author: CLEON A. CANNIZZARO, JR., Judge. JjLOVE, J.,

text:
    STATE of Louisiana v. Leroy CAREY.
    No. 2003-K-0067.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 7, 2003.

      Eddie J. Jordan, Jr., District Attorney, Harry F. Connick, former District Attorney, S. Lynn Quinley, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Bruce Gerard Whittaker, New Orleans, LA, for Leroy Carey.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO, JR.).
   CLEON A. CANNIZZARO, JR., Judge.

STATEMENT OF THE CASE

On September 6, 2002, the State of Louisiana (the “State”) filed a bill of information charging the defendant, Leroy Carey, with possession of cocaine in violation of La. R.S. 40:967(C). On October 1, 2002, he pleaded not guilty to the charge. On December 5, 2002, a hearing was held on the defendant’s motion to suppress the evidence seized from his vehicle when he was arrested. On December 12, 2002, the trial court granted the defendant’s motion. The State has filed an application for supervisory writs with this Court asking this Court to review the trial court’s decision on the defendant’s motion to suppress.

STATEMENT OF THE FACTS

Sergeant Steven Gaudet, a twenty-eight year veteran of the New Orleans Police Department and the commander of a narcotics unit, testified that he was told by a reliable, confidential informant, whose previous tips had resulted in arrests and convictions, that there would be a delivery of an unknown amount of cocaine at the intersection of South Carrollton Avenue and Palmetto Street. The informant told Sergeant Gaudet that a “black male identified as ‘Leroy’ would be arriving in an older model white van, handicap van, with a raised roof, located on the right Rhand side.” The informant also stated that the vehicle had a “bent out rear bumper on the left rear of the van” and indicated the route that the vehicle would travel to its destination at the intersection where the cocaine was to be delivered. The informant said that the van would be traveling from the Westbank of New Orleans to the intersection of Palmetto Street and Car-rollton Avenue along the route of U.S. Interstate 10.

Sergeant Gaudet testified that he used mobile surveillance to observe a vehicle travel the exact route that the informant stated it would travel. He first observed and began following the vehicle as it entered the toll plaza of the bridge that connects the Westbank to the interstate highway, and Sergeant Gaudet followed the vehicle without ever losing sight of it. The vehicle exited the interstate from the Carrollton Avenue exit near the intersection that the informant said was the van’s destination. Additionally, the vehicle matched “to a T” the description given by the confidential informant. Sergeant Gau-det testified further that as he was conducting mobile surveillance of the vehicle described by the informant, he was in communication with other members of his unit driving in an unmarked car in the area of the vehicle’s destination. Detective Kyle Hinrichs and Detective Trevor Reeves, two of the officers with whom Sergeant Gaudet was in communication, stopped the vehicle after it exited the interstate at the Carrol-ton Avenue exit but just before it would have reached the intersection of South Carrollton Avenue and Palmetto Street. Detectives Hinrichs and Reeves verified that the vehicle’s driver was a black male named Leroy.

Detective Hinrichs testified that after they signaled for the driver of the van to stop, the driver did so, and the two detectives exited their car. Detective Reeves approached the |3driver’s side of the van, and Detective Hinrichs approached the passenger side. Detective Hinrichs further testified that when he reached the passenger’s side of the vehicle, he observed the defendant looking over his left shoulder in the direction from which Detective Reeves was approaching the van. Detective Hinrichs observed the defendant remove a plastic bag from the van’s center console and put it into the van’s left cup holder. When Detective Reeves instructed the defendant to exit the van, Detective Hinrichs walked around to the driver’s side of the van and looked inside. Detective Hinrichs testified that he could not recognize what was in the plastic bag when he first saw it being taken from the console and put in the cup holder, but he also testified that when he picked up the bag, he immediately recognized the off-white powder substance packaged in five pieces of plastic as cocaine. The plastic bag was seized, and the defendant was then arrested.

DISCUSSION

Investigatory Stop

The first issue to consider in the instant case is whether the officers who stopped the defendant had reasonable suspicion to conduct an investigatory stop. In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court first recognized that “a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” 392 U.S. at 22, 88 S.Ct. at 1880. According to Terry, such an investigatory stop is not an unlawful “seizure” and, therefore, does not violate the prohibition against [¿unreasonable searches and seizures established by the Fourth Amendment to the United States Constitution. U.S. Const, amend. IV.

In Louisiana there is statutory authorization for investigatory stops on less than the probable cause required for an arrest. La. C.Cr.P. art. 215.1(A) provides that “[a] law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.”

In State v. Dank, 99-0390 (La.App. 4 Cir. 5/24/2000), 764 So.2d 148, this Court explained the factors a reviewing court must consider in determining whether an investigatory stop was permissible. This Court stated:

“Reasonable suspicion” to stop is something less than the probable cause required for ah arrest, and the reviewing court must look to the facts and circumstances of each case.... Evidence derived from an unreasonable stop, i.e., seizure, will be excluded from trial. In assessing the reasonableness of an investigatory stop .... [t]he totality of the circumstances must be considered in determining whether reasonable suspicion exists. The detaining officers must have knowledge of specific, articu-lable facts, which, if taken together with rational inferences from those facts, reasonably warrant the stop. In reviewing the totality of the circumstances, the officer’s past experience, training and common sense may be considered....

99-0390, pp. 4-5; 764 So.2d at 155 (citations omitted).

In State v. Rodriguez, 396 So.2d 1312 (1981), the Louisiana Supreme Court indicated what constitutes a reasonable suspicion necessary for an investigatory stop. In that case a confidential informant told a police officer that a grey Mercury automobile with a particular license plate number would be in “Fat City” that night, carrying two males and one female who were in possession of one ounce of cocaine. The officer had received reliable information from the informant in the past that had resulted in one or two arrests and convictions. Believing the | ^informant to be reliable, the officer and one other officer proceeded to search for the vehicle. The two officers, each in an unmarked vehicle, began patrolling the parking areas and streets of Fat City. They soon located a vehicle fitting the exact description furnished by the informant. They stopped the vehicle.

The Supreme Court found that the officers had reasonable suspicion to stop the car. The officers admitted that they did not observe the occupants of the car commit a crime. The stop was based solely on their checking the informant’s tip and finding everything to be as represented.

The Supreme Court stated:
We hold the officers in this case conducted a valid investigatory stop. The reasonable suspicion required by article 215.1 is predicated upon the past reliability of the informant, verification by the officers of all specific items of supporting information, and the rational inferences to be drawn from information in such detail that only one with actual knowledge could provide it.
In State v. Robinson, 342 So.2d 183, 187 (La.1977), this court noted “it is recognized that an informant’s tip can provide a police officer with reasonable cause to detain and question a suspect.” We held an informant’s tip which may not have supplied the requisite probable cause to arrest, nevertheless, carried with it enough “indicia of reliability” to justify at the least an investigatory stop of the defendant.

Id. at 1315.

