author: UGAIDRY, J.

text:
    Monica Ann LAFAUCI v. Randall J. JENKINS and Illinois National Insurance Company, an Affiliate of the American International Group.
    No. 2001 CA 2960.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 15, 2003.
    Writ Denied April 25, 2003.

      Kevin M. Wheeler, New Orleans, Counsel for Plaintiff/Appellee Monica Ann La-fauci.
    Rene D. Guidry, William E. Willard, Baton Rouge, Counsel for Defendant/Appellant Illinois National Ins. Co.
    John L. Tyler, Baton Rouge, Counsel for Defendant/Appellee Randall J. Jenkins.
    Before: KUHN, DOWNING and GAIDRY, JJ.
   UGAIDRY, J.

This matter arose from a motor vehicle collision between vehicles operated by the plaintiff, Monica Ann Lafauci, and the defendant, Randall J. Jenkins. Ms. Lafauci was injured and brought suit for damages against Mr. Jenkins and his automobile liability insurer, Illinois National Insurance Company. Prior to trial, the insurer deposited its liability coverage limits and accrued legal interest in the registry of the trial court. The trial court rendered judgment in favor of Ms. Lafauci against Mr. Jenkins, and in favor of him against his insurer for the amount in excess of its liability coverage limits, as well as other amounts incurred by him in his own defense. Illinois National Insurance Company thereupon instituted this appeal.

FACTUAL AND PROCEDURAL BACKGROUND

On January 5, 2000, at approximately 10:30 p.m., Ms. Lafauci was driving her automobile in the left northbound lane of South Acadian Throughway, approaching its intersection with Perkins Road in Baton Rouge, Louisiana. At the same time, Mr. Jenkins was approaching the intersection from the opposite direction. As Ms. Lafauci crossed the intersection with a green traffic light, Mr. Jenkins initiated a left turn into her lane of travel, causing a collision.

Following the collision, Mr. Jenkins exhibited behavior and conditions suggesting that he was intoxicated. A field sobriety test was administered, but Mr. Jenkins refused to submit to a breath test to determine blood alcohol level.

Illinois National Insurance Company (Illinois National) provided automobile liability coverage to Mr. Jenkins under a policy issued to him as named insured, with applicable bodily injury liability coverage limits of $10,000.00. Prior to suit being filed, it investigated the claim and entered |3into negotiations with Ms. Lafauci regarding her injury claim. Ms. Lafauci eventually retained counsel. After an offer to settle for the policy limits of $10,000.00 was rejected by Illinois National, suit was filed on September 25, 2000. Illinois National obtained an informal extension of time to answer the suit on its own behalf only, and filed an answer on its own behalf on November 22, 2000. On February 7, 2001, Mr. Jenkins, through his personal counsel, filed his answer to the suit, incorporating a cross-claim against Illinois National, seeking indemnity for any excess judgment rendered against himj statutory penalties, and attorney’s fees. On February 28, 2001, Illinois National filed a motion seeking leave to file its policy limits and accrued legal interest into the registry of the court, and an order permitting the deposit was signed the same day.

Following a bench trial, judgment was rendered in favor of Ms. Lafauci and against Mr. Jenkins, awarding her $35,000.00 in general damages for her physical injuries, $10,000.00 in general damages for psychological injuries, $22,500.00 in exemplary damages, special damages of $3,186.90, and legal interest and costs. In the same judgment, the trial court granted judgment in favor of Mr. Jenkins and against Illinois National on his cross-claim for the sum in excess of the policy limits of $10,000.00, or $60,686.90, and all costs. Although the trial court’s judgment found Mr. Jenkins was also entitled to reasonable attorney’s fees and legal interest thereon from date of judgment, it deferred the trial as to that issue. Judgment was subsequently rendered awarding Mr. Jenkins attorney’s fees in the total amount of $8,846.25, plus additional court costs of $144.64.

From the judgment against it, as supplemented, Illinois National appeals.

I ¿ASSIGNMENTS OF ERROR

Illinois National assigns as error (1) the quantum of the awards of general and exemplary damages, (2) the finding that it breached its fiduciary duties of good faith and fair dealing to its insured and is therefore liable to him for the amounts awarded in excess of its limits, including his attorney’s fees, and (3) the inclusion of the award of exemplary damages in the judgment on its insured’s cross-claim.

DAMAGES FOR PHYSICAL INJURIES

As the result of the collision, Ms. Lafauci sustained multiple bodily injuries, consisting of a nondisplaced fracture of the right patella, a right ankle sprain and contusion, a left hand contusion, and multiple abrasions. She went to the emergency room of Our Lady of the Lake Hospital immediately after the accident, but was not able to be treated for some time due to the number of other patients being seen. She decided to go to the emergency room of St. Tammany Parish General Hospital, and was taken there by her mother. A knee immobilizer was applied to her right leg, and she was treated and released.

Ms. Lafauci subsequently consulted Dr. Charles Baier, who referred her to Dr. Kevin Darr, an orthopedic surgeon. Dr. Darr first saw her a week after the accident, and confirmed the diagnosis of a nondisplaced right patella fracture, as well as contusions of the right ankle and left hand. Dr. Darr observed that Ms, Lafauci was walking with a limp, and had “significant” complaints regarding the injured areas. He specifically noted |sthe presence of “patella crepitanee.” By the next visit of February 23, 2000, Ms. Lafauci had significant improvement regarding her right knee, and x-ray examination revealed that the fracture had healed. She had “50% improvement” as to her ankle and wrist injuries. Dr. Darr last examined Ms. Lafauci on May 12, 2000, at which time she still had ankle discomfort when climbing stairs, although the other areas of injury had improved. Dr. Darr diagnosed a “right ankle sprain/synovitis,” and recommended a “specific and aggressive ankle rehabilitation program.”

Ms. Lafauci testified that although her ankle injury responded within one and a half months to the recommended exercise program, she still had intermittent complaints at the time of trial, and was limited in her ability to wear high-heeled shoes. Additionally, she still experienced “a little” discomfort in her right knee at the time of trial. At the time of the accident, Ms. Lafauci was a student attending Louisiana State University in Baton Rouge. Her injuries, knee immobilization, and use of crutches caused her considerable inconvenience in attending classes and negotiating the stairs to her second-floor apartment. Ms. Lafauci’s testimony regarding the consequences of her injuries was corroborated by the testimony of her mother. No evidence controverting the medical records and injury testimony was presented.

The trial court awarded Ms. Lafauci the sum of $35,000.00 in general damages for her physical injuries. We conclude that the trial court did not abuse its great discretion in making this award of general damages.

DAMAGES FOR PSYCHOLOGICAL INJURIES

The trial court’s judgment refers to Ms. Lafauci’s claimed psychological injuries as a “post traumatic stress disorder.” In its oral reasons for judgment, the court described those injuries as including a “post | fitraumatic stress syndrome,” in addition to a phobia. There is no evidence whatsoever in the trial court record supporting the existence of that particular psychological condition, other than a brief mention by plaintiff regarding a hearsay comment supposedly made by Ms. Case. The only competent evidence of the nature of the psychological injuries sustained by plaintiff is the very terse report of the treating social worker, Ms. Case, which states only that plaintiff was treated with psychotherapy on six occasions for “simple phobia.”

The trial court clearly erred in finding that plaintiff sustained a “post traumatic stress syndrome,” in addition to a “simple phobia.” Since the award of general damages for the element of psychological injuries was predicated upon that fundamental factual error, we may not accord it the deference due a damages award properly supported by a preponderance of the evidence. Instead, we are required to review the record and make a de novo determination of the damages due, if any. Ferrell v. Fireman’s Fund Insurance Company, 94-1252, pp. 3-4 (La.2/20/95), 650 So.2d 742, 745.

Ms. Lafauci did not consult Ms. Case, a licensed social worker, until July 14, 2000. She attended six sessions of psychotherapy over a period of approximately six weeks for treatment of a condition diagnosed as “simple phobia.” We conclude that an award of $2,500.00 in general damages for plaintiffs temporary phobia, which resolved within a short period of time [7and without any evidence of impairment, is appropriate and fair, given the facts described above. The trial court’s judgment is therefore reversed in part with regard to its award of general damages for psychological injuries.

EXEMPLARY DAMAGES

Illinois National challenges the trial court’s award of exemplary damages made under La. C.C. art. 2315.4, which provides:

In addition to general and special damages, exemplary damages may be awarded upon proof that the injuries on which the action is based were caused by a wanton or reckless disregard for the rights and safety of others by a defendant whose intoxication while operating a motor vehicle was a cause in fact of the resulting injuries.

The decision to award exemplary damages under La. C.C. art. 2315.4 rests within the sound discretion of the trier of fact. Khaled v. Windham, 94-2171, p. 12 (La.App. 1st Cir.6/23/95), 657 So.2d 672, 67681. The article has the dual purpose to both penalize (and thus deter) drunk drivers, and to provide damages for the victims of such drivers. Brumfield v. Guilmino, 93-0366 (La.App. 1st Cir.3/11/94), 633 So.2d 903, 912. Recovery of exemplary damages requires proof of three elements: (1) that the defendant was intoxicated or had consumed a sufficient quantity of intoxicants to make him lose normal control of his mental and physical faculties; (2) that the intoxication was a cause-in-fact of the resulting injuries; and (3) that the injuries were caused by the defendant’s wanton or reckless disregard for the rights and safety of others. Minvielle v. Lewis, 610 So.2d 942, 946 (La.App. 1st Cir.1992).

Mr. Jenkins did not take the stand in his own defense on the issue of the exemplary damages claim. The uncontra-dicted testimony of Ms. Lafauci and the two investigating police officers, as well as the circumstantial ^evidence, support the trial court’s determination that Mr. Jenkins was intoxicated at the time of the accident.

