracks are less than 1/8 of an inch wide with a height difference of lk inch or less. He stated that during his five year tenure with the board there have been no complaints of anyone falling or tripping in this driveway. Finally, he stated that there is a Sheriffs Office substation across the street from the condominiums.

Mr. McGehee’s deposition was also attached to Scottsdale’s motion. Mr. McGe-hee testified that he followed the suspect to see what door he went into so he could alert the police. He further testified: “I was watching him going towards the gate of the complex, and the next thing I knew, I took a step and I fell down, and I broke my knee.” Mr. McGehee did not identify what, if anything, caused him to fall.

In his opposition to Scottsdale’s motion, plaintiff argues that there are material issues of fact as to the condition of the pathway, the location of the fall, the plaintiffs lack of familiarity with the location, and the costs of repairs to the defendants. Specifically, plaintiff points to Mr. Sabrier’s affidavit and states that there is no indication as to who took the measurements of the cracks, when they were taken, and |Rwhat empirical means were utilized in taking the measurements. He further states that there is no indication as to who conducted an examination of the lighting or when it was conducted. He also argues that since he has alleged strict liability, the imposition of strict liability should be determined by a trier of fact not by summary judgment. Finally, he argues that because there is an allegation of comparative fault on his part, this matter is not appropriate for summary judgment. Mr. McGehee’s deposition is also attached to his Memorandum in Opposition to Summary Judgment.

On appeal, plaintiff relies on this Court’s decision in Haley v. Roberts, 02-03 (La.App. 5th Cir.5/29/02), 820 So.2d 1114 to support his argument that defendant’s Motion for Summary Judgment should not have been granted. In Haley, plaintiff fell when her shoe became caught in a ridge in a sloping walkway while exiting a barber shop. In reversing the trial court’s grant of summary judgment in favor of the defendants, this Court found the plaintiffs expert’s affidavit created a material issue of fact as to whether the ramp was defective and whether defendants, as builder and owner of the building, should have had constructive notice of any defect. This Court went on to find that the trial court correctly granted summary judgment in favor of the lessee of the premises because the lessee presented an affidavit stating that there were no prior or subsequent falls or complaints related to the ramp, thus there was no evidence that the lessee had actual knowledge of a defect.

At the hearing on this matter, counsel for Scottsdale argued that Mr. McGehee was unable to state what caused him to fall. In response, plaintiffs attorney stated that when Mr. McGehee testified that “his foot went down” he meant that it went down in a crack and that the cracks were greater that a half inch in depth. Plaintiff did not testify in his deposition that his foot went down in a crack. In fact, plaintiff never testified as to how he fell. Nowhere in his deposition does he refer to cracks or |Rdefects in the pathway. Mr. McGehee testified that he was walking on the pathway following the defendant and “next thing I knew, I took a step and I fell down, and I broke my knee.” He never stated that he tripped over something or that his foot went into a crack — he only stated that he fell. Unlike in Haley, supra, the record before us, there is no evidence that the area where plaintiff fell was defective.

Plaintiff also argues that the trial court prematurely granted the Motion for Summary Judgment because plaintiff has not been afforded an opportunity to formally conduct an investigation of the premises and has not been able to take the deposition of Mr. Sabrier. The record indicates that this accident occurred 2years prior to the hearing on the motion. Further, the Motion for Summary Judgment was filed after the discovery cut off had passed. There is no indication that plaintiff attempted to continue the motion or conduct discovery between the date the motion was filed and the hearing of the motion. We find this argument to be without merit.

Article 966 provides that if the party bringing a Motion for Summary Judgment will not bear the burden of proof at trial, the mover must only show that there is an absence of support for one or more elements of the opposing party’s claim. The party opposing the Motion for Summary Judgment then has the burden to come forward with some evidence of a material issue of fact. Based on the evidence submitted, we find that plaintiff did not carry his evidentiary burden, and therefore, defendant is entitled to summary judgment as a matter of law. Accordingly, the summary judgment granted in favor of Scottsdale is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: I JAMES L. CANNELLA, Judge.

license: Public Domain

text:
    Jeanette Dufrene, Wife of/and Anthony DUFRENE v. DOCTOR’S HOSPITAL OF JEFFERSON, INC., Tenet Healthsystem Hospitals, Inc., a/k/a Tenet Louisiana Healthsystem and/or Tenet Healthcare Corporation and/or NME Hospitals, Inc., Medical Enterprises, Valerie Ann Besthoff, Virginia Frank Besthoff and James Bennett Besthoff.
    No. 02-CA-654.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2002.

      Leonard J. Cline, Thomas G. Robbins, Metairie, LA, for Appellants, Jeanette Du-frene wife of/and Anthony Dufrene.
    Kurt S. Blankenship, Robert I. Baudouin, Metairie, LA, for Appellees, Tenet Health System Hospitals, Inc. formerly known as NME Hosptials, Inc., Doctors Hospital of Jefferson, Inc. and Viginia Frank Besthoff.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and MARION F. EDWARDS.
   I JAMES L. CANNELLA, Judge.

Plaintiffs, Jeanette Dufrene, wife of /and Anthony Dufrene, appeal from the trig! court judgment in favor of Defendants, Doctors Hospital of Jefferson, Inc. (DHJ), Tenet Healthsystem Hospitals, Inc., A/K/A Tenet Healthcare Corporation and/or NME Hospitals, Inc. (Tenet), and Virginia Frank Besthoff (Besthoff), denying the Plaintiffs’ motion for a continuance and granting the Defendants’ Motion for Summary Judgment. For the reasons which follow, we affirm.

On November 5,1998, Plaintiffs filed the instant tort suit against these Defendants as well as others who are not before us herein. In the petition, Plaintiffs alleged that on November 5, 1997, Jeannette Du-frene was in Doctor’s Hospital, walking down the hallway on the fifth floor when she slipped and fell on some water, allegedly puddled on the floor due to a leak problem. On October 30, 2001, Defendants filed a Motion for Summary Judgment on the grounds that there were no genuine issues of material fact and that none of the Defendants had any legal responsibility for the accident, injuries and damages sustained by the UPlaintiffs. Defendants point out that Besthoff is nothing more than a co-owner of the land on which the hospital was built. She leased the land to Medical Enterprises who constructed the building and improvements thereon. Medical Enterprises then leased the building to DHJ, who then entered into an operating sublease and management agreement with Tenet. Tenet was Plaintiffs employer and, thus, her injuries were covered exclusively by worker’s compensation. Therefore, Defendants argued that they were entitled to summary judgment in their favor and dismissal of the claims against them as a matter of law.

The Motion for Summary Judgment was originally scheduled for hearing on December 14, 2001. It was continued and reset for February 28, 2002. On February 26, 2002, Plaintiffs moved for a continuance of the summary judgment hearing, which Defendants opposed. On the morning of February 28th, the trial court first took up the request for a continuance. Upon finding that the case had been pending for over three years and that the summary judgment hearing had been previously continued, the trial court found that Plaintiffs had had ample time to take any necessary depositions and he denied the continuance. After considering the Motion for Summary Judgment on the merits, the trial court granted the summary judgment. On appeal the Plaintiffs argue that the trial court erred both in denying their motion for a continuance and in granting the summary judgment.

Motion for Continuance

Plaintiffs’ counsel argues that the trial court erred in denying his motion for a continuance of the summary judgment hearing because he had not been allowed sufficient time to complete the necessary discovery. Plaintiffs’ counsel relies primarily, in support of his argument, on the position that defense counsel, in correspondence between the attorneys, had repeatedly agreed that Plaintiffs would |4be allowed to take a La. C.C.P. art. 1442 Corporate Deposition of Tenet prior to the ruling on the Motion for Summary Judgment.

The Defendants argue to the contrary that they did not agree to postpone consideration of the summary judgment hearing indefinitely, while Plaintiffs further delayed in taking depositions. In fact, Defendants point out that in the very letter referred to by Plaintiffs, evidencing agreement on the depositions, defense counsel made a point of informing Plaintiffs that the summary judgment hearing would not be continued, stating: “I am stating at the outset that all discovery must be completed in time for the hearing.”

In ruling on the continuance request, the trial court stated:

“Alright, I have heard enough on the issue of continuance. In taking all of those things that both sides have stated into consideration, and also taking into consideration that this rule had been set for four months, I am going to deny the continuance. The rule was set on October Slst, we are almost at four months since then — the Motion to Continue filed two days ago, and when I consider all the things that I’ve heard, I’m sorry, I’m not going to grant the Motion to Continue.”

The decision, whether to grant or deny a continuance, is a matter of the trial court’s discretion. The trial judge is afforded wide discretion in the maintenance of his docket and any decision pertaining thereto will not be overturned absent a showing of breach of that discretion. La. C.C.P. art. 1601; I.Q. Investments v. Cartozzo, 98-0331 (La.App. 5th Cir.9/29/98), 719 So.2d 1155; Krepps v. Hindelang, 97-0980, 97-1034 (La.App. 5th Cir.4/15/98), 713 So.2d 519, rehearing denied.

