author: h STEWART, J.

text:
    Lundell McKITTRICK and Tammy McKittrick, Plaintiffs-Appellants, v. LOUISIANA HEALTH SERVICE AND INDEMNITY COMPANY d/b/a Blue Cross/Blue Shield of Louisiana, Defendant-Appellee.
    No. 37,104-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2003.

      Rhymes & Lucas By George E. Lucas, Jr., Monroe, for Appellants.
    Sharp, Henry, Cerniglia, Colvin, Weaver & Hymel By James H. Colvin, Homer, for Appellee.
    Before BROWN, STEWART and KOSTELKA (Pro Tempore), JJ.
   h STEWART, J.

Lundell and Tammy McKittrick (“the McKittricks”) appeal the granting of a motion for summary judgment finding that no coverage existed under the health insurance policy issued to them for their newborn child, Leigha McKittrick (“Leigha”). For the reasons assigned below, we affirm.

FACTS

On April 20, 1998, the McKittricks applied for health insurance for Mrs. McKit-trick in contemplation of their efforts to conceive a child. The McKittricks applied for the coverage with Louisiana Health Service and Indemnity Company d/b/a Blue Cross/Blue Shield of Louisiana (“Blue Cross”) through an independent contractor, Mark Leon Miletello, who was authorized to sell its coverage. Tammy McKittrick has alleged that during the application process Mr. Miletello assured her that once the child was born it would be automatically covered under the coverage she was selecting. Mr. Miletello refuted the McKittricks version of the events that gave rise to the insurance contract stating that the McKittricks specifically chose the “applicant only” coverage. It is important to note that the “applicant only” coverage calls for lower premiums than the other choices because it does not provide automatic coverage when a child is born. Mi-letello asserted that it would never have been his practice to make such a statement to someone selecting “applicant only” coverage.

Coverage was issued to Mrs. McKittrick effective May 15, 1998. Mrs. McKittrick gave birth to Leigha at the Minden Medical Center on March 11, 1999. Unfortunately, Leigha was born with Haline Membrane Disease and persistent fetal circulation. As a result of these conditions she 12was transferred to the neonatal intensive care unit at Willis-Knighton. On March 28, 1999, Mrs. McKittrick completed a change of status card provided by Blue Cross to add Leigha to her insurance. In responding to the questionnaire regarding Leigha’s medical history, Mrs. McKittrick failed to disclose the above listed medical conditions Leigha suffered from at birth. However, Blue Cross started receiving claims for coverage on the minor child at around the same time they received the change of status card applying for coverage. Due to the inconsistency between the medical claims being received and the history provided, Blue Cross conducted an investigation. On May 13, 1999, Blue Cross notified Mrs. McKittrick that they would not be adding coverage for Leigha to the policy as a result of Leigha’s medical history.

The McKittricks then filed suit against Blue Cross claiming that coverage had been arbitrarily and capriciously denied despite their completion of the forms within the prescribed time frame required to add coverage without evidence of insurability. Blue Cross filed an answer asserting that the coverage selected by Mrs. McKit-trick did not allow for the addition of coverage on a newborn without providing evidence of insurability, and that the omissions made in the change of status card were material to whether underwriting would approve coverage.

On March 25, 2002, Blue Cross filed a motion for summary judgment alleging that no genuine issue of material fact existed which precluded a finding that Leigha McKittrick was not an “insured” under the Blue Cross policy; therefore, the claims for coverage of her medical expenses were | aproperly denied. The McKittricks opposed the motion, arguing that the condition of “insurability” in the McKittricks’ policy for adding coverage on a newborn was undefined within the policy and constitutes an ambiguous term to be construed against the insurer. The motion was heard on July 18, 2002, and after hearing the arguments of counsel the court granted the motion for summary judgment. This appeal followed.

DISCUSSION

Summary Judgment

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by law. The procedure is favored and must be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). The motion will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to a material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). When a motion is made and supported as required by La. C.C.P. art. 966, the adverse party may not rest on the mere allegations or denials of his pleading, but his response must set forth specific facts showing a genuine issue for trial. Otherwise, summary judgment, if appropriate, shall be rendered against him. La. C.C.P. art. 967; McKoin v. State Farm Fire and Cas. Co., 36,429 (La.App.2d Cir.10/23/02), 830 So.2d 437. Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of | ¿whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2257 (La.2/29/00), 755 So.2d 226; McKoin, supra.

Under the provisions of La. C.C.P. art. 966(C)(2), when a party moving for summary judgment will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense. Instead, it requires the party to point out the absence of factual support for one or more elements essential to such claim. 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.

The health insurance policy purchased by Mrs. McKittrick specifically provided that when a child is born to an insured holding “Subscriber Only” coverage, the following conditions applied:

a. If a completed Change of Status Card is received by the Company prior to birth or within thirty (30) days of the child’s birth, coverage for the child will be effective from the date of birth, subject to evidence of insurability. (Emphasis ours).
b. If a completed Change of Status Card is received by the Company more than thirty (30) days after the birth, coverage for the child will be subject to evidence of insurability and will be effective on the first billing date following approval of the evidence of insurability.

It is uncontested that the “change of status card” was submitted within the 30 days required by the policy. Therefore, the question of whether coverage should have been extended retroactive to the birth of lsLeigha hinges on the determination of her insurability. The McKittricks argue that because insurability is not defined within the insurance contract, it is an ambiguous term that ought to be construed against the insurer in such a way as to automatically extend coverage in this case. On this point, we disagree.

While it is true that the term insurability is not defined within the contract, that factor alone does not make the term ambiguous. Words and phrases used in a policy are to be construed using their plain, ordinary, and generally prevailing meaning unless the words have acquired a technical meaning. La. C.C. art.2047. In analyzing a policy provision, the words, often being terms of art, must be given their technical meaning. When technical words are unambiguous and the parties’ intent is clear, the insurance contract will be enforced as written. Blackburn v. Nat’l Union Fire Ins. Co. of Pittsburgh, 00-2668 (La.04/03/01), 784 So.2d 637.

In insurance parlance the term “in-surability” clearly refers to the willingness of an insurer to accept a particular risk using whatever guidelines and information it desires as the yardstick against which to determine the acceptability of those risks; and, with the exception that the determination should be made in good faith, the question of “insurability” is one which rests solely within the prerogative of the insuring company. In determining whether a policy affords coverage for a particular claim, it is the burden of the alleged insured to establish the existence of the policy sued on. Doerr v. Mobil Oil Corp. 2000-0947 (La.12/19/00), 774 So.2d 119 and Boyd v. White, 123 So.2d 835 (La.App. 2d Cir.1960). Absent |fisome evidence that the determination of insurability was made in bad faith, Blue Cross was not contractually bound to extend coverage for Leigha retroactive to her date of birth and, as such, summary judgment was appropriate.

CONCLUSION

For the reasons cited above, the judgment of the trial court granting Blue Cross’ motion for summary judgment is hereby affirmed, and the costs of this appeal are assessed against the plaintiffs.

AFFIRMED.


source: Caselaw Access Project

author: _[iMQORE, J.

license: Public Domain

text:
    Francis W. MORGAN, Plaintiff-Appellant, v. INVESTMENT CARS UNLIMITED, INC. and/or Southeast Foods, Inc. d/b/a County Market, Defendant-Appellee.
    No. 37,052-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2003.

      Anthony J. Bruscato, Monroe, for Appellant.
    Cook, Yancey, King & Galloway, by Lee H. Ayres, Scott L. Zimmer, Shreveport, Ashley E. Griffith, for Appellee.
    Before STEWART, CARAWAY and MOORE, JJ.
   _[iMQORE, J.

Francis Morgan appeals a judgment that dismissed her suit on an exception of prescription in favor of the defendant, TriState Foods L.P. d/b/a County Market 9304. We reverse and remand.

Procedural Background

On March 7, 2000, Ms. Morgan was rolling a shopping basket near the check-out area of the County Market store on Louisville Avenue in Monroe. She slipped, allegedly on a crushed cookie, and her left knee crashed to the floor, resulting in serious injuries.