Ms. Lafauci testified that Mr. Jenkins had bloodshot eyes, smelled of an alcoholic beverage, and seemed unresponsive to her inquiries of him immediately after the accident. Officer Lyle Johnson, the first police officer on the scene, testified that Mr. Jenkins exhibited such obvious signs of intoxication that he felt it unnecessary to administer a field sobriety test at the time he spoke to him. A field sobriety test administered later at the police district office established that Mr. Jenkins’s sense of balance, his orientation, and his coordination were impaired, justifying a request that he submit to a breath test, which he declined.

The circumstances of the collision further corroborate the finding of intoxication. The weather was clear, the traffic light was functioning properly, and there were no obstructions to the view of either driver as they approached the intersection. The collision was described as a head on collision, indicating that Mr. Jenkins’s turn was initiated when Ms. Lafauci’s automobile was in close proximity and readily visible. Mr. Jenkins told Officer Lyle that he had a green turn arrow when the accident occurred, but that circumstance would have indicated that the light controlling Ms. Lafauci would have been red, rather than green, as she testified. The trial court obviously found Ms. Lafauci’s version of the accident to be more credible.

While the evidence as to the element of wanton or reckless disregard for the safety of others was perhaps not as strong as that of other reported cases, we are convinced that, as a whole, it was sufficient to support the trial court’s discretion in the award of exemplary damages. Likewise, the amount of the award, $22,500.00, while arguably generous, was much less than the 19amount of compensatory damages awarded. We find no abuse of discretion as to the amount of exemplary damages.

POLICY COVERAGE AND DUTY TO DEFEND

Illinois National contends that as its policy did not provide coverage for its insured’s liability for exemplary damages, it cannot be cast in judgment for those damages, and owed no duty to defend him for those claimed damages. This contention is founded upon misinterpretation of its own policy, as explained below.

Mr. Jenkins was the named insured in Illinois National’s policy No. AIG 9142963. In addition to its declarations page, the policy is composed of standard personal automobile policy forms published by Insurance Services Office, Inc. The basic policy agreement is “Personal Auto Policy” form PP 00 01 06 94. The policy includes two endorsement forms amending the basic policy agreement as to the covered vehicles. The first is “Amendatory Endorsement” form CW 00 01 04 96, dated April 1996 in the declarations page, and the second is “Amendatory Endorsement of Policy Provisions — Louisiana” form PP 01 95 09 98, dated September 1998.

Under the “Amendatory Endorsement” form CW 00 01 04 96, Illinois National’s obligations to Mr. Jenkins in the “Insuring Agreement” of Part A, “Liability Coverage,” were amended to read as follows:

We will pay damages, other than punitive or exemplary, for “bodily injury” or “property damage” for which any “insured” becomes legally responsible because of an auto accident. Damages include prejudgment interest awarded against the “insured”. We will settle or defend, as we consider appropriate, any claim or suit asking for these damages. In addition to our limit of liability, we will pay all defense costs we incur. Our duty to settle or defend ends when our limit of liability for this coverage has been exhausted. We have no duty to defend any suit or settle any claim for “bodily injury” or “property damage” not covered under this policy. (Our emphasis.)

Imlf this provision were applicable, Illinois National’s position would be well-taken. However, under the later “Amendato-ry Endorsement of Policy Provisions— Louisiana” form PP 01 95 09 98, Paragraph A is replaced with the following language:

We will pay damages for “bodily injury” or “property damage” for which any “insured” becomes legally responsible because of an auto accident. We will settle or defend, as we consider appropriate, any claim or suit asking for these damages. In addition to our limit of liability, we will pay all defense costs we incur. Our duty to settle or defend ends when our limit of liability for this coverage has been exhausted. We have no duty to defend any suit or settle any claim for “bodily injury” or “property damage” not covered under this policy. (Our emphasis.)

The most significant difference in the above two versions is the absence of the exclusionary clause relating to punitive or exemplary damages in the latter. Since both versions cannot apply, the policy must be interpreted to reconcile the issue of which version controls.

A policy of insurance is a contract, and must be interpreted according to the general rules of contractual interpretation. Magnon v. Collins, 98-2822, p. 6 (La.7/7/99), 739 So.2d 191, 196. Interpretation of a contract is the determination of the common intent of the parties. La. C.C. art.2045. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. C.C. art.2050. Additionally, we are guided by the well-recognized rule that an exclusionary clause in an insurance policy must be strictly construed. Calogero v. Safeway Insurance Company, 99-1625, p. 6 (La.1/19/00), 753 So.2d 170, 173.

Where there is conflict between policy endorsements affecting the same coverage provision, the most recent endorsement form’s language should be construed as superseding the corresponding language of the earlier | ^, endorsement. See Farr v. Pacific Mutual Life Insurance Company, 197 La. 111, 119, 200 So. 865, 867 (1941). Additionally, as the most recent endorsement form here is by its own terms specifically applicable to Louisiana, it should likewise be construed as controlling over the prior “general,” non-territorial form, in the event of conflicting language. See, e.g., Corbello v. Iowa Production, 01-567, p. 9 (La.App. 3rd Cir.12/26/01), 806 So.2d 32, 41; Richard v. Borden, Inc., 597 So.2d 60, 65 (La.App. 1st Cir.1992).

The policy clearly and unambiguously provides protection for damages for bodily injury, including both compensatory and exemplary damages. As the insurer issuing the policy at issue, Illinois National is charged with knowledge of its contents. It predicated its handling of the claim, negotiations, and interpretation of its duty to defend upon the supposed existence of exclusionary language which was not present in its policy. From the standpoint of its insured, the result is the same as if the | ^policy terms were intentionally misrepresented. An insurer misconstruing the clear language of its own policy does so at its peril.

Illinois National’s claims activity log documents the fact that it was aware that both involved vehicles were total losses by January 27, 2000. By April 14, 2000, it had received the medical reports relating to Ms. Lafauci’s treatment up to that time. By April 20, 2000, it was in possession of documented medical expense records total-ling $2,004.76. An adjuster spoke with Ms. Lafauci and noted that the collision involved a “hard impact” which totalled her automobile, and that she sustained a fracture of the right patella, a right ankle contusion, and a left hand contusion.

By letter dated June 6, 2000, Illinois National made a “firm offer” of settlement in the total amount of $5,000.00. By letter dated June 9, 2000, Ms. Lafauci’s counsel provided documentation of total medical expenses of $2,666.90, and conveyed a settlement offer for the policy limits. On July 10, 2000, Illinois National responded in writing with a counteroffer of $5;500.00 total. By letter of the same date, Ms. Lafauci’s counsel reiterated the policy limits demand, and advised that if it were not accepted suit would be filed. Suit was filed on September 25, 2000.

By letter dated October 9, 2000, Ms. Lafauci’s prior offer to settle for the policy limits was withdrawn. Shortly after suit was filed, Illinois National offered its policy limits “in full and final settlement” on its behalf and that of its insured. Ms. Lafauci rejected that offer and countered with an offer of $15,000.00. There is no evidence that her offer to settle for the liability limits nor the subsequent offer of $15,000.00, made after suit was filed, was ever timely communicated to Mr. Jenkins. He was not notified of his potential exposure to an excess judgment until after March 7, 2001, almost eight months later.

13 A liability insurer is the representative of the interests of its insured, and when handling a claim against its insured must carefully consider not only its own self-interest, but also its insured’s interest, to protect the insured from exposure to excess liability. Smith v. Audubon Insurance Company, 95-2057, pp. 7-8 (La.9/5/96), 679 So.2d 372, 376. In fulfilling its role as the champion of its insured’s interests, a liability insurer owes its insured the duty to act in good faith and to deal fairly in handling claims. Id. In Smith, our Supreme Court articulated the following principles in determining whether a liability insurer has complied with that duty:

[T]he determination of whether the insurer acted in good faith turns on the facts and circumstances of each case. Of course, an insurer is not obligated to compromise litigation just because the claimant offered to settle a claim for serious injuries within the policy limits, and its failure to do so is not by itself proof of bad faith. The determination of good or bad faith in an insurer’s deciding to proceed to trial involves the weighing of such factors, among others, as the probability of the insured’s liability, the extent of the damages incurred by the claimant, the amount of the policy limits, the adequacy of the insurer’s investigation, and the openness of communications between the insurer and the insured....
Because the determination of a liability insurer’s bad faith failure to settle in excess judgment cases is so fact-intensive, great deference must be accorded to the trier of fact....

Id., 95-2057 at pp. 9-10, 679 So.2d at 377.

Even if a liability insurer is not in bad faith in its evaluation of a claim or in refusing to settle a claim, it may still be found to be in bad faith for failure to keep its insured informed of the status of settlement negotiations and other developments affecting his excess exposure. The failure to do so may expose it to liability to its insured for all or part of any excess judgment, as well as his attorney’s fees incurred in protecting himself and in prosecuting his claim for consequential damages against his insurer. See Maryland Casualty Company v. Dixie Insurance Company, 622 So.2d 698, 702-03 (La.App. 1st Cir.1993).

As of October 24, 2000, the date the suit was assigned to its defense counsel, Illinois National’s handling adjuster had decided upon its course of action in the event its offer of the policy limits was rejected. The claims activity log for that date reveals that in that event, its counsel would be instructed to answer the suit only for Illinois National, and it would deposit the funds “into the court to stop the interest” and to “conclude our obligation under the policy.” Its motion to deposit its policy limits into the registry of the court was not filed until February 28, 2001, over three months after it had filed its answer and three weeks after Mr. Jenkins filed his answer and cross-claim. There is no evidence that Illinois National ever provided or offered to provide a defense to Mr. Jenkins during the period of over four months between the filing of suit and the time his answer was filed by his own attorney.