In this case, suit had been filed over three years prior to the summary judgment hearing. According to Defendants, no discovery was conducted during the first three years following the filing of suit. The Motion for Summary Judgment had been filed in October of 2001 and had been previously set for a hearing two months earlier. While it is true that correspondence between counsel indicated defense counsel’s willingness to allow Plaintiffs to take the La. C.C.P._J¿art. 1442 deposition, defense counsel made it clear from the outset that the deposition must be taken before the scheduled hearing date of February 28, 2002. The deposition was not taken timely and Plaintiff waited until two days before the hearing date to move for the continuance. Plaintiffs argue that defense counsel was uncooperative in setting up the deposition but there was no rule to compel filed by Plaintiffs. Upon review of the procedural history of this case, we cannot conclude that the trial court abused its wide discretion in denying the Plaintiffs’ request for a continuance. Therefore, we affirm the denial of the motion to continue.

Motion for Summary Judgment

Plaintiffs argue that the trial court erred in granting the summary judgment in favor of the Defendants because there are genuine issues of fact that preclude the granting of the summary judgment. Plaintiffs argue that the Defendants’ argument that liability for the accident rests solely with Tenet is not supported by the law or the contractual relationships in this case. Rather, Besthoff and DHJ can be held liable for Plaintiffs injuries upon a showing that they knew or should have known of the defect in the building and that they did not take reasonable steps to correct it. Plaintiffs argue that these are factual matters that have not been resolved.

Defendants argue that the considerations for each of the three Defendants are different, but all lack liability for Plaintiffs’ injuries. Besthoff, who leased the land to Medical Enterprises to build the building, who leased it to DHJ, who subleased it to Tenet for management and operation, is so removed from a slip and fall on the fifth floor hall due to water, that there is no basis in law or fact for her liability. Tenet, the employer of Jeanette Dufrene, with whom Plaintiff settled in worker’s compensation, is immune from tort liability. DHJ bears no responsibility for the slip and fall accident because it had contracted away any responsibility for | ^management and operation of the building to Tenet and, irrespective of that, Plaintiffs have failed to rebut the defense showing that there was no knowledge of any prior incidents involving water at this location of the hospital. In other words, no one knew or should have known of any defect in the building that caused the accident.

It is well settled that appellate courts review summary judgments de novo using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., 93-2512 (La.7/5/94), 639 So.2d 730, 750; Nuccio v. Robert, 99-1327 (La.App 5th Cir. 04/25/00), 761 So.2d 84, writ denied, 00-1453 (La.6/30/00), 766 So.2d 544; Moody v. United Nat. Ins. Co., 98-287 (La.App. 5th Cir.9/29/98), 743 So.2d 680. Thus, this court must consider whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Smith, supra; Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191. Moreover, the summary judgment procedure is favored, and shall be construed, as it was intended, to secure the just, speedy, and inexpensive determination of most actions. La. C.C.P. art. 966(A)(2); Magnon v. Collins, supra.

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the trial court on the motion for summary judgment, the mov-ant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the trial court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C. P. art. 966(C)(2).

j7Once the motion for summary judgment has been properly supported by the moving party, the failure of the adverse party to produce evidence of a material factual dispute mandates the granting of the motion. Foster v. Consolidated, Employment Systems, Inc., 98-948 (La.App. 5th Cir.1/26/99), 726 So.2d 494.

La. R.S. 9:3221, covering the liability of an owner where a lessee has assumed responsibility provides:

The owner of premises leased under a contract whereby the lessee assumes responsibility for their condition is not liable for injury caused by any defect therein to the lessee or anyone on the premises who derives his right to be thereon from the lessee, unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time.

Tenet assumed liability for the condition of the building in its operating and management agreement with DHJ. Tenet was Jeanette Dufrene’s employer at the time of the accident and is immune from tort liability under worker’s compensation provisions. Moreover, she settled her claims with Tenet and Plaintiffs’ counsel conceded that it was appropriate to grant summary judgment in favor of Tenet.

Besthoff is merely the landowner and had nothing to do with the construction, maintenance or control of the building. According to the only evidence in the case regarding Besthoff, the lease itself, her only connection with the property was that she leased the land in an arms length transaction to Medical Enterprises who constructed the improvements thereon. As such, she bears no liability for Jeanette Dufrene’s slip and fall on water on the fifth floor hallway. Lewis v. Meadowcrest Hospital, 559 So.2d 983 (La.App. 5th Cir.1990).

DHJ leased the building from Medical Enterprises and in turn entered into an operating sublease and management agreement with Tenet. The agreement provided that Tenet shall maintain, preserve and keep the leased premises in good condition, repair and working order. Thus, DHJ did not have responsibility for the | smaintenance of the building. It was merely a lessee who had subleased the building.

Plaintiffs argue that DHJ and Medical Enterprises are connected. Even assuming that to be true, to establish the liability of DHJ, under La. R.S. 9:3221, Plaintiffs’ must prove that DHJ “knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time period.”

In support of their Motion for Summary Judgment, the Defendant’s presented two affidavits from Tenet personnel. Mary Fernandez, a nurse on the fifth floor in ICU where the accident happened, stated in her affidavit that Jeanette Dufrene reported the accident to her. She saw the water on the floor. She stated further that she regularly worked in the ICU, passed the area where plaintiff fell four to five times a day, and never noticed any water on the floor in that area. Further, she stated that given the frequency with which she traveled the area, had water been present on the floor on a regular basis, she was certain that she would have seen it.

Joanne Romano, the house supervisor at the time of the accident, stated that her responsibilities included investigating incidents and that she never noticed nor received any complaints regarding water in the area where Jeanette Dufrene fell. Further, she stated she routinely checked the hospital for hazards such as water on the floor and never saw any water in the area in question.

In response, Plaintiffs put forth no counter-affidavits or other evidence. As stated above, on a Motion for Summary Judgment, where the movant does not bear the burden at trial and points out the absence of factual support for one or more elements of the adverse party’s claim, if the adverse party fails to produce any factual support for the claim, there is no genuine issue of material fact and summary judgment may be granted.

|9In this case, the Defendants established through affidavits that there were no prior incidents of water leaking in the area where Jeanette Dufrene fell and, thus, as to DHJ, there was no knowledge or notice of a defect that was not corrected within a reasonable period of time. Absent such a showing, DHJ bears no liability, as owner of the structure leased to another, who had assumed responsibility for the condition of the building, to an employee who slips and falls on water in the hallway of the building.

Thus, based on the foregoing, we find that Defendants, as movers of the Motion for Summary Judgment, met their burden and were entitled to summary judgment in their favor.

Accordingly, we find that the summary judgment granted by the trial court in favor of Defendants, and the order dismissing Plaintiffs’ claims against these Defendants is affirmed. Costs of appeal are assessed to Plaintiffs.

AFFIRMED.

      . Also named as defendants in the tort suit were Medical Enterprises, Valerie Ann Bes-thoff and Jane Bennett Besthoff. The record indicates that these defendants have not been properly served and objections have been filed.

      . The sublease was originally made with NME Hospitals, Inc, Tenets predecessor-in-interest. All references to the sublessee hereinafter will be to Tenet.


author: MAX N. TOBIAS, JR., Judge.

text:
    Patrick M. ARCEMENT v. Cheri Lynn CRUZ.
    No. 2002-C-2533.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 20, 2002.

      Sharon M. Williams, Chalmette, LA, Counsel for Plaintiff/Relator.
    Keith Couture, Chalmette, LA, Counsel for Defendant/Respondent.
    Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MIRIAM G. WALTZER, and Judge MAX N. TOBIAS JR.
   MAX N. TOBIAS, JR., Judge.

Once a judge recuses himself or herself from hearing a case, the judge is thereafter precluded from hearing that case ever again. Schwing v. Dunlap, 123 La. 485, 49 So. 134, 136 (La.1909). In this case, the trial judge recused himself sua sponte on 16 September 2002 and gave reasons. See La. C.C.P. art. 152. The judge stated that because relator’s counsel was a candidate against him and relator was her campaign manager, the appearance of impropriety required his recusal “to promote, protect and preserve the independence and integrity of the judiciary by the Canons of Judicial Conduct.” Now that the campaign and election are over is of no moment; the taint of the appearance of impropriety permanently remains. In re Lemoine, 96-2116 (La.1/14/97), 686 So.2d 837; see also Canon 3(C), Code of Judicial Conduct.

Accordingly, we granted the application for a supervisory writ of the relator, Patrick M. Arcement. We further grant relator’s request for relief: The Honorable Manuel Fernandez is and remains recused from hearing, dealing with, or trying any part of the captioned matter. Our stay order of 19 December 2002 is vacated.

SUPERVISORY WRIT GRANTED; RELIEF GRANTED; STAY VACATED.


author: | .WHIPPLE, J.

text:
    Twanda BROWN v. KWOK WONG (Mandarin Seafood Restaurant) and Louisiana Restaurant Association Self Insurers Fund.
    No. 2001 CA 2525.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 2002.

      William Ritzie, Jr. Baton Rouge, for Plaintiff/Appellee, Twanda Brown.
    Douglas J. Cochran Michael McKay Baton Rouge, for Defendants/Appellants, Kwok Wong and Louisiana Restaurant Association Self Insurers Fund.
    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.

