author: | MOAN BERNARD ARMSTRONG, Chief Judge.

text:
    STATE of Louisiana v. Vertis L. ALEXANDER.
    No. 2003-KA-2072.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 19, 2004.

      Eddie J. Jordan, Jr., District Attorney, Claire Adriana White, Assistant District Attorney, New Orleans, LA, for Plain-tif&Appellee.
    Frank G. Desalvo, Frank G. Desalvo, A.P.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III and Judge DENNIS R. BAGNERIS SR.).
   | MOAN BERNARD ARMSTRONG, Chief Judge.

STATEMENT OF THE CASE

Vertís L. Alexander, defendant herein, was charged by Bill of Information on August 17, 1999 with distribution of crack cocaine on April 29, 1999 and on April 19, 1999. Distribution of crack cocaine is a violation of LSA-R.S. 40:967 A(l).

On appeal, the defendant argues that the trial court improperly tried him on two separate bills of information on the same day in the same trial; that he was denied a speedy trial; that his trial counsel was ineffective and that the trial court improperly forced the trial counsel to submit to an untimely trial.

The defendant’s arraignment was set for August 26, 1999. On that day, he appeared for arraignment with co-defendant Sansom and counsel Robert Oberfell and David Craig and entered a plea of not guilty. Counsel for the defendants filed an application for a bill of particulars, motions for discovery and inspection, to suppress evidence, to suppress confession and identification, for preliminary shearing and for speedy trial. The defendant’s motions were set for hearing on September 20, 1999 and trial was set for October 25, 1999. On September 20, 1999, the motions were reset for October 13, 1999. On that date, the defense and the state jointly moved for and were granted a continuance of the motion hearing to October 25, 1999, when the hearing was reset for December 2, 1999 and the trial was reset for January 10, 2000. Defense counsel, Mr. Oberfell, having died, the Court set a status hearing for December 8, 1999 to determine that Gary Wainwright would serve as trial counsel, and motions were set for January 10, 2000. Hearings to determine defendant’s counsel were continued on December 8 and December 15, with Mr. Wainwright’s having been notified of each setting. On January 13, 2000, the court reset all motions, and on May 26, 2000, the court set a status hearing for June 21, 2000. On that day, the court set the motion hearing for July 27, 2000. Status hearings were set and continued in July. On July 27, 2000 the court granted the defense request to continue the motion hearing as to the defendant and Messrs. Poole and Sansom to August 18, 2000, when the hearing was reset for September 18, 2000. On October 31, 2000 a status hearing was set for November 3, 2000, when the court set another status hearing for November 28, 2000. At that hearing, the court set the matter for trial on January 16, 2001. On January 16, 2001, Messrs. Sansom and Poole pled guilty to a lesser charge and received suspended sentences and probation. The defendant appeared and pled guilty as charged under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) and was remanded for sentencing on March 2, 2001. The court reset sentencing 13for April 3, 2001. At that time, according to the trial court’s minute entry, defendant’s counsel moved to withdraw the guilty plea, and the court granted the motion, set pre-trial motions for hearing on May 15, 2001 and set trial for May 28, 2001. The trial court minute entry shows that defendant’s sentencing was set erroneously, whereupon the defense motions were reset for August 17, 2001, when the court granted a continuance and reset the motion hearing for September 25, 2001. On that date, the motion hearing and trial were reset for October 26, 2001, when the motions and trial were reset for December 14, 2001.

The next minute entry relating to the defendant bears the date March 11, 2002, when hearing was set for March 15, 2002. On that date, defendant’s trial was set for March 19, 2002. On March 18, 2002, defense counsel filed a motion to quash, which the trial court denied, setting the trial for March 26, 2002. On that date, defense counsel filed a motion to recuse the district attorney’s office, which the trial court denied. Mr. Wainwright also filed a motion to re-instate previously waived motions. According to the latter motion, because the State failed to produce its witness, Detective Adam Henry, for nearly two years, the defendant waived motions and requested that the matter be set for trial “in an effort to bring this matter to some sort of closure.” The motion alleged that the State was not forced to trial, and has now found the witness, whereupon the defendant re-urged |4his original motion for preliminary hearing in order that his counsel might evaluate the strength of the State’s case. The next day the defendant appeared with Mr. Wainwright as counsel for trial.

The defendant, having waived his right to trial by jury, was tried by the court on both charges on March 27, 2002. The trial court found the defendant guilty on two counts. On April 23, 2002, Mr. Wainwright filed a motion for new trial, alleging that the verdict did not conform to the evidence.

On August 22, 2002, this Court granted defendant’s application for supervisory writ, transferring his request for a writ of habeas corpus to the district court, and ordering the district court to furnish a copy of its minute entry showing that the defendant had been sentenced. Sentencing was continued and on September 13, 2002, the matter was set for status hearing on September 13, 2002, with the minute entry indicating that defendant’s attorney was Mr. Frank deSalvo. On October 3, 2002, Mr. deSalvo appeared without the defendant for a status hearing which the trial court reset “due to an Act of God.” On October 8, 2002, the defendant appeared without counsel for a multiple bill hearing. The trial court set sentencing for October 24, 2002 for the defense. On October 15, 2002, the defendant again appeared without counsel, and the October 24, 2002 sentencing date was again noted on the minute entry. On October 24, 2002, the court granted the defense request to reset sentencing. On October 29, 2002, the defendant appeared with counsel and on defense motion sentencing was reset to October 31, 2002. On that date, the defense withdrew its motion for a speedy sentencing and Ififiled a motion for new trial, which was set for January 15, 2003. On that date, defense counsel moved for and was granted a continuance of the hearing on his motion for new trial to March 13, 2003. On that date, the defendant appeared without counsel, and the hearing on the motion for new trial was continued on defense motion to March 14, 2003. On that date, the trial court sentenced the defendant on both counts to five years at hard labor with credit for time served. Defense counsel then withdrew all his post-trial motions.