Illinois National’s rebanee on the case of Pareti v. Sentry Indemnity Company, 536 So.2d 417 (La.1988), is misplaced. In Pareti, the Louisiana Supreme Court found that a clause providing that the “duty to settle or defend ends when [the] bmit of hability is exhausted,” identical to that involved here, was unambiguous and enforceable, absent bad faith. However, the court emphasized that “[a]n insurer which hastily enters a questionable settlement simply to avoid further defense obligations under the policy clearly is not acting in good faith and may be held liable for damages caused to its insured.” Id. at 423. Even where a settlement or other payment of the policy bmits is made in good faith, “... the insurer must make every effort to avoid prejudicing the insured by the time of its withdrawal from the litigation.” Id. at 423. In this case, even if Illinois | ^National’s duty to defend Mr. Jenkins ended upon the deposit of its limits in the court registry, it nevertheless had the fiduciary duties to keep him informed, to protect his interests, and to defend him in the litigation up to the time of the deposit.

Illinois National argues that the trial court erred in rendering judgment against it on the cross-claim, since it did not commit any of the specific acts enumerated in La. R.S. 22:1220(B). The trial court below did not specifically base its award in favor of Mr. Jenkins and against Illinois National on a finding that Illinois National violated the provisions of La. R.S. 22:1220. Although the trial court awarded Mr. Jenkins indemnity for the entirety of the excess judgment rendered against him, reasonable attorney’s fees, and costs, it did not award the statutory penalties recoverable under La. R.S. 22:1220(C). From a practical standpoint, such a finding would not change the result reached herein. Mr. Jenkins did not appeal the trial court’s judgment or answer Illinois National’s appeal as to its failure to award statutory penalties. The recovery granted him is authorized under the law and jurisprudence regulating the duties of a liability insurer to its insured, previously discussed, which the statute merely supplements and complements.

THE EFFECT OF THE TENDER AND DEPOSIT

Mr. Jenkins raises this the issue: Did the “tender” made by Illinois National by depositing its limits into the registry of the trial court relieve it from any further duty to defend its insured? The policy, as amended, provided that its “duty to settle or defend ends when [its] limit of liability for this coverage has been exhausted.” Mr. Jenkins contends that the tender was insufficient, since the policy limits were not paid to Ms. Lafauci directly, and she was required to litigate her entitlement to the funds deposited in the [1firegistry of the court. We agree that the tender and deposit were insufficient, but for somewhat different reasons.

Although we acknowledge the common practice of insurers depositing money into the registry of the courts when liability is admitted, the only statutory authorities for the practice under these facts are La. C.C. arts. 1869 and 1871. Those articles provide as follows:

La. C.C. art. 1869
When the object of the performance is the delivery of a thing or a sum of money and the obligee, without justification, fails to accept the performance tendered by the obligor, the tender, followed by deposit to the order of the court, produces all the effects of a performance from the time the tender was made if declared valid by the court.
A valid tender is an offer to perform according to the nature of the obligation.
La. C.C. art. 1871
After the tender has been refused, the obligor may deposit the thing or the sum of money to the order of the court in a place designated by the court for that purpose, and may demand judgment declaring the performance valid.
|17If the deposit is accepted by the obligee, or if the court declares the performance valid, all expenses of the deposit must be borne by the obligee.

We conclude that Illinois National did not make a proper tender and deposit under La. C.C. arts. 1869 and 1871, as its offer of settlement for the limits, conditioned on the “full and final” release of its insured and itself, and without inclusion of the legal interest and costs owed under the policy, did not constitute a proper “tender.” That offer, made prior to the deposit, was conditional; it was predicated upon the compromise of Ms. Lafauci’s |1sclaims against Mr. Jenkins in excess of the policy limits, and required further action on her part, the execution of a written release of those claims. Even after the deposit of the limits and accrued interest was made, Ms. Lafauci was required to seek a further court order permitting her to withdraw the deposited funds. Additionally, Illinois did not offer the incurred court costs, nor did it deposit those costs incurred by Ms. Lafauci as of the date of deposit. Under these facts, there was no valid tender and no valid deposit. Since there was no valid tender and deposit, the liability limits were not “exhausted” by payment. Therefore, the insurer’s duty to defend its insured did not end.

We hold that where a liability insurer seeks to terminate its duty to defend its insured, in addition to the accrual of legal interest and costs, by making a tender and/or deposit, it must strictly comply with the procedural rules governing tender and deposit, and must do so in good faith. The insurer here did neither. Even if its attempted tender would have been sufficient to terminate its duty to defend its insured under the rationale of Pareti v. Sentry Indemnity Company, 536 So.2d 417 (La.1988), the tender was made after its duties of adjusting the claim fairly, properly keeping its insured informed, making a reasonable effort to settle the claim, and Improperly defending its insured had already been breached. Accordingly, the result reached herein would be the same.

Given the foregoing analysis, we conclude that the trial court’s judgment against Illinois National on the cross-claim of Mr. Jenkins, based upon the implicit finding of bad faith on its part, is correct, and we affirm its judgment, as amended below. We further affirm the supplemental judgment of April 24, 2002, awarding attorney’s fees and costs.

CONCLUSION

We reverse the judgment of the trial court as to the award of $10,000.00 in general damages for psychological injuries to the plaintiff, Monica Ann Lafauci, and award her the sum o'f $2,500.00 in general damages for the psychological injury of simple phobia. Accordingly, the trial court’s original judgment on the principal demand after trial is modified to reduce the total monetary award to the sum of SIXTY-THREE THOUSAND ONE HUNDRED EIGHTY-SIX AND 90/100 DOLLARS ($63,186.90), together with legal interest thereon from date of judicial demand, and all costs of these proceedings.

The trial court’s judgment on the principal demand is affirmed in all other respects.

Because Illinois National’s tender and deposit was ineffective, the judgment of the trial court on the cross-claim is amended to increase the monetary award in favor of the cross-claimant, Randall J. Jenkins, and against the defendant in cross-claim, Illinois National Insurance Company, to the sum of SIXTY-THREE THOUSAND ONE HUNDRED EIGHTY-SIX AND 90/100 DOLLARS ($63,186.90), together with legal interest thereon from date of the plaintiffs judicial demand until paid and for all Oncosts of these proceedings, representing the total amount of the judgment rendered against the defendant, Mr. Jenkins.

The trial court’s judgment on the cross-claim, as supplemented by the judgment of April 24, 2002, is affirmed in all other respects.

Finally, because the trial court’s judgment did not dispose of Ms. Lafauci’s cause of action against Illinois National, and there is no other indication in the record of its disposition, it is amended by adding the following:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the cause of action of the plaintiff, Monica Ann Lafauci, against the defendant, Illinois National Insurance Company, be and is hereby dismissed with prejudice.”

All costs of this appeal are assessed to the defendant in cross-claim/appellant, Illinois National Insurance Company.

AFFIRMED IN PART, AMENDED, AND REVERSED IN PART.

KUHN, J., concurs.

      . No credit against the principal or interest of the damages award was made in favor of Mr. Jenkins by virtue of the prior deposit by Illinois National.

      . As a party aggrieved by the judgment in favor of Ms. Lafauci, Illinois National may properly appeal that judgment, even though it was not directly cast in judgment on her cause of action, but only on the cross-claim of its insured, Mr. Jenkins. Emmons v. Agricultural Insurance Company, 245 La. 411, 425, 158 So.2d 594, 599-600 (1963). Illinois National has appealed from both the original partial judgment of September 18, 2001, and the judgment on Mr. Jenkins’s Motion to Tax Fees and Costs, signed on April 24, 2002, which supplemented the original judgment.

      . Plaintiff requested written findings of fact and reasons for judgment on September 20, 2001. The trial never complied with that request, as required by La. C.C.P. art. 1917. As plaintiff never sought supervisory writs nor moved to remand the case for rendition of written reasons for judgment, such failure does not prevent our consideration of this appeal. Brocato v. Brocato, 369 So.2d 1083, 1085 (La.App. 1st Cir.1979).

      . Shortly after describing the hearsay statement, to which objection was not made, plaintiff acknowledged that Ms. Case’s report showed a diagnosis of only “simple phobia.” In addition to the unsupported hearsay statement, the trial court may have based its finding of a post-traumatic stress disorder on the allegation in plaintiff's petition that she sustained "post traumatic stress and other related anxiety.” Controverted pleadings are not evidence. Department of Health and Hospitals v. Teachers’ Retirement System of Louisiana, 95-1074, p. 4 (La.App. 1st Cir. 12/15/95), 665 So.2d 748, 750.

      . Part F, "General Provisions”, of the policy at issue indirectly supports this reasoning. Under the section entitled "Changes,” Paragraph A provides that the policy's "terms may not be changed or waived except by endorsement issued by us.” (Our emphasis.) Paragraph C further states:
      If we make a change which broadens coverage under this edition of your policy without additional premium charge, that change will automatically apply to your policy as of the date we implement the change in your state. This paragraph (C) does not apply to changes implemented with a general program revision that includes both broadenings and restrictions in coverage, whether that general program revision is implemented^ through introduction of:
      1. A subsequent edition of your policy; or
      2. An Amendatory Endorsement.
      (Our emphasis.)

      . See Bauer v. White, 532 So.2d 506, 508 (La.App. 1st Cir.1988).

      . Illinois National’s claims activity log evidences that on October 20, 2000, an adjuster noted that there was a "punitive damage allegation” in the petition, but that the policy included the "CW0001 endorsement.” He recommended that the insured be put “on notice.” There was no recognition nor mention of the later endorsement, although it was listed on the second page of the policy declarations.

      . La. C.C.P. art. 4658 applies only in the context of a concursus proceeding, and is inapplicable here.