Defendants, Kwok Wong and Louisiana Restaurant Association Self Insurers Fund, appeal the OWC judgment, ordering that plaintiff, Twanda Brown, was entitled to, among other things, medical treatment for her back injury, an MRI, temporary total disability benefits until released by her treating physician and penalties and attorney’s fees for defendants’ failure to pay benefits due. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Twanda Brown was employed as a cook by Kwok Wong d/b/a Mandarin Restaurant. On January 3, 2000, she suffered a work-related accident when, after placing a pan of food on the buffet table, she slipped and fell, striking her back. Brown continued to work for the remainder of the day and also for the remainder of that week. However, on January 10, 2002, Brown requested and was granted permission from her employer to seek medical treatment for pain in her foot and ankle. She was treated at the Baton Rouge General Medical Center and released that day, with instructions that she could return to work provided she did not attempt any repeated bending, stooping or squatting.

The following week, on January 18, 2000, Brown was seen by Dr. Thad Brous-sard, an orthopedic surgeon who had previously treated Brown. Brown told the doctor that she had been injured at work and that as a result of the accident, she was suffering from ankle, knee and leg pain on the right side, as well as back pain. Dr. Broussard diagnosed her condition as an acute low back syndrome and an acute contusion and sprain to the right ankle, for which he prescribed physical therapy and pain medication. Dr. Broussard also restricted Brown from returning to work.

laWhen Brown returned to Dr. Brous-sard on January 31, 2000, Dr. Broussard concluded that Brown’s condition was improving. Thus, he released her to return to work as of February 1, 2000.. Although Brown attempted to return to work, she was unable to perform her work duties, due to continuing pain in her back. Thus, Brown returned to Dr. Broussard on March 1, 2000, again complaining of pain in her back. At that time, Dr. Broussard again restricted Brown from work and ordered an MRI of the back. However, authorization for payment for the MRI ordered by Dr. Broussard was denied by the Louisiana Restaurant Association Self-Insurers Fund, the workers’ compensation insurer for Mandarin Seafood Restaurant.

Upon learning of the denial of authorization for the MRI, Dr. Broussard restricted Brown from work indefinitely, stating that he was unable to authorize Brown’s release or return to work in the absence of this diagnostic test. Nonetheless, the Louisiana Restaurant Association Self-Insurers Fund unilaterally ceased paying Brown weekly indemnity benefits as of January 28, 2000, and refused to authorize any medical treatment for her back problems, contending that any back injury was unrelated to the work accident in question.

Accordingly, Brown filed a disputed claim for compensation, seeking authorization for further medical treatment, reinstatement of weekly indemnity benefits and penalties and attorney’s fees. Following a hearing, the workers’ compensation judge found that Brown’s back injury was causally related to the work accident and, accordingly, that Brown was entitled to medical treatment for the back injury, including the MRI ordered by her treating physician. The workers’ compensation judge further found that Brown was entitled to temporary total disability benefits until such time as her treating physician releases her to return to work.

[4With regard to penalties and attorney’s fees, the workers’ compensation judge found that there was “absolutely positively no reason” to controvert the back claim and that the insurer had been “totally unreasonable” in controverting the claim. Accordingly, the workers’ compensation judge awarded Brown $2,000.00 in penalties and $5,000.00 in attorney’s fees, pursuant to LSA-R.S. 23:1201(F).

From the OWC judgment setting forth these awards, defendants appeal, assigning the following as error:

(1) The workers’ compensation judge erred in finding that Brown had satisfied her burden of proof that she was entitled to temporary total disability benefits; and

(2) The workers’ compensation judge erred in awarding penalties and attorney’s fees for the actions of defendants.

ENTITLEMENT TO TEMPORARY TOTAL DISABILITY BENEFITS

(Assignment of Error No. 1)

In this assignment of error, defendants contend that Brown failed to satisfy her burden of proof that she was entitled to temporary total disability benefits. Specifically, defendants argue that Brown failed to establish a causal relationship between her alleged back injury and the work accident, contending that she did not complain of back pain until two weeks after the accident, that she failed to report two prior automobile accidents to her treating physician, and that Dr. Broussard could not reasonably relate her back complaints to the work accident. Contending that Brown did not present any medical documentation relating her back pain to her work-related fall, defendants argue she failed to prove that she suffered a back injury as a result- of the accident or that she was entitled to temporary total disability benefits as a result of her alleged injuries.

| aAn employee has the burden of establishing the occurrence of an accident and the causal relationship between the accident and the resulting disability by a preponderance of the evidence. Augustus v. St. Mary Parish School Board, 95-2498, p. 3 (La.App. 1st Cir.6/28/96), 676 So.2d 1144, 1149. The consequences of a work-related disability are not always fully apparent at the time the accident occurs. LeBlanc v. Cajun Painting, Inc., 94-1609, p. 10 (La.App. 1st Cir.4/7/95), 654 So.2d 800, 806-807, writs denied, 95-1706, 95-1655 (La.10/27/95), 661 So.2d 1349, 1350.

Nonetheless, where the employee seeks workers’ compensation benefits on the basis that he or she is temporarily totally disabled, the employee bears the burden of proving such disability by clear and convincing evidence. LSA-R.S. 23:1221(l)(c). While the workers’ compensation laws are to be construed liberally in favor of the employee, that interpretation cannot lessen the employee’s burden. Bailey v. Smelser Oil & Gas, Inc., 620 So.2d 277, 280 (La.1993).

An employee’s testimony alone may be sufficient to discharge the burden of clearly and convincingly proving temporary total disability where two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the employee’s version of the incident; and (2) the employee’s testimony is corroborated by the circumstances following the alleged incident. Williams v. Ravare Masonry Co., 2000-00329, pp. 2-3 (La.App. 3rd Cir.10/4/00), 774 So.2d 254, 256, writ denied, 2001-0377 (La.3/30/01), 788 So.2d 1194. In determining whether a claimant has discharged her burden of proof, the trier of fact should accept as true a witness’s uncontradicted testimony, even though the witness is a party, absent circumstances casting suspicion on the reliability of that testimony. A workers’ compensation judge’s determinations of whether an employee’s | (¡testimony is credible and whether she has discharged her burden of proof are factual determinations which will not be disturbed upon review absent manifest error. Gordon v. Sandersons Farms, 96-1587, p. 9 (La.App. 1st Cir.5/9/97), 693 So.2d 1279, 1286.

In the instant case, Brown was examined one week after the work-related fall, at the emergency room of the Baton Rouge General Medical Center. At that time she complained of ankle pain and, as the defendants correctly note, she made no specific complaints of back pain. However, when questioned by the workers’ compensation judge as to why she did not voice any complaints of back pain at that time, Brown explained that she was primarily concerned with the pain she was experiencing in her leg at that time.

However, when she saw Dr. Broussard the following week, only two weeks after the accident in question, she told him at that point that she was also experiencing back pain, which she related to the work accident. Based on Brown’s continuing complaints of back pain following this first visit, his examination and diagnosis, and the history she gave in which she related the onset of her back pain to the work accident, Dr. Broussard eventually sought authorization to have an MRI performed so that he could diagnose and further treat any ongoing injury or disability to the back. The Louisiana |7Restaurant Association Self-Insurers Fund denied the requested diagnostic test on the basis that any back injury was not related to the accident in question and refused to authorize treatment by Dr. Broussard except for the ankle injury.

On appeal, the defendants now argue that Brown failed to carry her burden of proof in establishing a causal link between the work accident and her alleged back injury because Dr. Broussard admitted he could not relate Brown’s back problems to the work accident without the MRI and further evaluation. We find no merit to these arguments.

At the outset, we note that Brown’s ability to present medical evidence in support of her burden of proof as to causation and extent of disability was stymied by defendants’ arbitrary refusal to pay for medical examinations and treatment as required by law. See Bailey, 620 So.2d at 280. This refusal was arbitrary, not being based on a contrary medical opinion or advice, but simply on an adjuster’s evaluation of the claim. See Bailey, 620 So.2d at 281. Further, we note that employers and their insurers are statutorily responsible for furnishing the required medical evaluations and treatment necessary to establish whether or not the employee is disabled and entitled to compensation benefits. See LSA-R.S. 23:1121(A); Bourgeois v. Heritage Manor of Houma, 96-0135, p. 9 (La.App. 1st Cir.2/14/97), 691 So.2d 703, 710.

IsOn review, we conclude that the workers’ compensation judge’s determination that Brown had satisfied her burden of proving that she was temporarily totally disabled is supported by the evidence of record. Brown’s uncontradicted testimony establishes that shortly after the accident in question, she began experiencing back pain and that this pain prohibited her from performing her work duties. Brown’s testimony regarding her ability to work was corroborated by the testimony of Wong, who testified that Brown was a good worker and that she tried to work following the accident, but clearly could only work “off and on.”