On July 16, 2003, this Court granted in part the defendant’s application for supervisory writ, noting that on March 14, 2003, the district court granted the defendant an appeal bond, but that the record did not reflect whether an appeal was granted.

The trial court’s minute entries show that the defendant appeared without counsel for status hearings' on September 5, 8, and 11 and on November 4, 2003.

STATEMENT OF FACTS

Detective Adam R. Henry testified that in April 1999 he was in the Major Case Narcotics Section of the New Orleans Police Department (NOPD), engaged in an undercover drug investigation. He was assigned to purchase narcotics from the defendant through co-defendant Larry Poole. The defendant was the focus of the NOPD investigation. A confidential informant made arrangements to introduce Detective Henry to Mr. Poole, who would then take the detective to the defendant, from whom the detective would purchase narcotics. The detective made several | ^recorded contacts with Mr. Poole, during the course of which Mr. Poole referred to the defendant as the person who would provide the drugs. Detective Adams drove Mr. Poole to the defendant’s apartment. Mr. Poole went upstairs, knocked on the defendant’s door and the defendant came to the door. After a brief conversation with the defendant, Mr. Poole came downstairs and informed the detective that the defendant had the drugs. Mr. Poole took $250 from the detective and went back to the apartment, met the defendant who went back into the apartment and came outside. Mr. Poole and the defendant stood on the stair landing and exchanged the money for the crack cocaine. Mr. Poole put the cocaine into his mouth, came to the car, and gave the detective approximately a quarter ounce of crack cocaine in about five pieces. The detective paid Mr. Poole $30 for having set up the drug deal. The detective had obtained $280 from NOPD City Funds to make the drug purchase.

Several days later, he met Mr. Poole and returned to the parking lot adjacent to the defendant’s apartment. In another hand-to-hand transaction, Mr. Poole exchanged $500 of the detective’s money with the defendant for a half-ounce of crack cocaine.

Detective Wayne Jacque of the NOPD Major Narcotics Section testified that he participated in the investigation that implicated the defendant, and made an in-court identification of Mr. Alexander. On April 29, 1999, Detective Jacque was assigned to conduct surveillance of the undercover purchase of narcotics by Detective Henry and Mr. Poole from the defendant. He positioned his car in the |71100 block of Carondelet Street where he had a clear view of the defendant’s apartment at 1132 Carondelet Street. He saw Detective Henry arrive in his undercover car, and saw Mr. Poole exit the car, climb the steps of the apartment house and knock on the defendant’s door. The defendant opened the door, engaged in conversation with Mr. Poole, and entered the apartment with Mr. Poole. Seconds later, the defendant left the apartment and walked to an area not visible to the detective. Seconds later, the defendant reemerged and reentered his apartment. About a minute later, Mr. Poole left the apartment and descended the stairs to the ground level. The defendant, standing in his doorway, engaged in conversation with Mr. Poole, at the end of which Mr. Poole reentered the detective’s car and they departed. On cross-examination, Detective Jacque testified that he did not see the defendant stand in the gateway and engage in a hand-to-hand transaction with Mr. Poole.

Mr. Poole testified that he had tried to arrange meetings for the purchase of narcotics from 1132 Carondelet Street. He denied having referred to the defendant as his “uptown source” for drugs. He initially denied having handed the defendant $250 to purchase drugs, and testified that he went to the defendant’s apartment after having been picked up in a car from his own home in eastern New Orleans in order to find where he could obtain drugs for himself. He then testified, “I’m — okay, all right, all right, I’m going to tell you the truth.” After having been reminded by the trial judge that he was under oath, Mr. Poole admitted that he gave |s$250 to the defendant and bought some “rocks” (crack cocaine) from the defendant. Mr. Poole testified, “I bought some rocks from him. I’m sorry, man.”

Mr. Poole testified that a week or so later, the unidentified driver reestablished contact with him to buy more drugs, but denied having received as much as $500 to make the purchase. He was unable to identify Detective Adams as the driver of the car who provided him with the funds to purchase drugs.

At the conclusion of the testimony, the trial judge opined, “Mr. Alexander, I listened to the evidence and I listened to Mr. Poole’s testimony. And I think Mr. Poole was scared and I think he started out telling a lie and wound up telling the truth out of fear.”

James Bindon, the defendant’s neighbor in the apartment complex located at 1132 Carondelet Street, testified for the defense. He identified photographs of the complex including the defendant’s doorway and hallways. According to Mr. Bindon, someone named Tony, now deceased, had been selling drugs in the second floor hallway of the complex. He had not seen the defendant selling drugs at the complex, and had not noticed a lot of traffic in and out of the defendant’s home. When asked how long Tony had been selling drugs at the complex, Mr. Bindon replied, “Not that long.” Mr. Bindon denied having sold drugs, but admitted that he permitted Tony to sell drugs in his hallway.

On cross-examination, Mr. Bindon admitted that he could not see the defendant’s door from his apartment.

|flThe defendant testified and denied having received money from Larry Poole on April 19 or April 29, 1999 for cocaine. According to the defendant, “Tony”, a well-liked young student, was dealing drugs in the hallway of the defendant’s building. The defendant testified that he witnessed the aftermath of Tony’s murder, and testified for the State in the ensuing homicide trial.

The defendant testified to prior convictions: selling two grams of crack cocaine to an undercover officer in around 1980; possession of two marijuana cigarettes; and simple possession of cocaine.

The defendant claimed to have given offtrack betting slips to his former, now-deceased, attorney that proved he was at a betting parlor on Bourbon Street at the time of the two drug transactions with which he was charged.

The parties stipulated to the Grime Lab Report concluding that the material seized tested positive for crack cocaine.

The trial court concluded at the close of testimony that, based on Mr. Poole’s testimony, the defendant was guilty as charged on both counts of distribution of crack cocaine.