      . Professor Litvinoff elucidates the guiding principles for a valid tender and deposit under these articles:
      [W]hen the object of performance is a sum of money, a check for the right amount sent by the obligor is a tender, and if that check is returned uncashed by the obligee, the obligor may proceed to take the next step. As once expressed by a Louisiana court, in order to be validly tendered, a sum of money must be placed in the power of the adverse party.
      If he so wishes, however, an obligor may omit an extra-judicial tender and proceed to make a tender together with a deposit of the object of the performance in an action filed for that purpose, as Louisiana Courts have asserted that a separate act of tender need not precede the deposit. 5 Saúl Litvi-noff, Louisiana Civil Law Treatise: The Law of Obligations § 15.11 (2nd ed. 2001)....
      The amount tendered must be the full amount owed, which, in the case of a money-debt, includes principal, interest, and expenses chargeable to the obligor....
      Last, but certainly not least, a valid tender must be unconditional. Thus, when the object of the performance is a sum of money, it must be placed in the power of the obligee, that is, the obligor’s intention must be that the creditor is at liberty to take the tendered object. If the availability of the object is made to depend on further orders by the court, the tender is then conditional and fails to produce liberative effects.

        Id. § 15.13.
      [I]n a suit for damages arising from an accident, the defendant-insurer may deposit funds sufficient to cover the policy limits, court costs, and interest to date, for the purpose of preventing the further accrual of interest....
      It should be clear that the court will need to decide on the validity of the tender and deposit of the object of the performance if the creditor contests that validity, which he will no doubt do if the deposit does not conform to the requirements already discussed.

        Id. § 15.24.

      . La. C.C. art. 3071.

      . The order permitting the deposit could have also provided that the funds deposited were payable to Ms. Lafauci on demand, without the need for further action on her part or that of the trial court.

      . The policy provides that "[I]n addition to our limit of liability, we [Illinois National] will pay all defense costs we incur.” Those "costs” are not further defined. We construe the insurer's obligation in that regard as including court costs assessed against its insured, incurred prior to the exhaustion of the policy limits. Additionally, as in this case, those costs include court costs taxed pursuant to La. C.C.P. arts. 1920 and 2164.

      . "A tender is valid when it meets the same requirements as a valid payment.” 5 Saúl Litvinoff, Louisiana Civil Law Treatise: The Law of Obligations § 15.13 (2nd ed.2001).


source: Caselaw Access Project

author: 1MAX N. TOBIAS, JR., Judge. 11McKAY, J.,

license: Public Domain

text:
    Henry J. LEVIERE v. Shawn A. WILLIAMS and Progressive Security Insurance Company.
    No. 2002-CA-1816.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 17, 2003.
    Writ Denied June 20, 2003.

      Paul D. Gibson, Gibson-Gruenert, L.L.P., Lafayette, LA, for Plaintiff/Appellant.
    Scott A. Cannon, Morse, McGinty & Associates, New Orleans, LA, for Defen-dani/Appellee, Progressive Security Insurance Company.
    (Court Composed of Chief Judge WILLIAM H. BYRNES, III, Judge CHARLES R. JONES, Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, and Judge MAX N. TOBIAS, JR.).
   1MAX N. TOBIAS, JR., Judge.

On 31 March 2001, the plaintiff, Henry J. Leviere, was rear-ended by a Mack truck driven by the defendant, Shawn Williams, and owned by Lillian Washington, a co-defendant. Mr. Williams was allegedly driving on behalf of L. Murphy Trucking Service, Inc. (“L. Murphy Trucking”) as an owner-operator. Ms. Washington’s truck had been insured under a policy of liability insurance issued by Progressive Security Insurance Company (“Progressive”), and L. Murphy Trucking received a certificate of insurance for that policy from Progressive. On or about 15 October 1999, Progressive cancelled the policy for non-payment of premium by Ms. Washington. As evidenced by an affidavit executed by Mary Alice Fitzgerald, a representative of Progressive, the notice of cancellation was mailed to Ms. Washington, the named insured under the policy, on 4 October 1999 and the policy was cancelled effective 15 October 1999. The record shows that Ms. Washington received by check a refund of the unused | ¡^portion of the premium from Progressive following the cancellation of the policy and negotiated the check and received the funds. The certificate of insurance issued by Progressive to L. Murphy Trucking for Ms. Washington is not a part of the record on appeal. Although it is suggested that the certificate of insurance evidencing coverage of Ms. Washington’s truck states that L. Murphy Trucking would receive notice of cancellation of Ms. Washington’s policy within ten days of the cancellation, the actual certificate relating to the policy in question has not been produced and is not part of the record. In addition, Progressive has failed to attach to their motion for summary judgment an affidavit from one of their authorized representatives attesting that a certificate of insurance that would have been issued to L. Murphy Trucking on Ms. Washington’s policy would have been identical to those that they issued to other drivers/vehicle owners as noted above.

The plaintiff asserts that the trial court erred in granting Progressive’s motion for summary judgment on the grounds that Progressive failed to mail notice of the cancellation of Ms. Washington’s insurance to L. Murphy Trucking, which held the certificate of insurance. Progressive does not dispute that no notice was mailed to L. Murphy Trucking.

The plaintiff relies upon the holding in Johnson v. Deselle, 596 So.2d 261 (La.App. 3 Cir.1992), as support for his estoppel argument. In Johnson, a |3homeowner whose home was damaged by fire while being renovated, sued her homeowners’ insurer in its capacity as the home renovator’s insurer. After collecting on her homeowners’ insurance policy, Ms. Johnson looked to the renovator and its insurer to recover the difference between what her policy covered and what the repair costs totaled, as well as to recover general damages. The renovator, Deselle, had formed a partnership with a local contractor, and had been added to the contractor’s liability policy. Because the contractor and renovator were bidding on projects to renovate homes through the city of Alexandria’s HUD program, they were required to send the city a certificate of insurance evidencing liability insurance coverage of the partnership. By coincidence, both the plaintiff and the partnership were insured by State Farm Fire and Casualty Insurance Company (“State Farm”), although Deselle was never added as a named insured.

Prior to beginning renovations on the plaintiffs home, the renovator and contractor had a falling out and the contractor removed Deselle from its insurance policy, but did not inform either Deselle or the city of Alexandria that Deselle was no longer covered under the State Farm policy. Deselle was hired to perform the renovation work for the plaintiff while both he and the plaintiff were under the mistaken impression that he was an insured under the State Farm policy. The court held that (a) State Farm was estopped from denying coverage insofar as the city of Alexandria and the plaintiff detrimentally relied upon the existence of insurance coverage when they contracted with Deselle to perform the renovation work and D(b) State Farm had not complied with the requirements of La. R.S. 22:636 with regard to cancellation of coverage.

Mr. Leviere argues that the trial court erred in granting Progressive’s motion for summary judgment on the grounds that the doctrine of estoppel should operate to prevent Progressive’s cancellation of the policy from taking effect. The plaintiff also asserts that the trial court erred in concluding that the plaintiff had no standing to assert the argument of estoppel in response to Progressive’s motion for summary judgment.

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions. The procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). A summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to summary judgment as a matter of law. La. C.C.P. art. 966(B). Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226, 230. Our de novo review requires that we determine whether the prevailing party has carried his, her, or its burden with appropriate evidence. La. C.C.P. arts. 966 and 967.

We find the trial court erred in granting Progressive’s motion for summary judgment, notwithstanding the argument of estoppel put forth by the plaintiff. It is |Knot disputed that the policy issued by Progressive was effectively cancelled pursuant to the requirements of La. R.S. 22:636.4, as established by Progressive in its motion for summary judgment. Thus, the cancellation of the policy can only be overturned on some other legal grounds. The plaintiff has argued that estoppel operates in this matter to effectively nullify the cancellation of the Progressive policy. However, we fail to see how the holding in Johnson, supra, supports the assertion that the plaintiff detrimentally relied upon Progressive to issue insurance to cover Shawn Williams as driver of the truck. As noted above, Progressive has failed to establish by appropriate evidence that the certificate of insurance issued by it to L. Murphy Trucking did not require them to notify L. Murphy Trucking that Ms. Washington’s insurance had been cancelled for nonpayment.

Additionally, in Johnson, the coverage issue revolved around whether La. R.S. 22:636 applied to the alleged insured or whether the terms of the policy effectively estopped State Farm from denying coverage to Deselle, in light of the fact that he himself was never notified that he had been removed from the policy. The case at bar is distinguishable from Johnson, for no dispute exists that the policy in question was validly cancelled pursuant to the statutory requirements set forth by the Louisiana legislature. We do not know, however, whether the certificate of insurance issued to L. Murphy Trucking evidencing coverage required Progressive to notify L. Murphy Trucking of cancellation of Ms. Washington’s policy. We note that neither La. R.S. 22:636.4 nor the policy required notification to L. Murphy Trucking. Although we note no direct evidence |fiin the record that Mr. Williams was indeed working for L. Murphy Trucking at the time of the accident, there still remains a genuine issue of material fact as to whether he was indeed working for L. Murphy Trucking at the time of the accident.

Mr. Leviere has raised as an assignment of error that the trial court erred in determining that he did not have standing to assert an estoppel argument. No mention is made of such a finding in the judgment or documented in the record, but for the purposes of this appeal we will presume that the trial court so concluded. We note that the current law in this circuit is found in Sturcke v. Clark, 261 So.2d 717 (La.App. 4 Cir.1972). In Sturcke, a defendant driver involved in an automobile accident had paid his insurer, Carver General Insurance Company, a premium for both collision and liability insurance. Due to a clerical error, Carver failed to issue a liability policy to the driver. The plaintiffs insurer filed a third party action against Carver to enforce the contract for liability insurance as a third party beneficiary to the policy. The court noted that although Carver was not an insurer liable to the plaintiff under R.S. 22:655, “it did undertake an obligation for the benefit of third parties like plaintiff, La. C.C. art. 1890, and plaintiff therefore had a right of action. ...” Id. at 721. Thus, the law of this circuit supports a cause of action to enforce insurance contracts by third party beneficiaries to those contracts. La. R.S. 22:655 establishes that an injured party is a third party beneficiary to an insurance policy. The plaintiff therefore has a right of action against Progressive and may proceed against Progressive to determine whether the policy was effectively can-celled and whether any coverage for Shawn Williams existed at the time of the accident.