Moreover, Dr. Broussard, Brown’s treating physician since two weeks after the work accident and the only medical expert to testify herein, unequivocally stated that Brown had continuously complained of back pain since her first visit with him and that she needed further evaluation and treatment of her back complaints, including an MRI, as a result of the accident. While Dr. Broussard was unable to render an opinion as to the precise nature and extent of her back injury due to the Insurers’ refusal to authorize any treatment or evaluation of Brown’s back injury, he did state that such an injury was consistent with the type of fall Brown suffered. Further, Dr. Broussard stated that he could not release her to return to work in the absence of further evaluation of her back problems.

Based oh the medical and lay testimony in the record as a whole, and considering the absence of any counterveiling medical evidence, we find no error by the worker’s compensation judge in concluding that Brown was entitled to an award of temporary total benefits. In our view, to hold otherwise would allow the defendants to improperly benefit from their arbitrary failure to furnish the required medical evaluations and treatment and would ignore the medical evidence, to date, establishing Brown is [fldisabled and entitled to weekly benefits. Accordingly, we reject the defendants’ arguments and affirm the portion of the judgment ordering further evaluation and treatment of Brown’s back complaints, including authorization for an MRI, and the awarding temporary total disability benefits.

PENALTIES AND ATTORNEY’S FEES

(Assignment of Error No. 2)

In their second assignment of error, defendants contend that the workers’ compensation judge erred in awarding penalties and attorney’s fees pursuant to LSA-R.S. 23:1201(F) for their alleged failure to reasonably controvert Brown’s claim for benefits and medical treatment for her alleged back injury.

Both penalties and attorney’s fees are recoverable pursuant to LSA-R.S. 23:1201(F) if the employer or insurer fails to commence payments of benefits timely or to pay continued installments timely (or to pay medical benefits timely) unless the claim is reasonably controverted. However, where the employer or insurer arbitrarily discontinues payment of benefits due, the claim is governed by LSA-R.S. 23:1201.2, which authorizes attorney’s fees only. Williams v. Rush Masonry, Inc., 98-2271, p. 8 (La.6/29/99), 737 So.2d 41, 45. In the instant case, the workers’ compensation judge awarded penalties and attorney’s fees pursuant to LSA-R.S. 23:1201(F), finding that indemnity benefits had been rightfully terminated regarding the foot and ankle injury, but were never timely instituted thereafter for the back injury. We find no error in this award.

As stated above, Brown complained of back pain as early as two weeks following the accident in question. Moreover, the reason initially given to Wong by the Louisiana Restaurant Association Self Insurers Fund |infor denial of any benefits for Brown’s back complaints was simply that Brown had been involved in two prior motor vehicle accidents, despite the fact that Brown had apparently been released from her doctor’s care following those accidents and undisputedly was working her normal hours with no difficulty prior to this accident.

At the hearing, in an attempt to justify their actions, the defendants presented an August 24, 1999 emergency room record from the Baton Rouge General Medical Center, indicating that Brown had been involved in a motor vehicle accident that day. Although the record indicates that Brown complained of pelvic and abdominal pain, there is no diagnosis listed on the report. Defendants further sought to elicit testimony from Brown at trial that she continued to seek treatment following the September 12, 1999 accident through November of 1999. To this questioning, Brown responded that, while she could not remember the exact date through which she had received treatment for that accident, she had in fact been discharged prior to the accident in question and had been performing all of her work duties completely prior to the work accident. Moreover, the defendants did not attempt to introduce any other medical record from the alleged motor vehicle accidents (other than the August 24, 1999 emergency room record) to establish that Brown was still suffering from any problems, or more specifically, any back problems, as a result of those accidents.

Accordingly, we find no manifest error in the workers’ compensation judge’s conclusion herein that the defendants failed to reasonably controvert this claim. We likewise find no abuse of discretion in the award of ln$5,000.00 in attorney’s fees. This assignment of error lacks merit.

CONCLUSION

For the above and foregoing reasons, the March 13, 2001 judgment is affirmed in its entirety. Costs of this appeal are assessed against defendants, Kwok Wong and Louisiana Restaurant Association Self Insurers Fund.

AFFIRMED.

      . On appeal, defendants contend that Brown's credibility was called into question because she allegedly complained of left ankle and leg pain on her initial visit to the emergency room, but thereafter always complained of right ankle pain. Upon reviewing the medical records from Baton Rouge General Medical Center, the workers’ compensation judge found as a fact that an error had been made in the medical records. The workers’ compensation judge noted that the handwritten notes indicate an "R” at one location on the report, referencing the right ankle as injured, while another handwritten notation was somewhat illegible as to whether it indicated an "R” or “L” in reference to the injured limb. Thus, she concluded that any reference on the report to the left ankle as injured was a mistake; therefore, she accorded no weight to this alleged discrepancy in Brown’s medical history. Based upon our review of the hospital records, we cannot conclude that the workers’ compensation judge was manifestly erroneous in this factual finding.

      . The Louisiana Restaurant Association Self-Insurers Fund based its refusal on its conclusion that any back injury was related to two apparently minor automobile accidents in which Brown had been involved in August and September of 1999, despite having no medical evidence to link Brown’s current back condition to either accident and despite the fact that Brown had been released from medical treatment and had been working without incident for at least two months before the work accident at issue in these proceedings.

      . At the hearing in this matter, Wong testified that the adjuster handling Brown's claim told him the Fund would deny any back injury claim simply because Brown had been in the prior auto accidents.

      . Although Brown has requested an additional award of attorney's fees for efforts performed in relation to this appeal, Brown has not appealed or answered the appeal. Accordingly, this relief may not be granted. LSA-C.C.P. art. 2133; Kibbe v. Lege, 604 So.2d 1366, 1373 (La.App. 3rd Cir.), writs denied, 606 So.2d 540, 541 (La.1992).


author: J¿CIACCIO, J.

text:
    Carl J. FONTENOT, on Behalf of His Minor Child, Michael C. FONTENOT v. Catherine A. CHOPPIN, Trustee, and the Michael C. Fontenot Trust.
    No. 2002 CA 0082.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 2002.

      Tami Tucker York Baton Rouge, Counsel for PlaintiffAppellee Carl J. Fontenot, on behalf of his minor child, Michael C. Fontenot.
    Joseph A. Perrault, Jr. Baton Rouge, Counsel for Defendant/Appellant Catherine A. Choppin.
    Before: CARTER, C.J., WHIPPLE and CIACCIO, JJ.

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

   J¿CIACCIO, J.

Carl J. Fontenot filed the present action, on the behalf of his minor son, Michael C. Fontenot, seeking the removal of his sister-in-law, Catherine A. Choppin, as Trustee of the Michael C. Fontenot Trust, of which Michael was named the beneficiary. Fontenot filed a motion for summary judgment. Choppin appeals the trial court’s judgment granting Fontenot’s motion. For the reasons stated below, we affirm and remand the case to the trial court.

FACTS

In 1996, Margaret Choppin Fontenot, Carl’s wife and Michael’s mother, established an Irrevocable Inter Vivos Trust, the Michael C. Fontenot Trust. Catherine Choppin, Margaret’s sister, was designated as the Trustee. Margaret died in November 1999.

In January 2001, Carl J. Fontenot (Fon-tenot), on the behalf of his son Michael, filed an action to remove the Trustee and' to appoint a Successor Trustee. Fontenot asserted that Choppin failed to carry out her duties as Trustee in the following aspects: 1) failing to maintain and monitor an IRA account which names the Michael C. Fontenot Trust as beneficiary, 2) failing to properly supervise the proceeds of a life insurance policy which were distributed to the Trust by simply depositing them in an interest bearing checking account rather than taking steps to invest these Trust funds, 3) failing to render clear and accurate accounts of the administration of the Trust, despite numerous requests, 4) failing to render an annual accounting for preceding years, as provided by Louisiana Revised Statute 9:2088, 5) failing to provide an accurate value and a complete list of the contents of the Trust, and 6) failing to disperse funds from the Trust for educational expenses, contrary to the provisions of the Trust. Choppin answered the pleading denying the allegations and asserting that she had exercised the proper care and skill necessary to maintain the Trust.

Fontenot filed a motion for summary judgment and contended, in addition to the allegations asserted in the initial filing, that Choppin failed to submit accurate income tax returns on behalf of the Trust for the years 1999 and 2000. He alleged that the tax forms reflected that the Trust did not have any income in those years, but in her answers to interrogatories Choppin indicated that certain interest bearing accounts had | ¡¡accrued interest. After a hearing, the trial court rendered a judgment granting Fontenot’s motion for summary judgment, removing Choppin as the Trustee, and ordering her to render an accounting of the Trust to the court within ten days of the judgment. Choppin filed a suspensive appeal.

Choppin asserts that the trial court erred in granting Fontenot’s motion for summary judgment by finding 1) that she violated the Trust provisions of the Louisiana Revised Statutes, 2) that there were no issues of material fact regarding her actions in rendering an accounting of the Trust pursuant to Revised Statute 9:2088, and 3) that there were no issues of material fact regarding her actions as a prudent Trustee, pursuant to Revised Statute 9:2090.

DISCUSSION

Appellate courts review summary judgments de novo under the same criteria that govern the trial judge’s consideration of whether a summary judgment is appropriate. A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” Summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. The procedure is favored and shall be construed to accomplish these ends.