REVIEW FOR ERRORS PATENT

A review of the record for errors patent reveals that although the defendant was convicted of two counts of distribution of cocaine, the trial court imposed only one sentence, five years, as applicable to both counts. The case should be remanded for imposition of a determinant sentence on each count of conviction.

110Furthermore, La. R.S. 40:967(B)(4)(b), as it existed at the time the offense was committed, required that the first five years of the sentence be imposed without benefit of probation, parole, or suspension of sentence. On remand, the defendant’s sentence should be applied in conformity with the provisions La. R.S. 40:967(B)(4)(b).

FIRST ASSIGNMENT OF ERROR: The trial court erred in trying the defendant on two separate bills of information on the same day in the same trial.

The defendant argues in brief that trial counsel was ineffective for having failed to move to quash or sever the “bills” of information, and that the trial court abused its discretion.

There is no basis for the assertion of abuse of discretion since the defendant had not moved to quash or sever; hence, the trial court had nothing to decide. Having no motion before it, the trial court did not exercise, much less abuse, its discretion.

Two or more offenses may be charged in the same bill of information in a separate count for each offense if the offenses charged are of the same or similar character, provided that the offenses joined must be triable by the same mode of trial. LSA-C.Cr.P. art. 493. Offenses in which punishment is necessarily confinement at hard labor may be charged in the same information with offenses in |-n which the punishment may be confinement at hard labor, provided that the joined offenses are of the same or similar character. LSA-C.Cr.P. art. 493.2. Objections of misjoin-der of offenses may be urged only by a motion to quash the indictment or information. See, LSA-C.Cr.P. art. 495. If not argued prior to trial, the misjoinder issue is not preserved for appeal. The defendant cannot argue misjoinder of offenses as reversible error. LSA-C.Cr.P. art. 841; State v. Grainer, 2002-0703, p. 7 (La.App. 4 Cir. 12/4/02), 834 So.2d 555, 560, mi denied, 2003-0152 (La.10/10/03), 855 So.2d 325. Only when it appears that a defendant or the state is prejudiced by a joinder of offenses or by such joinder for trial together, may the court order separate trials, grant a severance of offenses, or provide whatever other relief justice requires. LSA-C.Cr.P. art. 495.1.

The defendant was charged in a single bill of information with the same type of offense, distribution of crack cocaine, occurring on two separate occasions only ten days apart. The defendant has not shown that the joint trial of these offenses would tend to confuse the jurors or created such prejudice as would qualify the instant case for the discretionary severance provided for in the Code of Criminal Procedure.

The issue of ineffective assistance of counsel is properly raised in an application for post-conviction relief filed in the trial court where a full evidentiary hearing can be held. State v. Prudholm, 446 So.2d 729, 737 (La.1984). However, where the record on appeal discloses sufficient evidence on which to make a | ^determination of counsel’s effectiveness, a decision' on appeal may be made in the interest of judicial economy. State v. Seiss, 428 So.2d 444, 448-449 (La.1983).

In order to establish his counsel’s ineffectiveness, the burden is on the defendant to demonstrate both that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984). Our scrutiny of defense counsel’s performance must be deferential, and every effort must be made to eliminate the distorting effects of hindsight. Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065. Prejudice is established by a showing that there is a reasonable probability that but for defense counsel’s errors, the defendant would have been acquitted. Id.

There is no merit to the defendant’s assertion that trial counsel’s failure to move to quash or sever the “bills” of information rendered him ineffective. Absent a showing of prejudice, it cannot be said that the trial counsel was ineffective for having failed to raise the issue of the propriety of a single trial on the offenses charged in the bill of information.

This assignment of error is without merit.

SECOND ASSIGNMENT OF ERROR: The defendant was denied a speedy trial.

The record contains a copy of a memorandum in support of motion to quash that does not bear a stamp showing the date it was filed. Furthermore, there is no certificate of service on opposing counsel and the show cause order relating to the | ¶ amotion is not dated or signed by the trial court. Nonetheless, the trial court’s minute entry notes that a motion to quash was heard and denied on March 18, 2002. There being no evidence of another motion to quash, we infer from the record that the motion to quash contained in the record and the motion to quash that was heard and denied on March 18, 2002 are one and the same.

The motion to quash is the only record documentation of the defendant’s claim that the State violated his constitutional right to a speedy trial, as there is no motion for speedy trial in the record.

The right to a speedy trial is guaranteed by both the federal and state constitutions. U.S. Const. Amendment 6; La. Const. Art. 1 § 16. In evaluating a claim for violation of this constitutional right, we use a four-part test, examining the length of the delay in bringing the defendant to trial; the reason(s) for the delay; the defendant’s assertion of his right to a speedy trial; and prejudice to the defendant caused by the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2191-2192, 33 L.Ed.2d 101 (1972); State v. Alfred, 337 So.2d 1049, 1054 (La. 1976). Joint and defense motions to continue, as well as other pretrial defense motions, suspend the time limitations. State v. Brock, 1999-2128, p. 2 (La.App. 4 Cir. 6/14/00), 767 So.2d 130, 131.

The standard of review of a trial court’s decision on a defense motion asserting the right to speedy trial is clear abuse of discretion. State v. Love, 2000-3347, pp. 11-12 (La.5/23/03), 847 So.2d 1198, 1208.

| uGenerally, the State has no less than one year after the filing of a defense motion to quash or other preliminary plea in which to commence trial. LSA-C.Cr.P. art. 580; State v. Watkins, 594 So.2d 501, 503 (La.App. 5 Cir.1992). LSA-C.Cr.P. art. 578(2) requires commencement of trial within two years of August 17, 1999, when the State instituted prosecution.

