author: I «KUHN, J. | WHIPPLE, J.

text:
    Jerry T. LA GRANGE v. FIRE PROTECTION DIST. NO. 4 OF ST. TAMMANY PARISH.
    No. 2003 CA 0240.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 7, 2003.

      Louis L. Robein, Jr., Metairie, Counsel for Plaintiff/Appellant Jerry T. La Grange.
    Edward J. Deano, Jr., Mandeville, Counsel- for Defendant/Appellee Fire Protection District No. 4 of St. Tammany Parish.
    Before: WHIPPLE, KUHN, and MCDONALD, JJ.
   I «KUHN, J.

Jerry T. La Grange, a fire captain employed by the Fire Protection District No. 4 (“the Fire District”), filed this suit against the Fire District, seeking a judgment declaring that he is entitled to receive an adjustment in pay. La Grange ultimately seeks to have his rate of pay increased to the amount received by another fire captain, Jackie Chauffe, who enjoys less seniority than him both as a fire suppression employee and also as a fire captain. La Grange’s suit is based on La. R.S. 33:1969, which mandates equal compensation for “equal performance of duty and responsibility.” The trial court denied La Grange’s request for relief by signing a judgment that dismissed his. claims with prejudice. La Grange appeals. For the following reasons, we reverse the trial court’s judgment and render judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Counsel for both parties agree there are no disputed facts and stipulated to- the following facts:

[La Grange] has been employed as a fire suppression employee with [the Fire District] since 1979. On February 17, -1998, he was promoted to the position of Fire Captain.... The District compensates one other Captain,- [Chauffe], who enjoys less seniority, at rates higher than [La Grange]. [Chauffe] performs duties and responsibilities of equal status to that performed by [La Grange.] [Chauffe] receives a higher rate of pay primarily because of a 1998 pay raise implemented in the Fire Operator class. Upon his promotion to Fire Captain (after [La Grange’s] 1998 promotional date) [Chauffe] received the same percent pay raise. [Chauffe’s] base operator’s pay was higher, prior to promotion than that of [La Grange], hence his captains (sic) pay became higher than [La Grange]. After [La Grange’s] promotion the remaining fire suppression employees that 'were of [La Grange’s] previous job [..¡classification of operator received a pay increase. They were Mr. Elden Or-dogne, Mr. Mark Frosch and [Chauffe]. Mr. Ordogne. and Mr. Frosch have retired due to disabilities. However, [Chauffe]. has since been promoted to Captain, the same rank as [La Grange]. Because the promotion to Captain comes with a pay raise, which raise is determined as a percentage of the employee’s previous salary, ... [Chauffe] receives a higher hourly wage than does [La Grange]. • ■

'The parties further stipulated that: 1) the Fire District paid La Grange at a salary level published in a “uniform pay plan” adopted by the Wage and Salary Committee of the Fire District’s Board of Commissioners, and 2) such pay has at all times exceeded the statutory minimum salary level for fire captains established under La. R.S. 33:1992.

Through his deposition testimony, Chief Gorrondona represented that he was the most knowledgeable representative of the Fire District regarding matters relating to pay and the salaries of the firefighters. He explained that all pay rates were set by the Board of Commissioners of the Fire District in accordance with a pay scale and recommendations made by the Wage and Salary Committee.

Chief Gorrondona testified that Chauffe’s hire date was February 15, 1982, and he was promoted to the position of Fire Captain during early or mid-February 2001. When he was promoted, his salary was raised to an hourly wage of $13.01, and he received á two-percent scale raise on his anniversary date of February 15. As of the July 24, 2001 deposition, La Grange was earning an hourly wage of $12.75, and he was scheduled to receive a raise to $13.01 upon his anniversary date of November 14, 2001. Chief Gorrondona acknowledged that Chauffe’s 2001 promotion placed him one pay scale higher than La Grange, and he earns ^[^approximately 25 to 50 cents more per hour than La Grange. Chief Gorrondona explained that this pay disparity resulted from the 1999 adjustment to the operator’s pay scale, which resulted in a two-percent increase throughout the operator’s classification. La Grange had been promoted to the position of captain prior to this adjustment, and the captain’s pay scale was not similarly adjusted. On the other hand, Chauffe received the benefit of this adjustment prior to being promoted to the rank of captain. And under the provisions of the pay plan, because an employee is guaranteed a ten-percent increase in pay upon being promoted from the position of operator to captain, Chauffe’s pay increased beyond that of La Grange’s when he was promoted.

Regarding the duties of the captains, Chief Gorrondona testified that all captains perform equal duties but they all have different pay rates due to differences in their promotion dates and departmental seniority. Chief Gorrondona confirmed that La Grange was senior in grade since he was promoted to the position of Captain before Chauffe and he was senior in number of total years with the department. He explained the sole reason for the pay differential between the captains was the pay adjustment in the operator classification; he stated that Chauffe and La Grange were “performing an equal job.” When asked why La Grange’s pay had not been adjusted to reconcile the disparity, Chief Gorrondona stated that some of the commissioners of the Fire District’s board believed it would be arbitrary to adjust only La Grange’s pay without raising the pay throughout the classification of captain.

j ¡¡When La Grange filed a grievance regarding the pay disparity, the Wage and Salary Committee of the Board of Commissioners responded as follows:

[La Grange] has received the same treatment as any other employee that has been promoted to the rank of Fire Captain. Legal consul [sic] has advised us that his treatment is consistent with State Law. We do not feel that [La Grange] is entitled to any rate adjustment.

La Grange then filed this suit for declaratory judgment. The parties stipulated that the trial court would decide the matter based upon briefs, certain stipulated facts, and the deposition of Fire Chief Earl Gorrondona. In the proceedings below, the Fire District argued that the trial court had no jurisdiction to act because La Grange had not appealed his wage grievance to the Fire and Police Civil Service Board (“the Civil Service Board”). It appears that after this challenge was made, La Grange then appealed his wage grievance to the Civil Service Board. The parties ultimately stipulated that the Civil Service Board declined to take action.

In reasons for judgment, the trial court stated that because the matter had been appealed to the Civil Service Board, which declined to take action, it presumed that “the administrative remedies were pursued and exhausted by [La Grange].” Addressing the merits of La Grange’s claim, the court noted that its “sympathies lie with [La Grange]” and that the Civil Service Board “could legally adjust [La Grange’s pay],” recognizing that “claimant has been with the department for 3 years longer than Captain Chauffe, and has been a captain for 3 years longer than Captain Chauffe.” However, the court ultimately determined that it could not mandate that the Civil Service Board adjust Chauffe’s pay. The court stated that the state law mandate of equal pay does not mean that “employees in each classification must be paid, equally,” reasoning that “equally does not mean that Levery employee receives the same exact amount. It means that a fair and uniform pay schedule is adhered to.” The court found that the applicable statutory provisions governing “equal pay” and “minimum pay” for the Fire District employees, La. R.S. 33:1969 and La. R.S. 33:1992, were satisfied by the actions of the Fire District’s Board of Commissioners and the Civil Service Board in implementing the Fire District’s uniform pay schedule. La Grange appeals the trial court’s judgment, alleging the court erred in concluding that he was not entitled to a pay adjustment based on the mandate of La. R.S. 33:1969.

I. ANALYSIS

A. Jurisdiction

On appeal, the Fire District continues to challenge the jurisdiction of the trial court. The Fire District urges that La. Const. Art 10, § 10 grants exclusive jurisdiction of employment-related disputes to civil service boards. As authority, the Fire District cites two cases that involved the State Civil Service Commissions. But the Fire District overlooks the fact that the Fire and Police Civil Service system and the State and City Civil Service systems are set up independently of one another and have different scopes of power.

Louisiana Constitution Article 10, § 1 establishes the State and City Civil Service systems. Louisiana Constitution Article 10, § 8 addresses the types of actions that can be appealed by classified employees within those systems. And La. Const. Art. 10, § 10(A)(1) establishes that the State and City Civil Service systems are vested with “broad and general rule-making and subpoena powers for |7the administration and regulation of the classified service, including the power to ... adopt a uniform pay and classification plan .... ” Pursuant to this constitutional provision, the State Civil Service system has been held to exercise exclusive jurisdiction in the first instance over classified civil service employer-employee disputes that are employment related. Akins v. Housing Authority of New Orleans, 03-1086, p. 1 (La.App. 4th Cir.9/10/03), 856 So.2d 1220. This court’s rationale to support that conclusion is set forth in Strickland v. State, Through Office of the Governor, 525 So.2d 740, 743 (La.App. 1st Cir.), appeal dismissed, 534 So.2d 956 (La.1988):

[I]n granting “general rule-making” authority to the Commission “including the power to adopt rules for regulating employment, promotion, demotion, suspension, reduction in pay, removal, certification, qualifications, political activities, employment conditions, compensation and disbursements to employees, and other personnel matters and transactions; to adopt a uniform pay and classification plan; ... and generally to accomplish the objectives and purposes of the merit system of civil service as herein established,” and in providing that the “[r]ules adopted ... shall have the effect of law,” article X of the constitution evidences an intention to grant exclusive jurisdiction to the Commission in those areas where the Commission has exercised its “broad and general rale-making” power.
(Emphasis added).

The general thrust of the exclusive jurisdictional grant is to preclude district courts from having concurrent jurisdiction with the civil service commission over classified civil service employer-employee disputes that are essentially employment-related. Akins v. Housing Authority of New Orleans, 03-1086, p. 2, 856 So.2d at 1221.

| ¡¿With respect to the Fire and Police Civil Service, however, there are no constitutional provisions establishing an exclusive jurisdictional grant over disputes involving employee pay. Louisiana Constitution Article 10, § 16 establishes the fire and police civil service system. La. Constitution Article 10, § 17 addresses permanent appointments and promotions in the system.

Pursuant to the authority granted by La. Const. Art. 10, § 16, the legislature created The Fire and Police Civil Service, a classified civil service system embracing the positions of employment, the officers, and employees of the fire protection districts. La. R.S. 33:2535. This system applies to all fire protection districts operating a regularly paid fire department. La. Const. Art. 10, § 16. A fire and police civil service board is created in each “municipal, parish, or fire protection district” pursuant to La. R.S. 33:2586. Louisiana Revised Statutes 33:2537 provides that this fire and police civil service board shall, among other duties, “[a]dopt and maintain a classification plan.” But the enumerated duties of the board notably do not include the duty or power to adopt or implement a pay plan.