On February 26, 2001, she filed the instant suit against Investment Cars Unlimited Inc. and/or Southeast Foods Inc., a foreign corporation d/b/a County Market. The petition requested service on Investment Cars’ agent in Metairie, Louisiana; the record does not show that this agent ever accepted it. By letter of March 16, the agent’s office advised plaintiffs counsel that Investment Cars was a used car dealer in Metairie with no connection to the grocery store in Monroe, and that the right defendant was Southeast Foods Inc., d/b/a County Market (“Southeast Foods”), a Mississippi corporation with a registered agent in Monroe.

On March 27, 2001, Ms. Morgan filed a supplemental and amending petition admitting that Investment Cars “is a used car dealer in Metairie, Louisiana with no relation to Southeast Foods Inc. d/b/a County Market.” She named as defendant the right Southeast Foods and successfully served its registered agent in Monroe on March 30.

In April 2001, Tri-State Foods L.P., d/b/a County Market 9304 (“Tri-State”), filed an answer admitting that it operates the County Market on 1 ^Louisville Ave. However, it alleged that Ms. Morgan’s claims had prescribed, and in June 2002 it filed a peremptory exception to that effect. Tri-State argued that its general partner, Southeast Foods, was in no way related to Investment Cars, a used car dealer in Me-tairie. It urged that the amended petition did not relate back to the original (timely) petition because it did not meet the fourth criterion of Ray v. Alexandria Mall, 434 So.2d 1083 (La.1983): “The purported substitute defendant must not be a wholly new or unrelated defendant.”

Counsel for Ms. Morgan argued at the hearing on the exception that he originally sued two defendants: the first, Investment Cars, was totally unrelated to the store, but the second, Southeast Foods, was clarified and correctly named in the amended petition.

The district court sustained Tri-State’s exception. Ms. Morgan applied for a new trial; after hearing arguments the district court maintained its original judgment.

Ms. Morgan now appeals, advancing three assignments of error. She contends that filing a suit in a court of proper jurisdiction and venue interrupts prescription as to every defendant named in the suit, La. C.C.P. art. 3462, and that she correctly named an entity called “Southeast Foods Inc., d/b/a County Market” in her original, timely-filed petition. She also argues that judicial philosophy favors relation back when the name and identity of the true defendant is difficult to ascertain. Sutton v. Short Stop Hamburgers, 31,841 (La.App. 2 Cir. 5/5/99), 737 So.2d 157; Cohen v. Brookshire Bros. Inc., 01-1159 (La.App. 3 Cir. 6/5/02), 819 So.2d 429, writ denied, 02-1767 (La.10/14/02), 827 So.2d 423.

Tri-State counters that Ms. Morgan admitted, in her amended petition, that Investment Cars had no relation to the real defendant, and thus she cannot satisfy the fourth part of the Ray test. Tri-State urges that Sutton and other cases involved “simple misnomers,” and its rationale should not apply when the plaintiff sues the wrong party altogether. Finally, TriState argues that courts refuse to let amendments relate back to the original filing when the newly added defendants did not receive timely notice. Hunsucker v. Global Business Furniture, 33,972 (La.App. 2 Cir. 9/27/00), 768 So.2d 698, writ denied, 00-3013 (La.1/15/01), 777 So.2d 1235; Moon v. Shreveport Associates, 571 So.2d 799 (La.App. 2 Cir.1990), writ not cons., 576 So.2d 23 (1991).

Discussion

The relation back of pleadings is governed by La. C.C.P. art. 1153:

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or oecur-rence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original petition.

This article attempts to strike a balance between a plaintiffs right to proceed against the correct defendant and the defendant’s right to be free from stale and prescribed claims. Hunsucker v. Global Business Furniture, supra; Fortenberry v. Glock Inc. (USA), 32,020 (La.App. 2 Cir. 6/16/99), 1/741 So.2d 863.

In Ray v. Alexandria Mall, supra, the supreme court established four criteria to be utilized in determining whether an amendment changing the identity of the party sued relates back to the date on which the original petition was filed:

(1) The amended claim must arise out of the same transaction or occurrence set forth in the original pleading.
(2) The purported substitute defendant must have received notice of the institution of the action such that he will not be prejudiced in maintaining a defense on the merits.
(3) The purported substitute defendant must know or should have known that but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him.
(4) The purported substitute defendant must not be a wholly new or unrelated defendant, since this would be tantamount to assertion of a new cause of action which would have otherwise prescribed.

The doctrine of relation back of amended pleadings should be liberally applied, particularly in the absence of prejudice. Giron v. Housing Authority of Opelousas, 393 So.2d 1267 (La.1981); Hunsucker, supra.

Prescription is interrupted when the ob-ligee commences action against the obligor in a court of competent jurisdiction and venue. La. C.C. art. 3462. The record clearly shows that Ms. Morgan filed suit within the prescriptive period against Southeast Foods, one of at least two entities registered to do business in that name in Louisiana. The original petition named the wrong Southeast Foods (a used car dealer in Metairie), but she effected service on the registered agent for the right one (the grocery store |Rin Monroe) slightly over one month after filing her original petition.

Service of the citation shall be requested on all named defendants within 90 days of the commencement of the action. La. C.C.P. art. 1201 C. The purpose of the 90-day requirement, added by La. Acts 1997, No. 518, is to assure that the defendant receives notice of the suit within a reasonable time after it has been commenced. Anderson v. Norfolk Southern Ry. Co., 02-0230 (La.App. 4 Cir. 3/27/02), 814 So.2d 659, writ denied, 02-1396 (La.9/20/02), 825 So.2d 1169. This article, read in conjunction with C.C. art. 3462, contemplates that the defendant may receive service after the applicable prescriptive period has expired; however, this does not prejudice the defendant, provided the suit was filed timely and in a court of competent jurisdiction and venue.

The recent case of Barnett v. Louisiana State Univ. Med. Center—Shreveport, 02-2576 (La.2/7/03), 841 So.2d 725 illustrates the application of art. 1201 C. Mr. Barnett filed suit against LSU Medical Center and requested service on C.T. Corporations Systems, the wrong agent for service. C.T. advised the plaintiff of the error, and over 90 days later the plaintiff served the correct agent. The supreme court held that Art. 1201 C requires “an accurate request of service upon the proper agent for defendant,” and that it should be attempted within 90 days on the proper agent. Since this did not occur, the supreme court dismissed the suit pursuant to La. C.C.P. art. 1672; however, the clear implication is that had the plaintiff effected service on the right agent within 90 days, the suit would have been viable.

| fiMs. Morgan filed a timely suit against Southeast Foods, the name of the right defendant, and effected service on the right agent within the 90-day period of Art. 1201 C. For this reason, Southeast Foods is not a “wholly new” defendant and the claim is not a new cause of action. Service on Southeast Foods resulted in actual notice to Tri-State, a partnership of which Southeast Foods was general partner. La. C.C.P. art. 1263. There was no prejudice against Southeast Foods and Tri-State, as the 90-day scheme of Art. 1201 C clearly contemplates that timely notice may occur after the prescriptive period has expired. On this record, the action is not “otherwise prescribed” and the fourth criterion of Ray v. Alexandria Mall is satisfied. This distinguishes the case from Hunsucker, Moon, and other cases cited by Tri-State. The district court was plainly wrong to deny the relation back and to sustain the exception of prescription.

Conclusion

For the reasons expressed, the judgment sustaining the exception of prescription is reversed and the case is remanded for further proceedings. Costs are assessed to the defendant, Tri-State Foods L.P. d/b/a County Market 9304.

REVERSED AND REMANDED.

      . Counsel for the plaintiff also showed that they filed an earlier suit, April Yvette Gray v. Investment Cars Unlimited Inc., and/or Southeast Foods Inc., d/b/a County Market, No. 994,-461-H in the Fourth JDC, for a 1995 slip and fall in the same grocery store. The defendant in that case did not challenge the way it was named in the petition, and obtained a summary judgment in March 2002. See, Gray v. Investment Cars Unlimited, 36,691 (La.App. 2 Cir. 1/29/03), 836 So.2d 1184.


author: LKOSTELKA, Judge Pro Tempore.

text:
    Stacy M. BAILEY, Individually and on Behalf of her Minor Child, Tyrell Jevon Manuel, Plaintiffs-Appellants, v. Dr. William Mark HAYNES, Defendant-Appellee.
    No. 37,038-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2003.

      Guerriero & Guerriero, by Jeff D. Guer-riero, for Appellants.
    Rountree, Cox, Guin & Achee, by Gordon E. Rountree, New Orleans, for Appel-lee.
    Before BROWN, STEWART and KOSTELKA (Pro Tempore), JJ.
   LKOSTELKA, Judge Pro Tempore.