According to the record, the defense requested and was granted a continuance on October 13, 1999. After the defense counsel’s death, Mr. Wainwright was recognized as counsel and a status hearing was set for December 8, 1999, thus upsetting the January 10, 2000 trial date through no fault of the State or the trial court. Mr. Wainwright was notified of the status hearings of December 8 and 15. On July 27, 2000, the trial court granted the defense request to continue a previously set motion hearing.

On March 2, 2001, the defendant pled guilty as charged, relieving the State of its obligation to bring him to trial. When the court allowed the defendant to withdraw that plea on April 3, 2001, LSA-C.Cr.P. art. 580 applied requiring the state to bring him to trial within one year. At that time, the trial court set the matter for trial on May 28, 2001. When the defendant moved on September 25, 2001 to continue the trial, that period was suspended.

While the delay between the filing of the original bill of information and the defendant’s trial was significant, that delay was the result of some factors beyond the control of either the defendant or the State, such as the death of original defense counsel and the retention of new counsel, as well as delays initiated by the 11fidefense through requests for continuances and withdrawal of his original plea and the collapse of the plea bargain agreement negotiations. The legal time period had not expired when the defendant filed his motion to quash based on denial of his right to a speedy trial.

We find nothing in the record to support a conclusion that the defendant was prejudiced by the delay. His witnesses were available and did, in fact, testify. The claim that trial counsel was forced to go to trial without sufficient preparation is not supported by the facts of record. In order to show prejudice sufficient to justify a finding of violation of the right to a speedy trial, the defendant must show that the delay caused oppressive pretrial incarceration, anxiety and concern, or the possibility that his defense was impaired. See, Barker, supra, 407 U.S. at 532, 92 S.Ct. at 2193. The Supreme Court noted that the most significant of these three interests is the impairment of the defense. Id. See also, State v. Alfred, supra, 337 So.2d at 1058 (La.1976), noting that impairment of the defense occurs principally by the death of disappearance of defense witnesses during the delay.

Based on the facts of record and the course of these proceedings, we are unable to find that the defendant’s right to a speedy trial was denied. This assignment of error is without merit.

THIRD ASSIGNMENT OF ERROR: Trial counsel was ineffective.

hfiThe defendant contends that his trial counsel was ineffective in three respects: (1) waiver of jury trial; (2) failure to move to sever the two charges; and (3) failure to prepare adequately for trial.

Based on the record taken as a whole, and applying the Strickland test outlined in the discussion of the defendant’s first assignment of error, we do not find that the defendant has demonstrated that the trial strategy manifested in the decision to waive his right to trial by jury supports a finding that trial counsel was ineffective. The fact that a particular strategy is unsuccessful does not equate to professional incompetence. State v. Taylor, 2001-1638 (La.1/14/03), 838 So.2d 729, 751, citing Strickland v. Washington, supra, and State v. Felde, 422 So.2d 370, 393 (La.1982). Clearly, counsel’s trial strategy was to introduce the defendant’s testimony at trial in an attempt to raise reasonable doubt as to whether it was the defendant or “Tony” who sold the crack cocaine to Detective Adams. The defendant, a convicted drug felon, would not be an attractive witness before a jury; however, it is reasonable to believe that an experienced trial judge would be less inclined to be prejudiced against such a defendant, and would be more inclined to give him the benefit of his cooperation in the trial of Tony’s killer.

Under the standard for ineffective assistance of counsel set forth in Strickland v. Washington, supra, a reviewing court must reverse a conviction if the defendant establishes (1) that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s | ^inadequate performance prejudiced the defendant to the extent that the trial was rendered unfair and the verdict suspect.

The various colloquies between Mr. Wainwright and the trial court cited by the defendant in brief do not indicate such malice or animus as would require a reasonable attorney to abandon his trial strategy and reinstate the request for a jury trial. In hindsight, trial counsel claimed in his motion for new trial that the waiver was ill advised. However, this does not satisfy the first prong of the Strickland test. Furthermore, the record does not support a finding of prejudice such that the trial was rendered unfair and the verdict suspect. The record demonstrates the trial court’s even-handed, judicious demeanor, and prejudice is absent.

The second allegation was found to be without merit in our discussion of the defendant’s first assignment of error. The third allegation is not briefed and is considered abandoned. Rule 2-12.4, Uniform Rules — Courts of Appeal.

This assignment of error is without merit.

FOURTH ASSIGNMENT OF ERROR: The trial court erred in having forced defendant’s trial counsel to submit to an untimely trial.

This assignment of error was not briefed and is deemed to have been abandoned. Rule 2-12.4, Uniform Rules— Courts of Appeal.

CONCLUSION

I iRFor the foregoing reasons, the defendant’s conviction is affirmed. The sentence is vacated and the case is remanded for imposition of a determinate sentence on each count.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.

      . The defendant was charged with three co-defendants, Willie T. Johnson, Larry Poole and Kendrick P. Sansom.

      . A careful reading of the record shows that the State filed a single Bill of Information on August 17, 1999, charging six counts. Counts 2 and 3 relate to the defendant, Vertís L. Alexander.

      .This last argument was not briefed and is considered to have been abandoned. Rule 2-12.4, Uniform Rules-Courts of Appeal.

      . According to defense motion to recuse the District Attorney's office, the defendant contends that he was a witness in the homicide case, State v. Coleman. Prior to the Coleman trial, the defendant was offered and accepted a plea bargain that was approved by the trial court. Subsequently, the trial court set aside the plea allegedly over the defendant's objection, although Mr. Wainwright alleged in his recusal motion that he had objected to the withdrawal of defendant's plea. The State then allegedly took the position that the plea bargain would taint the Coleman conviction, since it could be inferred from the plea bargain that the defendant's testimony in the Coleman case had been purchased by the State.

      . Mr. Wainwright alleged in his motion to continue the trial that both he and the assistant district attorney had calendared the trial for April 23, 2002. That date is not reflected in the trial court's minutes.