Because our constitution does not grant the fire and police civil service boards the same “broad and general rule-making” power that is granted to the state and city civil service commissions, we find no basis for concluding that the fire and police civil service boards in each fire protection district have exclusive | {jurisdiction over employment-related disputes, particularly those involving pay issues.

Pursuant to La. Const. Art. 5, § 16, our district courts have original jurisdiction of all civil and criminal matters “[ejxcept as otherwise authorized by this constitution .... ” Accordingly, since we find no provision in the constitution authorizing the Fire District’s Civil Service Board to resolve employment-related pay disputes, we conclude these disputes fall within the original jurisdiction of the district court. Accordingly, the trial court had jurisdiction to address La Grange’s request for declaratory relief, and we have jurisdiction to review the trial court’s judgment denying that relief.

B. La Grange’s Claim for Equal Pay

Louisiana Revised Statutes 33:1969 mandates, “Equal recognition and compensation shall be received for equal performance of duty and responsibility.” This provision is specifically applicable to “firemen paid by any ... fire protection district.” La. R.S. 33:1961. Louisiana Revised Statutes 33:1992 A also sets forth minimum salaries to be paid to each rank of the firefighters. The statute directs that the higher-ranking employees’ salaries are to be a specified percentage above the salary of a fireman, the lowest designated firefighter. La. R.S. 33:1992 B also provides for annual longevity increases for those firefighters having served 110between three and twenty years. This increase is at a rate of two percent each year and is computed on both base and longevity pay.

Based on La. R.S. 33:1969, La Grange seeks a declaration that he is entitled to receive the rate of pay enjoyed by Chauffe, retroactive to Chauffe’s appointment date. The Fire District argues that its adoption of a uniform pay plan pursuant to its civil service system and the requirement of longevity increases based on seniority pursuant to La. R.S. 33:1992 B results in different levels of pay for firefighters who perform the same duties and responsibilities. In essence, the Fire District suggests that the enactment of La. R.S. 33:1992 B effectively repealed La. R.S. 33:1969.

In interpreting these statutory provisions, we apply the following rules of statutory construction as set forth in City of Pineville v. American Federation of State, County, and Municipal Employees, AFL-CIO, Local 3352, 2000-1983, pp. 3-4 (La.6/29/01), 791 So.2d 609, 612:

When a law is clear and unambiguous and its application does not lead to absurd consequences, it shall be applied as written and no further interpretation may be made in search of legislative intent. La. C.C. art. 9. The meaning and intent of a law is determined by considering the law in its entirety and all other laws on the same subject matter and placing a construction on the provision in question that is consistent with the express terms of the law and with the obvious intent of the legislature in enacting it. The statute must therefore be applied and interpreted in a manner which is consistent with logic and the presumed fair purpose and intention of the legislature in passing it. This is because the rules of statutory construction require that the general intent and purpose of the legislature in enacting the law must, if possible, be given effect.... It is presumed that the intention of the legislative branch is to achieve a consistent body of law. In addition ... rules of statutory construction provide that where two statutes deal with the same subject matter, they should be harmonized if possible; however, ifJjjthere is a conflict, the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character.
(Case citations omitted).

We also examine these statutory provisions in conjunction with the constitutional mandate of Article 10, § 17, that individual promotions shall be made “under a general system based upon merit, efficiency, fitness, and length of service ...” In keeping with this mandate, the legislature has established that length of service, among other factors, will be compensated in the fire district’s pay plan. Likewise, the legislature has also directed that equal performance of duties and responsibility shall be equally compensated. Reading these provisions together, we believe the legislature intended that firefighters of the same rank, who have equal longevity in that rank and in the system overall, and who equally perform their duties will be paid the same hourly rate. Conversely, firefighters in the same rank who equally perform the same duties and responsibilities but have different lengths of overall service or service in that rank are not entitled to the same pay. A different number of years of service in a particular rank does not qualify as “equal performance of duty and responsibility.” Such an interpretation gives meaning and effect to both provisions and is in accordance with legislative intent. Thus, we conclude that the enactment of La. R.S. 33:1992 did not implicitly repeal La. R.S. 33:1969.

The facts of the present case establish that La Grange has served more years both overall and in the rank of captain than Chauffe. Thus, based on the mandate of La. R.S. 33:1969, we conclude that he is entitled to have his pay adjusted to at 112least the hourly rate paid to Chauffe, retroactive to the date that Chauffe was appointed to the rank of Captain, if the Fire District determines that La Grange is performing the duties and responsibility of the captain rank in an equal manner to that of Chauffe.

“Equal pay for equal work” is a basic theory of civil service systems. We recognize that other cases involving civil service systems have interpreted this general theory as not requiring adjustments in pay when discrepancies have resulted within the same classification of a uniform pay plan. See Gaspard v. Dep’t of State Civil Service, 93-0311 (La.App. 1st Cir.3/11/94), 634 So.2d 14, and Hollingsworth v. Dep’t of Public Safety, 354 So.2d 1058 (La.App. 1st Cir.1977), writ denied, 356 So.2d 1010 (La.1978). We distinguish those cases from the instant case because they involved claims of discrimination and did not involve a statutory mandate of “equal compensation.”

III. CONCLUSION

For these reasons, we reverse the trial court’s dismissal of La Grange’s request for declaratory relief. We hereby declare that La Grange is entitled to have his pay adjusted to the hourly rate paid to Chauffe, retroactive to the date that Chauffe was appointed to the rank of Captain, if the Fire District determines that La Grange is performing the duties and responsibility of the captain rank in an >Jjigequal manner to that of Chauffe. Costs of this appeal are to be paid by the Fire District.

REVERSED AND RENDERED.

WHIPPLE J., concurs in part and dissents in part for reasons assigned.

| WHIPPLE, J.

concurring in part and dissenting in part.

I agree that plaintiffs pay should be adjusted to Chauffe’s, but I do not agree that any further determination is necessary by the Fire District regarding whether plaintiff is performing in an “equal manner.” The defendant did not raise this issue as a defense, and I do not believe this court should do so ex proprio motu. Also, the parties are bound by the factual stipulation reached herein. Accordingly, I respectfully dissent from the majority’s decision to remand the matter for further determination regarding plaintiffs performance.

      . Louisiana Revised Statutes 33:1961 establishes that this mandate is applicable to firemen paid by a fire protection district.

      . Because Chief Gorrondona did not know the exact date of Chauffe's promotion, his testimony did not clearly establish whether Chauffe received his anniversary raise prior to or after his promotion to Captain.

      . It appears that the pay differential varies depending on the time of the year that the calculation is made.

      . The Fire District cites Strickland v. State, Through Office of the Governor, 525 So.2d 740 (La.App. 1st Cir.), appeal dismissed, 534 So.2d 956 (La.1988) and Foreman v. Falgout, 503 So.2d 517 (La.App. 1st Cir.1986).

      . The parties have not challenged that the board of commissioners of the fire protection district has the authority to implement the pay plan. Fire protection districts are generally provided for in La. R.S. 40:1491 et seq. In certain situations, as set forth in La. R.S. 40:1495, the fire protection district is governed by a board of commissioners. The board of commissioners has “such powers and shall perform such duties as are customary for the governing bodies of taxing districts and political subdivisions .... It may do all things necessary to carry out the purposes for which the district was created.” La. R.S. 40:1499.

      . Additionally, we recognize that La. R.S. 33:2561 addresses appeals by employees in the classified service to the fire and police civil service board and provides that "[a]ny regular employee in the classified service who feels that he has been discharged or subjected to any corrective or disciplinary action without just cause may, within fifteen days after the action, demand in writing a hearing and investigation by the board to determine the reasonableness of the action.” There is no provision authorizing an appeal to the board regarding pay issues.

      . La Grange does not seek a higher pay than Chauffe based on his seniority.

      . While we recognize that the parties stipulated that La Grange performs "duties and responsibilities of equal status" to that performed by Chauffe, the record does not specifically address whether those equal duties were performed in an equal manner. La. R.S. 33:1969 does not dictate equal compensation in the absence of an equal qualitative performance. Thus, if Chauffe's performance of his duties as Captain is superior to La Grange’s performance of the same job duties, Louisiana Revised Statutes 33:1969 does not mandate equal compensation.


source: Caselaw Access Project

author: | .CARTER, C.J.

license: Public Domain

text:
    STATE of Louisiana v. Columbus Christopher WILLIAMS, Jr.
    No. 2003 KA 0814.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 7, 2003.
    Joseph L. Waitz, Jr., District Attorney, Houma, by Ellen Daigle Doskey, Assistant District Attorney, for Plaintiff/Appellee, State of Louisiana.
    Bertha Hillman, Thibodaux, for Defendant/Appellant, Columbus Christopher Williams, Jr.
    Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   | .CARTER, C.J.

Defendant, Columbus Christopher Williams, was charged by bill of information with one count of criminal damage to a coin-operated device, a violation of LSA-R.S. 14:56.1, and pled not guilty. The trial court denied defendant’s oral motion to quash the bill of information, which was based on the argument that the value of the damage to the machine did not exceed $100.00. A jury found defendant guilty of criminal damage to a coin-operated device where the damage amounted to $100.00 or more. The trial court denied defendant’s motions for new trial and post-verdict judgment of acquittal, then sentenced defendant to one year’s imprisonment at hard labor. Defendant now appeals.

FACTS

On May 3, 2001, the defendant struck a Coca-Cola vending machine three times with a twenty-pound sledgehammer at his bail bonds office on Grand Caillou Road in Houma. The machine was owned by Coca-Cola. Prior to hitting the machine, the defendant threatened “to trash the damn machine and put it at the road.”

To establish the extent of damage to the machine, the State presented testimony from Coca-Cola Equipment Services Manager David Breath. Breath indicated he worked on the machine damaged by defendant and prepared a work order reflecting a total cost of $116.49 in connection therewith. The $116.49 figure included a $50.00 charge for parts, $52.49 for labor (which was based on an estimated time of one hour of labor plus $3.89 tax on that labor), $4.00 for taxes, and $10.00 for freight. Breath also indicated that the cost of retrieving the machine and transporting it to the warehouse for repairs was $70.00.

laOn cross-examination, Breath admitted that he “made up” the work order after the fact to give an estimate of what it would cost to repair the machine. When asked who had actually done the work on the machine, Breath stated, “I’m not sure if it was done in-house or if it was done at a remanufacturing facility. More than likely it was done at a remanufacturing facility.” Repairs performed by an outside company were more expensive than those performed in-house. Breath indicated the labor charge on the work order was $48.60, but Coca-Cola’s normal hourly rate was $15.00. Breath also stated $48.60 was the price Coca-Cola charged when it worked on customers’ equipment, but conceded the damaged machine was owned by Coca-Cola.