Stacy Manuel Bailey (“Bailey”), individually and on behalf of her minor child, Tyrell Jevon Manuel (“Tyrell”), appeals the trial court’s judgment granting the exception of prescription filed by Dr. William Mark Haynes (“Dr. Haynes”). For the following reasons, we affirm.

Facts

On September 9, 1995, Bailey, who was forty-two weeks pregnant, was admitted to Homer Memorial Hospital. Bailey claims that on September 9, she was treated for possible latent labor with the diagnosis of intrauterine pregnancy. After a difficult delivery in which forceps were used, Tyrell was born at 8:52 a.m. At the time of his delivery, Tyrell was in very critical condition and was not breathing. He was hemorrhaging and having convulsions, of which Bailey was aware.

Dr. Haynes arranged for Tyrell to be transferred and transported to Schumpert Medical Center (“Schumpert”) in Shreveport, Louisiana. At Schumpert, Tyrell, still in critical condition, was initially treated by Dr. Julia Elrod (“Dr. Elrod”), a neona-tologist. On arriving at Schumpert, Tyrell still was not breathing properly, was intu-bated and placed on a ventilator. He was also having seizures. The Schumpert medical team worked to stop the seizures, but Tyrell remained on the ventilator for several days. After removal of the ventilator, he remained on oxygen for several more days.

Bailey was advised by Dr. Michael Cone (“Dr. Cone”), also a neonatologist, that Tyrell had a potential for abnormal neurological development. According to Dr. Cone’s notes, Bailey understood, and he answered all of her questions. Dr. Haynes further states that Dr. Cone spoke | ^subsequently with Bailey and advised her that Tyrell had a potential for mental retardation and cerebral palsy. Again, Dr. Cone’s case notes indicate that Bailey understood his explanation. Tyrell was eventually discharged from Schumpert on September 26, 1995 and was then on phenobarbital for his seizures. At one point in time, Tyrell’s phenobarbital prescription was not filled, resulting in a severe seizure for which he was hospitalized for three days.

Bailey filed her complaint with the Patients’ Compensation Fund on July 15, 1997, one year and ten months after Ty-rell’s birth. After an unfavorable decision, Bailey filed suit against Dr. Haynes, to which Dr. Haynes filed his Exception of Prescription, claiming that Bailey’s petition had been filed more than one year after the date of alleged malpractice and knowledge thereof. The Exception of Prescription was granted by the trial court. This appeal ensued, in which Bailey argues that the trial court erred in its interpretation of La. R.S. 9:5628 and in granting Dr. Haynes’ Exception of Prescription. For the following reasons, we affirm.

Discussion

On the trial of a peremptory exception pleaded prior to trial of the case, evidence may be introduced to support or controvert any of the objections pleaded when the grounds thereof do not appear from the petition. La. C.C.P. art. 931. When evidence has been introduced, the court is not authorized to accept the plaintiffs allegations as true. Schoen v. Walling, 31,598 (La.App.2d Cir.02/24/99), 728 So.2d 982. When evidence is received on the trial of the peremptory exception, as was done in lathe case sub judice, the factual conclusions of the trial court are reviewed by the appellate court under the manifest error-cleariy wrong standard as articulated in Stobart v. State Through Dept. of Transp. and Development, 617 So.2d 880 (La.1993). Creighton v. Bryant, 34,893 (La.App.2d Cir.06/20/01), 793 So.2d 275.

Specifically, regarding the liberative prescription of a malpractice claim, La. R.S. 9:5628 states in pertinent part, as follows:

A. No action for damages for injury or death against any physician, ... duly licensed under the laws of this state, ... whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.

The one-year prescriptive period commences running on the date in which the injured party discovers or should have discovered the facts upon which his cause of action is based. Maung-u v. May, 556 So.2d 221 (La.App. 2d Cir.1990), writ denied, 559 So.2d 1385 (La.1990). When a party has sufficient information to incite curiosity, to excite attention, or to put a reasonably minded person on guard and call for inquiry, he or she has the constructive knowledge necessary to start the running of prescription. Cruse v. Louisiana State University Medical Center, 34,779 (La.App.2d Cir. 06/20/01), 792 So.2d 798; LaGrange v. Schumpert Medical Center, 33,541 (La.App.2d Cir.06/21/00), 765 So.2d 473.

As to claims of prescription generally, the party claiming prescription bears the burden of proof at the trial of the peremptory exception. However, |4if prescription is evident on the face of the pleadings, then the burden shifts to the plaintiff to show that the action has not prescribed. Nolan v. Roofing Supply, Inc., 36,403 (La.App.2d Cir.11/26/02), 833 So.2d 1026, citing, Campo v. Correa, 2001-2707 (La.06/21/02), 828 So.2d 502.

Here, Bailey claims that she was unaware that Tyrell was developmentally delayed until a diagnostic developmental test performed on September 11, 1996 showed an abnormal result. She maintains that this was the first time she became aware that Tyrell had a medical problem which may have been the result of medical malpractice. However, the trial court assessed the evidence before it and concluded that Bailey had knowledge from the date of Tyrell’s birth that he was not normal. Such a finding by the trial court was not in error.

Bailey understood at the time of Tyrell’s birth that the delivery was unduly difficult, a delivery for which she was fully alert and had received no medication. Bailey was also aware immediately after Tyrell’s delivery that there were medical complications with the infant, and she specifically recalled that he “wasn’t responsive,” “hemorrhaging,” and “having convulsions.” She also knew that during the delivery “they got real concerned,” the baby’s head was “swollen pretty big,” his eyes were swollen, and his condition necessitated that he be quickly transported to Schumpert.

At Schumpert, Tyrell was cared for by Drs. Elrod and Cone and also Dr. James Kim, a pediatric neurologist. Dr. Cone’s progress notes dated September 12, 1995 state that he “... spoke with [Bailey] at length by |Kphone; discussed decreasing seizure activity and potential for abnormal neurologic development secondary to this; also discussed concerns of kidneys and urine output; mother understood and all questions answered.” Dr. Cone’s progress notes from September 17, 1995 state: “[S]poke [with] mother at length by phone yesterday; condition updated, once again described symptomatology in detail; current findings, also explained potential for severe neurologic sequelae i.e. [mental retardation], [cerebral palsy] etc. should current condition continue. [Bailey] understood, all questions answered.” Dr. Cone again discussed Tyrell’s condition with Bailey, noting on September 22, 1995 that he “... cautioned potential for [questionable] long term neurological [abnormality].... ” On September 26, 1995, Tyrell was finally discharged from Schumpert with a prescription of phenobarbital for his seizures and with instructions for follow-up medical care.

In the intervening year, Bailey noticed that Tyrell was not developing normally. Specifically, when Tyrell was four to five months old, Bailey questioned whether his head or brain was developing properly. When Tyrell was seven or eight months old, Bailey noticed that he was not sitting up or crawling, which she considered unusual.

| fiTyrell was later assessed by Vicki Leach (“Leach”), a physical therapist at Schumpert, on July 18, 1996. In her report, Leach noted that Bailey was present to report on Tyrell’s medical history for the evaluation. Leach noted Tyrell’s medical history of neonatal seizures and his prescription of phenobarbital. Leach’s report also included Bailey’s wish that Tyrell “be able to reach his maximum potential.” In her final assessment, Leach reported that:

Tyrell is a 10/£ month old young boy with a diagnosis of cerebral palsy. Ty-rell presents with overall gross motor delays as he is only performing activities in the two month level with some emerging skills in the three month level.... Tyrell definitely presents with overall developmental delays.... Tyrell’s mother would like for Tyrell to receive therapy, • • •”

Bailey contends that she did not discover the alleged act of Dr. Haynes’ malpractice until the September 11, 1996 diagnosis of Tyrell; however, on the date of Tyrell’s delivery, Bailey obviously had enough information to incite her curiosity as to his medical condition. At the least, she should have been well aware when Tyrell was discharged from Sehumpert on September 26, 1995 that he had neurological abnormalities. Additionally, there is no indication that Bailey was ever misled regarding Tyrell’s medical condition, as the medical reports regularly note that she was so informed.