      . Since the two counts were charged in a single bill, a motion to sever the “bills” would not lie.


source: Caselaw Access Project

author: h ROLAND L. BELSOME, Judge.

license: Public Domain

text:
    Re: McDERMOTT INCORPORATED. McDermott Incorporated v. Records Storage & Services, Inc., William R. Lasseigne, Jr., Republic-Vanguard Insurance Company, and Underwriters at Lloyd’s London. Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P. v. Records Storage & Services, Inc., William R. Lasseigne, Jr., Republic-Vanguard Insurance Company, and Underwriters at Lloyd’s London. Lowe, Stein, Hoffman, Allweiss & Hauver, L.L.P. v. Records Storage & Services, Inc., William R. Lasseigne, Jr., and Republic-Vanguard Insurance Company.
    Nos. 2003-CA-1960, 2003-CA-1961, 2003-CA-1962, 2003-CA-1963.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 19, 2004.
    John H. Musser V, Emily Stevens Hardin, Murphy, Rogers & Sloss, New Orleans, LA, for Plaintiff/Appellant.
    Thomas M. Richard, Tara L. Burregi, Chopin Wagar Cole Richard Reboul & Kutcher, LLP, for Defendant/Appellee.
    (Court composed of Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   h ROLAND L. BELSOME, Judge.

Appellants, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P. (“Jones Walker”), McDermott, Inc. (McDermott”), Records Storage & Services, Inc. (“RSSI”) and William R. Lass-eigne, Jr. (“Lasseigne”) appeal a Summary Judgment granted to Certain Underwriters at Lloyd’s London (“Lloyd’s”) which dismissed claims asserted against it by RSSI, Lasseigne, McDermott and Jones Walker regarding insurance coverage for the personal property of McDermott, Jones Walker and Lowe, Stein, Hoffman, Allweiss & Hauver, L.L.P. (“Lowe Stein”). We affirm, concluding that under the clear and unambiguous language of the policy, the commercial property insurance contract does not provide contents or personal property of others coverage. Thus, Lloyd’s policy does not provide any coverage for the damages complained of by Jones Walker, McDermott, and Lowe Stein.

PROCEDURAL HISTORY

The lawsuit of Plaintiff/Appellant Jones Walker was consolidated with the claims of Plaintiff/Appellant McDermott and Plaintiff Lowe Stein. All Plaintiffs sued Defendants/Appellants RSSI and Lasseigne for damages that occurred to their business property stored by RSSI in a warehouse located at 900 Atlantic Street in )2New Orleans owned by Lasseigne. Jones Walker and McDermott also asserted direct claims against Lloyd’s in its capacity as the commercial property insurer of RSSI and Lasseigne. Lowe Stein did not assert a direct claim against Lloyd’s; however, RSSI and Lasseigne asserted a cross-claim against Lloyd’s alleging entitlement to a defense and indemnification.

On January 5, 2003, Lloyd’s filed a Motion for Summary Judgment seeking a decree that its insurance policy did not cover RSSI and Lasseigne against the claims of Jones Walker and McDermott. On June 6, 2003, the district court granted the Motion for Summary Judgment filed by Defendant/Respondent, Lloyd’s, finding that Lloyd’s policy issued to RSSI and Lass-eigne did not owe coverage to RSSI and Lasseigne. Moreover, the policy did not cover the claims asserted by the Plaintiffs/Appellants in these consolidated cases. Plaintiffs/Appellants and Defendants/Appellants appealed that ruling. However, the district court, in its reasons for judgment, did not address the issue of whether Lloyd’s had an obligation to indemnify and provide a defense for RSSI and Lasseigne because Lloyd’s Motion for Summary Judgment did not make specific arguments regarding this matter.

DISCUSSION

The present issue for review by this Court is whether the district court legally erred by granting Lloyd’s Motion for Summary Judgment and dismissing with prejudice the claims of Jones Walker, McDermott, RSSI, and Lasseigne, against Lloyd’s. The Appellants contend the following assignments of error: (1) the district court erred in holding that the Lloyd’s insurance policy including the Declaration page unambiguously does |snot cover damages to personal property of others; (2) the district court legally erred by finding that the Lloyd’s policy does not cover Defendants/Appellants RSSI and Lasseigne against the claims of Plaintiffs/Appellants, Jones Walker and McDer-mott; and (3) the district court committed legal error when it concluded that there was not a limit of insurance for personal property of others on the Declaration page of the Lloyd’s policy.

This Court dealt with insurance policies and policy exclusions in Michelet v. Scheuring Security Services, Inc., 95-2196 (La.App. 4 Cir. 9/4/96), 680 So.2d 140, 147 and stated, in pertinent part, as follows:

An insurance policy is a contract between parties and should be construed according to contract principles. Smith v. Matthews, 611 So.2d 1377 (La.1993). When the language of a policy is clear and not ambiguous, the insurance contract must be enforced as written. When the wording is clear, the courts lack the authority to alter or change the terms of the policy under the guise of interpretation. Louisiana Insurance Guaranty Association v. Interstate Dire [Fire] & Casualty Company, 93-0911 (La.1/14/94), 630 So.2d 759. In interpreting insurance contracts the judicial responsibility is to determine the parties’ common intent. Such intent is to be determined according to the ordinary, plain and popular meaning of words used in a policy. La. C.C. arts. 2045 and 2047; Breland v. Schilling, 550 So.2d 609 (La.1989). The liability under a comprehensive liability policy is only as provided in the policy and the attached endorsement. The parties are free to select the types of risks to be covered. First Mercury Syndicate, Inc. v. New Orleans Private Patrol Service, Inc., 600 So.2d 169 [898] (La.1992).
A policy should not be interpreted in an unreasonable or strained manner so as to enlarge or restrict the provisions beyond what the parties contemplated. “Absent a conflict with statutory provisions or public policy, insurers, like other individuals, are entitled to limit their liability and to impose and to enforce reasonable conditions upon the policy obligations they contractually assume.” Louisiana Insurance Guaranty Association, 630 So.2d [759 at] 763 [1994].