For the foregoing reasons, we reverse the judgment of the trial court and remand this matter for further proceedings.

REVERSED AND REMANDED.

McKAY, J., dissents with reasons.

11McKAY, J.,

dissents with reasons.

I respectfully dissent from the majority’s decision to reverse and remand in this case. Progressive was not required to send notice of cancellation to Murphy to properly effect cancellation of its policy because La. R.S. 22:636.4 requires that notice of cancellation be sent only to the first named insured (Ms. Washington), which Progressive did. Accordingly, I would affirm the trial court’s granting of summary judgment.

      . Although the plaintiff asserts that Mr. Williams was driving for L. Murphy Trucking at the time of the accident, L. Murphy Trucking has filed its own motion for summary judgment arguing that Mr. Williams was on a personal errand at the time of the accident. We note that Mr. Williams has not contested this assertion.

      . The plaintiff has attached to his appeal copies of certificates of insurance held by L. Murphy Trucking evidencing coverage provided by Progressive to other drivers/vehicle owners. The certificates state, in pertinent part, that "should any of the described policies be cancelled before the expiration date thereof, the issuing company will endeavor to mail ten days written notice to the certificate holder named to the left, but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representatives.” L. Murphy Trucking is the certificate holder named to the "left” on the certificates.

      . Sturcke is the law in this circuit and we are bound by it. We note that other Louisiana courts have declined to follow the holding. Tu v. Guidry, 653 So.2d 1 (La.App. 3 Cir.1995); Campbell v. Continental-Emsco Co., 445 So.2d 70 (La.App. 2 Cir.1984); LeBouef v. Colony Ins. Co., 486 So.2d 760 (La.App. 1 Cir.1986); Oliver v. Natchitoches Air Center, 506 So.2d 558 (La.App. 3 Cir.1987).

      . La. C.C. art. 1890, as a result of the revision of the Civil Code, is now contained in La. C.C. art. 1978.


author: 2PER CURIAM.

text:
    Amy KINCHEN v. Lenedray LEWIS, et al. Government Employees Insurance Company
    No. 2002 CW 2198.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 3, 2003.
    Writ Denied May 2, 2003.

      Glenn Scott Love and Stephen Dale Cronin, Baton Rouge, for Applicant Government Employees Insurance Company.
    Paul T. Landry, Morgan City, for Respondent Amy Kinchen.
    Richard S. Thomas, Baton Rouge, for Respondent Lenedray Lewis.
    Before: DOWNING, GAIDRY, 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.

   2PER CURIAM.

This matter is before us on an application for supervisory writs wherein relator, Government Employees Insurance Company (GEICO), seeks review of the trial court’s denial of its motion for summary judgment (MSJ) based on a business use exclusion in its policy. Finding error, we grant the writ.

FACTS

Plaintiff, Amy S. Kinchen, filed suit seeking damages arising out of an automobile accident which occurred on October 31, 2000. Lenedray Lewis operated a Mack dump truck which was also involved in the accident and which was owned by Elmer M. Johnson. Plaintiff named Lewis as a defendant and alleged that he was operating the vehicle while in the course and scope of his employment with T ‘N’ T Trucking of Albany, Inc., with its permission. Plaintiff also named as defendants T ‘N’ T Trucking, Progressive Security Insurance Co. (insurer of the vehicle driven by Lewis), GEICO (Lewis’ personal automobile insurer), and Allstate Insurance Co. (plaintiffs UM insurer).

GEICO filed a MSJ, contending that Lewis, its insured, was using a non-owned auto in his business or occupation at the time of the accident and such use of a non-owned auto is specifically excluded under the GEICO policy at issue. GEICO relied on the policy, the petition and the deposition of Lewis for its MSJ; plaintiff and Lewis did not submit any depositions or affidavits in opposition to the MSJ. Section I of GEICO’s policy includes the following language:

EXCLUSIONS
When Section I Does Not Apply ...
8. A non-owned auto while maintained or used by any person is not covered while such person is employed or otherwise engaged in (1) any auto business; (2) any other business or occupation of any insured, except a private passenger auto used by you or your chauffeur or domestic servant while engaged in such other business.
| ^However coverage does apply to a non-owned private passenger auto used by you, your chauffeur or a domestic servant, while engaged in the business of an insured.

A “non-owned auto” is defined as “an automobile or trailer not owned by or furnished for the regular use of either you or a relative, other than a temporary substitute auto.” A “private passenger auto” is defined as a “four-wheel private passenger, station wagon or jeep-type auto.”

GEICO contends that the vehicle Lewis was operating at the time of the accident was owned by Johnson, and, therefore, it was a non-owned auto under the terms of the policy. While the exclusion does afford coverage if the insured is operating a non-owned auto that is a private passenger auto, the vehicle involved in this case was a Mack dump truck. GEICO also contends that Lewis’ deposition testimony establishes that Lewis was engaged in his occupation at the time the accident occurred.

The trial court denied the MSJ. From this ruling, GEICO seeks writs.

DISCUSSION

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Potter v. First Federal Savings and Loan Association of Scotlandville, 615 So.2d 318, 325 (La.1993). A motion for summary judgment is a procedural device used to avoid a full-scale trial, where there is no genuine factual dispute. Sanders v. Ashland Oil, Inc., 96-1751, p. 5 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, 1034, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29. It should only be granted 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 B.

Under the amended version of La. C.C.P. art 966, the initial burden continues to remain with the mover to show that no genuine issue of material fact exists. If the moving party points out that there is an absence of factual support |4for one or more elements essential to the adverse party’s claim, action or defense, then the nonmoving party must produce factual support sufficient to satisfy his evidentiary burden 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. La. C.C.P. arts. 966 and 967; Malbrough v. Halliburton Logging Services, Inc., 97-0378, pp. 3 4 (La.App. 1 Cir. 4/8/98), 710 So.2d 1149, 1150-51, writ denied, 98-1212 (La.6/19/98), 720 So.2d 1217.

Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Calhoun v. Hoffman-La Roche, Inc., 98-2770, p. 5 (La.App. 1 Cir. 2/18/00), 768 So.2d 57, 61, writ denied, 2000-1223 (La.6/23/00), 765 So.2d 1041.

In this case, there is no dispute of fact as to whether the vehicle Lewis was driving was a non-owned vehicle not furnished for his regular use. Additionally, while plaintiff alleged the lack of any formal employment relationship between Lewis and T ‘N’ T, Lewis’ deposition testimony clearly and indisputably established that Lewis was a truck driver, such that he was engaged in his occupation at the time the accident occurred. Lewis testified in his deposition that he had a commercial driver’s license with an expiration date of June 2, 2003, that his primary source of income was truck driving and warehouse management, and that his profession was truck driving. He reviewed his employment history, with much of it involving work as a truck driver. The accident occurred while Lewis was in the truck on his way to get a load of asphalt. Thus, the business use exclusion in GEICO’s policy is applicable in this case.

It must now be determined whether the business use exclusion in this case is valid. In Marcus v. Hanover Insurance Co., 98-2040, p. 2 (La.6/4/99), 740 So.2d 603, 604, the victims of an automobile accident brought an action against the insured and the automobile liability insurer to recover for injuries sustained in the accident while the insured was driving his personal car in the course and|Kscope of his employment. The supreme court invalidated the business use exclusion and held that the invalidation of the exclusion required the insurer to provide coverage up to the statutory minimum. Marcus, 98-2040 at p. 1, 740 So.2d at 604. The supreme court referred to this Court’s case of Parker v. American Guar. & Liability Ins. Co., 93-1556 (La.App. 1 Cir. 5/20/94), 637 So.2d 788, as follows:

The first and second circuits have held that another type of business use exclusion which excludes coverage for the use of any vehicle in any business or occupation except when the vehicle being used is a private passenger auto, or a truck or van owned by the insured is valid and does not conflict with the compulsory liability insurance laws. See Parker ....

98-2040 at p. 6, 740 So.2d at 607.

GEICO contends that while the supreme court invalidated the business use exclusion as to an insured operating his own vehicle while in the course and scope of employment in Marcus, its discussion of Parker indicates that a business use exclusion which excludes coverage for the use of a non-owned vehicle in any business or occupation, except when the vehicle being used is a private passenger auto, or a truck or van owned by the insured, is valid. GEICO also cites Dees v. National Sec. Fire & Cas. Ins. Co., 97-962 pp. 5-6 (La.App. 3 Cir. 2/11/98), 707 So.2d 137, 139-140, for its holding that there was no coverage under the policy at issue where the insured was operating a non-owned vehicle in the course of his occupation. Because Lewis was operating a non-owned vehicle in this case, GEICO argues that under Marcus and Parker, the exclusion is valid. GEICO points out that the exclusion in Parker contained language similar to the exclusion in this case.