A violation by a Trustee of a duty she owes to a beneficiary, as Trustee, is a breach of trust. A Trustee shall administer the Trust solely in the interest of the beneficiary. A Trustee in administering a Trust shall exercise such skill and care as a person of ordinary prudence would exercise in dealing with her own property. A Trustee is under a duty to a beneficiary to take reasonable steps to take, keep control of, and preserve the Trust property.

A beneficiary of a Trust may institute an action to remove a Trustee according to the provisions of the Trust instrument or by the proper court for sufficient cause Rshown. The law contemplates more than a mere technical violation of the Trust Code as grounds for removal of a Trustee.

The nature and extent of a Trustee’s duties are determined from the provisions of the Trust instrument, except as otherwise expressly provided in the Trust Code. Paragraph 6.3 of the Trust instrument states, “The Trustee shall render such accounting^] as are required by law.” Louisiana Revised Statute 9:2088(B) requires the Trustee to make an accounting to the beneficiary or his legal representative at least once a year. Paragraph 2.3 of the Trust instrument required Choppin to disperse income from the Trust for Michael’s education and support. From May 1999 until the filing of this action, Michael Fontenot received no income from the Trust, he was not provided with an annual accounting, he was not allowed to inspect the records pertaining to his Trust. In addition the Trustee had failed to collect all of the assets of the Trust and had filed inaccurate income tax returns. During the hearing, counsel for the Trustee admitted to the correctness of these facts. Accordingly, we find Choppin’s assignments of error lack merit.

We find that the Trustee’s multiple violations of the mandates of the Trust Code and of the terms of the Trust instrument comprise sufficient grounds for the removal of the Trustee and for the order that she render a final accounting, and that Fontenot was entitled to judgment as a matter of law. Accordingly, we find no error in the trial court’s judgment.

CONCLUSION

The judgment of the trial court is affirmed. The matter is remanded to the trial court for further proceedings. All costs are assessed against appellant, Catherine A. Choppin.

AFFIRMED AND REMANDED.

      . The trial court suspended the judgment pending its appointment of a Successor Trustee.

      . Terrebonne v. Floyd, 99-1036, p. 5 (La.App. 1st Cir.5/23/00), 767 So.2d 754, 756-757, writ denied, 2000-1931 (La.9/29/00), 769 So.2d 549.

      . La. C.C.P. art. 966(B).

      . La. C.C.P. art. 966(A)(2).

      . La. R.S. 9:2081.

      . La. R.S. 9:2082.

      . La. R.S. 9:2090.

      . La. R.S. 9:2091.

      . See La. R.S. 9:1789; 9:2221.

      . Curtis v. Breaux, 458 So.2d 582, 588 (La.App. 3rd Cir.1984).

      . La. R.S. 9:2061.

      . Paragraph 2.3 states:
      The income of this trust shall be used for the education and support of the beneficiary as follows:

        (a)To pay such educational expenses as are necessary to complete the private education of MICHAEL C. FONTENOT through High School.
      (b)To pay for the educational expenses to include tuition, room, board, books, and other directly related educational expenses as are incurred in MICHAEL C. FONTENOT's pursuit of a college education.


author: ?PATTERSON, J. Pro Tern.

text:
    Phyllis WRIGHT v. WENDY’S INTERNATIONAL, INC.
    No. 2001 CA 2758.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 2002.

      Hollis Shepherd, Metairie, Counsel for Plaintiff/Appellant, Phyllis Wright.
    George J. Richaud, New Orleans, Counsel for Defendant/Appellee, Wendy’s International, Inc.
    Before: PARRO, JAMES, and PATTERSON, JJ.

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

   ?PATTERSON, J. Pro Tern.

Phyllis H. Wright filed a disputed claim for compensation against her employer, Wendy’s International, Inc. (Wendy’s), asserting she was injured while working as a general manager at a Wendy’s restaurant in Ponchatoula. Ms. Wright asserted that on March 22, 1999, she was injured as she lifted a case of drinks from a bottom shelf. She asserted that she felt a pop in her neck, and as the day progressed, her pain worsened. Wendy’s filed an answer, contesting the extent of any injury or disability. Wendy’s asserted it had paid compensation at the rate of $367 per week and continued to pay, without any admission of liability or disability. Alternatively, Wendy’s asserted that it had fully complied with the requirements of the Louisiana Workers’ Compensation Act and that Ms. Wright was not owed any further benefits. Wendy’s asked for all statutory offsets, including unemployment offset and social security offset. Wendy’s asked that the claim be dismissed.

After trial on the merits, the workers’ compensation judge rendered judgment in favor of Wendy’s, finding that Ms. Wright did meet her requisite burden of proof pursuant to La. R.S. 23:1021 showing that a work-related accident with injury occurred on or about March 20, 1999. However, he found she reached maximum medical improvement on September 14, 2000, and was entitled to no further benefits or relief.

The workers’ compensation judge concluded as follows:

Phyllis Wright selected Dr. Lynn Rogers as her choice of treating neurosurgeon. As a result of Dr. Rogers’ impression of “cervical radiculopathy” various diagnostic studies were performed; cervical MRI, cervical myelo-gram, post-myelogram CT scan, EMG and nerve conduction studies and [x]rays. On September 8, 1999, at the request of the defendant, Dr. Gustavo Gutnitsky, a neurosurgeon, examined Ms. Wright and the diagnostic studies and opined that no objective evidence of pathology existed, Ms. Wright complained of shoulder pain and insisted she continued to be disabled and unable to resume her employment. Consequently, on September 6, 2000, an IME took place after | athe appointment of Dr. Anthony Ioppolo, a neurosurgeon. Upon examination and review of the studies, Dr. Ioppolo reports Ms. Wright to be at MMI and can return to gainful employment at her previous job. Nevertheless, due to continued shoulder complaints, an MRI was performed December 4, 2000 of which Dr. Ioppolo reviewed and reported negative findings. Ms. Wright’s temporary total benefits were terminated September 14, 2000; thus given the overall weight of the medical evidence,
IT IS ORDERED, ADJUDGED AND DECREED that the plaintiff herein has reached MMI effective September 14, 2000 and no further temporary total benefits are owing at this time.
Any relief sought not specifically addressed herein is denied, with all allowable cost assessed to the defendant.

Ms. Wright is appealing that judgment, and makes the following assignments of error:

1. The [workers’ compensation] judge erred by excluding medical reports that had to be considered under La. Revised Statute 28:1121(D).
2. The [workers’ compensation] judge erred in failing to determine whether the insurer acted arbitrarily and capriciously in refusing to authorize treatment with an orthopedic specialist.

THE STANDARD OF REVIEW

In a workers’ compensation case, the appellate court’s review is governed by the manifest error or clearly wrong standard. Freeman v. Poulan/Weed Eater, 93-1580 (La.1/14/94), 630 So.2d 733, 737. Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

ASSIGNMENT OF ERROR NO. 1

Ms. Wright argues that the workers’ compensation judge erred in failing to consider medical reports obtained by her at her own expense. The workers’ compensation judge had imposed a deadline for the filing and exchange of amended pre-trial statements fifteen days prior to the March 15, 2001 trial date, making all amendments to the pre-trial statements due on February 28, 2001. Thus, Ms. Wright’s attempt to file an amended pretrial statement on March 6, 2001, was untimely. Wendy’s | ¿filed a motion to strike the amended pre-trial statement. After a hearing, the trial court granted the motion to strike and ordered that there would be no further discovery, no further amendments to the pre-trial statements, and that Ms. Wright’s amended pre-trial statement would be stricken from the record.

Because of the need to insure an orderly disposition of cases, the workers’ compensation judge is given broad discretion to determine whether or not to modify a pretrial order listing witnesses. Absent an abuse of discretion, the decision of the trier of fact will be upheld. Kennedy v. Johnny F. Smith Trucking, 94-0618 (La.App. 1 Cir. 3/3/95), 652 So.2d 526, 529.

We cannot say that the workers’ compensation judge abused his discretion in not allowing Ms. Wright to add new witnesses or evidence to the pre-trial order after the deadline for such amendments had passed. Furthermore, it is incumbent upon counsel, who contends that a witness’s testimony was improperly excluded, to make a proffer, and if he failed to do so, he cannot contend such exclusion was error. Kennedy, 652 So.2d at 530. In this case, Ms. Wright’s proffer consisted of her own testimony about what the doctors told her. She did not proffer the reports of her doctors, thus she cannot complain about the exclusion of such evidence on appeal. This assignment of error has no merit.

ASSIGNMENT OF ERROR NO. 2

In this assignment of error, Ms. Wright asserts that the workers’ compensation judge erred in failing to address the issue of whether the employer’s actions were arbitrary and capricious in failing to authorize treatment with an orthopedic specialist. The record shows that the workers’ compensation judge did address Ms. Wright’s arbitrary and capricious penalty claim. This claim was listed in her pre-trial statement. The judgment, in addition to denying any further disability benefits, decrees “Any relief sought not specifically addressed herein is denied .... ”

Wendy’s refusal to authorize additional treatment was based on the opinion of Dr. Gutnitsky that no additional diagnostic testing was needed. The IME report and opinion of Dr. Ioppolo also negated the need for any additional diagnostic testing. Dr. Ioppolo ^testified that there was no indication for any MRI of the shoulder and that he had specifically considered this in rendering his opinion after the initial evaluation in September of 2000.