SUFFICIENCY OF THE EVIDENCE

On appeal, defendant does not dispute that he did damage a coin-operated device, Rather, defendant contends there was insufficient evidence to prove the damage resulted in an actual cost of repair or replacement exceeding $100.00 because the evidence presented concerned estimated costs. Defendant additionally challenges the inclusion of the $70.00 cost of retrieving the damaged machine as an actual cost of repair, arguing the $70.00 cost would have been incurred whether or not the machine was damaged.

Louisiana Revised Statute 14:56.1 provides:

Criminal damage to a coin-operated device is the intentional damaging of any coin-operated device belonging to another.
Coin-operated device means any parking meter, pay telephone, vending machine, money-changing machine, or any other coin activated device designed to accept money for a privilege, service, or product.
|4For purposes of this Section, the value of damages shall be determined by the actual cost of repair, or replacement if necessary.
Whoever commits the crime of criminal damage to a coin-operated device, when the damage done amounts to one hundred dollars or more, shall be fined not more than two thousand dollars or imprisoned for not more than two years, or both.
Whoever commits the crime of criminal damage to a coin-operated device, when the damage amounts to a value of less than one hundred dollars shall be fined not more than five hundred dollars or imprisoned for not more than six months, or both.

in reviewing claims challenging the sufficiency of the evidence, this court must consider “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also LSA-C.Cr.P. art. 821 B.; State v. Mussall, 523 So.2d 1305, 1308-09 (La.1988).

The defendant argues that “actual cost of repair,” within the meaning of the above statute, renders proof by estimated costs of repair insufficient to establish a violation of LSA-R.S. 14:56.1. The State responds that the interpretation of LSA-R.S. 14:56.1 proposed by the defendant, if accepted, would prevent prosecution for violation of LSA-R.S. 14:56.1 unless, and until, a damaged machine had been repaired or replaced. Rather, the State argues, proof by an accurate estimate of the cost of repairs is indeed sufficient to establish the value of the damage done to a machine for purposes of LSA-R.S. 14:56.1.

Louisiana Revised Statute 14:3 provides:

The articles of this Code cannot be extended by analogy so as to create crimes not provided for herein; however, in order to promote justice and to effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in ^connection with the context, and with reference to the purpose of the provision.

The word “actual” is defined as “[ejxisting in fact or reality[.]” Webster’s II New College Dictionary 12 (1995). In this case, there was no indication from the testimony that the machine was not repaired. Rather, Breath’s testimony indicated that the machine was repaired, although he was unsure if such repairs were performed in-house or by an outside company. The statute requires that the State prove the “actual cost of repair.” In this case, we find that presentation of an estimated cost of repair does not suffice to meet that burden. This is particularly so considering that Breath was unsure of which company performed the repairs and the amount of time it took to do so. Further, Breath testified that he based his estimate on the amount Coca-Cola charges for repairs to customer’s machines, although the testimony at trial established that Coca-Cola owned the machine.

Considering the foregoing, we find that there was insufficient evidence to support the conviction. Although defendant clearly damaged a coin-operated device, the State failed to present proof of the amount of damage, determined by the actual cost of repairs, as required by LSA-R.S. 14:56.1. Accordingly, we are constrained to reverse defendant’s conviction and vacate the sentence imposed.

CONVICTION REVERSED; SENTENCE VACATED.

      . The issue of whether an estimated cost of repair will satisfy the statute in a situation where the State proves that repairs have not been performed is not before this court and we make no comment thereon.


author: _l¿FOIL, J.

text:
    Windy HARTMAN v. WAL-MART.
    No. 2003 CA 0078.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 7, 2003.

      Robin L. Krumholt, Baton Rouge, for Appellee Plaintiff Windy Hartman.
    Frank A. Flynn, Lafayette, for Appellant Defendant Wal-Mart.
    Panel composed of Judges FRANK FOIL, BRADY M. FITZSIMMONS and EDWARD J. GAIDRY.
   _l¿FOIL, J.

In this workers’ compensation case, an employer challenges an award of benefits, penalties and attorney fees to the claimant. We affirm.

BACKGROUND

Windy Hartman was hired by Wal-Mart as a temporary employee in March of 2001 to work on a remodeling job. Ms. Hartman made a claim for workers’ compensation benefits, alleging that in April of 2001, she was injured during the course and scope of her employment while moving shelves when one shelf fell on her right knee. Wal-Mart refused to pay the claim, denying the occurrence of a work accident.

On January 2, 2002, Ms. Hartman filed this disputed claim for compensation benefits in the Office of Workers’ Compensation. A trial was held, and the workers’ compensation judge (WCJ) rendered judgment in favor of Ms. Hartman, finding that she sustained a work-related injury to her knee and was entitled to temporary total disability benefits. The WCJ also found that Wal-Mart acted arbitrarily in refusing to pay benefits, and awarded Ms. Hartman $2,000.00 in penalties, and attorney fees in the amount of $2,000.00.

This appeal, taken by Wal-Mart, followed. Ms. Hartman filed an answer to the appeal, seeking attorney fees for the additional work performed in connection with the appeal.

DISCUSSION

In its first assignment of error, Wal-Mart insists that the WCJ erred in finding Ms. Hartman met her burden of proving entitlement to disability benefits. Specifically, it urges that Ms. Hartman failed to prove the occurrence of a work accident and its medical connexity to her right knee condition.

Whether a claimant has established a work-related accident and whether the worker is entitled to disability benefits are factual determinations subject to the manifest error or clearly wrong standard of preview. Barber Brothers Contracting Company, L.L.C. v. Morgan, 2002-1712, p. 2 (LaApp. 1 Cir. 5/9/03), 849 So.2d 563, 564. In order for an appellate court to reverse a compensation judge’s factual findings, it must find from the record that a reasonable factual basis does not exist for the findings and the record establishes those findings are clearly wrong. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993).

At trial, Ms. Hartman testified that one evening in April, she was moving shelves when a pin popped out and one shelf fell on her knee. She stated that her knee was bruised and she told her co-worker, April Baudoin, about the accident. She testified that she and April went to their supervisor and reported the accident on that date. Although Ms. Baudoin did not witness the accident, she corroborated Ms. Hartman’s testimony, stating that she found Mrs. Hartman leaning against a furniture display “with her knee up.” She also observed a bruise on Ms. Hartman’s knee after Ms. Hartman described the accident to her, and testified she was present when Ms. Hartman reported the accident to the supervisor.

In support of its claim that Ms. Hartman failed to prove the occurrence of a work accident, Wal-Mart focuses on the testimony of its employees, as well as Ms. Hartman’s admission that she did not inform her family physician, whom she saw shortly after the alleged incident, about the work accident. Donald Owens, Wal-Mart’s assistant manager, stated that the first time Ms. Hartman apprised him she hurt her knee was on May 16, 2001, when Ms. Hartman filled out a claim report, as her temporary job with Wal-Mart was ending. Also, Consuela Uzee, Wal-Mart’s claims manager, stated that she did not know about the accident until Mr. Owens logged the information about the accident into the store’s computer system. She testified that Ms. Hartman told her a couple of weeks after she started working at Wal-Mart that she needed knee surgery, and came to work with a cane and in a brace. However, she could not recall the exact date that she |4saw Ms. Hartman wearing a knee brace. Wal-Mart’s personnel manager testified she was not informed of the accident until May 16, 2001, and noted that while Ms. Hartman provided work excuses for missing work days, the excuses did not state that the absence was for a job injury. A Wal-Mart crew leader who worked with Ms. Hartman attested that he knew nothing about the accident.

A worker’s testimony alone may be sufficient to discharge the burden of proving that an employment accident occurred and it had a causal relationship to the disability where no other evidence discredits or casts serious doubt on the workers’ version of the incident, and the workers’ testimony is corroborated by circumstances following the alleged incident. Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La.1992). Obviously, the WCJ believed Ms. Hartman’s claim that she was involved in a work-related accident that injured her right knee, which was corroborated by the testimony of her fellow co-worker and the medical evidence demonstrating a need for knee surgery. The WCJ is afforded great latitude in making credibility and weighing testimony. Augustus v. St. Mary Parish School Board, 95-2498, p. 5 (La.App. 1 Cir. 6/28/96), 676 So.2d 1144, 1150. We find the WCJ’s factual findings regarding the occurrence of a work accident and resulting disability to be reasonably supported by the record, and decline to disturb the rulings.

Next, Wal-Mart insists the WCJ erred in awarding penalties and attorney fees, urging this was a “hotly contested case” it reasonably controverted. We disagree. An assessment of penalties and attorney fees is proper, unless the employee’s right to benefits are reasonably controverted. The WCJ’s finding that Wal-Mart’s refusal to pay benefits warranted the imposition of penalties and attorney fees is a factual question which will not be disturbed on review in the absence of manifest error or unless clearly wrong. Augustus v. St. Mary Parish School Board, 95-2498 at pp. 12-13, 676 So.2d at 1154. The WCJ’s assessment of penalties and attorney | Sfees is reasonably supported by the evidence in this case, and we decline to disturb the awards. We further award Ms. Hartman the sum of $2,000.00 for additional work performed by her attorney in connection with this appeal.

Lastly, we note the parties stipulated that should the occurrence of a work-accident be found, the period of disability ended on January 16, 2002. However, in its judgment, the WCJ identified one of the issues as whether Ms. Hartman was entitled to present and future compensation benefits. In light of the stipulation, Ms. Hartman’s entitlement to benefits ended on January 16, 2002, and we amend the judgment to so reflect.

CONCLUSION

Based on the foregoing, we amend the judgment to reflect that Windy Hartman is entitled to workers’ compensation benefits from June 4, 2001 to January 16, 2002, the duration of her disability. As amended, the judgment is affirmed. Additionally, we order Wal-Mart to pay an additional $2,000.00 to Ms. Hartman for attorney fees incurred in connection with this appeal, as well as all costs of this appeal.