In Parker, this Court considered its previous application of a similar business use exclusion in Lee v. Allstate Insurance Co., 274 So.2d 438 (La.App. 1 Cir.1973), where the named insured’s son, while driving a vehicle owned by a third person, was involved in a vehicular accident during the course and scope of his employment. Parker, 93-1556 at p. 3, 637 So.2d at 790. In determining that the policy did not provide coverage because of the business use exclusion, this Court in Lee found that an insurer is not undertaking by its policy to extend coverage to its policy holder while he or she is driving someone else’s car in his or her business or occupation since the responsibility for providing insurance coverage should rest with the insured’s employer or other person for whose benefit the business is being conducted. Parker, 93-1556 at pp. 3-4, 637 So.2d at 790. This Court in Parker then found that this rationale did not conflict with the compulsory liability insurance and omnibus coverage provisions, stating that the statutory provisions did not require that a liability policy provide coverage to the named insured for all risks while driving a non-owned vehicle. Parker, 93-1556 at p. 4, 637 So.2d at 790-791. This Court then reasoned that the statutory scheme intends that the required financial protection be attached to the vehicle rather than to the operator of the vehicle. Parker, 93-1556 at p. 4, 637 So.2d at 791. Thus, this Court added that it is the responsibility of the registered owner of a vehicle to maintain the minimum liability coverage required by law for that vehicle pursuant to La. R.S. 32:861(A)(2) and La. R.S. 32:900(B). Parker, 93-1556 at p. 4, 637 So.2d at 791. This Court concluded that the insurer is not required to provide blanket coverage for all non-owned motor vehicles the insured may drive, and may reasonably limit coverage for non-owned vehicles without violating public policy. Parker, 93-1556 at p. 4, 637 So.2d at 791. Similarly, in Marcus, the supreme court explained that the statutory scheme is intended to attach financial protection to the vehicle regardless of the purpose for which the vehicle is being operated. Marcus, 98-2040 at pp. 7-8, 740 So.2d at 608. Based on Marcus and Parker, the business exclusion involved in this case is valid.

Plaintiff and Lewis contend that the supreme court’s decision in Marcus declared the business use exclusion as against public policy and void as a matter of law, and that the Marcus holding is not limited to situations where the insured was driving his own vehicle. Plaintiff also relies on Ligeikis v. State Farm Fire and Casualty Co., 31,954 (La.App. 2 Cir. 10/27/99), 745 So.2d 806, writ denied, 1999-3335 (La.1/28/00), 753 So.2d 839. In Ligeikis, the insurer moved for a summary judgment based on the business use exclusion where the insured was driving a non-owned vehicle; the trial court denied the MSJ and the Second Circuit affirmed. Ligeikis, 31,954 at pp. 1-3, 745 So.2d at 808-809. The Second Circuit did consider and apply in part the rationale of the Marcus case. Ligeikis, 31,954 at p. 6, 745 So.2d at 810-811. GEICO argues that Ligeikis is not applicable to this case because the Second Circuit found that there was a genuine issue of material fact as to whether the driver of the van was in the course and scope of his employment at the time of the accident and because the Second Circuit applied South Dakota law to the interpretation of the policy. While GEICO is correct as to the Second Circuit’s findings, the court did analyze the South Dakota statute using Marcus because the language of the statute was virtually identical to the Louisiana statute. Ligeikis, 31,954 at p. 6, 745 So.2d at 810. However, unlike Ligeikis, in the case at bar, it is undisputed that Lewis was engaged in his occupation at the time of the accident.

CONCLUSION

The trial court erred in denying GEI-CO’s MSJ. GEICO’s evidence clearly showed that Lewis was engaged in his occupation as a truck driver at the time of the accident; thus, the business use exclusion applies. The supreme court’s recognition of the business use exclusion involving a non-owned vehicle in Marcus demonstrates that such an exclusion is valid. Therefore, the writ is ^granted, the judgment of the trial court denying the motion for summary judgment is reversed, the motion for summary judgment is granted, and judgment is entered in GEICO’s favor, dismissing plaintiffs petition as to it with prejudice.

WRIT GRANTED. REVERSED AND RENDERED.

      . In Dees, the passenger of a car driven by the insured mechanic in the course and scope of his employment and not owned by him brought an action against the mechanic’s automobile liability insurer to recover for injuries. The court held that the mechanic’s personal automobile policy provided no coverage for the passenger's injuries based on an exclusion excluding coverage for any vehicle while it was being used for or in the course and scope of the insured’s occupation or employment. The Dees court applied the rationale of Parker to find that the exclusion was valid.


author: 1EZELL, J.

text:
    Herbert and Mary A. ROBIN v. ALLSTATE INSURANCE CO.
    No. 02-689.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.
    Rehearing Denied May 28, 2003.

      Judy Y. Barrasso, Stone, Pigman, Walther, et al, New Orleans, LA, for De-fendanVAppellee: Alstate Ins. Co.
    Larry Lane Roy, Preis, Kraft & Roy, Lafayette, LA, for Defendant/Appellee: Marie Candice Hattan.
    Ped C. Kay III, Broussard & Kay, Lafayette, LA, for Plaintiffs/Appellants: Herbert Robin, Mary A. Robin.
    Russel Oliver Primeaux, Kean, Miller, Hawthorne, DÁrmond, McCowan & Jar-man, L.L.P., Baton Rouge, LA, for Defendant/Appellee: Computer Sciences Corp.
    Court composed of ULYSSES GENE THIBODEAUX, MICHAEL G. SULLIVAN, and BILLY HOWARD EZELL, Judges.
   1EZELL, J.

This is an action by insureds against their liability insurer for damages sustained when a judgment in excess of the policy limits was rendered against the husband in a previous automobile tort action. The case involves issues of an insurer’s duty to defend and settle a claim in addition to issues of whether a claim was timely filed against an attorney.

Herbert and Mary Robin filed suit against Alstate alleging that Alstate’s actions in defending Mr. Robin in a previous matter exposed the Robins to just under $100,000 over and above the insurance policy’s limits. Knepper v. Robin, 99-95 (La.App. 3 Cir. 11/17/99), 745 So.2d 1248, writ granted in part and denied in part, 99-3572 (La.2/18/00), 754 So.2d 955. Subsequently, the Robins filed a supplemental and amending petition naming Candace Hattan, the attorney who represented Allstate and Mr. Robin in the previous suit, as a defendant.

Knepper, 745 So.2d at 1250, sets out the facts for the underlying automobile accident which is the source of the present lawsuit as follows:

On June 15, 1994, Elizabeth Knepper, hereinafter “Plaintiff,” was involved in an automobile accident with Herbert Robin, hereinafter “Defendant,” which occurred on Interstate 10 in St. Martin Parish. Defendant was operating a Chevrolet Blazer, traveling in the eastbound passing lane, when his vehicle crossed the grass median and struck Plaintiffs Honda Civic, which was traveling in the westbound passing lane. Defendant’s vehicle struck the side of Plaintiffs vehicle, sending her Honda Civic spinning. Defendant’s truck was totaled, and Plaintiffs vehicle was smashed and fire damaged. Plaintiff was flown by helicopter from the scene of the accident to the Lafayette General Medical Center where she received treatment; she was not held overnight. She returned two days later complaining of left shoulder pain. She was ultimately treated by various doctors for TMJ, an extruded disc fragment in her lower back and depression.

Knepper was awarded $45,500 in general damages and $26,500 for future medical expenses. This court increased the damage awards by a total of $64,640, for a total damage award of $164,640. This court also awarded “$10,000 for costs and | {.attorney's fees associated with proving Defendant’s liability made necessary by Defendant’s failure to admit the same.” Id. at 1259. This award for costs and attorney’s fees was reversed by the supreme court. Therefore, the final judgment was $64,640 in excess of the $100,000 policy limits issued by Allstate covering Mr. Robin’s liability for this accident.

The present litigation commenced on November 16, 2000, when the Robins filed suit against Allstate for bad faith damages under La.R.S. 22:658 and 22:1220, breach of contract damages, and general tort damages. An amending petition was filed naming M. Candace Hattan and M. Candace Hattan, a Professional Law Corporation, as defendants on December 26, 2001.

Allstate filed an exception of no right of action claiming that Mrs. Robin’s claims against it were not valid. This exception was heard on February 22, 2002, and was granted by the trial court. The trial court granted the exception and signed judgment on February 7, 2002. Hattan filed an exception of no cause of action to both of the Robins’ claims arguing that La.R.S. 9:5605 applied and the peremptive period had run. The trial court also granted this exception on April 19, 2002, and signed a judgment accordingly on May 14, 2002.

Prior to granting the exception of no cause of action, the Robins filed a second supplemental and amending petition on April 16, 2002, adding Allstate as a defendant in the then pending action against Hattan. Allstate then filed exceptions of res judicata and no right of action. These exceptions were heard on July 12, 2002, with the court granting both exceptions. The appeal from this judgment was lodged with this court after the other judgments were appealed, but the appeals have been consolidated. There are the three judgments before us on appeal.

laNO RIGHT OF ACTION

An exception of no right of action is used to raise the question whether a plaintiff belongs to a particular class in whose exclusive favor the law extends a remedy for which a cause of action exists, or to raise the issue whether plaintiff has the right to invoke a remedy which the law extends only conditionally. Greenbriar Nursing Home, Inc. v. Pilley, 93-2059 (La.5/23/94), 637 So.2d 429; La.Code Civ.P. art. 681.

Many theories of recovery were asserted by the Robins in their claim against Allstate for the damages they allege they suffered because of Allstate’s actions in failing to settle the original suit and subjecting them to excess exposure. The trial court granted an exception of no cause of action finding that Mrs. Robin had no right of action against Allstate. The Robins argue that Mrs. Robin has urged various theories of recovery based in both contract and tort that are available to her even though she was not the named defendant in the Knepper suit. They argue that as long as a policy existed between the Robins and Allstate, Allstate was bound to protect both Mr. and Mrs. Robin’s interests and provide whatever services were necessary to protect those interests. They further suggest that neither La.R.S. 22:658 nor La.R.S. 22:1220 provide that the insured seeking damages pursuant to these statutes had to be a named defendant in a lawsuit. The Robins also argue that Mrs. Robin is able to recover damages as a third-party beneficiary pursuant to La.R.S. 22:1220(C). Aside from the contract claims, the Robins claim that Mrs. Robin is entitled to recover tort damages for intentional infliction of emotional distress, loss of consortium, misrepresentation, abuse of process/malicious prosecution, and damage to the community pursuant to La.Civ.Code art. 2315.