It is undisputed that Lloyd’s issued a policy of property insurance to RSSI and Lasseigne, and the damaged property at issue in these consolidated cases consists of contents or the personal property of others — namely the property of LMcDermott, Jones Walker, and Lowe Stein. It is also undisputed that that policy was the only one issued by Lloyd’s to RSSI and Lasseigne.

The commercial policy at issue provides in part:

A. Coverage
We will pay for direct physical loss of .or damage to Covered Property at the premises described in the Declarations caused by or resulting from any Covered Cause of Loss.
1. Covered Property
Covered Property, as used in this Coverage Part, means the type of property described in this section, A.1, and limited in A.2, Property Not Covered, if a Limit of Insurance is shown in the Declarations for that type of property.

Directly below these provisions, the policy describes various types of property, including “Building”, “Your Business Personal Property” and “Personal Property of Others”. Subparagraph A.1 of the Lloyd’s policy establishes that in order for coverage for contents or personal property to be considered “Covered Property” a limit of insurance must be “shown in the Declarations for that type of property.” In accordance with the language of the policy, a limit of insurance for the type of property to be covered must be shown on the Declaration page of the policy.

Nowhere on the Declaration page is there a limit of insurance shown for the contents or personal property of others. The only description of the type of coverage afforded by the policy on the policy’s Declaration page is the following:

1) $300,000 one story, approved roof, masonry non-combustible warehouse located at: 319 Monroe St., Lafayette, LA
2) $100,000 on business income — 1/3 monthly limitation
3) $450,000 one story, approved roof, fire resistant office located at: 900 Atlantic St., New Orleans, LA
Ig4) $100,000 on business income — 1/3 monthly limitation
dj Special Form
6) 80% Coinsurance — ACV
7) $ 2,500 Deductible

The Declarations of Lloyd’s policy show that the only coverage related to 900 Atlantic St. was (1) for the building itself, with a limitation of $450,000, and (2) for business income, with limitation of $100,000. The Declaration page of the Lloyd’s policy does not reflect any coverage for contents or personal property of others.

The policy clearly and unambiguously shows that RSSI and Lasseigne did not select contents or personal property coverage. As stated in Michelet, “P[t]he liability under a comprehensive liability policy is only as provided in the policy and the attached endorsement.” Michelet, 680 So.2d at 147. Furthermore, “[t]he parties are free to select the types of risks to be covered.” Id. In this case, it is evident by the clear and unambiguous language of the policy that RSSI and Lasseigne only elected to purchase building and building income coverage from Lloyd’s.

Although case law instructs that if any ambiguities exist, a court may look to extrinsic evidence to determine the parties’ intent, Doerr v. Mobil Oil Gorp., 00-947 (La.12/19/00), 774 So.2d 119, 124, in this case, extrinsic evidence need not be evaluated because the policy clearly and unambiguously excludes coverage for contents or personal property of others. Thus, “when a contract can be construed”, such as in this case, “from the four corners of the instrument without looking to extrinsic evidence, the questioning of contractual interpretation is answered as a matter of law and summary judgment is appropriate.” Peterson v. Schimek, 98-1712 (La.3/2/99), 729 So.2d 1024, 1029.

| .CONCLUSION

For the foregoing reasons, the judgment of the trial court granting Lloyd’s Motion for Summary Judgment and the dismissal of claims asserted against it by RSSI, Lasseigne, Jones Walker, and McDermott regarding insurance coverage for the personal property of McDermott, Jones Walker and Lowe Stein by the district court is affirmed. Thus, the issue regarding Lloyd’s alleged obligation to indemnify and provide a defense for RSSI and Lasseigne is moot.

AFFIRMED.


author:
J^PICKETT, Judge.
      11 COOKS, J.,

text:
    David CLOUD v. NATIONAL AUTOMOTIVE INSURANCE CO.
    No. 03-1438.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 2004.
    Rehearing Denied July 14, 2004.

      Kenneth E. Pickering, Pickering & Co-togno, New Orleans, LA, for Defendant-Appellant National Automotive Insurance Co.
    Robert Stuart Wright, Natchitoches, LA, Counsel for Plaintiff-Appellee David Cloud.
    Court composed of SYLVIA R. COOKS, BILLIE COLOMBARO WOODARD, MARC T. AMY, and ELIZABETH A. PICKETT, BILLY H. EZELL, Judges.
   J^PICKETT, Judge.

The appellant, National Automotive Insurance Company, appeals a judgment of the trial court construing certain language in an insurance contract as ambiguous. The appellee answers the appeal, asking that the trial court’s ruling denying an award of penalties and attorney fees be reversed.

FACTS

On August 4, 2002, a 1996 Nissan Maxi-ma owned by David Cloud was involved in a collision. The car was insured by National Automotive Insurance Company (National). The car was determined to be a total loss.

The insurance policy contained the following provision:

Limit of Liability — The limit of the Company’s liability for loss will be the lesser of the:
(1) actual cash value of the stolen or damaged property.
(2) the purchase price of the stolen or damaged property.
(3) or amount necessary to repair or replace the property with other like kind and quality.

Cloud had purchased the car in March 2002 for $5000.00. National made an offer to settle the claim for $4500.00 (the amount of the purchase price less a $500.00 deductible) on August 23, 2002. In a letter from his attorney dated September 3, 2002, Cloud refused the offer, claiming he was entitled to recover the full book value of the car, which was $7160.00. On October 30, 2002, National tendered a check for $4200.00, which was the amount claimed not in dispute. Cloud filed the instant suit, seeking the book value of the car as well as penalties and attorneys fees for failure to timely pay the claim.