AMENDED AND AFFIRMED.


author: | ¡.GAIDRY, J.

text:
    SUCCESSION OF Amber Koenig JONES.
    No. 2003 CA 0238.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 7, 2003.
    Gaynell Mary Jones, Covington, Counsel for Plaintiff/Appellee Gaynell Mary Jones and Succession.
    Ronald W. Guth, Slidell, Counsel for Defendants/Appellant Chris James Jones and Tiffany Marie Jones.
    Alan M. Cohen, New Orleans, Counsel for Defendant/Appellee Kevin D. Savoie.
    Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.
   | ¡.GAIDRY, J.

In this suit, plaintiffs appeal from a trial court judgment sustaining defendants’ exceptions of no cause of action and no right of action and dismissing plaintiffs’ petition to annul a probated testament. We affirm.

FACTS AND PROCEDURAL HISTORY

Clyde J. Jones and his wife, Amber Koe-nig Jones, had two children, Gaynell M. Jones and Rickie J. Jones. Rickie J. Jones died on January 6, 1982 at the age of 23, survived by two minor children, Tiffany Marie Jones and Chris James Jones.

Amber Koenig Jones executed a will on March 27, 1991. Her will contains a particular legacy to her granddaughter, Tiffany Marie Jones, consisting of all of her jewelry. The disposable portion of the rest of her estate, as well as the usufruct of the forced portion of her estate, is bequeathed to her husband, Clyde J. Jones. The balance of her estate, subject to the usufruct of Clyde J. Jones, is bequeathed to her daughter, Gaynell Jones. In the event that Clyde J. Jones predeceases Amber Koenig Jones, the will provides that Gaynell should inherit the entire estate, subject to the particular legacy to Tiffany Marie Jones.

Amber Koenig Jones died on October 9, 2000. Her succession was opened on February 16, 2001 by Gaynell M. Jones, and a judgment of possession was signed that same day. In the judgment of possession, Tiffany Marie Jones was recognized as a particular legatee and sent into possession of all of Amber Koenig Jones’s jewelry. Gaynell M. Jones was recognized as the universal legatee, since Clyde J. Jones had predeceased Amber Koenig Jones, and was sent into possession of the remainder of the estate. In particular, Gaynell M. Jones was decreed owner of a certain piece |3of immovable property, which she sold to Kevin Savoie on October 29, 2001.

On January 18, 2002, Tiffany Marie Jones and Chris James Jones filed a petition to annul Amber Koenig Jones’s probated testament, alleging that they were entitled to their father’s forced portion of Amber Koenig Jones’s estate. They also sought an order recognizing each of them as owner of an undivided one-eighth (l/8th) interest in the immovable property sold to Kevin Savoie.

Gaynell M. Jones and Kevin Savoie filed exceptions of no right of action and no cause of action. After a hearing, the trial court concluded that the grandchildren were not forced heirs and granted the exceptions, dismissing their suit with prejudice.

It is from this October 9, 2002 judgment that Tiffany Marie Jones and Chris James Jones appeal, alleging that the trial court erred in finding that they were not forced heirs.

DISCUSSION

Standard of Review

Trial court rulings sustaining exceptions of no cause of action and no right of action are reviewed de novo on appeal because both involve questions of law. Industrial Companies, Inc. v. Durbin, 02-0665, pp. 6-7 (La.1/28/03), 837 So.2d 1207, 1213; Jackson v. St. Helena Parish Sheriffs Dep’t, 01-2792, p. 2 (La.App. 1 Cir. 11/8/02), 835 So.2d 842, 844.

Forced Heirship

To aid in the transition between the old and new laws of forced heirship, the legislature enacted La. R.S. 9:2501 to deal with the issue of whether or not a testator intended the new forced heirship laws to apply to his succession:

|4§ 2501 Construction of testaments executed prior to January 1,1996

If a person dies testate after July 15, 1997, and the testament is executed before January 1, 1996, then the testator’s intent shall be ascertained according to the following rules:
(1) That the testament shall be governed by the law in effect at the time of the testator’s death in any of the following instances:
(a) When the testament manifests an intent to disinherit a forced heir or to restrict a forced heir to the legitime under the law in effect at the time of the testator’s death.
(b) When the testament leaves to the forced heir an amount less than the legitime under the law in effect at the time the testament is executed.
(c) When the testament omits a forced heir and the language of the testament indicates an intent to restrict the forced heir to an amount less than the legitime under the law in effect at the time the testament is executed.
(2) That in all other instances the testament shall be governed by the law in effect at the time the testament was executed.

* * *

La. R.S. 9:2501 was repealed by Acts 2001, No. 560, § 2, effective June 22, 2001. However, by its own wording the act repealing La. R.S. 9:2501 does not apply to successions which have been judicially opened prior to the enactment of the act. Amber Koenig Jones’s succession was judicially opened on February 16, 2001; therefore, Acts 2001, No. 560, § 2 is not applicable to her succession, and we must apply La. R.S. 9:2501 to determine the applicable law of forced heirship.

Amber Koenig Jones made a particular bequest to Tiffany Marie Jones of her jewelry, which was less than the amount of her legitime under the law in effect at the time the will was executed. Thus, Tiffany Marie Jones falls under La. R.S. 9:2501(l)(b).

Chris James Jones was omitted entirely from Amber Koenig Jones’s will. In In re Succession of Boyter, 99-0761 (La.1/7/00), 756 So.2d 1122, the Louisiana Supreme Court held that La. R.S. 9:2501(1)(a), (b), and (c) all require actual verbiage in the testament indicating an intent to cut off the forced heir’s right of reduction. Mere omission of a forced heir is not | ¡^sufficient. Id. at 1131-1132. Chris James Jones argues that because he was omitted entirely from the testament, La. R.S. 9:2501(2) applies, and the law at the time the testament was executed governs. Under the law applicable at the time the testament was executed, Chris James Jones would receive his father’s forced portion by representation. We disagree that the law at the time the testament was executed governs.

In In re Succession of Allison, 31,495 (LaApp. 2 Cir. 9/14/00), 766 So.2d 778, a case factually similar to the instant case, the court held that the transition statute indicates that the testament should be governed by La. R.S. 9:2501 as a whole, rather than applying different forced heirship laws to individual children or their representatives. Subsection (B)(1) of the statute states that “the testament shall be governed by the law in effect at the time of the testator’s death in any of the following instances.” This language indicates that the entire testament should be analyzed under the same law and that if any of the instances found in subsections (a), (b), or (c) are included in the testament, then the law in effect at the testator’s death governs. Allison, 31,495 p. 6, 766 So.2d at 782.

Amber Koenig Jones’s testament contained a particular legacy to Tiffany Marie Jones that satisfied the requirements of La. R.S. 9:2501(B)(l)(b). Therefore, under La. R.S. 9:2501, her entire testament is to be governed by the law in effect at the time of her death.

At the time of Amber Koenig Jones’s death on October 9, 2000, La. C.C. art. 1493 provided the following with respect to forced heirship:

A. Forced heirs are descendants of the first degree who, at the time of the death of the decedent, are twenty-three years of age or younger or descendants of the first degree of any age who, because of mental incapacity or physical infirmity, are permanently incapable of taking care of their persons or administering their estates at the time of the death of the decedent.
IfiB. When a descendant of the first degree predeceases the decedent, representation takes place for purposes of forced heirship only if the descendant of the first degree would have been twenty-three years of age or younger at the time of the decedent’s death.
C. However, when a descendant of the first degree predeceases the decedent, representation takes place in favor of any child of the descendant of the first degree, if the child of the descendant of the first degree, because of mental incapacity or physical infirmity, is permanently incapable of taking care of his or her person or administering his or her estate at the time of the decedent’s death, regardless of the age of the descendant of the first degree at the time of the decedent’s death.
D. For purposes of this Article, a person is twenty-three years of age or younger until he attains the age of twenty-four years.

Tiffany Marie Jones and Chris James Jones are not descendants of the first degree. Thus, they would only be forced heirs if their father, Rickie J. Jones, would have been twenty-three years of age or younger at the time of Amber Koenig Jones’s death or if they were permanently incapable of taking care their persons or administering their estates at the time of Amber Koenig Jones’s death because of mental incapacity or physical infirmity. La. C.C. art. 1493(B) and (C). Since Rickie J. Jones died in 1982 at the age of twenty-three, he would be well over the age of twenty-three at the time of Amber Koenig Jones’s death. Additionally, neither Tiffany Marie Jones nor Chris James Jones has alleged that they are incapable of caring for their persons or estates. Thus, they are not forced heirs.

DECREE

Since we have determined that Tiffany Marie Jones and Chris James Jones are not forced heirs, they have no cause of action or right of action. The October 9, 2002 trial court judgment granting the exceptions of no cause of action and no right of action is affirmed. Costs of this appeal are assessed to Tiffany Marie Jones and Chris James Jones.

AFFIRMED.


author: J^FITZSIMMONS, J. hGAIDRY, J.,

text:
    Lisa Wynne SMITH v. METROPOLITAN PROPERTY AND CASUALTY INSURANCE CO.
    No. 2003 CA 0223.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 7, 2003.
    Writ Denied Feb. 13, 2004.

      Alton B. Lewis, Hammond, Counsel for Plaintiff-Appellee Lisa Wynne Smith.
    Boris F. Navratil, Baton Rouge, Counsel for Defendant-Appellant Metropolitan Property and Casualty Insurance Company.
    Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.
   J^FITZSIMMONS, J.

Plaintiff, Lisa Wynne Smith, sued the insurer of her home, the defendant, Metropolitan Property & Casualty Insurance Company (Metropolitan). She alleged that Metropolitan failed to pay all of the damage claims made under her homeowner’s policy. Subsequently, Metropolitan filed a motion for summary judgment asserting that the action had prescribed pursuant to a specific policy provision mandated by Louisiana Revised Statute 22:691. The trial court denied the motion. Metropolitan then filed a motion for new trial for re-argument on the issue of prescription, which was also denied. The matter proceeded to trial on the merits. On October 30, 2002, the trial court signed a judgment finding in favor of Ms. Smith, awarding her additional benefits from the policy, penalties, and attorney fees.

Metropolitan appealed. It argues that the suit, which was brought more than twelve months after the date of the loss, was barred by prescription. In response, Ms. Smith argues that Metropolitan waived the time limit. Secondly, Metropolitan asserts that penalties and attorney’s fees were not warranted in the absence of sufficient proof that-the claims to Metropolitan were documented. Ms. Smith disagrees. Finding no manifest error, we affirm.