Whether the refusal or the discontinuation of 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 or unless clearly wrong. Clay v. Delphi Interior & Lighting Systems, 34, 242 (La.App. 2 Cir. 12/22/00), 775 So.2d 1207, 1211. We cannot say the workers’ compensation judge erred in denying penalties and attorney’s fees in this case. This assignment of error has no merit.

For the foregoing reasons, the judgment of the workers’ compensation judge is affirmed. Costs of this appeal are assessed against Ms. Wright.

AFFIRMED.

      . The workers' compensation judge was Robert W. Vardnado, Jr. of the Office of Workers' Compensation, District 6S. See La. R.S. 23:1310.5(F).

      .At trial, Ms. Wright stated that the injury actually occurred on March 20, 1999, but that her district supervisor told her to report that the injury had occurred on March 22, 1999, the date she called to tell him about it.


author: ^PATTERSON, J. Pro Tempore.

text:
    Brenda PIERCE, Individually and Appearing in Her Capacity as the Provisional Tutrix of the Minor Child, Russell H. Hayden, et al. v. TANGIPAHOA PARISH SCHOOL BOARD, et al.
    No. 2002 CA 0139.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 2002.

      Gary T. Chapman, Amite, Counsel for Plaintiffs/Appellants, Brenda Pierce, et al.
    Christopher M. Moody, Deshea S. Richardson, Hammond, Counsel for Defendants/Appellees, Tangipahoa Parish School Board and Ora Finn.
    Before: PARRO, JAMES, and PATTERSON, JJ.

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

   ^PATTERSON, J. Pro Tempore.

This case arose out of an incident at Amite High School, in which a group of students fashioned blow darts out of sewing needles and straws and blew them at other students on March 12,1997.

On January 28, 1998, suit was filed by Brenda Pierce, individually and on behalf of her minor son, Russell H. Hayden; David Verberne, Sr., individually and on behalf of his minor son, Robert M. Ver-berne; Christina M. Braase; Josie Easley, individually and on behalf of her minor daughter, Jennifer R. Easley; Jessica L. Guyllette; Jesse S. Mutz, Jr., individually and on behalf of his minor son, Chad J. Mutz; Fay Norwood Duffy, individually and on behalf of her minor daughter, Me-lony N. Norwood; Kevin Williams; and Cathy O’Hara Morgan, individually and on behalf of her minor son, Michael D. O’Hara. Named as defendants were the Tangipahoa Parish School Board (the School Board); United National Insurance Company; Ms. Ora Finn, the school principal; Harry Hose, Sr. and Mary Ann Hose, parents of their minor child, Harry Hose; Vicki Cutí and Delores Callihan, the guardian and the mother of the minor child, Kelly Callihan; “John” Hart, father of the minor child, Caleb Hart; and XYZ Insurance Company.

The petition asserted that injuries and damages were caused by the darting attacks made by students Harry Hose, Kelly Callihan and Caleb Hart upon the minor plaintiffs, who were students at Amite High School. The petition asserted that the students who were darted suffered past and future pain and suffering, past and future mental anguish, past and future emotional distress, past and future loss of enjoyment of life, past and future medical expenses, fear of contraction of a communicable disease, and other damages to be shown at trial.

On November 9, 2000, Ms. Finn and the School Board filed a motion for summary judgment or partial summary judgment, asserting that the plaintiffs would be unable to establish any theory of liability against the School Board for the injuries claimed. In the alternative, the School Board asserted that the plaintiffs could not prove mental anguish and emotional distress based on the fear of contracting a disease. The School Board |3asked that the plaintiffs’ claims be dismissed in their entirety, or in the alternative, that the claims of mental anguish and negligent infliction of emotional distress based on the fear of contracting a communicable disease be dismissed.

In support of the motion for summary judgment, the defendants attached the depositions of the following students: Jennifer Easley, Jessica Guyllette, Christina Braase, Russell Hayden, Michael O’Hara, and Melony Norwood Snow, as well as the affidavit of Ms. Finn. The depositions of these students establish that they suffered minimal injury from the sewing needles. Ms. Finn’s affidavit established the following facts: she was aware of no prior incidents involving blow darts at Amite High School; shortly after Ms. Finn was informed of the darting incidents, all those who were darted were instructed to report to the school office; the boys who darted the others were suspended from school; no further darting incidents occurred after March 12, 1997; and the school authorities instructed all of the students who were darted, and their parents, of the need to have HIV and Hepatitis B tests performed. The record shows that none of the students who were darted contracted any communicable disease.

The plaintiffs did not file an opposition to the motion for summary judgment. The trial court granted the School Board’s motion for summary judgment, ruling that the plaintiffs would be unable to establish any theory of liability against Ms. Finn and/or the School Board. Further, the trial court ruled that on the issue of mental anguish, the petitioners had not shown a “channel of infection” and thus, there was no element of mental anguish on any of the plaintiffs’ claims against any defendant.

The plaintiffs filed a motion for new trial. A hearing was held on the motion for new trial, at which time the plaintiffs conceded they had no opposition to the granting of summary judgment on the issue of mental anguish for fear of contracting a communicable disease, however, they argued that there was no evidence in the depositions or the affidavit as to whether the children were being properly supervised at the time of the darting incident. The trial court denied the motion for new trial.

|4The plaintiffs are appealing the summary judgment, and make the following assignment of error:

The Trial Court erred in granting the motion for summary judgment filed by Ora Finn and the Tangipahoa Parish School Board, dismissing Ora Finn and the Tangipahoa Parish School Board from the lawsuit, and dismissing plaintiffs’ claims for mental anguish against any defendant.

The plaintiffs assert that, although the motion for summary judgment only asked that the claim for mental anguish resulting from the fear of contraction of a communicable disease be dismissed, the trial court’s judgment dismissed all claims for mental anguish as to any defendant. Plaintiffs concede they have no claim for the fear of contracting a communicable disease, as they have not shown a channel of infection. However, they assert they have valid claims for general damages resulting from being struck with needle blow darts.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966B.

A school board, through its agents and teachers, owes a duty of reasonable supervision over students. See La. C.C. art. 2320. The supervision required is reasonable, competent supervision appropriate to the age of the children and the attendant circumstances. This duty does not make the school board the insurer of the safety of the children. Constant supervision of all students is not possible nor required for educators to discharge their duty to provide adequate supervision. Wallmuth v. Rapides Parish School Board, 01-1779, 01-1780 (La.4/3/02), 813 So.2d 341, 346.

Before liability can be imposed upon a school board for failure to adequately supervise the safety of students, there must be proof of negligence in providing 1 .¡supervision and also proof of a causal connection between the lack of supervision and the accident. Before a school board can be found to have breached the duty to adequately supervise the safety of students, the risk of unreasonable injury must be foreseeable, constructively or actually known, and preventable if a requisite degree of supervision had been exercised. Wallmuth, 813 So.2d at 346.

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mov-ant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C. P. art. 966(C)(2).

The only basis for the plaintiffs’ claims against the principal and the School Board is negligent supervision. The plaintiffs bear the burden of proof at trial on those claims. Therefore, according to La. C.C.P. art. 966(C)(2), the mover only needs to point out to the court that there is an absence of factual support for one or more elements essential to their claim. In this case, the principal’s affidavit established that there were no previous reported incidents of this kind of behavior and, upon learning of the situation, the principal took appropriate steps immediately to address the problem. The plaintiffs filed no opposition. At the hearing on the motion, the trial court allowed the plaintiffs to introduce their answers to interrogatories; however, none of these allege a lack of supervision. Nor can negligent supervision be inferred from the mere fact that these incidents occurred. The plaintiffs failed to produce any factual support for this claim, much less factual support sufficient to establish that they would be able to satisfy their evidentiary burden of proof on this issue at trial. Accordingly, there was no genuine issue | fiof material fact, and summary judgment on this issue was appropriate. See La. C.C.P. art 966(C)(2) and La. C.C.P. art 967.

Regarding mental anguish claims for fear of contracting a communicable disease, in order to establish a cause of action, a plaintiff must be able to demonstrate the presence of HIV (or other blood-borne and/or contagious disease) and a channel of exposure or infection. Absent such a showing, a plaintiffs fear of contracting HIV (or other serious illness) would be speculative and not sufficiently reasonable as a matter of law to impose liability. Falcon v. Our Lady Of The Lake Hospital, Inc., 98-0714 (La.App. 1 Cir. 4/1/99), 729 So.2d 1169, 1173.

Therefore, while it was appropriate for the trial court to grant summary judgment finding no element of mental anguish for the fear of contracting communicable diseases because of a lack of a “channel of infection,” it was inappropriate for the trial court to grant summary judgment ordering that there was no element of mental anguish on any of the claims against any defendant.