The facts in the instant case support an investigatory stop as strongly as did the facts in the Rodñguez case. Sergeant Gaudet, an experienced police officer, received information from a confidential informant, whose previous information had led to arrests and convictions. The information received from the informant was that there would be a delivery of an unknown amount of cocaine at a specific location. The informant further stated that a black male named Leroy would be arriving at the location in a van that the informant described with particularized |fidetail as to its age, color, roof, handicap accessibility, and damaged bumper. Finally, the informant detailed the exact route that the vehicle would travel to its destination where the cocaine was to be delivered.

Two officers with whom Sergeant Gau-det was communicating while he had the suspect vehicle under mobile surveillance conducted an investigatory stop of the vehicle just before it would have reached the intersection the informant gave as the van’s destination. The two officers who stopped the van verified that the vehicle’s driver was, indeed, a black male named Leroy, just as the informant had stated.

This investigatory stop was completely justified under State v. Rodriguez, which required “past reliability of the informant, verification by the officers of all specific items of supporting information, and the rational inferences to be drawn from information in such detail that only one with actual knowledge could provide it.” 396 So.2d at 1315. In the instant case the confidential informant had been reliable in the past as evidenced by the arrests and convictions that had resulted from information he or she had given, the officers making the stop verified all of the specific items of supporting information supplied by the informant, and there was certainly a rational inference that the details included in the information could only have been supplied by someone with actual knowledge of the information.

Warrantless Seizure of Evidence

Once reasonable suspicion has been established, it is necessary to determine whether the warrantless seizure of cocaine that Detectives Hinriehs and Reeves made was authorized under an exception to the requirement that a search warrant must be obtained prior to seizing evidence. In State v. Thompson, 2002-0333 7(La.2003), 842 So.2d 330, the Louisiana Supreme Court discussed the subject of warrantless searches and seizures as follows:

It is well settled that a search and seizure conducted without a warrant issued on probable cause is per se unreasonable unless the warrantless seizure and search can be justified by one of the narrowly drawn exceptions to the warrant requirement.

2003-0333, p. 6, 842 So.2d at 335.

An exception to the requirement that a warrant must be obtained before evidence can be seized is the automobile exception. In Pennsylvania v. Labron, 518 U.S. 938, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996), the United States Supreme Court discussed the automobile exception as follows:

Our first cases establishing the automobile exception to the Fourth Amendment’s warrant requirement were based on the automobile’s “ready mobility,” an exigency sufficient to excuse failure to obtain a search warrant once probable cause to conduct the search is clear. More recent cases provide a further justification: the individual’s reduced expectation of privacy in an automobile, owing to its pervasive regulation. If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment thus permits police to search the vehicle without more.

518 U.S. at 940,116 S.Ct. at 2487 (citations omitted).

In State v. Thompson, 2002-0333 (La.2003), 842 So.2d 330, the Louisiana Supreme Court also discussed the automobile exception as follows:

Two requirements must be satisfied before a warrantless seizure of evidence within a movable vehicle can be authorized under this exception: (1) there must be probable cause to believe the vehicle contains contraband or evidence of a crime; and (2) there must be exigent circumstances requiring an immediate warrantless search.

2002-0333, p. 7, 842 So.2d at 336.

Quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983), the Louisiana Supreme Court stated that “a fair probability that contraband or evidence of a crime will be found” constitutes probable cause. Id. |sThe Court further stated that probable cause “must be judged by the probabilities and practical considerations of everyday life on which average people, and particularly average police officers, can be expected to act.” Id.

In the instant case, Detective Hinrichs, who, together with Detective Reeves, conducted the investigatory stop, observed the defendant looking over his left shoulder in the direction from which Detective Reeves was approaching the driver’s side of the van. Detective Hinrichs observed the defendant remove a plastic bag from the van’s center console and put it into the van’s left cup holder. This would make the bag less visible to Detective Reeves when he looked in the driver’s window. When the defendant exited the van, Detective Hinrichs went to the driver’s side of the van and looked inside. Because the defendant had removed a plastic bag from the console of the van and put it in the left cup holder as Detective Reeves was approaching, it is reasonable to conclude that Detective Hinrichs suspected that the plastic bag contained narcotics that the defendant was trying to hide. Detective Hin-richs could not determine exactly what was in the plastic bag when he saw it being moved from the center console to the cup holder, but when he picked up the bag, he immediately recognized the off-white powder substance packaged in five pieces of plastic as cocaine.

When the defendant appeared to be trying to hide the plastic bag as Detective Reeves approached the driver’s side window of the van, Officer Hinrich’s reasonable suspicion converted to probable cause. Although the furtive act alone was not sufficient to provide legal justification for the search, when the apparent attempt at hiding the plastic bag is considered with the facts already known by the detectives, it is clear that Detective Hinrichs had a “particularized basis for associating the object with narcotics trafficking.” Id. In the Thompson |flcase the Louisiana Supreme Court favorably cited a Kansas case for the proposition that probable cause for the search of a narcotics suspect existed where furtive behavior was coupled with information provided by a confidential informant that the suspect was returning from a trip with heroin in his possession. Id.

Probable cause was present in the instant case. For a warrantless search to be legally conducted, however, there must also be exigent circumstances. In the instant case, exigent circumstances were present. The defendant’s automobile was mobile and had the plastic bag not been seized when it was available, it would have, in all likelihood, been lost as evidence. Therefore, because the necessary probable cause and the exigent circumstances required to satisfy the automobile exception converged in the instant case, the defendant’s motion to suppress the evidence obtained from his van should not have been granted. The seizure of the cocaine did not violate the restrictions on searches and seizures and was, therefore, obtained during a lawful search. The cocaine should be admissible at trial as evidence against the defendant.

CONCLUSION

The seizure in the instant case was the result of a lawful search. The defendant’s motion to suppress the evidence should have been denied. The trial court’s decision is reversed, and this case is remanded for further proceedings in accordance with this Court’s decision.

WRIT GRANTED; REVERSED AND REMANDED.

LOVE, J., DISSENTS WITH REASONS.

JjLOVE, J.,

DISSENTS WITH REASONS.

Respectfully, I dissent from the majority opinion. The State argues that a tip from a reliable confidential informant provided sufficient reasonable cause to conduct an investigatory stop and the subsequent arrest of the defendant on charges of possession of cocaine, a violation of La. R.S. 40:967(0). The confidential informant merely provided the officers with the name of a suspected drug dealer, a description of a vehicle, the route the vehicle normally takes to allegedly deliver the drugs, and the location where the alleged illegal activity was to take place. Before the defendant arrived at the location where the alleged illegal activity was to take place, the officers arrested the defendant. The information provided by the confidential informant was not corroborated and the officers did not observe the defendant involved in illegal drug activity. Furthermore, the defendant did not commit a traffic violation. The officers did not have reasonable cause to stop the defendant. To allow police officers such unfettered authority to stop and arrest an individual based on uncorroborated information and without any observation of illegal activity is antithetical to the protection afforded by the Fourth Amendment. Additionally, the cases cited by the majority illustrate the use of corroborated information to effectuate a subsequent stop and arrest. This is not the situation in the instant case. Without the requisite reasonable cause necessary to justify the | ¡.investigatory stop of the defendant, I conclude the cocaine was not properly seized under the plain view doctrine. Therefore, the trial court properly suppressed the evidence and the State’s writ should be denied.