PRESCRIPTION

Louisiana R.S. 22:691F requires that a suit for any claim against the insurer under the standard homeowner’s fire policy be brought within twelve months “after the inception of the loss.” The homeowner’s policy in question included the following provision: “No suit or action may be brought against us by you unless there has been full compliance .with all of the policy terms. Any suit or action must be brought within twelve months of the loss.” The time of the loss is measured from the actual date of the loss, not the date the loss was ascertained or. asserted. Wagner v. Meeks, 98-0464, p. 5 (La.App. 1 Cir. 4/1/99), 730 So.2d 1058, 1060. Nevertheless, the insurer can waive the time limitation or prescriptive period contained in the policy. The waiver need not be in writing. It can be express or tacit, as evidenced by conduct on the part.of the insurer. A tacit waiver or interruption of prescription may be found if the insurer (1) continues negotiations, thereby inducing the insured to believe the claim will be settled or not contested, (2) makes an unconditional offer of payment, or (3) performs acts of reparation or indemnity. Lima v. Schmidt, 595 So.2d 624, 634 (La.1992); Griffin v. Audubon Insurance Company, 94-0233, p. 4 (La.App. 1 Cir. 12/22/94), 649 So.2d 72, 74.

On motion for summary judgment, the burden is on the mover to show no genuine issue of material fact exists and that mover is entitled to summary judgment as a matter of law. If the movant is successful, the opposing party must then establish that a genuine issue of material fact remains. La. C.C.P. art. 966C(2).

The loss occurred on May 26, 1999. Ms. Smith made the last disputed claim for loss on August 6, 1999. The suit was filed on December 14, 2000, more than one year after the loss. Having established the dates, Metropolitan asserted in its motion for summary judgment that suit was not filed within twelve months of the loss and it was entitled to judgment in its favor.

In opposition to Metropolitan’s motion for summary judgment, Ms. Smith filed an affidavit. In the affidavit, Ms. Smith states that she had several conversations with Metropolitan and avers that, until the fall of 2000, representations by a Metropolitan adjuster led her “to believe that Metropolitan was continuing to consider and evaluate her claim until Metropolitan told her to sue.” Ms. Smith also introduced a letter dated January 19, 2000 addressed to her from a Metropolitan claims adjuster. Initially, the letter reiterated the insurer’s 14decision to treat the reported loss as two claims, rather than the one claim requested by Ms. Smith. The second part of the letter states that:

As far as any unpaid repair bills we will be glad to review any that you might wish to submit. If the “unpaid” portion of the bills involves any work to bring an item up to code or any upgrades, the policy clearly states that we owe “like kind and quality”. Also, if you would like to submit any receipts or proof that the home was not livable due to the plumbing repairs, we will also be glad to review that documentation.

Metropolitan offered no evidence in rebuttal.

Although we see no clear basis for a claim of acknowledgement in the letter, we cannot say from our review that the trial court clearly erred in denying the motion for summary judgment. Under the particular facts here, the trial court could have found that a genuine issue of material fact remained on the issue of whether representations by an adjuster, coupled with Metropolitan’s continued contacts and consideration of her case over a long period of time, lulled Ms. Smith into believing that the claims she filed were not going to be contested or would be settled without the need for suit.

PENALTIES AND ATTORNEY’S FEES

On the issue of penalties and attorney’s fees, we also cannot say that the trial court erred. Based on apparent underlying credibility determinations in favor of Ms. Smith, the trial court could have reasonably found that Ms. Smith submitted sufficient proof of the denied claims. Thus, the insurer acted arbitrarily in its rejection. Additionally, wé note that the record provides reasonable support for a finding that the adjuster misrepresented the policy coverage and tried to dissuade Ms.- Smith from filing claims for some of her damages. See Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993).

IsFor these reasons, we affirm the judgment of the trial court. The costs of the appeal are assessed to the appellant, Metropolitan.

AFFIRMED.

GAIDRY, J., dissents with reasons.

hGAIDRY, J.,

dissenting with reasons.

For the reasons expressed below, I respectfully dissent from the majority’s decision affirming the trial court’s judgment.

Metropolitan has properly raised the prescription issue through its appeal of the denial of its motion for summary judgment. While the denial of a summary judgment may not constitute irreparable harm justifying an immediate appeal, an erroneous interlocutory judgment denying a motion for summary judgment may be corrected by review following final judgment. Devers v. Southern University and A & M College, 97-0259, 9700260, pp. 15-16 (La.App. 1st Cir.4/8/98), 712 So.2d 199, 209. Otherwise, such error might never be corrected if supervisory writs were denied.

A party pleading prescription generally has the burden of proving it. However, when a suit has prescribed on its face, the plaintiff has the burden of proving that prescription was interrupted in some manner. Mitchell v. Terrebonne Parish School Board, 02-1021, p. 5 (La.App. 1st Cir.4/2/03), 843 So.2d 531, 533. Ms. Smith’s petition is prescribed on its face. La. R.S. 22:691. Metropolitan’s motion for summary judgment was supported by the affidavit of its adjuster, confirming the date of the submission of the claim at issue and authenticating the policy. Its submissions established a prima facie case in favor of summary judgment under La. C.C.P. art. 966(C)(2).

My review of Ms. Mummert’s letter and Ms. Smith’s affidavit show that Ms. Smith plainly failed to meet her burden of proof to show her claim was not prescribed. Both evidentiary items demonstrate only that Ms. Smith had “conversations” and “discussions” which indicated that Metropolitan was “continuing to consider and evaluate her claim.” Mere acknowledgment of receipt of proof in support of a claim by an insurer or its claim investigation or negotiation do not constitute waiver of policy provisions or defenses. La. R.S. 22:651. The statements offered by Ms. Smith are patently insufficient to establish a reasonable belief that the claimed debt was acknowledged or that there was a waiver of the prescription defense, particularly to a person having the benefit of legal representation. See Webb v. Blue Cross Blue Shield of Louisiana, 97-0681 (La.App. 1st Cir.4/8/98), 711 So.2d 788. As neither Ms. Smith’s affidavit nor Metropolitan’s letter to her counsel constitute “factual support sufficient to establish that [she] will be able to satisfy her evidentiary burden of proof at trial, there is no genuine issue of material fact.” La. C.C.P. art. 966(C)(2).

Metropolitan was clearly entitled to summary judgment on the showing made. The trial court’s judgment denying its matron for summary judgment should be -reversed, and judgment granted in favor of Metropolitan and against Ms. Smith, dismissing her cause of action and vacating the judgment on the merits. I respectfully dissent.

      . See also Thomas v. Albertsons, Inc., 28,950, p. 2 (La.App. 2nd Cir.12/11/96), 685 So.2d 1134, 1136, writ denied, 97-0391 (La.3/27/97), 692 So.2d 395; Kidd v. Independent Fire Insurance Company, 95-1273, p. 4 n.3 (La.App. 4th Cir.1/19/96), 668 So.2d 406, 408 n. 3.

      . Ms. Smith was represented by counsel prior to the prescriptive date of August 6, 2000, and for over nine months prior to suit being filed, as evidenced by the date of the letter at issue.


author: [pGAIDRY, J.

text:
    Elwood L. HANO v. Mary Rose LATINO.
    No. 2003 CA 0088.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 7, 2003.
    Writ Denied Feb. 13, 2004.

      Dennis S. Fitzgerald, Baton Rouge, Mark D. Plaisance, Baker, Counsel for Plaintiff/Appellant Elwood L. Hano.
    Rodney C. Cashe, Hammond, Counsel for Defendant/Appellee Mary Rose Latino.
    Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.
   [pGAIDRY, J.

This appeal concerns the classification of property acquired during the existence of the community of acquets and gains between the parties. Plaintiff, Elwood Hano, appeals a trial court judgment finding that a parcel of land acquired during his marriage to defendant, Mary Latino Hano, was the separate property of Mary Latino Hano. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Elwood Hano and Mary Latino Hano were married in September of 1972, and since the parties did not enter into a separate property regime, a community of ac-quets and gains was created. In February of 1973, Joseph Latino and Mary Ann Ca-taldo Latino, Mary Latino Hano’s parents, transferred by act of cash sale a one-acre parcel of property on Wardline Road in Tangipahoa Parish to Mary Latino Hano. The act recited a cash consideration of two thousand dollars, “cash in hand paid, the receipt of which is hereby acknowledged.” The act of cash sale reflected that the property was conveyed to:

MARY LATINO HANO, married but once and then to Elwood Hano with whom she is living and residing, a resident of legal age of the Parish of Livingston, State of Louisiana.

The act of cash sale did not contain a “dual declaration” indicating that Mary Latino Hano was purchasing the property as her separate property.

Elwood Hano and Mary Latino Hano were divorced by a judgment dated March 27, 1997, and the community of acquets and gains was terminated retroactive to December 29, 1995, the date the petition for divorce was filed. Subsequently, Elwood Hano filed a Petition for Judicial 13Partition of Community Property, and the Wardline Property acquired from Joseph Latino and Mary Ann Cataldo Latino was listed in the detailed descriptive list and marked for traversal. A hearing was held on June 26, 2000 on the issue of the classification of the Wardline Property as community or separate. Mary Latino Hano argued that the act of cash sale by which she acquired the Wardline Property was in fact a “disguised donation” and that her parents had wanted her to have the property as her separate property. Elwood Hano claimed that the transaction was a cash sale and that the property belonged to the community.

At the hearing, Mary Latino Hano testified that the two thousand dollars recited in the act as consideration for the conveyance was actually never paid. She did not pay the money, and if Elwood Hano had paid it, she claimed that she would have known about it. Furthermore, Elwood Hano was not present at the time she acquired the land, nor did he sign the Act of Cash Sale. It was her understanding that the donation was in the form of a cash sale to preserve title to the property.

Elwood Hano testified that he paid Joseph Latino with twenty $100 bills for the property, and that he would never have accepted a donation from his former father-in-law or anyone else. However, he had no receipt or any other proof that the money had been paid. When questioned as to why his name was not listed as a vendee on the conveyance if he had paid cash for the property, Elwood Hano testified that he and Mary Latino Hano had been married for less than a year at the time of the conveyance, and his former father-in-law was attempting to protect Mary Latino Hano in the event the marriage did not work out. Elwood Hano pointed out that a building had been erected on the property, and it had been mortgaged numerous times over the years in acts signed by both him and by Mary | ¿Latino Hano. He testified that he never would have gone into debt to finance improvements on property he did not own.