The matter was submitted to the trial court on briefs; no testimony was taken. The trial court found that the clause at issue would lead to absurd consequences and was therefore legally ambiguous. The trial court found that National was required to | apay the fair market value of the car. It declined to award penalties and attorney fees, finding that National was not arbitrary and capricious (See La.R.S. 22:658) and acted in good faith (See La. R.S. 22:1220).

National appeals the finding that the contract was legally ambiguous. Cloud answers the appeal seeking attorneys fees and penalties.

ASSIGNMENTS OF ERROR

National asserts two assignments of error:

1. The record is devoid of any proof that the language of the contract of insurance leads to an absurd consequence, and it was manifestly erroneous, clearly wrong, and legal error for the trial court to alter the terms of the contraer between the parties.
2. The record is devoid of any proof that the limitation of liability and coverage set forth in the contract between the parties conflicts with any statutory law or public policy, and it was manifestly erroneous, clearly wrong, and legal error for the trial court to set aside the limitation.

Answering the appeal, Cloud asserts the trial court erred in not awarding penalties and attorneys fees pursuant to La.R.S. 22:658 and 22:1220.

DISCUSSION

The supreme court recently set forth the rules for interpreting a contract of insurance in Cadwallader v. Allstate Ins. Co., 02-1637, pp. 3-4 (La.6/27/03), 848 So.2d 577, 580.

An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Louisiana Civil Code. Carbon v. Allstate Ins. Co., 97-3085, p. 4 (La.10/20/98), 719 So.2d 437, 439; Louisiana Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-0911, p. 5 (La.1/14/94), 630 So.2d 759, 763. The judiciary’s role in interpreting insurance contracts is to ascertain the common intent of the parties to the contract. See La. Civ.Code art.2045; Carbon, 719 So.2d at 439; Louisiana Ins., 630 So.2d at 763.
Words and phrases used in an insurance policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning. See La. Civ Code art.2047; Peterson v. Schimek, 98-1712, p. 5 (La.3/2/99), 729 So.2d 1024, 1028-29; Carbon, 719 So.2d at 440-441; Reynolds, 634 So.2d at 1183. An insurance contract, however, should not be interpreted in an unreasonable or strained manner under the guise of contractual interpretation to enlarge or to restrict its provisions beyond what is reasonably contemplated by unambiguous terms or achieve an absurd conclusion. Carrier v. Reliance Ins. Co., 99-2573, p. 11 (La.4/11/00), 759 So.2d 37, 43; Peterson, 729 So.2d at 1029. The rules of construction do not authorize a perversion of the words or the exercise of inventive powers to create an ambiguity where none exists or the making of a new contract when the terms express with sufficient clearness the parties’ intent. Succession of Fannaly v. Lafayette Ins. Co., 01-1355, p. 4 (La.1/15/02), 805 So.2d 1134, 1138; Peterson, 729 So.2d at 1029.
Ambiguous policy provisions are generally construed against the insurer and in favor of coverage. La. Civ.Code art. 2056; Carrier, 759 So.2d at 43; Louisiana Ins., 630 So.2d at 764. Under this rule of strict construction, equivocal provisions seeking to narrow an insurer’s obligation are strictly construed against the insurer. Carrier, 759 So.2d at 43. That strict construction principle applies only if the ambiguous policy provision is susceptible to two or more reasonable interpretations; for the rule of strict construction to apply, the insurance policy must be not only susceptible to two or more interpretations, but each of the alternative interpretations must be reasonable. Carrier, 759 So.2d at 43-44, (emphasis in original); Louisiana Ins., 630 So.2d at 770.
If the policy wording at issue is clear and unambiguously expresses the parties’ intent, the insurance contract must be enforced as written. Fannaly, 805 So.2d at 1137; Louisiana Ins., 630 So.2d at 764. Courts lack the authority to alter the terms of insurance contracts under the guise of contractual interpretation when the policy’s provisions are couched in unambiguous terms. Peterson, 729 So.2d at 1029; Louisiana Ins., 630 So.2d at 764. The determination of whether a contract is clear or ambiguous is a question of law. Louisiana Ins., 630 So.2d at 764.

Furthermore, in Doerr v. Mobil Oil Corp., 00-947, p. 6 (La.12/19/00), 774 So.2d 119, 124, the supreme court held:

The Civil Code is clear that if a contract does not lead to absurd consequences it will be enforced as written. See La.Civ.Code art.2046. When absurd results are possible from such a reading, however, the contract is ambiguous, and the courts must construe the provision in a manner consistent with the “nature of the contract, equity, usages, the conduct of the parties before and after the formation of the contract, and of other contracts of a like nature between the same parties.” |4La.Civ.Code art.2053; accord La.Rev.Stat. 22:654.

As noted in Cadwallader, interpretation of a contract is a question of law. On review, the proper standard is whether the trial court was legally correct. Weeks v. T.L. James & Co., Inc., 626 So.2d 420 (La.App. 3 Cir.1993), writs denied, 93-2909, 93-2936 (La.1/28/94), 630 So.2d 794.

The plaintiff argued, and the trial court agreed, that while the wording of the contract was clear, there could be a situation in which a literal reading would lead to absurd consequences, rendering the language in question legally ambiguous. Doerr, 774 So.2d 119. The trial court’s written reasons for judgment explain his finding:

The Court determines that in fact the literal reading of this part of National’s policy would in fact lead to absurd consequences. Mr. Cloud’s brief gives one example of absurd consequences in that a father donates a vehicle to his child, then under a literal reading of the collision damage coverage, there would be nothing owed by the insurer. What if someone purchased a 1957 Chevrolet Impala from a junkyard for $250.00, spent two years refurbishing the same, and now has a vehicle that is worth $10,000.00. Under the policy, all he would be entitled to, if that vehicle were destroyed, would be $250.00. The bottom line is that if you read the policy as written, there are many occasions in which someone would purchase and pay for collision damage coverage and actually not be covered at all. This is an absurd consequence. The Court therefore determines that the language in National’s policy limiting them to the sales price is legally ambiguous and must be read to reflect that the insurance company is obligated to pay the fair market value of the automobile.