Considering the facts of this particular case, we cannot say that Bailey was reasonable in failing to bring her action within one year from Tyrell’s |7birth. She understood the difficulty in her delivery of Ty-rell and his critical condition immediately following the birth, which should have put Bailey on guard to question her medical treatment and that of Tyrell. In fact, Tyrell was hospitalized for fifteen days following his birth. Bailey’s alleged cause of action and the facts surrounding Tyrell’s medical condition were readily known by Bailey immediately after his birth or, at the least, shortly thereafter, and clearly more than one year prior to fifing her complaint with the Patients’ Compensation Fund. The trial court did not commit manifest error in so finding.

ConClusion

Therefore, the judgment of the trial court sustaining the Exception of Prescription filed by Dr. William Mark Haynes is affirmed. Costs are assessed to Stacy M. Bailey.

AFFIRMED.

      . In deposition, Bailey testified that she questioned whether Tyrell’s brain was developing normally. However, at the hearing on Dr. Haynes' Exception of Prescription, Bailey modified her testimony and explained that she actually questioned whether the shape of his head was normal at the time, and not his brain.

      . This report by Leach was within one year of Bailey's complaint with the Patients' Compensation Fund; however, even with the explicit statements by Leach regarding Tyrell’s condition, Bailey still claims that it was not until September 11, 1996 that she became aware Tyrell had significant medical problems. Leach's report clearly shows that Bailey had knowledge of Tyrell’s condition prior to September 11, 1996, and seriously calls into question Bailey's claim that it was not until that date that she was truly aware of Tyrell’s diagnosis.


author: J^MOORE, J.

text:
    Willie Jean REED and J.C. Reed, Plaintiff-Appellants, v. HOME DEPOT USA, INC., et al, Defendant-Appellee.
    No. 37,000-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2003.
    Rehearing Denied May 8, 2003.

      Chris L. Bowman, Jonesboro, for Appellants.
    Lunn, Irion, Salley, Carlisle & Gardner, by James A. Mijalis, W. Orie Hunter, III, Shreveport, for Appellee.
    Before WILLIAMS, PEATROSS and MOORE, JJ.
   J^MOORE, J.

The plaintiffs, Willie Jean and J.C. Reed, appeal a summary judgment that dismissed their claims arising from a slip and fall in the parking lot of a Home Depot store. For the reasons expressed, we affirm.

Factual background

On March 17, 2000, Ms. Reed and her son, Eric, were shopping for plants at the Home Depot on Millhaven Road in Monroe. According to her deposition, she was selecting from azaleas displayed on wooden pallets arranged on the parking lot. The space between the pallets was narrow, between eight inches and one foot. Standing near one of these aisles (she was unclear whether she intended to walk between the pallets), she bent down to examine a plant. She stated that when she put her right foot on the pavement, “I fell just like a ton of bricks in my shoe.” She denied that she slipped or tripped on anything. She assumed that she wedged her foot in one of the pallets, but admitted that after the accident her shoe was not stuck under a pallet. Ms. Reed fell hard on her left side and sustained several injuries, including a broken hip.

Ms. Reed and her husband filed suit against Home Depot USA Inc. and its manager and assistant manager (collectively, “Home Depot”). Alleging strict liability and negligence, Ms. Reed asserted an unreasonably dangerous condition in the manner the plants were displayed and sold, a failure to warn, and failure to staff the garden area properly. Mr. Reed claimed loss of consortium.

After entering a general denial and conducting discovery, Home Depot filed a motion for summary judgment. It asserted that the claim was | ^governed by the merchant slip-and-fall statute, La. R.S. 9:2800.6, and that the Reeds could not present evidence as to two essential elements under the statute, viz., that a defect existed on Home Depot’s premises or that the defect caused her injuries. In support, Home Depot cited portions of the depositions of Ms. Reed and her son. The Reeds opposed the motion, citing different portions of the same depositions and urging that genuine issues of material fact precluded summary judgment.

The district court ruled orally that the Reeds had failed to provide proof of causation, making summary judgment appropriate. The judgment was reduced to writing and this devolutive appeal followed.

Discussion

A motion for summary judgment shall 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.” La. C.C.P. art. 966 B. Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of all except certain disallowed actions; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2); Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191. The burden of proof remains with the mover; however, if the mover will not bear the burden of proof at trial on the matter before the court on the motion for summary judgment, then the mover may merely point out to the court that there is an absence of factual support for one or more elements essential to the plaintiffs claim. The burden then shifts to |8the non-moving party to present evidence demonstrating that genuine issues of material fact remain. La. C.C.P. art. 966 C(2); Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606; Hayes v. Autin, 96-287 (La.App. 3 Cir. 12/26/96), 685 So.2d 691, writ denied, 97-0281 (La.3/14/97), 690 So.2d 41. After the burden has shifted, the plaintiff must make a positive showing of evidence creating a genuine issue as to an essential element of her claim. Mere speculation is not sufficient. Babin v. Winn-Dixie La. Inc., 00-0078 (La.6/30/00), 764 So.2d 37. Appellate review of a grant or denial of summary judgment is de novo. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226.

In slip (or trip) and fall cases, the plaintiffs burden of proof is governed by La. R.S. 9:2800.6, which provides in pertinent part:

§ 2800.6. Burden of proof in claims against merchants
A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, pri- or to the occurrence.
H(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

In its motion for summary judgment, Home Depot alleged that the Reeds would be unable to meet their burden of proving causation, an essential element of their claim. The only evidence adduced was portions of Ms. Reed’s and of her son Eric’s depositions. As noted, Ms. Reed stated that the accident occurred at the head of an aisle created by two different rows of pallets. While facing one row, she turned toward the aisle and stepped forward. When she put her foot down she fell. She was unable to explain what caused her to fall; she denied slipping or tripping on anything, and her view of the ground was unobstructed. She assumed that her foot got somehow “wedged” under a pallet, but after she fell, her shoe (which had come off her foot) was not stuck under a pallet. Eric testified that he did not observe the fall, but thought it happened because of the narrow space between the rows of pallets. He saw no defects in the concrete or the pallets which would have caused her to fall. He speculated that her shoe was “hung inside” a pallet, but he did not actually see it happen. There were no other witnesses to the accident.

lROn de novo review, we find that the Reeds failed to adduce sufficient evidence to create a genuine issue of material fact as to the essential element of causation. Ms. Reed adamantly denied that she stepped on anything. She fell immediately after placing her foot on the ground; this undisputed fact undermines the hypothesis, voiced by Ms. Reed and her son, that her foot got tangled in the pallets. Their speculation as to what caused the accident cannot supply the factual support necessary to show that the plaintiff would be able to meet her evidentiary burden at trial. Babin v. Winn-Dixie La., supra. In short, there is no genuine issue of material fact.

The Reeds also argue that the narrow aisle between the rows of pallets created an unreasonably hazardous condition. Since they have not shown that they could prove causation, however, we need not address the existence of a defect. We would only note that without more evidence, the fact that the plaintiff slipped and fell on the defendant’s premises does not compel a finding that the premises were unreasonably dangerous. Turner v. Brookshire Grocery Co., 34,562 (La.App. 2 Cir. 4/4/01), 785 So.2d 161, and citations therein. A pallet does not inherently pose an unreasonable risk of harm. See, Butler v. Doug’s IGA, 34,232 (La.App. 2 Cir. 12/6/00), 774 So.2d 1067.

Finally, the Reeds argue that on the summary judgment evidence, Home Depot is not entitled to judgment as a matter of law. In support they cite Dupas v. Travelers Property Cas. Ins. Co., 00-12 (La.App. 3 Cir. 5/3/00), 762 So.2d 127, writ denied, 00-1541 (La.6/30/00), 766 So.2d 548. Ms. Dupas was injured in a discount store while trying to select a [ fibroom from a display set on a pallet; while reaching for the broom, she tripped a fell face forward. She alleged that the pallet was unreasonably dangerous, and called a safety expert who testified that it created a hazard. After she presented her case in chief, the store moved for directed verdict on grounds that she failed to allege that she tripped on the platform; she only testified that while she was looking up, something “grabbed her.” The store’s accident report stated that Ms. Dupas stubbed her toe on the pallet. The district court denied the motion for directed verdict; the court of appeal affirmed, noting that a rational juror could find that the pallet posed an unreasonable risk of harm and that Ms. Dupas tripped on it.