Johnny Latino, Mary Latino Hano’s brother, testified at the hearing that his parents owned a five-acre tract of land from which they wanted to give each of their children property. Around the same time as the conveyance to Mary Latino Hano, Joseph Latino and Mary Ann Catal-do Latino conveyed to Johnny Latino a one-acre tract of land from the same tract as the parcel conveyed to Mary Latino Hano. The conveyance to Johnny Latino was also called a cash sale, naming only Johnny Latino as vendee, although Johnny Latino was married at the time of the conveyance. Mr. Latino testified that the transaction was, in reality, a donation, and he was informed by the attorney who handled both the conveyance to him and to Mary Latino Hano that the act was called a cash sale in order to avoid title problems with the property. Johnny Latino knew that his parents intended these conveyances as donations and would not have accepted money from their children.

Salvador Latino, another brother of Mary Latino Hano, testified that prior to the conveyances to Johnny Latino and Mary Latino Hano, he received a similar parcel of property from the Wardline Road tract from his parents. His transaction was also in the form of a cash sale, although no money changed hands in connection with the transfer, but was actually a donation to him alone from his parents. Salvador Latino testified that his act of sale listed his wife as a co-vendee because they were mortgaging the property to build a house on it, and the mortgage company required that both spouses participate in the mortgage.

After taking the matter under advisement, the trial court ruled that the Ward-line Property was the separate property of Mary Latino Hano, finding . | Kthat the transaction was in reality a donation of the immovable property to Mary Latino Hano from her parents. This appeal followed the rendition of the Judgment of Partition of Community Property, which incorporated the trial court’s earlier ruling on the classification of the Wardline Property.

DISCUSSION

The law is clear that things in the possession of a spouse during the existence of a community of acquets and gains are presumed to be community property and the party asserting otherwise has the burden of overcoming this presumption by clear and convincing evidence. La. C.C. art. 2340; Dawson v. Dawson, 610 So.2d 917, 919 (La.App. 1 Cir.1992). Although La. C.C. art. 2340 was not enacted until several years after the conveyance at issue herein, the rebuttable presumption established by the article is evidentiary in nature, and thus procedural; therefore it is to be given retroactive application. Tullier v. Tullier, 464 So.2d 278, 281 (La.1985).

The findings of a trial court regarding the classification of property as community or separate is a factual determination which will not be disturbed absent manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). When findings are based on determinations regarding the credibility of witnesses, the manifest error/clearly wrong standard demands great deference to the trier of fact; only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

We believe that the evidence introduced at trial was sufficient for a rational trier of fact to conclude that the presumption of community established in La. C.C. art. 2340 had been rebutted. It is clear that the trial | (¡court believed the testimony of Mary Latino Hano, Johnny Hano, and Salvador Hano concerning the circumstances of the conveyance from their parents and disbelieved Elwood Hano’s testimony that he paid Joseph Latino two thousand dollars in cash for the property. We find no manifest error in the trial court’s findings. The judgment of the trial court is affirmed. Costs of this appeal are to be borne by Elwood Hano.

AFFIRMED.

      . At the time of the conveyance at issue, when a spouse acquired real property without a dual declaration in the deed that he purchased the property with his separate funds and that he intended it to become part of his separate estate, the property so purchased was conclusively presumed to belong to the community.


author: LPARRO, J.

text:
    Ashli RICHARDSON, Karl M. Beattie, and Bobbie G. O’Bryan, Jr. v. Bobby Gerald LOTT, Jr., Bobby Gerald Lott, Sr., State Farm Mutual Automobile Insurance Company, and Terrebonne Parish Consolidated Government.
    No. 2003 CA 0189.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 7, 2003.
    Writ Denied Feb. 13, 2004.

      William P. Crews, Jr., Natchitoches, William S. Watkins, Duval, Funderburk, Sundbery, Lovell & Watkins, Houma, for Plaintiff-Appellant Ashli Richardson.
    Kevin D. Thompson, E. James Gaidry, Jr., Houma, for Defendant-Intervenor-Ap-pellee Terrebonne Parish Consolidated Government.
    Howard B. Kaplan, Bernard, Cassisa, Elliott & Davis, Metairie, for Defendant-Appellee United States Fidelity & Guaranty Insurance Company.
    Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   LPARRO, J.

Ashli Richardson appeals a judgment granting a motion for summary judgment filed by United States Fidelity & Guaranty Insurance Company (USF & G) and dismissing her claims for uninsured/underin-sured motorist (UM) insurance coverage under policies issued to the Terrebonne Parish Consolidated Government (the parish). The only issue on appeal is whether UM rejections executed by the parish were valid. After a de novo review, we find that USF & G failed to carry its burden of proof that there is no genuine issue of material fact concerning the validity of the UM rejections in this case. Accordingly, we reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

Asbli Richardson, Karl M. Beattie, and Bobbie G. O’Bryan, Jr., who were all police officers for the city of Houma, were involved in an automobile accident on November 24, 1998, while in the course and scope of their employment. They were occupying a police vehicle and were proceeding through an intersection under a green light when they were hit by a pickup truck driven by Bobby G. Lott, Jr., owned by Bobby G. Lott, Sr., and insured by State Farm Mutual Automobile Insurance Company (State Farm). As a result of the accident, Ms. Richardson was severely injured; Officers Beattie and O’Bryan sustained only minor injuries. All were paid workers’ compensation benefits by the parish. Suit was filed against the Lotts and State Farm; the parish was named as a necessary and indispensable party because of its potential subrogation claims for workers’ compensation payments, and because the State Farm liability limits might be insufficient to cover those claims and the damages sustained by the three officers, particularly Ms. Richardson. The petition further alleged that the parish might be insured by USF & G, but did not name it as a defendant.

After some discovery, an amended petition added USF & G as a defendant, alleging its liability insurance policies, which were renewed July 1, 1998, insured the parish and that the city of Houma police department was an additional insured on those ^policies, entitling the officers to UM coverage. The amended petition further stated that there was no rejection of UM coverage when the policies were issued and that UM rejection forms signed in October 1998 were not valid.

USF & G eventually filed a motion for summary judgment, stating there were no genuine issues of material fact and, as a matter of law, the parish having effectively rejected UM coverage, the USF & G policies did not provide UM insurance at the time of this accident. In support of its motion, among other things, USF & G submitted affidavits; copies of its policies; the deposition of Barry P. Bonvillain, parish council president at all relevant times; a copy of a resolution adopted by the parish council on March 11, 1992, authorizing the council president to reject UM coverage on all parish insurance policies; and copies of various UM rejection forms from 1993 to 2001. The documents and accompanying affidavits showed that effective July 1, 1998, USF & G had replaced two existing policies with substitute policies providing liability insurance to the parish and the city of Houma police department. UM rejection forms had been signed in January 1996 on the previous policies. The two policies in effect at the time of the accident were a commercial liability umbrella policy (the umbrella policy) and an excess automobile liability policy (the excess policy). Although UM rejection forms were not executed when these policies became effective in July 1998, they were executed for both policies by Mr. Bonvillain a month before the accident, on October 20, 1998. USF & G argued that the evidence established that the parish had rejected UM coverage on its current policies, each of which was a renewal or substitute for preceding policies on which UM coverage had also been consistently rejected. Therefore, because the previous waivers of UM coverage continued unabated in the renewed or substituted policies and no new UM rejections were needed, and/or because the rejection forms executed in October 1998 were valid, the policies provided no UM coverage for Ms. Richardson.

|4Ms. Richardson opposed the motion, submitting copies of certain letters from USF & G’s and the parish’s attorneys with copies of USF & G policies attached; a copy of the 1992 parish council resolution; a copy of the UM rejection form prescribed by the commissioner of insurance as of April 17, 1998; copies of the October 1998 UM rejection forms; and a copy of a UM rejection form executed for the parish on December 14, 1999, using the new form prescribed by the commissioner of insurance. She argued that the 1992 parish council resolution was ambiguous and did not authorize succeeding council presidents and other persons to continue to reject UM coverage indefinitely. She also contended the resolution by its terms applied only to the parish, and not to the city of Houma or its police department. She further urged that the UM rejections executed in October 1998 were not valid, because the forms used were not in accordance with the new format prescribed by the commissioner of insurance for use after September 6, 1998, as required by Louisiana Revised Statute 22:1406(D)(l)(a)(ii). Finally, because for one year, a different insurance company provided the parish’s liability insurance coverage, the previously-executed UM rejection forms on the USF & G policies did not remain valid, because the policies had not been continuously renewed by USF & G or its affiliate.

At the hearing on the motion, the trial court commented:

[T]he State’s new form that the State requires was not used; is that essential, in this particular case? And the Court is of the opinion, no it is not. Where the form is otherwise in compliance with law, the Court is of the opinion that, that previous UM rejection is sufficient and adequate.
* * *
We have a situation where the Parish has exhibited, in the past, an intention not to have UM coverage.
Considering the circumstances, the Court is of the opinion that Parish Government sufficiently complied with the requirements of the Uninsured Motorist Law.

The trial court granted the motion for summary judgment in favor of USF & G, signed a judgment on July 30, 2002, and designated it as final. Ms. Richardson appealed.

SUMMARY JUDGMENT

In determining whether summary judgment is appropriate, appellate courts conduct a de novo review of the evidence, employing the same criteria that govern the district court’s determination of whether summary judgment is appropriate. Sanders v. Ashland Oil, Inc., 96-1751 (La.App. 1st Cir.6/20/97), 696 So.2d 1031, 1035, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29. Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B); Collins v. Randall, 02-0209 (La.App. 1st Cir.12/20/02), 836 So.2d 352, 354.

The issue of whether an insurance policy, as a matter of law, provides or precludes coverage is a dispute that can be resolved properly within the framework of a motion for summary judgment. Johnson v. Allstate Ins. Co., 95-1953 (La.App. 1st Cir.5/10/96), 673 So.2d 345, 347, writ denied, 96-1292 (La.6/28/96), 675 So.2d 1126. When the issue before the court on the motion for summary judgment is one on which the party bringing the motion will bear the burden of proof at trial, the burden of showing that there is no genuine issue of material fact is on the party bringing the motion. See LSA-C.C.P. art. 966(C)(2); Buck’s Run Enterprises, Inc. v. Mapp Const., Inc., 99-3054 (La.App. 1st Cir.2/16/01), 808 So.2d 428, 431. The insurer bears the burden of proving an insured named in the liability policy rejected in writing UM coverage equal to the bodily injury limits contained in the policy or selected lower limits. Henson v. Safeco Ins. Companies, 585 So.2d 534, 538 (La.1991); Cangelosi v. Allstate Ins. Co., 96-0159 (La.App. 1st Cir.9/27/96), 680 So.2d 1358, 1360, writ denied, 96-2586 (La.12/13/96), 692 So.2d 375.