Mrs. Robin’s claims arise out the fact that an excess judgment was rendered 14against her husband exposing the community to liability. Therefore, the issue is whether Mrs. Robin has a right of action against Allstate since the community is exposed to payment of an excess judgment. We will first look to the contract of insurance entered into between Allstate and the Robins as the source of Allstate’s obligations to the Robins, recognizing that an insurance contract is the law between the parties. La.Civ.Code art.1983; Pareti v. Sentry Indem. Co., 536 So.2d 417 (La.1988).

Allstate contractually agreed to provide a legal defense for liability claims asserted against an insured person as follows: “We will defend an insured person sued as the result of an auto accident, even if the suit is groundless or false. We will choose the counsel. We may settle any claim or suit if we believe it is proper.” The courts have defined these duties to an insured as follows:

Under the terms of its protection and indemnity policy, the insurer contractually agreed to provide a legal defense for liability claims against the insured within the scope of the policy. The insurer’s duty to defend suits brought against its insured is determined by the allegations of the plaintiffs petition, with the insurer being obligated to furnish a defense unless the petition unambiguously excludes coverage. Accordingly, the insurer’s obligation to defend suits against its insured is generally broader than its obligation to provide coverage for damage claims. Thus, if, assuming all of the allegations of the petition to be true, there would be both coverage under the policy and liability of the insured to the plaintiff, the insurer must defend the insured regardless of the outcome of the suit. An insured’s duty to defend arises whenever the pleadings against the insured disclose even a possibility of liability under the policy.

Steptore v. Masco Const. Co., Inc., 93-2064, pp. 8-9 (La.8/18/94), 643 So.2d 1213, 1218 (citations omitted).

Additionally, the law recognizes that the insurer’s obligation to exercise good faith in defending the insured also includes a duty to settle within policy limits if necessary to protect the insured’s financial interests against excess damages beyond the insurance coverage. Smith v. Audubon Ins. Co., 95-2057 (La.9/5/96), 679 So.2d 372.

Mr. Robin was the only party sued in the underlying tort suit. Mrs. Robin was never a party to that litigation. Therefore, pursuant to the terms of the policy, and recognizing that the Allstate policy did not provide coverage to Mrs. Robin under the circumstances of the Knepper matter, we find Allstate did not have an obligation to defend or settle the claim on behalf of Mrs. Robin. The contract is clear that this obligation only extends to an insured who is sued because of an automobile accident.

We agree that Mrs. Robin is an insured under the policy, but no duties were owed to Mrs. Robins as an insured unless she was sued. The fact that the community may be ultimately liable for this excess judgment does not give Mrs. Robins any greater rights under the contract than any other insured would have.

La.R.S. 22:658 and 22:1220

The Robins also asserted a claim for bad faith damages pursuant to La.R.S. 22:658 and 22:1220. The Robins agree that there has to be an underlying claim against the insurer in order to recover under these penalty statutes. Phillips v. Patterson Ins. Co., 01-1545 (La.App. 3 Cir. 4/3/02), 813 So.2d 1191; Clausen v. Fidelity and Deposit Co. of Maryland, 95-504 (La.App. 1 Cir. 8/4/95), 660 So.2d 83, writ denied, 95-2489 (La.1/12/96), 666 So.2d 320. They argue that the Knepper suit is an underlying claim that would support their claims under both statutes.

The Supreme Court held in Cantrelle Fence and Supply Co., Inc. v. Allstate, 515 So.2d 1074 (La.1987), that an obligation arising out of the penalty statute, La.R.S. 22:658, is separate and distinct from the obligation arising out of the contractual relationship under the insurance policy. This fact was further recognized by the supreme court in Manuel v. La. Sheriff’s Risk Management Fund, 95-406, p. 6 (La.11/27/95), 664 So.2d 81, 84 when it stated that “[t]he duties that [La.R.S. |fi22:1220] does impose upon insurers are separate and distinct from the duties mentioned in the contract of insurance.”

The supreme court once again discussed the duties owed by an insurer to its insureds as follows:

While this court has never defined the precise basis of , the duties owed by an insurer to its insured, we have held that they are fiduciary in nature and include the duty to discharge policy obligations to the insured in good faith, to defend the insured against covered claims and to consider the interests of the insured as paramount in every settlement. It is generally agreed that an insurer’s duties run primarily in favor of its insured as an outgrowth of duties that have their foundation in the contract between the parties. It is the relationship of the parties that gives rise to the implied covenant of good faith and fair dealing.

Theriot v. Midland Risk Ins. Co., 95-2895, p. 15 (La.5/20/97), 694 So.2d 184, 193 (citation omitted).

While it is true that the obligations of an insurer to an insured under the penalty statutes are separate from the contractual provisions, these statutory duties are owed to an insured when discharging the policy obligations. Id.; Nettleton v. Audubon Ins. Co., 93-1576 (La.App. 1 Cir. 5/20/94), 637 So.2d 792. During the underlying Knepper litigation, no obligations were owed to Mrs. Robin under the insurance contract because she was not sued as required by Allstate’s policy of insurance. The fiduciary duties were owed to Mr. Robin, and thus, Mr. Robin was the insured entitled to the duties owed by an insurer under La.R.S. 22:658 and 22:1220.

Furthermore, Mrs. Robin cannot be considered a third-party claimant. As explained in Manuel, 664 So.2d at 85 (quoting Descant v. Adm’rs of the Tulane Educ. Fund, 93-3098, p. 2 (La.7/5/94), 639 So.2d 246, 251), “Liability policies are written for the ‘benefit of third parties, who suffer injury or damage because of actions of the insured.’ ” Mrs. Robin was not a third party who has suffered injury because of the actions of her husband; Elizabeth Knepper was the third party who was injured when l7Mr. Robin’s vehicle impacted with her vehicle.

Tort Damages

The Robins finally argue that Mrs. Robin is entitled to recover tort damages against Allstate pursuant to La.Civ.Code art. 2315. They have alleged intentional infliction of emotional distress, loss of consortium, misrepresentation, abuse of process/malicious prosecution, and damage to the community for Allstate’s failure to protect their interests in furtherance of its own.

As we have previously recognized, Allstate owed no duties to Mrs. Robin under the circumstances of this case. The law simply does not recognize a right of action by a spouse when the insurance company has breached the contractual and fiduciary duties it owes to the other spouse.

We recognize that Mrs. Robin claims that it is the community that will ultimately be responsible for the excess judgment. La.Civ.Code art. 2360. We also recognize that pursuant to La.Code Civ. P. art. 686 (emphasis supplied), that “either spouse is the proper plaintiff ... to sue to enforce a community right.” However, the right to any damages, penalties, or attorney’s fees that Allstate may owe is a right owed to Mr. Robin as we have discussed. The duties that were allegedly breached by Allstate were duties that were owed to Mr. Robin and not the community.

However, the law does recognize that “loss of consortium claims are derivative of the primary victim’s injuries.” Ferrell v. Fireman’s Fund Ins. Co. 96-3028 (La.7/1/97), 646 So.2d 569,576. Although the issue of Mr. Robin’s rights are not before us, Mrs. Robin has the right to assert a claim for loss of consortium as a derivative claim of her husband’s tort claim against Allstate. We find that the trial court erred in granting the exception of no right of action as to Mrs. Robin’s loss of consortium claim.

IsBased on the above reasoning, we also reverse the judgment of the trial court rendered on July 12, 2002, since we find Mrs. Robin has a right of action to assert a claim for loss of consortium.

EXCEPTION OF NO CAUSE OF ACTION

The trial court granted an exception of no cause of action in favor of M. Candice Hattan and M. Candice Hattan, a Professional Law Corporation, finding that the action by the Robins was preempted. The trial court relied on La.R.S. 9:5605 in doing so.

When considering an exception of no cause of action the well-pleaded allegations of fact are accepted as true. Everything on Wheels v. Subaru S., 616 So.2d 1234 (La.1993). Our inquiry is whether, on the face of the petition, the plaintiffs are entitled to the relief sought. Id.

The Robins argue that the most obvious claim that falls out of the scope of legal malpractice is that asserted by Mrs. Robin against Hattan. They further claim that Mr. Robin’s claim against Hattan is not based on legal malpractice because Hattan was hired by Allstate, not by Mr. Robin, in addition to the fact that Mr. Robin had no control over Hattan so as to constitute an attorney-client relationship.

The Robins have filed suit in this case alleging that they sustained damages due to Hattan’s actions which exposed them to an excess judgment. The claims they have made against Hattan include the failure to notify, failure to advise, failure to defend Mr. Robin, failure to keep the Robins apprised of all issues including settlement offers, not appearing for oral argument at the court of appeal, and alleged concoction of a letter apprising another firm representing the Robins that an appeal was taken to obtain an unjust advantage or to cause a loss or inconvenience. The only way that Hattan could be obligated to perform these particular duties to the Robins was if she 1 flhad an attorney-client relationship with them. This is obviously conduct that arises out of an engagement to provide legal services as contemplated by La.R.S. 9:5606. The mere claim that there was no attorney-client relationship will not suffice under these circumstances. If there was no attorney-client relationship, then Hattan would not have owed these particular duties to the Robins. Therefore, without determining if there was actually an attorney-client relationship between the parties because that issue is not before us, we will determine whether the trial court correctly found that the claims are preempted under La.R.S. 9:5605.

This court’s judgment which increased damages above the $100,000 statutory limits was rendered on November 17, 1999. Knepper, 745 So.2d 1248. The supreme court granted writs reversing the award of costs and attorney fees and denying all other requested relief on February 18, 2000. Knepper, 754 So.2d 955. Rehearing was denied on April 17, 2000. Id. Suit against Hattan was not filed until December 26, 2001, well over a year after judgment was final.