Unlike the plaintiff in Dupas, however, Ms. Reed has not shown by circumstantial evidence that her accident resulted from any hazardous condition on Home Depot’s premises. The deposition testimony excludes any conditions that may have been hazardous and fails to show that any such condition, if proved, caused her to fall. On this record, we find no genuine issue of material fact and that Home Depot is entitled to judgment as a matter of law.

Conclusion

For the reasons expressed, we affirm the summary judgment in favor of Home Depot and dismissing the Reeds’ claims. Costs of appeal are assessed to the Reeds.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, GASKINS, CARAWAY, PEATROSS, and MOORE, JJ.

Rehearing denied.

      . In addition to the negligence claim, the Reeds alleged that Home Depot was strictly liable for Ms. Reed's injuries. Strict liability would be based on La. C.C. art. 2317; however, the 1996 enactment of C.C. art. 2317.1 effectively abrogated the concept of strict liability in cases involving defective things and imposed a negligence standard based on the owner or custodian’s knowledge or construc- . tive knowledge of the defect. Lasyone v. Kansas City Southern Ry., 00-2628 (La.4/3/01), 786 So.2d 682, at fn. 9; Hagood v. Brakefield, 35,570 (La.App. 2 Cir. 1/23/02), 805 So.2d 1230, writ denied, 02-0557 (La.4/26/02), 815 So.2d 90. The analysis is therefore the same under either negligence or strict liability. Davis v. Diamond Shamrock Refining & Marketing Inc., 34,309 (La.App. 2 Cir. 12/6/00), 774 So.2d 1076.


author: hbrown, C.J.

text:
    STATE of Louisiana, Appellee, v. Roy James WILLIS, Appellant.
    No. 36,759-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2003.

      Carey J. Ellis, III, Louisiana Appellate Project, for Appellant.
    Richard Ieyoub, Attorney General, Robert W. Levy, District Attorney, Stephen Kendall Hearn, Jr., Assistant District Attorney, for Appellee.
    Before BROWN, GASKINS, and PEATROSS, JJ.
   hbrown, C.J.

The state initially filed a bill of information charging defendant, Roy James Willis, and two co-defendants, Corey O’Neal Cooper and Joseph Robert Brawley (a/k/a To-mica Laray Booker), with possession of marijuana with' intent to distribute, a violation of La.R.S. 40:966. Thereafter, the state filed an amended and severed bill of information, charging defendant with possession of marijuana with intent to distribute and possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.

A jury convicted defendant of both offenses. Defendant was adjudicated to be a second felony habitual offender. On count one, possession of marijuana with intent to distribute, he was sentenced to 25 years at hard labor, with the first five to be served without benefit. This sentence was to run consecutively with the 15-year without benefit hard labor term imposed on count two.

Defendant has appealed. We affirm defendant’s convictions and with an amendment, affirm his sentences.

Discussion

Sufficiency of the Evidence

To support a conviction for possession with intent to distribute, the state must prove: (1) possession of the controlled dangerous substance; and (2) intent to distribute it. La.R.S. 40:967(A)(1); State v. Thomas, 32,495 (La.App.2d Cir.10/27/99), 745 So.2d 776, writ denied, 00-1008 (La.11/27/00), 775 So.2d 445, writ denied, 00-0242 (La.12/08/00), 775 So.2d 1076.

|2The elements which must be proven in order to convict an accused of unlawful possession of a firearm by a convicted felon are: (1) possession of a firearm; (2) conviction of an enumerated felony; (3) absence of the ten-year statutory period of limitation; and (4) general intent to commit the offense. La.R.S. 14:95.1; State v. Husband, 437 So.2d 269 (La.1983).

The testimony of Lincoln Parish Deputy Sheriffs Johnny Murad and Chad Alexander, and that of co-defendant, Corey Cooper, established the following: The arrests occurred in the late afternoon hours of May 7, 2001, at the Comfort Inn in Ruston, Louisiana. Deputy Kenneth Wesley received word from a confidential informant that Corey Cooper, who had several outstanding bench warrants, was in the area of the Comfort Inn, and was traveling in a grey van. Deputies Murad and Wesley saw a grey van leaving the motel parking lot and made a traffic stop. The driver of the van, Henry Fisher, provided information that Cooper was in Room 127 of the Comfort Inn and that there was a weapon as well as other people in the room. The deputies called for backup.

When the other officers arrived, Deputies Murad and Alexander knocked on the door of room 127. A man (later identified as Brawley/Booker) opened the door and, when Deputy Murad identified himself, the man cursed and tried to slam the door shut. Brawley then opened the door and fled into the hallway. Deputies Murad and Alexander immediately saw Cooper, who Dy. Murad recognized from previous contact. Cooper went to the floor and remained seated with his hands in the air. Dy. Murad observed another man (identified at trial as defendant) in the |sbed under the bed covers. As the deputies approached the bed they ordered defendant to show his hands. Defendant, who was clad in his underclothes, was reluctant to show his hands. After both Cooper and defendant were handcuffed, Dy. Alexander pulled back the bed covers and found a .38 caliber Model 10 Smith and Wesson revolver located near where defendant’s left hand had been. The deputies checked the weapon for ammunition; the gun contained six rounds in the chamber/cylinder. Located on the other bed were some duffle and/or luggage type bags.

In plain view on the desk/table was a plastic bag. There were two small bags of marijuana in that plastic bag, along with loose marijuana (a total of about a pound). Aso in plain view on top of the desk were a set of scales and cash. In one of the drawers of the dresser immediately adjacent to the table were eight bags of marijuana, containing approximately one pound per bag, in “brick” form. More plastic bags were also found. A further search of the room revealed that the trash can near the bathroom area contained Saran Wrap, duct tape and dryer sheets (which Dy. Murad related were all commonly used to pre-package marijuana in brick form). Currency, which consisted of mostly fives, tens, and twenties, totaling $2,320, was found. Defendant’s wallet contained $200. Neither of the other suspects had any money on them.

At trial, Deputy Murad identified the evidence collected and was qualified as an expert in the manner in which illegal drugs are handled. He testified that digital scales are used to weigh and measure drugs for subsequent sale. Dy. Murad noted that the large bag contained both loose |4and two smaller sandwich-type bags of marijuana. Dy. Murad stated that repackaging usually means that the marijuana is for resale and/or distribution.

Dy. Murad stated that, if sold in brick form in Lincoln Parish, a pound of marijuana would sell for $500 or more. He further testified that the entire quantity of marijuana seized would make about four or five thousand marijuana cigarettes.

Dy. Murad stated that the only personal effects recovered from the motel room belonged to defendant. These effects were clothing, a notebook containing mail received by defendant at a Dallas address, a Day Runner organizer and a pager. Three cell phones were recovered from the motel room. Deputy Murad testified that pagers and cell phones are commonly used by persons involved in the sale of narcotics. Chemical tests performed by the North Louisiana Criminalistics Laboratory determined that all of the suspected marijuana, as well as all items containing suspected marijuana residue, which were seized and identified by Dy. Murad, were in fact marijuana. Fingerprints were not taken from the gun because it had been handled by the deputies (to make it safe).

On cross-examination, Deputy Murad testified that the motel room was registered to “Corey Jones,” who is also known as Corey Cooper. Deputy Alexander’s trial testimony corroborated that of Dy. Murad.

Corey Cooper testified for the state. Cooper stated that the day before defendant’s arrest at the Comfort Inn, he saw defendant in Woodland Park in Ruston selling marijuana out of the grey van. Later that day, Cooper 1 ^accompanied defendant to the Comfort Inn. Using his picture I.D., Cooper registered for two rooms which were paid for by defendant. Cooper and a female companion stayed in a room on the second floor of the motel and defendant and Fisher stayed in a room on the first floor. Booker/Brawley rented and stayed in a room adjacent to defendant’s. Cooper saw defendant and Fisher sleeping in defendant’s room early the next morning, when he went to borrow the keys to the van so he could take his female friend home. Cooper next saw defendant around one in the afternoon when he returned the keys to defendant’s room. Later that afternoon, Cooper went back to defendant’s room because he needed a ride home. Defendant was in the motel room with Booker/Brawley and they told Cooper that Fisher had left in the van. Cooper remained in defendant’s room until the officers arrived, around 15 minutes later. Cooper stated that the weapon was defendant’s and denied bringing the gun into the room. Cooper admitted that he knew there was marijuana in the room because he saw it on the desk. He didn’t know, however, that there was another eight or so pounds of marijuana in the desk drawer. He pled guilty to possession of marijuana with intent to distribute. Cooper had not been sentenced as of the date of trial and stated that he had not been promised any particular sentence in exchange for his testimony. He admitted to several previous felony convictions.