DISCUSSION

Validity of 1992 Resolution

The resolution adopted by the parish council on March 11,1992, stated:

NOW, THEREFORE, BE IT RESOLVED by the Terrebonne Parish Council, on behalf of the Terrebonne Parish Consolidated Government, that, as per the recommendation of the Staff, Parish President Barry Bonvillain be authorized to reject the Uninsured Motorists Coverage Limits on the self-insured retention automobile, excess automobile and umbrella coverage on the Terre-bonne Parish Consolidated Government’s insurance policies.

|bMs. Richardson contends in her first two assignments of error that the 1992 resolution was not valid for the subsequent actions taken on behalf of the parish to reject UM coverage. She claims the resolution is ambiguous, because it authorizes the rejection of only uninsured motorists coverage, and does not mention underin-sured motorists coverage. She further argues it is not clear that this resolution continues to authorize rejection of coverage for an indefinite period of time. Finally, she contends the resolution is limited to the parish and does not authorize anyone to act for the city of Houma or its police department.

Regarding the supposed ambiguity, we note that uninsured/underinsured motorists coverage is typically referred to using the shorter phrase, “uninsured motorists coverage,” which is understood to encompass both types of coverage. See, e.g., Cangelosi, 680 So.2d at 1362. The terms are virtually inseparable for the purposes of making a rejection of insurance. Even the introductory statement in the applicable statute uses this phrase, stating “[t]he following provisions shall govern the issuance of uninsured motorist coverage in this state...,” although the statutory provisions cover both uninsured and underin-sured motorist insurance coverage. LSA-R.S. 22:1406(D). Therefore, the use of the phrase “uninsured motorists coverage” in the resolution suffices to cover “underin-sured motorists coverage” also.

Considering the continued viability of the resolution, we note that when a time period is not specified or limited in an authorization, the authorization continues indefinitely until changed or terminated at some future time. See LSA-C.C. arts. 2024 and 3025-3028. Nothing in the record indicates that the authorization or the intent of the parish council was ever changed, limited, withdrawn, or terminated. Additionally, the personality of a juridical person is distinct from that of its members. LSA-C.C. art. 24. So a change in the representation on the parish council would not affect the validity of the council’s previous decisions. Therefore, the authority given to Mr. Bonvillain in 1992 to revoke UM coverage on policies insuring the parish remained operative until terminated.

With reference to the parish council’s authority to make a decision affecting UM coverage for the Houma police department, Mr. Bonvillain testified in his deposition that the Houma police department fell directly within the authority of the parish council and |7its president. There is no conflicting evidence in the record to suggest that Mr. Bonvillain over-stated the parish council’s authority in this regard. Therefore, the authority given by the parish council to reject UM coverage in its insurance policies was sufficient authorization for the rejection of that coverage for the Houma police department, as an additional insured under those policies.

We note further that the Louisiana Supreme Court has stated that a corporate resolution is not necessary for a corporate officer to validly sign a UM rejection form. See Thibodeaux v. Burton, 538 So.2d 1001, 1004 n. 1 (La.1989); Cavalier v. Louisiana Farm Bur. Cas. Ins. Co., 530 So.2d 73 (La.1988)(granted writ and reversed a portion of judgment holding that rejection of UM coverage by a company representative without formal written authority was invalid). The same principle is applicable when a person holding an administrative position in a governmental entity has apparent or delegated authority to execute such a rejection. See Rainey v. Gerarve, 461 So.2d 464, 466 (La.App. 5th Cir.1984), writ denied, 463 So.2d 601 (La.1985); Walker v. Nobile, 606 So.2d 7, 8-9 (La.App. 5th Cir.), writ denied, 607 So.2d 569 (La.1992). We conclude that while a written resolution may not even have been required by law, the 1992 resolution certainly was sufficient to prove that Mr. Bonvillain had authority to execute rejections of UM coverage for the parish.

Validity of October 1998 UM Rejections

In Louisiana, mandatory UM coverage is provided for in LSA-R.S. 22:1406(D). This statute embodies strong public policy and is to be liberally construed in favor of coverage, such that statutory exceptions to the UM coverage requirements are interpreted strictly. Croker v. Reliance Nat’l Indem. Co., 00-0474, 0475, & 0476 (La.App. 1st Cir.5/11/01), 800 So.2d 4, 8. The object of such coverage is to provide full recovery for automobile accident victims who suffer damages caused by a tortfeasor who is not covered by adequate liability insurance. Henson, 585 So.2d at 537. Louisiana Revised Statute 22:1406(D)(1)(a)(i) requires that UM coverage be provided in every automobile liability insurance policy in amounts not less than the limits of bodily injury liability provided by the policy. See Croker, 800 So.2d at 8; Esteve v. U.S. Agencies Cas. Ins. Co., Inc., 01-1009 (La.App. 1st Cir.5/10/02), 818 So.2d 998, 1001. Statutory coverage will be read into a policy as if it were in the policy itself. Henson, 585 So.2d at 537. However, the statute also provides that the insured may reject that statutorily mandated coverage, select lower limits, or select economic-only coverage. See LSA-R.S. 22:1406(D)(l)(a)(i) and (ii).

If rejection of UM coverage is ambiguous, it is ineffective, regardless of the parties’ intent. If the rejection is unambiguous, but not in proper form, it is also ineffective. Therefore, unless the insured’s expression of his desire to reject or select lower limits of uninsured motorist coverage meets the formal requirements of law, the expression does not constitute a valid rejection. Dardar v. Prudential Prop. & Cas. Ins. Co., 98-1363 (La.App. 1st Cir.6/25/99), 739 So.2d 330, 333, wnt denied, 99-2196 (La.11/12/99), 750 So.2d 195; Weeden v. Landmark American Ins. Co., 99-1939 (La.App. 1st Cir.9/22/00), 768 So.2d 248, 251.

The issues before this court are complicated by the fact that the formal requirements of law changed after the USF & G substitute policies were issued in July 1998, but before the UM rejection forms were executed by Mr. Bonvillain in October 1998. The provisions of Louisiana Revised Statute 22:1406(D) were substantially amended by 1997 La. Acts, No. 1476, § 3 (Act 1476), effective September 6, 1998. Before that amendment, the selection/rejection choices were to be made “only on a form designed by each insurer”; after the effective date of Act 1476, those choices were to be made “only on a form prescribed by the commissioner of insurance.” See LSA-R.S. 22:1406(D)(l)(a)(ii)(before and after Act 1476). Act 1476 also added the following sentences to item (D)(l)(a)(ii):

A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage. Any form executed prior to the effective date of this Act shall be valid only until the policy renewal date; thereafter, the rejection, selection of lower limits, or selection of economic-only coverage shall be on a form prescribed by the commissioner as provided in this Subsection. (Emphasis added).

|flMs. Richardson points out that the policies issued July 1, 1998, did not contain a contemporaneously executed UM rejection form. She contends the UM rejection forms signed by Mr. Bonvillain in October 1998 were not valid because, having been signed after September 6, 1998, their validity depended on using the UM rejection form prescribed by the commissioner of insurance for use after that date, as the statute required; however, the correct form was not used. Ms. Richardson submitted evidence showing that in April 1998, the commissioner of insurance had prescribed a new form with five choices to be selected by the named insured, including two choices dealing with “economic-only” UM coverage. See Hobson v. King, 35,743 (La.App. 2nd Cir.2/27/02), 812 So.2d 776, 778, writ denied, 02-0828 (La.5/24/02), 816 So.2d 851 (court noted that the form in question was promulgated by the Louisiana Commissioner of Insurance on April 28, 1998, in La. Bulletin LIRC 98-01; it attached the form to its opinion as Appendix “A”). The record shows the UM rejection form signed by Mr. Bonvillain in October 1998 had only three choices, none of which referred to “economic-only” UM coverage. Ms. Richardson claims that even if this form might have been legally sufficient before September 6, 1998, it was not sufficient as a rejection of UM coverage after that date.

The validity of a UM rejection form executed after September 6, 1998, on a form other than that prescribed by the commissioner of insurance for use after that date, is a res nova issue for this court. For guidance, we look to Evans v. Crowe, 98-2422 (La.App. 1st Cir.12/28/99), 765 So.2d 366, 368 n. 1, writ denied, 00-0264 (La.3/24/00), 758 So.2d 156, in which this court reviewed and applied the jurisprudential guidelines applicable to UM rejection forms executed before that date, but noted:

Subsequent to the incident at issue, La. R.S. 22:1406 was revised by 1997 La. Acts No. 14[76] to require that insurers use the form prescribed by the commissioner of insurance. (Emphasis added).

|inWe note also that in Evans, 765 So.2d at 369, and in Esteve, 818 So.2d at 1002, this court repeated the supreme court’s mantra from Daigle v. Authement, 96-1662 (La.4/8/97), 691 So.2d 1213, 1215, that a UM rejection form does not meet statutory requirements if it fails to inform the applicant of an available option or forecloses an available option. The UM rejection forms used in this ease did not inform the insured of the “economic-only” options.

Nothing is better settled than the principle that, in the construction of a law, its meaning must first be sought in the language employed in the statute. If that is plain, it is the duty of the courts to enforce the law as written, provided it be within the constitutional authority of the legislative body which passed it. Thus, interpretation of any statute begins with the language of the statute itself. When the wording of any of Louisiana’s revised statutes is clear and unambiguous, “the letter of it shall not be disregarded under the pretext of pursuing its spirit.” LSA-R.S. 1:4. If application of a clear and unambiguous statute does not lead to absurd results, the law shall be applied as written; no further interpretation may be made in search of the intent of the legislature. LSA-C.C. art. 9; David v. Our Lady of the Lake Hosp., Inc., 02-2675 (La.7/2/03), 849 So.2d 38, 46. The language of the statute we are reviewing could not be more clear-any UM rejection form executed before September 6, 1998, “shall be valid only until the policy renewal date; thereafter, the rejection shall be on a form prescribed by the commissioner” of insurance. The UM rejection forms were not executed before September 6, 1998, and when executed by Mr. Bonvillain in October 1998, were not on the form prescribed by the commissioner of insurance. We hold, therefore, that those UM rejections were not valid.