For the foregoing reasons, the trial court judgment is affirmed in part and reversed in part. That portion of the summary judgment dismissing the claims against the School Board and its principal, Ms. Finn, is affirmed; that portion of the summary judgment finding no mental anguish claims against any defendant is reversed. Costs of this appeal are assessed against the plaintiffs.

REVERSED IN PART AND AFFIRMED IN PART; REMANDED FOR FURTHER PROCEEDINGS.


author: | ¿PARRO, J.

text:
    Shirley Autin EUSEA v. Roger J. BLANCHARD, Jr., M.D., et al.
    No. 2001 CA 2229.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 2002.
    Writ Denied March 28, 2003.

      A. Remy Fransen, Jr., P. Chris Christof-ferson, Fransen & Hardin, New Orleans, for Plaintiff-Appellant Shirley Autin Eu-sea.
    C. Wm. Bradley, Jr., Nicole Duarte Martin, Lemle & Kelleher, L.L.P., New Orleans, for Defendant-Appellee Broad-lawns Medical Center.
    Before: PARRO, JAMES, and PATTERSON, JJ.

      . Judge A. Clayton James, retired from the Twenty-Second Judicial District Court, and Michael A. Patterson arc serving as judges pro tempore by special appointment of the Louisiana Supreme Court.

   | ¿PARRO, J.

In this medical malpractice suit, Shirley Autin Eusea appeals a judgment sustaining a declinatory exception raising the objection of lack of personal jurisdiction in favor of Broadlawns Medical Center (Broadlawns), a teaching hospital in Des Moines, Iowa, and dismissing it from the suit. We reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

On September 19, 1995, Eusea went to Ochsner Family Doctor Clinic (Ochsner) in Mathews, Louisiana, and was examined by Dr. Roger J. Blanchard. Dr. Blanchard was a third-year resident at Broadlawns who was participating in a “preceptorship,” a voluntary program at Broadlawns that allowed residents to acquire practical experience in a setting and location of their choice. After examining Eusea, Dr. Blanchard diagnosed her condition as mononucleosis. However, Eusea actually had a strep throat, but no throat culture was done and no broad-spectrum antibiotic was prescribed. Five days later, she was admitted to the emergency room at St. Anne General Hospital (St. Anne) with septicemia. This led to septic shock and gangrene of her extremities and ultimately required the amputation of both arms below the elbows and both legs below the knees.

Eusea filed a claim against St. Anne and Ochsner with the Louisiana Patient’s Compensation Fund, and amended it to add Dr. Blanchard and his malpractice insurer, Medical Protective Company (MPC). After learning through discovery in that proceeding about Dr. Blanchard’s involvement in her treatment, she also filed a petition for damages in the Seventeenth Judicial District Court (17th JDC), naming as defendants Dr. Blanchard and St. Paul Fire & Marine Insurance Company (St. Paul), whose policy provided coverage as the excess liability insurer of Broadlawns. In its answer, St. Paul |3admitted that when he was involved in the preceptorship, Dr. Blanchard was insured under a policy of insurance issued by St. Paul to Broad-lawns.

On January 22, 2001, Eusea filed a second supplemental and amending petition, naming Broadlawns as an additional defendant and asserting vicarious liability claims against it, as Dr. Blanchard’s employer. Broadlawns responded by filing a declina-tory exception raising the objection of lack of personal jurisdiction. After an eviden-tiary hearing on July 5, 2001, the court sustained the exception and dismissed Broadlawns from the suit without prejudice. A judgment to this effect was signed on July 10, 2001. It is from this judgment that Eusea appeals, claiming the trial court erred in concluding Broadlawns had insufficient contacts with the state of Louisiana for the court to assert personal jurisdiction over it.

APPLICABLE LAW

Appellate courts conduct a de novo review of the legal issue of personal jurisdiction over a nonresident by a Louisiana court. Griffith v. French, 97-2635 (La.App. 1st Cir.12/28/98), 723 So.2d 1140, 1142, writ denied, 99-0220 (La.3/19/99), 740 So.2d 116. Under Louisiana’s long-arm statute, a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the Louisiana Constitution and the Constitution of the United States. See LSA-R.S. 13:3201(B). Therefore, the limits of the Louisiana long-arm statute and of constitutional due process are coextensive, and the sole inquiry into jurisdiction over a nonresident is a one-step analysis of the constitutional due process requirements. Ruckstuhl v. Owens Corning Fiberglas Corp., 98-1126 (La.4/13/99), 731 So.2d 881, 885; Spomer v. Aggressor Int’l, Inc., 00-1646 (La.App. 1st Cir.9/28/01) 807 So.2d 267, 271, writ denied, 01-2886 (La.1/25/02), 807 So.2d 250.

The due process test requires that in order to subject a nonresident defendant to a personal judgment, the defendant must have certain minimum contacts with the |4forum state, such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. State of Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945); de Reyes v. Marine Mgmt. & Consulting, Ltd., 586 So.2d 103, 105 (La.1991). In interpreting the due process clause, the United States Supreme Court has recognized a distinction between two types of personal jurisdiction. — “general” and “specific.” A state exercises general jurisdiction when the defendant’s contacts with the state are not related to the lawsuit. Specific jurisdiction, on the other hand, is exercised when the suit arises out of or is related to the defendant’s contacts with the forum. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, nn. 8 & 9, 104 S.Ct. 1868, 1872, nn. 8 & 9, 80 L.Ed.2d 404 (1984); Verdin v. Morania Oil Tanker Corp., 94-0916 (La.App. 1st Cir.5/5/95), 655 So.2d 542, 543, writ denied, 95-1402 (La.9/15/95), 660 So.2d 453. The two-part minimum contacts/fairness analysis applies to the assertion of specific as well as general jurisdiction, de Reyes, 586 So.2d at 109.

When a forum seeks to exercise specific jurisdiction over an out-of-state defendant who has not consented to suit there, the requirement of meaningful minimum contacts is satisfied when the defendant has purposefully directed his activities at residents of the forum and the litigation results from alleged injuries arising out of or related to those activities, de Reyes, 586 So.2d at 106. When the cause of action, however, does not arise out of the defendant’s purposeful contacts with the forum, due process requires that the defendant be engaged in continuous and systematic contact to support the exercise of general jurisdiction. A & L Energy, Inc. v. Pegasus Group, 00-3255 (La.6/29/01), 791 So.2d 1266, 1271. Contacts may be effected by mail and electronic communication, as well as physical presence. Spomer, 807 So.2d at 271-72.

As previously noted, the test has evolved into a two-part test, the first part being the “minimum contacts” prong, which is satisfied by a single act or actions by which the defendant “purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.” Ruckstuhl, 731 So.2d at 885, citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985), and Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958). The nonresident’s “purposeful availment” must be such that the defendant should “reasonably anticipate being haled into court in the forum state.” Ruckstuhl, 731 So.2d at 885, citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980).

In determining the fundamental fairness part of the test, the court must examine (1) the defendant’s burden; (2) the forum state’s interest; (3) the plaintiffs interest in convenient and effective relief; (4) the judicial system’s interest in efficient resolution of controversies; and (5) the state’s shared interest in furthering fundamental social policies. Asahi Metal Industry Co., Ltd. v. Superior Court of California, Solano County, 480 U.S. 102, 113, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987).

ANALYSIS

With these precepts in mind, we examine the record to determine whether Broadlawns had sufficient contacts with this state, such that the exercise of jurisdiction over it would not offend traditional notions of fair play and substantial justice. The record includes a copy of the “Notice of Appointment and Contract” between Broadlawns and Dr. Blanchard, which outlines the terms of his residency beginning July 1, 1993, and ending June 30, 1996. In that contract, he agreed to perform the duties of a resident under the general supervision of the director of medical education or designee, to meet certain responsibilities, and to maintain specified standards and requirements. In return, Broadlawns agreed to pay him an annual salary and to provide, among other things, malpractice insurance

for the Resident for all duties associated with the duties required of the Resident under this contract and which are a part of the educational aspect of the residency program at [Broadlawns], for duties and training performed at [Broadlawns] or elsewhere.
[Broadlawns] is not responsible for and will not provide medical malpracatice (sic) insurance coverage for the Resident performing duties or services which are not a part of the residency program at [Broadlawns], except as referenced ... above.

|fiThe parties filed a written stipulation that at the time Eusea’s claim was made, Broadlawns was self-insured for $250,000 per loss or $500,000 per annum aggregate, and was also covered under a policy of excess claims-made insurance issued by St. Paul, “which policy covered [Dr. Blanchard] for any acts of alleged malpractice on September 19, 1995[J at the family practice clinic in Mathews, LA.” A certified copy of the St. Paul policy is also in the record.