The state also called as a witness David Robison, a district parole officer with the Texas Department of Criminal Justice. Officer Robison identified defendant as one of his parolees. Specifically, he stated that defendant was on parole in connection with a guilty plea (or guilty verdict) Rentered on July 14, 1987, for: (1) an aggravated robbery committed on April 12, 1987, for which defendant was sentenced to 25 years imprisonment with the Texas Department of Corrections; (2) an aggravated robbery committed on April 12, 1987, for which defendant was sentenced to 25 years imprisonment, to be served concurrently with the sentence imposed for the April 12, 1987, robbery; (3) an aggravated robbery committed on April 20, 1987, for which defendant was sentenced to 25 years imprisonment to be served concurrently with the other sentences. Officer Robison noted that defendant was released on November 19, 1999, on “mandatory supervision” until May 14, 2012. Certified copies of the convictions were introduced into the record.

The defense presented the testimony of Tomika Laray Booker (a/k/a Joseph Braw-ley), who had also pled guilty to possession of marijuana with intent to distribute. Booker testified that the marijuana in Room 127 belonged to him. He stated that he, Cooper and Willis were in Dallas, Texas, for the weekend and that Cooper and Willis drove the marijuana to Louisiana in the grey van. Booker and Fisher drove to Louisiana in a Buick Riviera. Booker said that he knew Fisher by his last name and that defendant and Fisher “had business together.” Booker stated that Cooper was supposed to be “getting rid of it,” but he tried to sell it in ounces and that was taking too long. Booker stated that he was at the motel room to get his marijuana back from Cooper. He denied that defendant was involved in 17the marijuana deal, stating that defendant was “caught up in the mix” over some dogs. Booker also testified that the gun belonged to Cooper.

The standard for a reviewing court when defendant asserts that the evidence was insufficient is whether the evidence, viewed in the light most favorable to the prosecution, was sufficient for the jury to reasonably conclude that all of the elements of both offenses were proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

This standard of review, now legislatively embodied in La.C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/04/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

In State v. Dunn, 30,560 (La.App.2d Cir.02/25/98), 709 So.2d 852, 857, this court stated:

As a general principle of Louisiana law, a conviction can be sustained on the uncorroborated testimony of a purported accomplice. However, when the state’s case relies upon the uncorroborated testimony of a purported accomplice, the trial judge (or jury) should treat such testimony with great caution. This great caution is not required if there is evidence that confirms material points in an accomplice’s tale, and confirms the defendant’s identity and some relationship to the situation. (Citations omitted).

The marijuana was in the motel in which defendant was staying. Defendant was undressed and lying in bed and the only personal effects | s(other than two cell phones) in the room were defendant’s. The marijuana was in plain view, and defendant had knowledge of its existence. See State v. Alford, 323 So.2d 788 (La.1975); State v. Cann, 319 So.2d 396 (La.1975). Defendant’s actual possession was established by the testimony of Corey Cooper, who stated that the marijuana belonged to defendant. Since there was no internal contradiction or irreconcilable conflict with the physical evidence, this one witness’s testimony, obviously believed by the jury, is sufficient support for a requisite factual conclusion. See State v. White, 28,095 (La.App.2d Cir.05/08/96), 674 So.2d 1018, writ denied, 96-1459 (La.11/15/96), 682 So.2d 760, writ denied, 98-0282 (La.06/26/98), 719 So.2d 1048. Although Cooper was an accomplice, his testimony is not uncorroborated; the facts surrounding the crimes clearly support his testimony. As noted by the court in State v. Smith, 661 So.2d at 443, it is not this court’s function to reassess credibility or reweigh the evidence. We further find that the state sufficiently proved defendant’s intent to distribute. Cooper stated that defendant was in fact selling marijuana out of the grey van.

The record also supports the finding of sufficient evidence to support the jury’s conclusion that defendant was guilty of count two, unlawful possession of a firearm by a convicted felon. See State v. East, 99-1379 (La.App. 5th Cir.07/25/00), 768 So.2d 173, writ denied, 01-3025 (La.10/15/02), 827 So.2d 1167, and cases cited therein. Direct evidence in the form of testimony by both deputies clearly proved that the firearm was subject to defendant’s dominion and control. The gun was located under the | flcovers in close proximity to defendant’s left hand. Further, Cooper testified that the gun belonged to defendant. This assignment of error is without merit.

Use of More Than One Prior Conviction

Prior to the reading to the jury of the bill of information charging defendant as a felon in possession of a firearm, defendant offered to stipulate the validity of the predicate offenses as contained in the bill of information.

Defendant’s second assignment of error is that the trial court erred in denying his objection to the state’s mentioning in front of the jury the name and nature of his prior convictions and in allowing the state to use more than one prior conviction to prove that he was a felon in possession of a firearm. Defendant’s objection was based upon Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), in which the Supreme Court held that in a felony possession of a firearm case under 18 U.S.C. § 922(g)(1), the federal government may not reject a defendant’s offer to stipulate the prior conviction which would eliminate. the need for evidence of the name and nature of the defendant’s conviction.

In State v. Ball, 99-0428 (La.11/30/99), 756 So.2d 275, the supreme court distinguished Old Chief in Louisiana prosecutions for violations of La.R.S. 14:95.1. See also State v. Donald, 99-3612 (La.12/08/00), 775 So.2d 1054. In State v. Ball, supra, a prosecution for possession of a firearm by a convicted felon, the supreme court held that the state could introduce evidence of the name and nature of the defendant’s prior |inconviction of simple burglary of an inhabited dwelling, even though the defendant had offered to stipulate that he had been convicted of a prior felony. The court held that proof of one of the enumerated felonies was an essential element of the crime proscribed by La.R.S. 14:95.1. Furthermore, the court held that the convicted felon’s specific pri- or offense was absolutely necessary to fully charge the offense of possession of a firearm by a convicted felon and, therefore, must be contained in the charging instrument.

The Louisiana Supreme Court in State v. Ball held that the court’s decision in Old Chief was based not upon constitutional principles which would be binding upon the states, but instead was based upon the specific language of 18 U.S.C. § 922 and that the Louisiana statute, although enacted after 18 U.S.C. § 922, was not patterned after its federal counterpart which, unlike the Louisiana statute, applies to all felonies and does not provide for a prescriptive period. Because proof of one of the enumerated felonies is an essential element of the crime under La.R.S. 14:95.1, the probative value of the name and nature of the prior conviction is greater than the “generic” felony required by the federal statute. The Louisiana Supreme Court further found that acceptance of defendant’s stipulation would frustrate the general rule that the prosecution is entitled to prove its case by evidence of its own choice, i.e., “a criminal may not stipulate or admit his way out of the full eviden-tiary force of the case as the government chooses to present it.” (Citations omitted.)

In State v. Sanders, 357 So.2d 492, 493 (La.1978), the supreme court held that the use of more than one prior conviction is permissible as proof of an “essential element” in a possession of a firearm by a convicted felon case. Thus, the use of all three prior felonies was appropriate to prove defendant was a convicted felon.

In light of the above, the trial court did not err in allowing the state to introduce evidence of proof of all of defendant’s previous felony convictions. This assignment of error is without merit.

Denial of Motion to Suppress

Defendant next contends that the trial court erred in denying his motion to suppress.

The Fourth and Fourteenth Amendments to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. In general, a search conducted without a warrant is per se unconstitutional. State v. Nolen, 29,284 (La.App.2d Cir.04/04/97), 691 So.2d 379; State v. Cohen, 549 So.2d 884 (La.App. 2d Cir.1989), writ denied, 559 So.2d 135 (La.1990). Where a warrantless search has occurred, the state has the burden of showing that one of the exceptions to the warrant requirement is applicable. State v. Roberds, 393 So.2d 715 (La.1981). The plain view doctrine is an exception to the warrant requirement. State v. Ray, 471 So.2d 831 (La.App. 2d Cir.1985), writ denied, 475 So.2d 364 (La.1985). The plain view doctrine renders a warrantless search reasonable: (1) if the police officer is lawfully in the place from which he views the object; (2) where the object’s incriminating | ^character is immediately apparent; and (3) the officer has a lawful right of access to the object. Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); State v. Nolen, supra.