      . It should be noted that there is nothing in the record of this case to indicate that the trial court did not completely accept the veracity of the testimony of Sergeant Gaudet and Detective Hinrichs. Further, on cross examination the defendant’s counsel did not try to discredit their testimony. The trial court stated, regarding whether the evidence seized should be suppressed, that “I think it is a close issue.” It is clear that the trial court believed the testimony that was given without any reservations.


source: Caselaw Access Project

author: 11 JOAN BERNARD ARMSTRONG, Judge.

license: Public Domain

text:
    Willie Kay BRIDWELL, et al. v. LOUISIANA PATIENTS’ COMPENSATION FUND.
    No. 2003-C-0683.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 7, 2003.

      Robert F. Shearman, Kevin D. Shear-man, Shearman & Shearman, L.L.C., Me-tairie, LA, for Relators.
    Jacqueline G. Griffith, Charles O. Taylor, Lydia Habliston Toso, Griffith, Bat-tard & Taylor, New Orleans, LA, for Louisiana Patients’ Compensation Fund & Oversight Board.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III and Judge MAX N. TOBIAS Jr.).
   11 JOAN BERNARD ARMSTRONG, Judge.

The plaintiffs-relators seek review of a trial court judgment granting defendant’s motion to consolidate.

On January 21, 2000, William Bridwell slipped and fell, breaking his hip, while he was a patient at Tulane University Hospital and Clinic. Mr. Bridwell and his wife filed a complaint with the Patient’s Compensation Fund (PCF) against Tulane. Tulane settled the suit for the statutory maximum. Thereafter, the Bridwells sued the PCF in Civil District Court in Orleans Parish. The suit was allotted to Division “F”.

On January 24, 2000, Mr. Bridwell underwent surgery at Tulane to repair his broken hip. Drs. Kathleen Robertson and Shawn Nakamura performed the procedure. During surgery, the physicians placed the wrong sized screw in Mr. Brid-well’s hip. The screw broke causing more pain, and necessitating additional surgery. The Bridwells filed another complaint with the PCF against Tulane, and included Drs. Robertson and Nakamura for the improperly performed hip surgery, Tulane settled with the Bridwells, and once again, the Bridwells sued the PCF in Civil District Court in Orleans parish. This suit was assigned to Division “C”.

|P,The PCF filed a motion to consolidate the two suits. The relators opposed the PCF’s motion on the basis that because the parties in the two suits are different, consolidation would be improper. The motion to consolidate was heard, and granted by the judge of Division “F”. This application followed.

La. C.C.P. art. 1561 A states:

Art. 1561. Consolidation for trial
A. When two or more separate actions are pending in the same court, the section or division of the court in which the first filed action is pending may order consolidation of the actions for trial after a contradictory hearing, and upon a finding that common issues of fact and law predominate.

The relators argue that the operative words in the foregoing provision are “common issues of fact and law5’. They contend that the two suits are separate and distinct, involving completely separate and distinct facts, acts of negligence and different parties. Further, relators complain that consolidation will serve no purpose other than to confuse the jury. La. C.C.P. art. 1561(B)(1). We disagree.

We find that the two causes of action are closely connected by the facts and theories of recovery. As a matter of fact, the basis for the second cause of action allegedly was the direct result of the first cause of action. Both causes of action fall within the purview of negligence and medical malpractice. Moreover, the trial court has wide latitude with regard to consolidation of suits pending in the same court even where the parties are different. S.K. Whitty and Co., Inc. v. Laurence L. Lambert & Associates, 93-0486 (La.App. 4 Cir. 12/80/93), 632 So.2d 364.

Thus, the trial court’s decision to consolidate the two suits is reasonable and not on an abuse of discretion.

I ¡¡For the foregoing reasons, the plaintiffs relators’ writ application is denied.

WRIT DENIED.

      . La. C.C.P. art. 1561 B provides in part:
      B. Consolidation shall not be ordered if it would do any of the following:
      (1) Cause jury confusion ...


author: JOAN BERNARD ARMSTRONG, Judge.

text:
    Hilda N. GARRISON, et al., v. ST. CHARLES GENERAL HOSPITAL, et al.
    Nos. 2002-C-2268, 2002-C-2269, 2002-C-2270, 2002-C-2271, 2002-C-2278, 2002-C-2295, 2002-C-2296, 2002-C-2311, 2002-C-2312.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 7, 2003.
    Frederick W. Bradley, Oreck, Bradley, Crighton, Adams & Chase, New Orleans, LA, for Hotel Dieu Hospital.
    Susan E. Henning, Emmett, Cobb, Waits & Kessenich, New Orleans, LA, for Christian Health Ministries, Formerly Known as Southern Baptist Hospital.
    Deborah Cunningham Foshee, Hemelt and Foshee, L.L.C., Covingtion, LA, and Kirk P. Groh, Hemelt and Foshee, L.L.C, New Orleans, LA, for Tenet Healthsystem Hospitals, Inc. d/b/a St. Charles General Hospital; and Tenet Healthsystem Hospitals, Inc. d/b/a Meadowcrest Hospital.
    Daniel A. Reed, Seale, Smith, Zuber & Barnette, Baton Rouge, LA, for Children’s Hospital and the Lupin Foundation, Inc., Formerly Known as St. Charles General Hospital and for Rapides Foundation d/b/a Rapides Regional Medical Center and for Pendleton Memorial Methodist Hospital and Mercy Hospital.
    Michael M. Remson, Watson, Blanche, Wilson & Posner, Baton Rouge, LA, for Baton Rouge General Medical Center.
    Peter T. Dazzio, Chris J. LeBlanc, Watson, Blanche, Wilson & Posner, Baton Rouge, LA, for Our Lady of Lourdes Regional Medical Center, Inc. and Woman’S Hospital of Baton Rouge.
    W. Shelby McKenzie, Erick Y. Miyagi, Taylor, Porter, Brooks & Phillips, L.L.P., Baton Rouge, LA, for Our Lady of the Lake Hospital, Inc. and St. Francis Medical Center, Inc.
    Gary McGoffin, Daniel C. Palmintier, Durio, McGoffin, Stagg & Ackermann, Lafayette, LA, for HCA Health Services of Louisiana Inc. (formerly known as Doctors’ Memorial Hospital); Lakeside Hospital, Inc.; Lakeview Regional Medical Center d/b/a Highland Park Hospital, Inc.; Highland Hospital, Inc.
    Nicholas Gachassin, Jr., Gachassin Law Firm, Lafayette, LA, for Lafayette General Medical Center.
    Richard P. Ieyoub, Attorney General, Celeste Brustowicz, Special Asst. A.G., Meredith M. Micelli, Special Asst. A.G., Burglass & Tankersly, L.L.C, Metairie, LA, for University Medical Center Lafayette, Earl K. Long Medical Center, Huey P. Long Medical Center, et al.
    John S. Bradford, Stockwell, Sievert, Viccellio, Clements & Shaddock L.L.P., Lake Charles, LA, for Lake Charles Memorial Hospital.
    Cynthia Anderson, Cook, Yancey, King & Galloway, Shreveport, LA, for City of Bossier d/b/a Bossier Medical Center, f/k/a Bossier City General Hospital.
    Charles F. Gay, Jr., Don S. McKinney, Adams and Reese L.L.P, New Orleans, LA, for Alton Ochsner Medical Foundation.
    Thomas M. Nosewicz, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P., New Orleans, LA, and Michele Whitesell Crosby, Jones, Walker, Wae-chter, Poitevent, Carrere & Denegre, L.L.P, Baton Rouge, LA, for Magellan Health Services f/k/a Charter Medical Corporation.
    David R. Sobel, Provosty, Sadler, de-Launay, Fiorenza & Sobel, Alexandria, LA, for Christus St. Francis Cabrini Hosp-tial, Schumpert Medical Center, St. Patrick Hospital and Christus Health Southwest Louisiana.
    James B. Gardner, Lunn, Irion, Johnson, Salley, Carlisle & Gardner, Shreveport, LA, for Doctors’ Hospital of Shreveport, Inc.
    T. Allen Usry, Craig E. Frosch, Usry, Weeks & Mathews, New Orleans, LA, and Richard J. Arsenault, Paul J. Tellarico, Neblett, Beard & Arsenault, Alexandria, LA, and Daniel E. Becnel, Jr., Reserve, LA, and Patti Durio Hatch, Baton Rouge, LA, and Darleen M. Jacobs, Jacobs & Sarrat, New Orleans, LA, and Keith D. Jones, Jones, Aaron & Smith, L.L.P., and Edward J. Walters, Jr., Moore Walters, Thompson, Hoover, Thomas, Papillion & Cullins, Baton Rouge, LA, for Hilda N. Garrison, Marva Joseph, Todd, Powers Powell and Joan B. Wison, et al.
    Eve Barrie Masinter, Monica A. Frois, Joe Giarrusso, Jr., Nathalie G. Simon, Mcglinchey Stafford, PLLC, New Orleans, LA, for Pendelton Memorial Methodist Hospital; Mercy Hospital; and Monte-lepre Memorial Hospital, Inc.