The record also contains a July 27, 1995 letter from Dr. Larry D. Beaty, director of the family practice residency program at Broadlawns, to Dr. Michael J. Marcello, a physician with Ochsner, to confirm the arrangements regarding Dr. Blanchard’s preceptorship from September 11-24, 1995. The letter explained that:

Preceptorships are part of the educational process for our residents. During this time, they are exposed to private medical practice and learn more about the function of an office. A copy of the objectives is enclosed. Upon completion of the rotation, you will be asked to complete an evaluation form regarding the experience.
* * *
Dr. Blanchard is licensed to practice medicine in Louisiana and has a Federal DEA certificate. You may schedule patients to see him. We find that our residents are able to handle 75% — 80% of the workload of an experienced practitioner. We ask that someone be present at all times so that he will be able to consult as needed. Any revenues generated are for the benefit of your office, as we do not allow our residents to be paid for their services. Broadlawns will continue to pay the stipend. It is acceptable to make a donation to the Broadlawns Foundation to help with the stipend if desired.
Dr. Blanchard is covered by Louisiana Professional Liability Insurance and Broadlawns’ Professional Liability Insurance will cover his medical activities while with your office.
Please send a letter stating your willingness to have Dr. Blanchard with you to satisfy our accreditation requirements.

Dr. Marcello responded to Broadlawns in a letter dated August 8, 1995, agreeing to have Dr. Blanchard complete a third-year preceptorship with him.

A copy of the first page of Broadlawns’ “Preceptorship Objectives and Guidelines” is also in the record. It explains that preceptorships “are offered to second and third-year family practice residents as a means of presenting opportunities for education and preparation for future practice which are not readily obtainable on the Broadlawns |7campus.” It further states that Broadlawns continues to pay the resident’s stipend, to provide malpractice coverage during the preceptorships, and to pay any fees required to practice medicine or prescribe medications in Iowa. However, it clarifies that “[a]ny such fees required for out-of-state preceptorships are the responsibility of the. resident and/or sponsoring physician.”

Dr. Blanchard’s deposition is also in the record. It reveals that he was born and raised in Louisiana, graduated in 1989 from Nicholls State University in Thibo-daux, received his doctor of medicine degree in 1993 from Louisiana State University School of Medicine in New Orleans, and served a three-year family practice residency with Broadlawns in Iowa from 1993 through 1996. After completing that program, he returned to Louisiana to practice medicine, as he had always intended. He said he chose Broadlawns because a friend told him it was the Des Moines “equivalent of Charity Hospital in New Orleans,” with “lots of volume, lots of indigents, lots of very sick patients.” In addition to the preceptorship at Ochsner, he had participated in two other preceptor-ships in family practice clinics in Louisiana. Concerning these preceptorships, Dr. Blanchard explained:

[I]n residency we are given some leeway with a few rotations where we may elect to do electives outside of the structure of the actual physical Broadlawns Medical Center or that residency itself. I asked' — I had a phone call with Dr. Mar-cello and I asked him if it would be okay if I came to do a family practice precep-torship for two weeks here, and at that [point,] it became Dr. Marcello and Dr. Larry [Beaty] who was the director at that time ... not of Broadlawns Medical Center, of the residency training portion of the medical center.

After reviewing all of the points of contact between Broadlawns and Louisiana, we conclude that the constitutional requirement of minimum contacts has been met. Broadlawns made a program available to its second and third-year residents to provide them with opportunities for education and preparation for future practice that were “not readily obtainable on the Broadlawns campus.” The preceptorships thus formed part of the experience that Broadlawns provided to its residents, even though that experience occurred in other locations. While Broadlawns argues that this program served only its residents, the availability of such practice opportunities would help attract the best and brightest young doctors to Broadlawns for their residencies. The statement of |sobjectives makes it clear that Broadlawns contemplated that some of its residents would choose preceptorships with medical facilities outside of the state of Iowa; those residents or their sponsors would be responsible for any out-of-state licenses or fees. As a matter of fact, Dr. Blanchard participated in three separate preceptor-ships in the state of Louisiana, one of which ultimately led to this litigation.

While participating in those programs, Dr. Blanchard was an employee of Broad-lawns, which continued to pay him a stipend while he practiced medicine in the state of Louisiana. Broadlawns knew that its employees would be practicing medicine in states other than Iowa and that these activities might subject their residents to malpractice claims in those states. As Dr. Blanchard’s employer, Broadlawns could reasonably anticipate that respondeat superior claims would be asserted against it if his activities in Louisiana caused or were alleged to cause injuries to a patient seeking medical treatment from him there. Such claims would generally involve being “haled into” a Louisiana court, and indeed, Broadlawns did anticipate this possibility and provided its residents with malpractice insurance coverage for their activities while practicing in states other than Iowa. The availability of this coverage served to protect Broadlawns and its residents, as well as the out-of-state doctors, clinics, and hospitals who agreed to be preceptorship sponsors. Absent this preceptorship program and the incentives offered by Broad-lawns, Dr. Blanchard would not have been practicing medicine in Louisiana as a resident. This litigation results from injuries arising out of or related to Broadlawns’ activities that were directed toward Louisiana.

Moreover, in order to effectuate Dr. Blanchard’s choice, Broadlawns furnished his prospective sponsor with written information about its program. The precep-torship documents make it clear that Broadlawns delegated its direct supervisory responsibility as Dr. Blanchard’s employer to the sponsoring health care provider, its “designee,” who was required to agree to supervise Dr. Blanchard while he practiced in Louisiana. Broadlawns requested that agreement in writing, and received it from Dr. Marcello on behalf of Ochsner. Broadlawns also asked the sponsoring physician to provide it with an evaluation of the resident’s services at the conclusion of the preceptorship, | information that would inure to the benefit of the resident and Broadlawns. However, the record does not indicate whether such an evaluation was forthcoming in this case.

Broadlawns’ communication with Dr. Marcello also contained a not-so-subtle solicitation for financial assistance for its preceptorship program. Dr. Beaty’s letter indicated that, although Dr. Blanchard’s salary during the preceptorship would be paid by Broadlawns, it would be “acceptable” for the sponsor to “make a donation to the Broadlawns Foundation to help with the stipend if desired.” This suggestion is a direct request for monetary support from the Louisiana sponsor.

The totality of these contacts between Broadlawns and Louisiana convinces us that Broadlawns “purposefully availed itself of the privilege of conducting activities within the forum state,” both directly, through its contacts with Dr. Marcello, and indirectly, through its employee, Dr. Blanchard. The nature and extent of those activities were such that it could and did “reasonably anticipate being haled into court in the forum state,” and protected itself by purchasing excess liability coverage for medical malpractice that was applicable to its resident’s activities, as long as the resident was performing duties or services that were a part of the residency program. Because the preceptorship was part of Broadlawns’ residency program, this coverage extended to the performance of those services in Louisiana.

'Having determined that the “minimum contacts” prong of the constitutional requirements was met in this case, we have no difficulty concluding that the maintenance of the suit in Louisiana does not offend traditional notions of fundamental fairness. Broadlawns is represented in Louisiana by lawyers who are also defending Dr. Blanchard and St. Paul. Technology now enables extensive discovery, including depositions, to be conducted without requiring the parties to travel from one jurisdiction to another. Therefore, Broadlawns will not be unduly burdened by defending the suit in Louisiana. Certainly, it is vastly more convenient for the severely-injured Louisiana plaintiff to litigate here, and virtually all of the evidence relative to her claim will be developed in Louisiana, where the alleged malpractice occurred. Louisiana has an interest in protecting its citizens and in applying its medical malpractice laws to |ineffectuate what it has determined is a reasonable balancing of interests between the injured party, the responsible party or parties, and the state’s compensation programs. By enabling Dr. Blanchard to practice medicine in Louisiana during his three preceptorships, Broadlawns exposed itself to the pitfalls inherent in those activities and can reasonably be required to defend itself in a Louisiana court when injury arising out of those activities occurred in this state and affected a Louisiana resident.

CONCLUSION

Based on the foregoing, we reverse the judgment of the district court and remand this matter for further proceedings. All costs of this appeal are assessed to Broad-lawns.

REVERSED AND REMANDED.

      . In this suit, Eusea asserted that Dr. Blanchard was not a Louisiana qualified health care provider, so neither he nor St. Paul were entitled to the protection of the limits of liability in the Louisiana Medical Malpractice Act. St. Paul then filed a declaratory judgment action in the Nineteenth Judicial District Court (19th JDC), seeking to have Dr. Blanchard declared a qualified health care provider, so St. Paul could get the benefit of the liability limits. The trial court in that suit limited Dr. Blanchard's liability to $100,000, because he had filed proof of financial responsibility in the form of his malpractice policy with MPC. This court affirmed that portion of the judgment, but held on rehearing that Dr. Blanchard’s status as a qualified health care provider did not entitle St. Paul, as Broadlawns’ excess insurer, to the benefit of the limitation. St. Paul Fire and Marine Ins. Co. v. Eusea, 99-2117 (La.App. 1st Cir. 12/29/00), 775 So.2d 32, writs denied, 01-0472 and 01-0536 (La.4/27/01), 791 So.2d 116 and 791 So.2d 117.

      . Eusea later amended her petition in this suit to add as defendants Dr. Michael J. Marcello, Dr. Jack Heidenreich, and Ochsner. An intervention was filed by the State of Louisiana, through the Department of Health and Hospitals, for amounts paid for Eusea's care under the Medicaid program. None of these claims affect the issues in this appeal.

      . In briefs and oral argument, both parties also referred to a telephone call that apparently was made to Dr. Marcello concerning Dr. Blanchard’s preceptorship.