In the instant case, the law enforcement officers were lawfully at the door of the motel room where the presence of the marijuana was readily apparent. Deputies Murad and Wesley were attempting to locate Cooper, for whom they had an outstanding bench warrant. Dy. Wesley received information from a confidential informant that Cooper was in the area of the Comfort Inn and traveling in a grey van. This information was corroborated by Fisher, who was stopped while driving the grey van in the area of the motel. Fisher provided the room number and information that other persons, marijuana and a weapon were also in the room with Cooper. Once at the hotel room, the fact that an occupant attempted to slam the door, warnings were shouted, and an occupant fled out of the door, leaving it open, was sufficient justification for the deputies to enter the room, in which marijuana and paraphernalia were immediately apparent, in plain view, on the desk or table. This assignment of error is without merit.

Excessive Sentence

According to defendant, the trial court imposed sentences that are unconstitutionally excessive and failed to sufficiently particularize the sentences to him. Furthermore, there was no justification for ordering that the sentences be served consecutively.

113Sentence on Count Two, Felon in Possession of a Firearm

For defendant’s conviction of count two, felon in possession of a firearm, he was sentenced to 15 years at hard labor without benefit, a fine of $1,000, plus court costs. In sentencing defendant, the trial court noted that it had reviewed the P.S.I. report as well as the addendum. A review of the P.S.I. indicates nine prior arrests and/or convictions dating back to 1980, most of which involve substance abuse, use of dangerous weapons and crimes of violence. The social history reflects that defendant, born in 1950, has a sixth grade education, a sporadic employment history and is divorced with two grown children. The trial court found that defendant was in need of correctional treatment best provided by incarceration, that his behavior knowingly created a risk of bodily harm to others and that a lesser sentence would deprecate the seriousness of the offense. In denying the oral motion to reconsider sentence, the trial court noted that it had considered defendant’s age and prior criminal activity.

La.R.S. 14:95.1(B) provides:

Whoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than ten nor more than 15 years without the benefit of probation, parole or suspension of sentence and be fined not less than $1,000 nor more than $5,000.

A review of the record does not indicate that defendant’s maximum sentence for this offense was unconstitutionally excessive. The crime and punishment, when viewed in light of the harm done to society by convicted felons with firearms, does not shock the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.04/02/97), 691 So.2d 864.

| uSentence on Count One, Possession with Intent to Distribute

After his adjudication as a second felony habitual offender, defendant was sentenced to 25 years at hard labor, with the first five years to be served without benefit. The sentence on count one was ordered to be served consecutively with the sentence on count two.

The habitual offender law is constitutional in its entirety. Therefore, the minimum sentences it imposes upon recidivists are also presumed to be constitutional. State v. Johnson, 97-1906 (La.03/04/98), 709 So.2d 672; State v. Gay, 34,371 (La.App.2d Cir.04/04/01), 784 So.2d 714. The court in State v. Johnson, supra, held that the burden was on the defendant to rebut the presumption that a mandatory minimum sentence is constitutional. To do so, the defendant must clearly and convincingly show that he is exceptional, which in this context means that, because of unusual circumstances, this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense and the circumstances of the case. State v. Johnson, supra at 676.

A review of the record does not reveal that defendant met his burden under State v. Johnson, supra, of rebutting the presumption that his mandatory minimum sentence as a second felony habitual offender is unconstitutional. He has presented no unusual circumstances applicable to his case and sentence, nor has he established that he is exceptional.

Finally, regarding defendant’s argument that his sentences should have been concurrent rather than consecutive, we note that it is within the | atrial court’s discretion to order sentences to run consecutively rather than concurrently. State v. Hilbun, 36,048 (La.App.2d Cir.06/12/02), 821 So.2d 530; State v. Robinson, 33,921 (La.App.2d Cir.11/01/00), 770 So.2d 868.

In light of the factors considered by the trial court in sentencing this defendant, we find no error in the court’s decision to order that the sentences be served consecutively rather than concurrently. This assignment of error is without merit.

We note, however, that the sentence imposed on count one, possession of marijuana with intent to distribute, which was enhanced as a second felony habitual offender, was illegal in that five years were ordered to be served without benefit. At the time the offense was committed, May 7, 2001, La.R.S. 40:966(B)(2) did not require that the first five years be served without benefit. Acts 2001, No. 403, § 4, which added the “without benefit” provision, was not effective until June 15, 2001. Under La.C.Cr.P. art. 882, this court has the authority to correct the illegal sentence on appeal.

Conclusion

For the reasons set forth above, defendant’s convictions are affirmed. Likewise, his sentences are affirmed as amended, deleting the requirement that the first five years of the sentence on count one be served without benefit.

      . According to Booker, Cooper tried to sell some dogs to defendant; the dogs actually belonged to someone else, not Cooper, and the dog owner is the one who got the police involved.


author: [, PEATROSS, J.

text:
    WARD CHEVROLET OLDS, INC., Plaintiff-Appellant, v. STATE FARM AUTOMOBILE CASUALTY INSURANCE COMPANY, et al, Defendants-Appellees.
    No. 37,119-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2003.

      Mixon Law Office, by James E. Mixon, Columbia, for Appellant.
    Davenport, Files & Kelly, L.L.P., by W. David Hammett, Monroe, for Appellees.
    Before STEWART, PEATROSS & DREW, JJ.
   [, PEATROSS, J.

This appeal arises from an automobile accident that occurred in March 2001 when a vehicle being driven by Joshua Carroll was forced from the roadway by another vehicle driven by a phantom driver which crossed into Joshua’s lane of travel. After leaving the highway, Joshua’s vehicle collided with a third vehicle parked on the premises of Ward Chevrolet Olds, Inc, (‘Ward”). In October 2001, Ward filed suit against John S. Carroll, who is the father of Joshua B. Carroll, and against State Farm Automobile Casualty Insurance Company, which insured the vehicle Joshua was driving. After trial on the merits, the court assessed no fault to Joshua and found the phantom driver to be one hundred percent at fault in causing the accident; Ward appealed. For the reasons stated herein, we affirm the trial court’s judgment.

FACTS

The accident in this case occurred at approximately 9:00 p.m. on March 25, 2001, as Joshua Carroll was driving south on U.S. Highway 165 in Caldwell Parish in a 1979 Ford Bronco. Sandy Caraway was Joshua’s only guest passenger. Joshua, who was 16 years old at the time of the accident, testified that he was driving at or below the speed limit which he stated was 40 miles per hour. He indicated that he and Sandy were not having a conversation at the time and that no music was playing in the vehicle. Just before the accident, Joshua saw headlights approaching in the opposite lane, and then saw the headlights move over into his lane until all four tires of the oncoming vehicle were in Joshua’s lane. Joshua initially reacted by gradually moving over toward the shoulder, thinking that the |?,driver of the oncoming vehicle would realize that he or she was crossing the center line and return to the northbound lane. Once it was clear, however, that all four tires of the oncoming vehicle were in his lane of travel, Joshua was forced to swerve completely onto the shoulder of the road. According to Joshua, the oncoming car never came onto the shoulder, but Joshua did not have room to continue traveling on the shoulder when he reached the Ward dealership because there were show cars “parked on the shoulder.” Joshua testified that he attempted to get around the line of show cars by aiming for a lane in the dealership’s parking lot behind the line of cars. He was, however, headed towards a fence in the dealership parking lot where other show cars were lined against the back wall of the service garage and the fence. This line of cars required Joshua to also attempt to steer to avoid them, and, in doing so, the driver’s side headlight of his vehicle struck the rear portion of a black truck parked at the Ward dealership.

Sandy, Joshua’s passenger, corroborated Joshua’s testimony by stating that, as he and Joshua were traveling south, a truck traveling north, came into Joshua’s lane and had all four wheels in the southbound lane. Joshua then swerved to miss the vehicle and hit a truck in the Ward dealership parking lot. Sandy responded in the negative when asked whether Joshua was speeding, whether Joshua was talking when the accident occurred, whether music was playing at the time and whether Sandy observed any careless or reckless driving by Joshua prior to the accident. Further, Sandy identified the phantom vehicle as a light-colored 13Chevy truck with a chrome-colored toolbox in the back. After the accident, Sandy saw the truck at a carwash north of the dealership.