This court in Dauterive Contractors, Inc. v. Landry and Watkins, 01-1112 (La.App. 3 Cir. 3/13/02), 811 So.2d 1242, held that both the one-year and three-year periods found in La.R.S. 9:5605 were per-emptive and subject to all rules governing peremption. As provided in Subsection B, these periods may not be renounced, interrupted, or suspended. “Hence, suit must in all circumstances be brought within one year of the alleged act or one year from discovery of the alleged act as long as the act is discovered and sued upon by the end of the third year.” Broussard v. F.A. Richard & Assocs., Inc., 98-1167, p. 12 (La.App. 3 Cir. 3/17/99), 732 So.2d 578, 585-86, writ denied, 99-1048 (La.6/4/99), 744 So.2d 625.

Should this court find that La.R.S. 9:5605 applies to the causes of action asserted by the Robins against Hattan, the Robins argue that the one-year and three-tyearin peremptive periods do not apply because they have alleged fraud which is an exception to the time limitation found in La.R.S. 9:5605 pursuant to Subsection E. Broussard, 732 So.2d 578. Hattan has Sled a motion to strike the Robins’ reply brief arguing that the Robins’ attempt at asserting a claim for fraud has never been alleged in the pleadings nor presented to the trial court. We disagree.

In their amending petition the Robins allege facts which, if true, constitute fraudulent actions by Hattan. Furthermore, at the hearing on the exception of no cause of action, the record establishes that the Robins argued fraud to the trial court as an exception to peremption pursuant to La.R.S. 9:5605(E). We find that the Robins have properly pled fraud and presented it to the trial court.

Hattan also alleges that the Robins’ reply brief should be stricken because it was not timely filed. Even if we were to strike their reply brief, the Robins made these same arguments in their original brief, so the matter is before the court.

The Robins have argued that Hattan failed to defend their interests at the appellate court level. They claim that they were led to believe that Hattan had informed the Logan Law Firm that the Knepper matter had been appealed. There is nothing in this record that indicated any other attorney or firm was to represent the Robins’ interest in the appeal. Not sure who to blame, the Robins state that they proceeded to conduct discovery of the matter. The allegations in the Robins’ amending petition indicate that between March 5, 2001 and November 15, 2001, the Robins began to suspect that Hattan had manufactured a letter dated September 22, 1998, to the Logan Law Firm notifying it of the Knepper appeal. The Robins claimed that these actions of Hattan were committed to obtain an unjust advantage so they would not file suit.

JjjRegardless, prior to these acts, the actions that the Robins claim damaged them had already been committed. In Jordan v. Employee Transfer Corp., 509 So.2d 420, 423 (La.1987), the supreme court explained a plaintiffs responsibility for fifing suit as follows:

Prescription will not begin to run at the earliest possible indication that a plaintiff may have suffered some wrong. Prescription should not be used to force a person who believes he may have been damaged in some way to rush to file suit against all parties who might have caused that damage. On the other hand, a plaintiff will be responsible to seek out those whom he believes may be responsible for a specific injury.

While the allegation that parties may have fabricated a letter as a cover up to somehow gain an unfair advantage are disturbing, these actions did not prevent the Robins from fifing suit against all potentially liable parties when they were exposed to an excess judgment. The alleged activities may be fraudulent, but they were not activities which prevented the Robins from fifing suit against Hattan. At the time the Robins filed suit against Allstate, they had sufficient facts to also file suit against Hattan.

The Robins also argue that the supplemental and amending petition adding the claims against Hattan relates back to the date of the fifing of the original petition, November 16, 2000, so the suit was timely. We recognize that there are cases that have held that a “relation back” theory can apply to claims governed by peremptive periods. Southside Civic Ass’n, Inc. v. Warrington, 93-890 (La.App. 1 Cir. 4/8/94), 635 So.2d 721, writ denied, 94-1219 (La.7/1/94), 639 So.2d 1168; International River Center v. Henry C. Beck Co., 95-1396 (La.App. 4 Cir. 4/10/96), 672 So.2d 1160, writ denied, 96-1185 (La.6/21/96), 675 So.2d 1083. However, we agree with the position taken by this court in Lege v. Vermilion Parish Sch. Bd., 360 So.2d 664 (La.App. 3 Cir.1978), that a supplemental petition filed after a peremptive period has run does not relate back to the time of fifing of the original petition. The | ^reasoning is very simple.

Pursuant to La.Code Civ.P. art. 1153 an amending or supplemental petition relates back to the date of filing of the original pleading if the amended petition arises out of the conduct, transaction, or occurrence set forth in the original petition. This is because the original petition has served to interrupt prescription on the subject matter raised in the amending petition. However, in this case a claim for legal malpractice was asserted for the first time in the amending petition which we have already stated is governed by a per-emptive period. Since a peremptive period cannot be interrupted, the original petition would not have served to interrupt prescription on this claim. Therefore, the claims asserted by the Robins that are legal malpractice claims have been per-empted, as over one year had passed since the Robins knew they were exposed to an excess judgment. The trial court was correct in granting the exception of no cause of action as to these claims.

For the above reasons the judgment of the trial court dated May 14, 2002, granting the exception of no cause of action filed by M. Candice Hattan and M. Candice Hattan, a Professional Law Corporation is affirmed. The judgment dated February 27, 2002, granting the exception of no right of action is reversed and remanded for further proceedings consistent with this opinion. The judgment dated July 12, 2002, granting the exception of no right of action and res judicata filed by Allstate is also reversed and remanded for further proceedings. All costs of this appeal are assessed to Allstate.

MAY 14, 2002 JUDGMENT AFFIRMED.

FEBRUARY 27, 2002 JUDGMENT REVERSED AND REMANDED.


text:
    Joseph Lee DELCO, Jr. v. Eugene STAFFORD, Tycoon Trucking, Inc., and Clarendon National.
    No. 2002 CW 2099.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 5, 2003.
    Writ Denied April 25, 2003.

      Joseph L. Waitz, Houma, for Plaintiff— Respondent Joseph Lee Delco, Jr.
    Dan E. West, Baton Rouge, Margaret Diamond, New Orleans, for Defendants— Relator Clarendon National Insurance Company, Tycoon Trucking, Inc., and Eugene Stafford.
    Before: FITZSIMMONS, KUHN, and DOWNING, JJ.
   2PER CURIAM.

In this personal injury case arising out of an automobile accident, plaintiff sought an increase in the jury’s awards for general damages and future lost wages by means of a motion for judgment notwithstanding the verdict. Plaintiff did not seek a new trial in the • alternative. The trial court granted the motion and increased both awards. Defendants appealed. This Court reversed the JNOV and ordered the trial court to render judgment in accordance with the jury verdict.

On remand, plaintiff filed a new motion for JNOV, this time accompanied by an alternative motion for new trial. After a hearing, the trial court granted plaintiffs motion for JNOV, once again increasing the general damage and future lost wages awards; the court also conditionally granted plaintiffs motion for new trial. Defendants filed a suspensive appeal in addition to the instant writ application. Acknowledging that a JNOV is an appealable judgment, defendants nevertheless urge this Court to exercise its supervisory jurisdiction and resolve the issues raised herein on writs. We believe that an exercise of this Court’s supervisory jurisdiction is warranted under the circumstances of this case.

In reviewing the grant of a JNOV, the appellate court must first determine that the jury verdict was not supported by competent evidence and was wholly unreasonable. To make this determination, we must find that all of the evidence, when viewed in a light most favorable to the party benefiting from the JNOV, points so strongly and overwhelmingly in his favor that reasonable men could not arrive at a contrary verdict on the issue. Only if the appellate court finds that the trial judge properly granted the JNOV will it move forward to the second step and review the JNOV under the manifest error standard. Davis v. Wal-Mart Stores, Inc., 00-0445 (La.11/28/00), 774 So.2d 84, 89.

We find that the trial court erred in granting plaintiffs second motion for JNOV. In its opinion on appeal, this Court specifically stated that “reasonable and lafair-minded men in the exercise of impartial judgment might reach different conclusions” based upon the evidence presented at trial. Delco v. Stafford, 2001-0018 (La.App. 1 Cir.2/20/02), 813 So.2d 458, 463; rehearing denied (3/25/02); writ denied, 2002-1125 (La.6/14/02), 818 So.2d 779. We remanded the case with specific instructions to the trial court to sign a judgment in accordance with the jury verdict. On rehearing, we reiterated the finding made in the appeal opinion:

[Without evaluating credibility or weighing evidence, we hold that reasonable men could differ on the severity of plaintiffs injuries, if any, the extent of his disability, if any, and the amount of damages that should have been awarded.

Delco, 813 So.2d at 466.

The trial court thus erred in ordering or allowing a hearing on a JNOV and even allowing the re-evaluation of the JNOV, in finding that the jury was in error, and in granting plaintiffs motion for JNOV. The plaintiff had no right to file a second JNOV. The filing of that motion and its result constitutes an abuse of the process.

The trial court likewise erred in conditionally granting plaintiffs motion for new trial. The delay for applying for a new trial provided in La. C.C.P. art. 1974 applies to all grounds listed in Articles 1972 and 1973; as noted, plaintiffs original motion for JNOV was not accompanied by an alternative motion for new trial. Accordingly, the application is granted insofar as the September 6, 2002 judgment denying defendants-relators’ motion to strike, granting plaintiff-respondent’s motion for JNOV, and conditionally granting plaintiff-respondent’s motion for new trial hereby is reversed. The matter is remanded for the trial court to render and sign a judgment in accordance with the jury verdict. Costs of this writ application are assessed against plaintiff-respondent. In all other respects, the application is denied.

WRIT GRANTED IN PART, DENIED IN PART; REMANDED WITH ORDER THAT THE TRIAL COURT SIGN A JUDGMENT IN ACCORDANCE WITH THE JURY VERDICT.