      (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY and Judge JAMES F. McKAY III).
   JOAN BERNARD ARMSTRONG, Judge.

These consolidated writ applications are denied.

Under the most recent case law of this court, which is controlling on this panel, the class action allegations of the petition, and the fact that there has not yet been a hearing and ruling as to class certification, are indeed relevant to the exceptions of venue and cumulation of actions. Thomas v. Mobil Oil Corp., 2002-1904, 4 cir. 03/19/03, 843 So.2d 504 (La.App. 2003). Therefore, the trial court should address the exceptions of improper cumulation of actions, and may revisit the exceptions of improper venue, after or in conjunction with a hearing and ruling upon class certification.

WRIT DENIED.


author: |, PICKETT, Judge. liPETERS, J., 17AMY, J.,

text:
    Kenneth R. SHORT v. ALLEN JOHNSON BUILDERS, INC.
    No. 02-1454.
    Court of Appeal of Louisiana, Third Circuit.
    May 14, 2003.

      George A. Flournoy, Flournoy, Doggett & Losavio, Alexandria, LA, for Plaintiff/Appellant Kenneth R. Short.
    Bradley J. Gadel, Percy, Smith, Foote & Gadel, Alexandria, LA, for Defendant/Ap-pellee Allen Johnson Builders, Inc.
    Court composed of JIMMIE C. PETERS, MARC T. AMY and ELIZABETH A. PICKETT, Judges.
   |, PICKETT, Judge.

FACTS

Kenneth R. Short sustained an injury to his left knee on July 27, 2000, while in the course and scope of his employment with Allen Johnson Builders, Inc. Immediately following the accident, Mr. Short was seen by Dr. C. Darien Slaughter, a general practitioner, who recommended therapy and anti-inflammatory medication. When Mr. Short experienced no relief, an MRI was performed, which revealed a tear of the medial meniscus. Dr. Slaughter referred him to Dr. Terry Texada, an orthopedic surgeon. Dr. Texada performed an arthroscopic procedure on Mr. Short’s left knee on September 27, 2000. Mr. Short continued to experience pain in his left knee, and Dr. Texada recommended that Mr. Short undergo a total knee replacement. Mr. Short sought a second medical opinion from Dr. Lee Leonard, an orthopedist. Dr. Leonard examined the claimant on January 15, 2001, and thereafter issued a report wherein he agreed that Mr. Short needed total knee replacement. After receiving Dr. Leonard’s report, Dr. Texada scheduled the knee replacement surgery. Gary Williams, the claims adjuster for Louisiana United Businesses Association Self-Insurers Fund (LUBA), the employer’s insurer, canceled the surgery, however, and sought a third medical opinion from Dr. John P. Sweeney.

Dr. Sweeney, an orthopedic surgeon, examined the claimant on March 7, 2001. Dr. Sweeney disagreed with Dr. Texada’s and Dr. Leonard’s recommendations. He believed Mr. Short’s condition was primarily related to his underlying degenerative knee arthritis. He did not feel a total knee replacement was appropriate, but instead recommended conservative treatment consisting of non-steroidal anti-inflammatory medications and limitations on long-distance walking, climbing and other athletic activities. He further noted that the claimant was at maximum medical improvement | ¿without a ratable impairment to his knee related to the July 27, 2000 job injury. Although the employer paid Mr. Short’s medical expenses and indemnity benefits, it chose not to authorize knee replacement surgery based on Dr. Sweeney’s medical opinion. Allegedly, the employer did not receive Dr. Leonard’s report, which agreed with Dr. Texada’s recommendations for surgery, until after Dr. Sweeney’s report was rendered.

On May 2, 2001, the employer requested an independent medical examination (IME) on Mr. Short. The Office of Workers’ Compensation appointed Dr. Vanda Davidson, an orthopaedic surgeon, to perform the IME. Following an examination of the claimant and a review of Drs. Slaughter’s, Texada’s, and Sweeney’s records, Dr. Davidson issued a report on July 9, 2001, wherein he agreed with Dr. Texa-da’s recommendation for total knee replacement surgery. On August 16, 2001, the employer authorized the surgery. Mr. Short had total knee replacement surgery on September 26, 2001.

Mr. Short had been receiving temporary total disability benefits at a rate of $884.00 per week. Subsequently, his disability benefits were converted to supplemental earnings benefits (SEBs). In April, 2002, Dr. Texada rendered a report concerning Mr. Short’s condition wherein he reported that the claimant was at maximum medical improvement and could return to limited-duty work with some temporary physical restrictions. The claimant met with Buster Fontenot, a vocational rehabilitation counselor, and discussed with him his ability to return to work. He also talked to the defendant employer. The employer was aware the claimant had relocated to Butte Larose following the accident. The defendant-employer advised Mr. Short it had a job available for him in Alexandria at his regular hours and rate of I -¡pay with the modified duties approved by his treating surgeon. The position was available on May 15, 2002. When Mr. Short did not accept the position, his SEBs were terminated effective that date. Mr. Short ultimately acquired employment on his own in his geographical area.