Sandy was also asked whether, as the phantom vehicle moved into Joshua’s lane, there was enough room for Joshua to travel down the shoulder of the road. Sandy responded in the negative. He also responded in the negative when asked whether he observed any other action that Joshua could have taken other than swerving into the parking lot and hitting the Ward truck.

Jesse Butler was driving his vehicle behind Joshua’s vehicle that night and saw the accident occur. Jesse testified that a truck pulled in front of Joshua and that Joshua veered to the right to avoid hitting it. In doing so, “he turned again and he hit the truck.” Jesse saw Joshua’s brake lights being applied, but had no idea how fast he was going at the time of the accident. Jesse further stated that he did not observe Joshua’s vehicle being operated in any reckless or careless manner before the accident. Jesse’s testimony agreed with the testimony of Sandy that the phantom vehicle turned into the carwash north of the dealership after it had forced Joshua off the road. Jesse also indicated that he saw no other option available to Joshua other than striking the phantom vehicle or going off into the Ward dealership parking lot.

Caldwell Parish Sheriffs Office Deputy Billy Varnell investigated the accident that night. As a result of his investigation, he determined that |4Joshua’s vehicle had been heading south on Highway 165 and had “come off at an angle going into the [Ward dealership] parking lot.” He saw no skid marks left in the parking lot by Joshua’s vehicle. According to Deputy Varnell, the witnesses’ stories were “pretty consistent” in stating that a tan or possibly white pickup truck ran Joshua’s vehicle off the road. Deputy Varnell responded affirmatively when asked if there was ample room between the front of the Ward dealership truck and the southbound lane of U.S. 165 for Joshua’s vehicle to make an evasive maneuver without striking any vehicles in the Ward parking lot.

Dennis Ledbetter, general manager of the Ward dealership, went to the scene of the accident after receiving a call from the sheriffs department. He arrived before the vehicles had been moved. Mr. Ledbet-ter indicated that the only tire marks he saw were from the Ward truck that had been moved sideways by the impact. Mr. Ledbetter testified that there was a lane behind the truck of sufficient width for Joshua to travel and return to the roadway if Joshua’s vehicle had been traveling “at an average speed.” According to Mr. Led-better, the paved shoulder adjacent to the southbound lane of the highway was 7 feet wide and the front end of the Ward vehicle was 21 feet from the edge of the shoulder, making the distance from the edge of the highway to the truck approximately 28 feet. Mr. Ledbetter, a former state trooper, had stepped off these distances and stated that they were accurate within a foot one way or the other.

The only other witness to testify at trial was Ronnie Ward, the owner of the dealership. Mr. Ward confirmed the measurement of 28 feet available lRfor Joshua to take evasive action. The great majority of Ward’s testimony, however, concerned the amount of damages suffered by the dealership as a result of the accident that damaged the truck.

In written reasons for judgment, the trial court noted that the testimony of Sandy, Jesse and Joshua revealed that Joshua had no alternative but to swerve to the right into the parking lot of the dealership to avoid a head-on collision. The trial court also noted that the witnesses testified that Joshua was traveling within the speed limit and in a careful manner prior to the accident. Although the trial court noted the testimony indicating that the Ward vehicle was approximately 28 feet from the fog line of Highway 165, and that it had been suggested that Joshua could have traveled along the shoulder within the 28 feet instead of striking the Ward vehicle, the trial court concluded that such an argument failed to recognize Joshua was faced with an unexpected, emergency situation. The trial court stated that Joshua did not have time to assess all the possible alternatives for evasive action and the court did not find that Joshua operated the vehicle in a negligent manner.

DISCUSSION

On appeal, Ward contends that the trial court was manifestly erroneous or clearly wrong in concluding that the phantom driver was one hundred percent at fault. Ward states that 28 feet of paved area were left available to Joshua to avoid the phantom vehicle. Furthermore, Joshua acknowledged that he saw the vehicle drift into his lane while the oncoming vehicle was still quite some distance away and that Joshua allowed his |fivehicle to then drift onto the shoulder of the road. According to Ward, Joshua had ample opportunity to observe the need for evasive action, ample space to take evasive action without striking any vehicles in the Ward parking lot, or, in the alternative, ample opportunity to stop his vehicle prior to the need for any evasive action.

Principles of comparative fault are set forth in Article 2323 of the Louisiana Civil Code, which states in pertinent part:

a. In any action for damages where a person suffers injury, death, or a loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, ... or that the other person’s identity is not known or reasonably ascertainable. (Emphasis added.)

A fact finder may attribute a percentage of fault to a party or nonparty only after it has determined that the party or nonparty is negligent and that his negligence was a legal or proximate cause of the accident. La. C.C.P. art. 1812(C); Efferson v. State, Through Department of Transportation and Development, 463 So.2d 1342 (La.App. 1st Cir.1984), writs denied, 465 So.2d 722 (La.1985) (the apportionment of fault under our comparative negligence scheme, or otherwise, is a factual determination which must be made once the fault of each party and causation have been established.)

Further, in Dupree v. City of New Orleans, 99-3651 (La.8/31/00), 765 So.2d 1002, the Louisiana Supreme Court affirmed the trial court judgment imposing one hundred percent liability upon the Sewage and |7Water Board, and refusing to allocate any fault to the plaintiff who struck a cave-in on a street in New Orleans, lost control of his vehicle and suffered severe injuries. With respect to the allocation of fault, the court stated:

The trier-of-fact is owed great deference in its allocation of fault. Even if the reviewing court would have decided the case differently had it been the original trier-of-fact, the trial court’s judgment should be affirmed unless manifestly erroneous or clearly wrong. Clement v. Frey, 95-1119 c/w 95-1163 (La.1/16/96), 666 So.2d 607, 610. In determining percentages of fault, this Court has stated that the trier-of-fact must consider both the nature of the conduct of all parties and the extent of the causal relationship between the conduct and the damages claimed. We have outlined five factors that may influence the degree of fault assigned: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the capacities of the actor, whether superior or inferior; and (5) any extenuating circumstances that might require the actor to proceed in haste, without proper thought. Watson v. State Farm Fire & Casualty Ins. Co., 469 So.2d 967, 974 (La.1986).

On the record before us, we find no manifest error on the part of the trial court in finding that Joshua was not negligent and, therefore, was free of fault in the accident. Joshua acted reasonably in moving toward and onto the shoulder, thinking that the oncoming driver might realize that he had crossed into the opposing lane. Furthermore, we agree with the trial court that Joshua was faced with an unexpected, emergency situation that did not give him time to assess all possible alternatives for evasive action. While the record does establish that there was a distance of 28 feet between the edge of the highway and the vehicle that Joshua struck, we cannot ignore the fact that this accident occurred at night, that the headlights of the phantom vehicle undoubtedly were shining in Joshua’s direction and that, at |s40 miles per hour, Joshua’s vehicle, in one second, would have traveled more than 58 feet — a distance more than twice the 28 feet between the edge of the highway and the parked truck.

Given the sudden emergency conditions which confronted Joshua, we conclude that the fact Joshua was unable to successfully negotiate the lane passing behind the truck does not indicate that the trial court was clearly wrong in finding no negligence on his part. Put another way, the fact that other courses of action by Joshua might have successfully avoided the accident does not mean that the trial court was manifestly erroneous in concluding that the course of action Joshua chose was reasonable in the face of the sudden emergency. As the trial court noted, both Sandy and Jesse testified to their belief that Joshua had no alternative but to swerve into the parking lot in order to avoid the collision and that Joshua had been driving in a careful manner prior to the accident.

Giving proper deference to the trial court’s findings, we find Ward’s arguments on appeal to be without merit.

CONCLUSION

For the reasons set forth above, the judgment of the trial court is affirmed. Costs are assessed to Ward Chevrolet Olds, Inc.

AFFIRMED.

      . Jesse initially testified that the phantom vehicle turned in front of Joshua’s vehicle into the carwash. He later clarified, however, that the phantom vehicle turned into the car-wash behind Joshua’s vehicle, after it had forced Joshua off of the road.

      . La. C.C.P. art. 1812(C) deals with special verdicts of a jury and directs the jury to attribute a percentage of fault only after determining that the party or nonparly was negligent and a legal or proximate cause of the accident.