Validity and Continuing Effect of Earlier UM Rejections

Possibly anticipating this court’s conclusion concerning the October 1998 UM rejections, USF & G argues that it has provided insurance coverage to the parish continuously since the 1992 resolution of the parish council concerning rejection of UM coverage. Therefore, it maintains that any valid rejection of UM In coverage during that time period covers all subsequent policy renewals or substitutes, even if UM rejections were not executed for each of those later policies. Specifically, USF & G contends that UM rejections signed on behalf of the parish on January 1, 1996, covered the umbrella and excess policies, the renewals of those policies issued January 1, 1997, and the substitute policies issued July 1,1998.

Since 1975, Louisiana Revised Statute 22:1406(D)(l)(a) has included a sentence governing UM rejections on renewal policies that, with minor amendments, states:

Such coverage need not be provided in or supplemental to a renewal, reinstatement, or substitute policy where the named insured has rejected the coverage or selected lower limits in connection with a policy previously issued to him by the same insurer or any of its affiliates.

This sentence remains part of item (D)(1)(a)© of the statute and has been clarified and expanded by provisions added to item (D)(l)(a)(ii) by 1999 La. Acts, No. 732, § l.

In connection with its motion for summary judgment, USF & G provided the affidavit of Jeffrey L. Fisher to explain the sequential USF & G policies applicable to the parish. He stated that before January 1, 1997, USF & G issued two types of policies to the parish, an excess automobile liability policy and a commercial liability umbrella policy. On January 1, 1996, the parish executed UM rejection forms for both of the policies in effect at that time. Those policies were renewed on January 1, 1997, and had coverage dates of January 1, 1997, to January 1, 1999. On July 1, 1998, both of those policies were replaced with substitute policies having coverage dates of July 1, 1998, through January 1, 2000. The substitute policies were in place when the accident occurred. On the basis of this sequence of events, USF & G argues that the UM rejection 112forms executed in 1996 continued to be effective through the subsequent renewals and substitution of the excess and umbrella policies covering the parish.

As is the case with the validity of the various forms previously used for UM rejections, the subject of what constitutes a new policy, as opposed to a renewal, reinstatement, or substitute policy has been the source of considerable litigation. See, e.g., Barnickel v. Myles, 98-2613 (La.App. 1st Cir.12/28/99), 757 So.2d 29 and cases cited therein. However, we do not reach that question, as we find there is a genuine issue of material fact concerning the validity of the 1996 UM rejections. Although the evidence in this case fully supports the authority of Mr. Bonvillain to execute UM rejections on behalf of the parish, he was not the person who executed the 1996 UM rejection forms. Those were executed by Danny P. Domangue, who was the risk manager for the parish. In his deposition, Mr. Bonvillain said he was uncertain whether the parish council had ever authorized Mr. Domangue to execute such documents. He said, “there’s a possibility it can be approved by the risk manager, certainly. But I don’t know the exact ... authority that the risk manager had over this.” The record contains no further information concerning whether Mr. Domangue had been delegated such authority or whether, simply by virtue of his capacity as risk manager for the parish, he had actual or apparent authority to execute UM rejection forms.

Corporate authority may be explicitly or implicitly proved, but must be proved by admissible evidence. StewaH, 784 So.2d at 746. The same is true for an employee’s authority to act for a governmental agency. Whether an employee has the apparent — i.e., legal- — -authority to reject UM coverage is a factual determination. The burden of proving actual authority is on the party seeking to bind the governmental body by the actions of its employee. See Desormeaux v. Lalonde, 578 So.2d 226, 230 (La.App. 3rd Cir.), writs denied, 581 So.2d 705 and 706 (La.1991); Walker, 606 So.2d at 9. In cases in which apparent or implicit authority to sign UM rejections was found, there |iawere facts in evidence from which that conclusion could be drawn. See, e.g., Delaune v. State Farm, Mut. Auto Ins. Co., 529 So.2d 1289 (La.App. 3rd Cir.1988); Randazzo v. Segura, 514 So.2d 469 (La.App. 3rd Cir.1987); Ruiz v. Lewis, 579 So.2d 1203 (La.App. 4th Cir.), writ denied, 586 So.2d 562 (La.1991). Although Mr. Domangue may well have had such authority, the evidence submitted by USF & G in support of the motion for summary judgment simply does not establish it. We find there is a genuine issue of material fact concerning whether Mr. Domangue had authority to sign UM rejection forms on behalf of the parish. Because the record before us does not have the evidence needed to carry USF & G’s burden of proving that the 1996 UM rejections were valid, we cannot uphold the trial court’s judgment on the grounds that these rejections continued in the subsequent renewals and substitute policies.

Having found that the October 1998 UM rejections were invalid for failure to adhere to the statutory requirements, and that USF & G failed to carry its burden of proof that the January 1996 UM rejections were signed by one with authority to execute those documents as the legal representative of the insured, we must reverse the judgment of the trial court and remand this matter for further proceedings.

CONCLUSION

Based on the foregoing, the judgment of the trial court is reversed, and the case is remanded for further proceedings. All costs of this appeal are assessed against USF & G.

REVERSED AND REMANDED.

      . According to the petition, her injuries included severe traumatic brain injury, lacerations of the liver and spleen, a punctured lung, rib fractures, three fractured vertebrae, a bulging disc between L-5 and S-l, numbness in the lower back and legs, and pain in the lower back, shoulders, and neck.

      . The parish later intervened to recover the workers’ compensation payments it had paid and was continuing to pay.

      .This suit was later consolidated for purposes of trial with another lawsuit arising out of the same accident. The consolidation does not affect the matters before this court on appeal. Additionally, Ms. Richardson and the parish dismissed their claims against the Lotts and State Farm, reserving any claims they might have against other parties, and specifically reserving all claims the parish might have against State Farm for workers' compensation payments made to the other two officers.

      . The record also contained a UM rejection form for the umbrella policy executed by Mr. Bonvillain on October 18, 1998. There is no explanation for the different signing dates in the record.

      . However, the judgment did not indicate whose claims were dismissed by the court’s action granting the motion. After this court pointed out this discrepancy to the parties, an amended judgment was entered to clarify that Ms. Richardson's claims were dismissed, and the record on appeal was supplemented to include that judgment.

      . "Economic-only” coverage, which is UM coverage with an exclusion for non-economic loss, became available as an alternative to full UM coverage by 1997 La. Acts, No. 1476, § 3, effective September 6, 1998. Non-economic loss is defined as "any loss other than economic loss,” including such items of damage as pain, suffering, inconvenience, and mental anguish. LSA-R.S. 22:1406(D)(l)(a)(i).

      . This portion of the statute has since been further amended by 1999 La. Acts, No. 732, § 1 and 2003 La. Acts, No. 456. Among other changes, the language emphasized above was deleted by Act 456.

      . In several cases, this court mentioned the amendments to the statute but did not address the issue, because the UM rejection forms were executed before the effective date of Act 1476. See, e.g., Bel v. State Farm Mut. Auto. Ins. Co., 02-0360 (La.App. 1st Cir.2/14/03), 845 So.2d 459, 464 n. 7, writ denied, 03-0734 (La.5/30/03), 845 So.2d 1058; Dardar v. York, 00-0339 (La.App. 1st Cir.3/28/01), 808 So.2d 519, 521 n. 2; Thigpen v. RPM Pizza, Inc., 99-1146 (La.App. 1st Cir.9/22/00), 772 So.2d 704, 707-08 n.2, writ denied, 01-0114 (La.3/30/01), 788 So.2d 1189; Reily v. Frey, 99-1166 (La.App. 1st Cir.6/23/00), 762 So.2d 728, 729. In others, the UM rejection form used by the insured was the new form prescribed by the commissioner of insurance for use after that date. See, e.g., Esteve, 818 So.2d at 1003; Smith v. Terrebonne Parish Consol. Gov't, 02-1423 (La.App. 1st Cir.7/2/03), 858 So.2d 671; Butler v. Allen, 00-1726 (La.App. 1st Cir.9/28/01), 808 So.2d 746, 747-48, writ denied, 01-2924 (La.2/1/02), 808 So.2d 331.

      . In Stewart v. Edwards, 34,435 (La.App. 2nd Cir.4/4/01), 784 So.2d 740, 744, the second circuit reviewed Daigle, 691 So.2d at 1214-15, where the supreme court said, “Had the legislature believed that only one format was acceptable or that only certain words or phrases could be used, it would have included the required format in the statute,” adding in a footnote, "The legislature did precisely that in a 1997 amendment to the UM insurance statute, when it finally mandated a required form to be used by insurers for UM coverage.” Stewart, 784 So.2d at 744 n. 5. Therefore, we believe our conclusion in this case aligns this court with the second circuit on this issue.

      . The 1999 amendment added the following as the fifth, sixth, seventh, and eighth sentences:
      The form signed by the insured or his legal representative which initially rejects coverage, selects lower limits, or selects economic-only coverage shall remain valid for the life of the policy and shall not require the completion of a new selection form when a renewal, reinstatement, substitute, or amended policy is issued to the same named insured by the same insurer or any of its affiliates. An insured may change the original uninsured motorist selection or rejection on a policy at any time during the life of the policy by submitting a new uninsured motorist selection form to the insurer on the form prescribed by the commissioner of insurance. Any changes to an existing policy, regardless of whether these changes create new coverage, except changes in the limits of liability, do not create a new policy and do not require the completion of new uninsured motorist selection forms. For the purpose of this Subsection, a new policy shall mean an original contract of insurance which an insured enters into through the completion of an application on the form required by the insurer.

      . Mr. Fisher is an officer of Discover Re Managers Ltd., the authorized representative of USF & G in connection with the policies it issued to the parish.

      . Mr. Bonvillain executed UM rejection forms on USF & G policies in 1993, but Mr. Domangue executed UM rejection forms in 1995. The 1995 forms indicate the policies were issued by TIG Insurance Company (TIG). Other than sharing Discover Re as an agent, the relationship between USF & G and TIG is unclear. We cannot apply the renewal provisions of the statute to the 1993 UM rejections, because we are unable to determine from the record that the 1995 TIG policies were issued by an “affiliate” of USF & G, such that the 1993 UM rejections might remain in place through the subsequent policies until the accident date.