Mr. Short brought a claim against his employer on several issues, including the failure to timely authorize knee replacement surgery and for penalties and attorney fees. The workers’ compensation judge held the following: 1) the claimant’s entitlement to SEBs ended on May 15, 2002; 2) the claimant was awarded penalties in the amount of $4,000.00 for nonpayment and untimely payment of indemnity benefits; 3) attorney fees were awarded in the amount of $6,000.00; and 4) the defendant was ordered to pay the claimant’s indemnity benefits for August 24, 2000, in the amount of $54.86. The workers’ compensation judge denied Mr. Short’s claim for penalties and attorney fees for the employer’s delay in authorizing knee surgery. It is from this judgment that the claimant appeals.

ASSIGNMENTS OF ERROR

The claimant sets forth three assignments of error:

1) Because the basic, outcome-determinative facts were not disputed, did the hearing officer err, as a matter of law, in terminating SEB[s]?
2) Because the basic, outcome-determinative facts were not disputed, did the hearing officer err, as a matter of law, in refusing to award indemnity benefits for August 12 and 13,2000?
3) Because the basic, outcome-determinative facts were not disputed, did the hearing officer err, as a matter of law, in concluding that defendant’s delay in authorizing total knee replacement surgery until August 16, 2001 was reasonable?

\ ¿DISCUSSION

In his first assignment of error, the claimant contends the workers’ compensation judge erred in terminating his supplemental earnings benefits. The workers’ compensation judge ruled that the claimant’s SEBs were terminated effective May 15, 2002, the day a position was made available to him with his former employer at his regular hours and rate of pay with the modified duties that were approved by his treating physician.

The claimant argues that the defendant-employer failed to prove that a reasonable job position was offered to him within his own reasonable geographic region that would pay more than ninety (90%) percent of his pre-accident wages. The appellee argues the appellant failed to bear the initial burden of proving that he is unable to earn at least ninety (90%) percent of his pre-accident wages.

La.R.S. 23:1221(3)(a) provides, in part:

For injury resulting in the employee’s inability to earn wages equal to ninety percent or more of wages at time of injury, supplemental earnings benefits equal to sixty-six and two-thirds per cent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee at the time of the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis.

In Banks v. Industrial Roofing & Sheet Metal Works, Inc. 96-2840, pp. 8-9 (La.7/1/97), 696 So.2d 551, 556, the supreme court stated as follows:

“The purpose of SEBs is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident.” Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52, 55 (La.1993). An employee is entitled to receive supplemental earnings benefits (SEBs) Rif he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. “Th[is] analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that workers’ compensation law is to be liberally construed in favor of coverage.” Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1007 (La.1989).
Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the employee’s claim for SEBs or establish the employee’s earning capacity, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer’s community or reasonable geographic region. Actual job placement is not required. The amount of SEBs is based upon the difference between the claimant’s pre-injury average monthly wage and the claimant’s proven post-injury monthly earning capacity.

(Other citations omitted.)

“[T]he manifest error standard of appellate review applies in workers’ compensation eases and great deference is accorded to the [workers’ compensation judge’s] factual findings and reasonable evaluations of credibility.” Garner v. Sheats & Frazier, 95-39, p. 7 (La.App. 3 Cir. 7/5/95); 663 So.2d 57, 61. The workers’ compensation judge found there was no evidence that the claimant could not earn ninety percent (90%) of his pre-injury wages. The record supports this finding, and it cannot, therefore, be disturbed. We therefore find the claimant failed to meet his initial burden of proving, by a preponderance of the evidence, that the injury to his knee resulted in his inability to earn ninety percent of his pre-injury wages after May 15, 2002. We find no error in the workers’ compensation judge’s termination of those benefits effective that date.

In his second assignment of error, the claimant argues that the workers’ | (¡compensation judge erred, as a matter of law, in refusing to award indemnity benefits for August 12 and 13, 2000. Relative to the issue of indemnity benefits, the workers’ compensation judge noted as follows:

I have no testimony about whether or not Mr. Short was scheduled to work on Saturday or Sundays, whether he worked five, six or seven days a week. It would appear that the first day of disability from being able to work occurred on Monday, August the 14th.
So I would conclude that there’s been the-the nonpayment of one day of temporary total disability, that day being August the 14th of 2000 and that Mr. Short is due a two thousand dollar penalty for-he’s due that amount of money. I haven’t figured up what that may be, but he’s due ... that amount and a two thousand dollar penalty on that amount.

As noted above, findings of fact by the workers’ compensation judge are subject to the manifest error standard of review. We find no error in the workers’ compensation judge’s finding that no benefits were due for August 12 and 18, 2000.

In his final assignment of error, the claimant asserts that the workers’ compensation judge erred, as a matter of law, in concluding that the appellee’s delay in authorizing total knee replacement surgery until August 16, 2001, was reasonable.

In the instant case, the claimant was injured on July 27, 2000. An arthroscopic procedure was performed on his left knee on September 27, 2000, from which he received no relief. Dr. Texada subsequently recommended a total knee replacement. The claimant chose to seek a second medical opinion and was examined by Dr. Leonard on January 15, 2001. Dr. Leonard agreed with Dr. Texada’s recommendation for surgery and issued a report on January 22, 2001, which reflected that opinion. Surgery was scheduled, but the LUBA claims adjustor canceled the surgery and requested that the claimant be examined by Dr. Sweeney. Dr. Sweeney saw the claimant on March 7, 2001. He disagreed with Dr. Texada’s ^recommendation for surgery. The Office of Workers’ Compensation appointed Dr. Davidson to perform an IME pursuant to a request made by the appellee on May 2, 2001. In his report, which was rendered on July 9, 2001, Dr. Davidson agreed that a total knee replacement was necessary. The defendant authorized the claimant’s knee replacement surgery on August 16, 2001, a little more than five weeks after the IME report was issued.

The workers’ compensation judge found that “the employer did not arbitrarily and capriciously deny Mr. Short a surgery for total knee replacement.” We disagree. Although the employer might be considered justified in not authorizing surgery when presented with conflicting medical opinions from Dr. Texada and Dr. Sweeney, the employer was aware that the claimant had been seen by Dr. Leonard and took no steps to secure his report in any timely fashion. Although Dr. Sweeney saw the claimant on March 7, 2001, the employer did not request an IME until May 2, 2001. Upon receipt of the IME report, at which time the employer had before it three separate medical opinions which recommended total knee replacement surgery, the employer still did not authorize the surgery for over five weeks. We find this delay unreasonable under the facts and circumstances. The employer failed to reasonably controvert the claim, and the claimant is entitled to penalties and attorney fees. We hereby award penalties in the amount of $2,000.00 and attorney fees in the amount of $5,000.00

DECREE

We affirm the decision of the workers’ compensation judge terminating supplemental earnings benefits and his finding that no indemnity benefits were due for August 12 and 18, 2000. We reverse the ruling of the workers’ compensation | judge on the knee replacement issue and find that the appellee failed to reasonably controvert the appellant’s claim for surgery. We award penalties of $2,000.00 and attorney fees of $5,000.00. Costs of this appeal are to be borne by the appellee, Allen Johnson Builders, Inc.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

PETERS, J., concurs in part and dissents in part, and assigns written reasons.

AMY, J., concurs and assigns written reasons.

liPETERS, J.,

concurring in part and dissenting in part.

I agree with the majority opinion in all respects except for its affirmation of the WCJ’s denial of SEBs after May 15, 2002. In affirming the WCJ’s denial of those SEBs, the majority notes: “The defendant-employer advised Mr. Short it had a job available for him in Alexandria at his regular hours and rate of pay with the modified duties approved by his treating surgeon. The position was available on May 15, 2002. When Mr. Short did not accept the position, his SEBs were terminated effective that date. Mr. Short ultimately acquired employment on his own in his geographical area [Butte Larose].” (Emphasis added.)

In denying the claim for continuing SEBs, the WCJ stated in part:

The real issue here is the issue that surfaced previously in Haynes versus Williams Fence and Aluminum, which— which matter this Court understands a writ application has been taken by the Supreme Court. It’s yet to be determined what the Supreme Court will do with this issue, but the issue in Haynes was this individual who resided in and around the Alexandria or Pineville area had moved to, guess where, Breaux Bridge, the same place Mr. Short’s moved to, and that the — the payor of benefits did not do vocational rehabilitation in the new locale of the injured worker.
The Third Circuit decided in Haynes that the — the statute with respect to vocational rehabilitation says they have to show job availability in the — in the place of thé employee’s general geographic area and/or the employer’s reasonable geographic area.
This Court concludes that based on the Haynes decision that reasonable vocational rehabilitation was performed on behalf of the payor of benefits, Allen Johnson Builders, that there — there was at the time of the termination of benefits a job available, a modified job meeting the restrictions. There’s no evidence that the job offered by RAllen Johnson to Mr. Short was outside of his physical restrictions. ...
So I think the termination of SEB is appropriate. ... [Tjhere’s no evidence presented by Mr. Short that he cannot earn ninety percent of his pre-injury wage because the job as offered by the — the employer of injury and pays the same pay and there’s no loss. There’s no showing that he can’t earn ninety percent of his pre-injury pay.

The majority finds that the WCJ did not err in failing to award continuing SEBs because Short failed to meet his initial burden of proving that he is unable to earn ninety percent or more of his pre-injury wages. I disagree. As noted by the majority, Short had been released to “limited duty work,” with some temporary physical restrictions. Allen Johnson even acknowledged this by its offer of modified employment, albeit at the same rate of pay. It is apparently undisputed that Short cannot return at this time to the job duties he performed prior to the work accident— thus, he has established a disability that prevents him from earning ninety percent or more of his pre-injury wages. The fact that Allen Johnson offered him modified employment at his same rate of pay does not go to the issue of Short’s initial burden of proof but to the issue of Allen Johnson’s subsequent burden of proving that there is a job that Short is physically capable of performing that was available to him. It is clear that the WCJ confused these two steps and determined that, because Allen Johnson met its burden of proof, Short would be unable to meet his initial burden of proof. This is legal error.

Further, at the time the WCJ decided the instant case, he applied our analysis in Haynes v. Williams Fence & Aluminum, 01-0026 (La.App. 3 Cir. 7/25/01), 805 So.2d 215, wherein we held that an employer is required to prove that a job is available to the employee in either the employee’s or the employer’s community or reasonable geographic region. In that case, although the Pineville area was no longer in the | ^employee’s community or reasonable geographic region due to his move, it was in the employer’s community or reasonable geographic region. Thus, we held that the employer did not owe continuing vocational rehabilitation. Under our holding in Haynes, the WCJ would have been entirely correct in holding that Allen Johnson’s offer of employment in Alexandria was sufficient to discharge its burden of proof.

However, following the WCJ’s judgment in this case, the supreme court reversed our holding in Haynes, in its consolidation of that case under the case of Fontenot v. Reddell Vidrine Water District, 02-0439, 02-0442, 02-0478 (La.1/14/03), 836 So.2d 14. Specifically, the supreme court held that, “because of the passage- of time since the date of injury and because financial circumstances required [the employee] to relocate a significant distance from the place of his former employment,” id. at 28, a return of the employee to the same position or a modified position was no longer appropriate. That case is almost indistinguishable from the case at hand. Because of the passage of time and the financial circumstances requiring Short to relocate a significant distance from the place of his former employment, Allen Johnson was required to show an available job in Short’s reasonable geographic region, Butte Larose. The fact that Short ultimately obtained employment in Butte Larose on his own does not excuse Allen Johnson’s termination of SEBs prior to that time. Thus, I respectfully disagree with the majority’s affirmation of the denial of continuing SEBs.

17AMY, J.,

concurring.

I subscribe to the majority opinion in this matter. However, I write separately in order to address the claimant’s contention that the termination of supplemental earnings benefits, as of May 15, 2002, must be reversed due to the recent decision of the Louisiana Supreme Court in Fontenot v. Reddell Vidrine Water Dish, 02-0439, 02-0442, 02-0478 (La.1/14/03), 836 So.2d 14.

In Fontenot, as in the present case, the claimant changed his residency from the geographic area of the employer to one some distance away. The claimant’s vocational rehabilitation services were not continued in the claimant’s new locale in the case before the supreme court. The supreme court observed that La.R.S. 23:1226(B)(2), the statute regarding the provision of vocational rehabilitation services, requires that “ ‘[wjhenever possible, employment in a worker’s local job pool must be considered and selected prior to consideration of employment in a worker’s statewide job pool.’ ” Focusing on the specific language of this statute, the supreme court found that, “for purposes of vocational rehabilitation, it is the duty of the vocational rehabilitation consultant to examine the job pool in the worker’s geographic area.” Id. at p. 21; 28. Accordingly, the supreme court reversed the denial of attorney’s fees related to the discontinuation of services and remanded the matter for consideration of that claim.

In the case now before us, the claimant contends that the Fontenot decision | vindicates he is entitled to the continuation of SEBs as the employer demonstrated the availability of positions in the employer’s locale, but did not demonstrate the availability of a position in his new place of residence.

Although Fontenot addresses La.R.S. 23:1226(B)(2), the vocational rehabilitation provision, it also addresses La.R.S. 23:1221(3)(c)(i), the SEB provision. Considering both statutes, the supreme court noted that La.R.S. 23:1221(3)(c)(i), the provision related to SEBs, is more general in its wording. The supreme court stated that “for purposes of determining supplemental earnings benefits it is appropriate to consider employment that is ‘proven available to the employee in the employee’s or employer’s community or reasonable geographic region.’” Fontenot at p. 20; 836 So.2d at 28. The court continued, stating: “Accordingly, as regards supplemental earnings the inquiry must focus on employment shown available in either the employee’s or the employer’s geographic area.” Id. at 20; 28. (Emphasis added). It is under this more broadly worded statute, La.R.S. 23:1221(3)(c)(i), that the claimant in this case seeks relief. As the employer demonstrated the availability of employment in one of these locations, I find no merit in the claimant’s assertion that Fontenot requires a reversal of the worker’s compensation judge’s ruling in this regard.


author: | MICHAEL E. KIRBY, Judge.

text:
    Martinell JACKSON and Ida Williams v. Jerry J. COCKERHAM, Lou Gioe Trucking d/b/a Chalmette Truck Corporation and U.S. Capital Insurance Company.
    No. 2002-CA-2493.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 21, 2003.
    Rehearing Denied July 1, 2003.

      Tamara Kluger Jacobson, Robert G. Harvey, Sr., New Orleans, LA, Counsel for Plaintiffs/Appellees (Martinelle Jackson and Ida Williams).
    Patrick E. Moore, Michael E. Fisse, Daigle Fisse, PLC, Covington, LA, Counsel for Defendant/Appellee (Louisiana Insurance Guaranty Association).
    Walter I. Willard, Bobbie F. Mason, The Willard Firm, PLC, New Orleans, LA, Counsel for Defendant/Appellee (Regional Transit Authority).
    Court composed of Judge CHARLES R. JONES, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE.
   | MICHAEL E. KIRBY, Judge.

This case arises from an alleged impact between a tractor/trailer and a Transit Management of Southeast Louisiana (“TMSEL”/ “RTA”) bus in Orleans Parish on 13 February 1996. On 27 January 1997 the instant suit was filed on behalf of the bus driver, Mrs. Ida Williams, and a bus passenger, Martinelle Jackson. The suit named Jerry Cockerham as the driver of the tractor/trailer, along with his employer, Lou Gioe Trucking. U.S. Capital Insurance Company was named as the insurer for the tractor/trailer.

On 22 August 1997 U.S. Capital was placed in rehabilitation and the petition was amended to name the Louisiana Insurance Guaranty Association (“LIGA”) as the successor in interest to U.S. Capital Insurance Company.

Lexington Insurance Company (“Lexington”) issued a $14 million liability policy which covered the TMSEL bus. There was no UM rejection form signed at the issuance of the Lexington policy.

It is undisputed that the Lexington policy includes a self-insured retention by TMSEL in the amount of $1 million. In other words, TMSEL is self-insured for lathe first $1 million of liability. Thereafter, the Lexington policy provides an additional $14 million of excess coverage.

After the filing of this lawsuit and answers, LIGA filed a Motion for Summary Judgment seeking enforcement of the “LIGA Credit Statute,” LSA-R.S. 22:1386, to require the plaintiff to recover against all other sources before the statutory LIGA limits would be available. Specifically, LIGA argued that the $1 million self-insured retention and the $14 million Lexington policy provided a total of $15 million in UM benefits to be exhausted before the LIGA limits would be available. Lexington Insurance Company filed an Opposition and Cross Motion and plaintiffs filed a general Opposition. At this point in the litigation, TMSEL was not a party to the litigation.

The rule on the Motion for Summary Judgment was heard on 26 October 2001. A Judgment was rendered in favor of LIGA finding that there was $1 million in UM coverage under the self-insured retention by TMSEL and $14 million in UM coverage provided by Lexington. The trial court ruled that LIGA was entitled to a credit for the full $15 million in UM coverage, and dismissed LIGA from farther proceedings upon the stipulation by plaintiffs that the total damages did not exceed $15 million.

At that point, it became apparent that TMSEL was a necessary party to the litigation with respect to the plaintiffs’ ability to recover damages in the event of judgment. Accordingly, the plaintiffs timely moved for a new trial as to the Motion for Summary Judgment, thereby suspending the effect of the Judgment. ls Plaintiffs amended their petition to name TMSEL, and TMSEL answered the lawsuit.

While the Motion for New Trial was still pending, LIGA filed another Motion for Summary Judgment, this one naming TMSEL. LIGA urged the same argument set forth in the first Motion: that under the clear wording of the LIGA statutes, the self-insured retention by TMSEL and the UM limits of the Lexington policy were primary to the statutory limits guaranteed by LIGA.

On 6 September 2002, the second LIGA Motion for Summary Judgment was heard and the entire record offered into evidence. The trial court ruled in favor of LIGA in the fashion it had at the first hearing, dismissing LIGA from further proceedings. A Judgment was signed in accordance with that ruling. The Motion for New Trial was also granted at that time.

TMSEL appeals this Judgment and alleges error.

STATEMENT OF THE LAW

Louisiana Revised Statute 22:1386(A), which deals with nonduplication of recovery or credit under the articles of the Insurance Guaranty Association, states:

Any person having a claim against an insurer under any provision in an insurance policy, other than a policy of an insolvent insurer which is also a covered claim, shall be required first to exhaust his rights under such policy. Such other policies of insurance shall include but shall not be limited to liability coverage, uninsured or underinsured motorist liability coverage, or both, hospitalization, coverage under self-insurance certificates, coverage under a health maintenance organization or plan, preferred provider organization or plan, or similar plan, and any and all other medical expense coverage. All entities that are prohibited from ^recovering against the association, as specified in R.S. 22:1379(3)(b), shall also be considered insurers for purposes of this Subsection. As to the association, any amount payable by such other insurance shall act as a credit against the damages of the claimant, and the association shall not be hable for such portion of the damages of the claimant. (Emphasis added.)

La. R.S. 22:1379(3)(b), referred to in the body of 22:1386 above, specifically mentions entities that have a certificate of self-insurance. TMSEL is an entity that is self-insured. Therefore, for the purposes of LIGA matters, section 1386 controls and TMSEL is an “insurer” for the amount of the self-insured retention.

TMSEL argues on appeal that the self-insured retention cannot be a “policy” for the purposes of the application of the LIGA credit statute, La. R.S. 22:1386. In so arguing, they rely upon the cases of Tybussek v. Wong, 96-1981 (La.App. 4 Cir. 2/26/97), 690 So.2d 225, and Hebert v. Williams, 526 So.2d 835 (La.App. 3 Cir. 1988). These cases are distinguishable.

In Hebert, the coverages were similar to that of TMSEL in the instant matter. The Hebert tribunal, however, was not interpreting the applicable LIGA statute herein, La. R.S. 22:1386. Instead, the Hebert court cited La. R.S. 22:1406 in determining that an employer had discretion whether to offer UM benefits to a claimant under a self-insured retention. The employer, Southern Pacific, had a liability policy with Liberty Mutual for $12 million that included a self-insured retention of $8 million. The Liberty Mutual policy was issued without a written UM rejection. Plaintiffs sued for a personal injury claim arising from the use of a Southern Pacific vehicle, alleging that their UM recovery should be allowed from the self-insured retention. Plaintiffs also alleged that the Liberty Mutual UM limits | ^should be available to them without a set-off for the self-insured retention, citing provisions of the Liberty Mutual contract as justification. The court determined that the Liberty Mutual policy, in the absence of a written UM waiver, did provide $12 million in UM benefits. The court held further, however, that since Southern Pacific was self-insured (i.e. not an insurer) that they were not required to provide UM coverage under § 1406 and were therefore not liable to plaintiffs. The court also found that the Liberty Mutual contract did not provide for the “drop down” urged by the plaintiffs and that UM liability would only attach after the self-insured retention amount was exhausted.

Hebert was rendered prior to the recent amendment to La. R.S. 22:1386, the LIGA credit statute. Accordingly, the present case is distinguishable as it is a LIGA matter where La. R.S. 22:1386(A) requires a credit for the entire self-insured retention amount held by TMSEL and the limits of the Lexington policy.

As for the history which motivated the legislature to amend Article 1386, we must look at the Louisiana Supreme Court case of Bowens v. General Motors Carp., 608 So.2d 999 (La.1992), where the Supreme Court invited the legislature to change the statute to its present form.

In Bowens, General Motors (“GM”) was held to be the statutory employer of a worker’s compensation claimant. GM was resultantly liable to the claimant for compensation benefits. LIGA was the guarantor for an insolvent compensation insurer for the claimant’s immediate employer. The issue before the court was ^whether § 1386 would require the claimant to recover from GM prior to recovering from LIGA. The application of § 1386 was unclear given the fact that GM was self-insured for worker’s compensation purposes, and § 1386 did not include specific reference to self-insured, but rather only to “insurance.” The Bowens court held that § 1386 did not contemplate inclusion of self-insurers. Specifically, the court found that self-insurance is not “insurance” and that § 1386 was unambiguous in applying only to those persons having claims against “an insurer under any provision in an insurance policy.” The court held that clearly “plaintiffs claim against GM is not against an ‘insurer’...” Bowens, 608 So.2d at 1003. The court also stated as follows:

In the absence of an express legislative pronouncement to the contrary, we hold that the presence of a self-insurer does not preclude liability on the part of LIGA ...

Bowens, 608 So.2d at 1004

In reaction to Bowens, the “express legislative pronouncement” came in the form of the amendment to § 1386 as set forth above. It is of particular note that the amendment does not simply add self-insurance to the list of available coverages. The amendment also sets forth that “all entities that are prohibited from recovering against the association, as specified in R.S. 22:1379(3)(b), shall be considered insurers for purposes of this Subsection.” The list of entities in La. R.S. 22:1379(3)(b) includes those covered by a certificate of self-insurance.

The application of § 1386 to the instant facts, therefore, confers the status of “insurer” upon TMSEL. This distinction is pivotal to the general intent that LIGA 17should always be the obligor of last resort. The distinction also separates the instant facts from Hebert and similar cases that insulate self-insurers from compulsory UM coverage when the provisions of amended § 1386 are read with reference to the provisions of § 1406.

Until the amendment, self-insurers were protected from the imposition of § 1406 UM obligations because they were not “insurers.” Now, for the purposes of LIGA claims, self-insurers are “insurers” by statutory definition. It is a familiar rule of statutory interpretation that laws in pari materia must be construed in reference to each other. Smith v. Cajun Insulation, 392 So.2d 398 (La.1980). Moreover, Louisiana Civil Code article 13, states that “Laws on the same subject matter must be interpreted in reference to each other.” In addition, La. Civ.Code article 9 states: “When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” In this case, the clear terms of Articles 1386 and 1406 read together are unambiguous and lead to only one result: TMSEL is an “insurer” and it must provide UM coverage unless specifically rejected. Accordingly, the plaintiffs must exhaust all $15 million in UM coverage afforded collectively by TMSEL and by Lexington Insurance Company before LIGA has exposure.

Uninsured Motorist Coverage

|sWe also note a public policy argument in favor of enforcing UM benefits in favor of plaintiffs. Louisiana jurisprudence contains a line of cases which lend credence to the public policy support of UM protection for bus patrons. In Trobaugh v. Migliore, 597 So.2d 494 (La.App. 1 Cir.1992), the plaintiff was injured while driving a rented vehicle. The rental company, Enterprise, was a qualified self-insured that had a $9.5 million excess policy with Travelers Insurance and a $500,000 self-insured retention.

The Enterprise rental agreement provided the plaintiff with a provision that extended liability coverage from the self-insured retention level rather than through the Travelers’ policy. The First Circuit concluded that by providing the lessee with liability coverage, Enterprise was concomitantly required by La. R.S. 22:1406 to offer the plaintiff the written opportunity to reject UM coverage. Since Enterprise failed to do so, UM coverage was imposed in favor of the plaintiff, i.e. the UM coverage was paid under the $500,000 self-retention level.

Bus patrons boarding a TMSEL bus pay a fare. TMSEL extends liability coverage in favor of the patrons under the self-insured retention in exchange for the fare. Thus, the bus patron is in a position analogous to a person who rents a car. As a matter of public policy, bus patrons are to be treated with the same care as someone who rents a car. Likewise, bus patrons should be able to recover under the self-insured liability level regardless of whether they are injured by the negligence of TMSEL (where they could avail themselves to the self-insured pliability level) or whether they were injured by the negligence of an uninsured third party.

The Trobaugh opinion shows a willingness to extend UM coverage to the full extent contemplated under the statute for rental patrons. Bus patrons have no similar protection, even though they pay a fare. The Louisiana Supreme Court recognizes the public policy justifications for UM coverage as follows:

Uninsured motorist coverage embodies a strong public policy in this state ... The object of the statute is to promote recovery damages for innocent automobile accident victims by making UM coverage available for their benefit as primary protection when the tortfeasor is without insurance, and as an additional or excess coverage when he is inadequately insured. To carry out this objective of providing reparation for those injured through no fault of their own, this Court has held the statute is to be liberally construed.

Taylor v. Rowell, 98-2865 (La.5/18/1999), 786 So.2d 812, 816.

In addition, the Louisiana Supreme Court has imposed upon common carriers that “highest degree of care towards its passengers.” Luckette v. Barb’s On The Lake, Ltd., 602 So.2d 108 (La.App. 4 Cir.1992). That duty incorporates a public policy requirement that TMSEL should be required to provide UM coverage to its passengers in this and similar instances. Without such coverage, bus passengers are deprived of their informed consent to travel on a vehicle naked of any insurance coverage to protect them from uninsured motorists. (See Taylor v. Rowell, supra, where the Supreme Court held that “an insurer must place the insured in a position to make an informed rejection of UM coverage.” 736 So.2d at 816.)

UJ/EW TRIAL

TMSEL argues that the motion for new trial which brought them into this litigation should not have been granted. La.Code of Civil Procedure Article 1973 states:

A new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law.

Here, the trial court granted a new trial because other insurance policies were discovered. There is nothing contrary to the law in the trial court’s action. TMSEL does argue that plaintiff knew of TMSEL’s involvement in this case and therefore doesn’t meet the requirement for peremptory grounds for granting of a motion for new trial found in La. C.C.P. art.l972(2). Nevertheless, based upon La. C.C.P. art. 1978, we find no abuse of discretion in the trial court’s granting of a motion for new trial. Because we are bound by our standard of review, we cannot disturb such a finding.

For the aforementioned reasons, this matter is affirmed in its entirety.

AFFIRMED.

      . The statute was amended by Acts 1999, No. 477. The legislature included the proviso that the amendments were applicable to all pending claims and to all pending insurance company liquidation proceedings.

      . La. R.S. 22:1406(D) governs the issuance of uninsured motorist coverage.