The appellant claims that the flaw in the trial court’s reasoning is the fact that the hypothetical situations should not have been considered because they were not in evidence. In fact, Cloud does not claim that a literal reading of the policy leads to an absurd consequence in this case. The trial court erred in finding the wording of the policy legally ambiguous under the facts before us, which is all we can consider. While a set of facts could be imagined wherein the policy language would lead to an [fiabsurd result, it does not lead to an absurd result in this case. The parties are bound by the policy.

As to the appellant’s second assignment of error, there was no indication that the trial court found that the policy terms conflicted with any statutory law or public policy. His ruling was based on the fact that he found legally ambiguous language. The second assignment of error has no basis in the record.

The appellant’s answer to the appeal is predicated on two separate statutes. Louisiana Revised Statute 22:658 provides that failure to pay a claim within thirty days from the receipt of satisfactory proof of loss is subject to penalties and attorney fees if that failure is found to be arbitrary, capricious, or without probable cause. The plaintiff has the burden of proving the failure to pay. Wyble v. Allstate Ins. Co., 581 So.2d 325 (La.App. 3 Cir.1991). The record reflects that National and Cloud entered into negotiations in an attempt to settle the claim. On October 21, Cloud, through his attorney, rejected an offer of $5000.00 to settle the claim, and National issued a check on October 30, 2002. The trial court’s conclusion is based on a finding of fact, and on appeal the trial court’s factual findings should not be disturbed absent manifest error. Rosell v. ESCO, 549 So.2d 840 (La.1989). The trial court was not wrong in refusing to award penalties and attorney fees based on La.R.S. 22:658.

Cloud also claims he should be awarded penalties and attorney fees pursuant to La.R.S. 22:1220. This statute imposes upon the insurer a duty of good faith and fair dealing. Specifically, La.R.S. 22:1220(B)(5) states that the insurer breaches this duty if it fails to pay a claim within sixty days “if such failure is arbitrary, capricious, or without probable cause.” Again, the trial court found that these conditions were not met, and that finding should not be disturbed as it is supported by the record.

I ^CONCLUSION

The ruling of the trial court is reversed as to its finding that the policy is legally ambiguous. The trial court’s judgment is affirmed as to the denial of penalties and attorney fees. The costs of this appeal are to be divided equally between the appellant and the appellee.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

COOKS, J., dissents and assigns written reasons.

WOODARD, J., dissents for the reasons assigned by Judge COOKS.

11 COOKS, J.,

dissents.

I agree with the decision of the trial court and find the contract of insurance, as written, leads to absurd consequences and is against public policy. The trial court concluded “if you read the policy as written, there are many occasions in which someone would purchase and pay for collision damage coverage and actually not be covered at all. This is an absurd consequence. The Court therefore determines that the language in National’s policy limiting them to the sales price is legally ambiguous and must be read to reflect that thé insurance company is obligated to pay the fair market value of the automobile.” The reasoning of the trial court is consistent with established jurisprudence, cited in National’s brief, which holds recovery of damages under collision policies are limited to either the cost of repair or the actual cash value of the vehicle at the time of the accident, less salvage. See Giles Lafayette v. State Farm Mutual Automobile Insurance Co., 467 So.2d 1309 (La.App. 3 Cir.) writ not considered, 472 So.2d 911 (La.1985); Holt v. Rapides Parish Police Jury, 574 So.2d 525 (La.App. 3 Cir. 1991). Unlike most policies, the language in the National policy allows it to collect premiums for coverage it is not providing. This is the public policy issue and one which the majority opinion fails to address. The trial court cited two instances when this situation occurs. One would be if the automobile were donated to the owner and the other would be if the owner purchased an automobile from a junkyard and then rebuilt it. In both these instances, an insured 12would be paying premiums based on the value of the car and would reasonably believe the vehicle was covered up to the market value. The majority incorrectly dismisses these situations as “hypothetical” and chastises the trial court for considering facts not in evidence. It is the majority opinion which fails to grasp the public policy issue squarely before us. As in the two other “hypothetical” situations, Mr. Cloud obtained his vehicle for less than market value but National was collecting premiums based on market value. In other words, he was paying insurance premiums for coverage he did not have. Additionally, in this case, Mr. Cloud reasonably believed he would recover the market value of his car if it was destroyed. Mr. Cloud purchased his 1996 Nissan Max-ima for $5,000.00. The blue book value was $7,160.00. National Automotive Insurance Company issued a policy of insurance and Mr. Cloud paid premiums, based on the value of $7,160.00, not the purchase price of $5,000.00. I believe it is more than fair to require National to pay the actual cash value of the car. To allow National to escape its responsibility would “overlook the nature and function of insurance companies.” Sharp v. Daigre, 555 So.2d 1361, 1364 (La.1990). In Sharp, the Louisiana Supreme Court addressed the question of whether an insured may recover punitive damages assessed against the tortfeasor from his UM carrier. In holding the UM carrier responsible for punitive damages, the Court recognized the quid pro quo relationship between an insurer and insured and stated:

In exchange for providing this guarantee of protection to thousands of motorists, they earn a profit. Having accepted insurance premiums from Harvey Sharp, they must fulfill their side of the bargain. Cf Lavender v. State Farm Mutual Automobile Insurance Co., 828 F.2d 1517 (11th Cir.1987).

Id. at 1364.

I respectfully disagree with the majority opinion and would find National is required to pay for the actual value of the vehicle.


author: 1 .WALTER J. ROTHSCHILD, Judge.

text:
    Michael GIARRUSSO v. CITY OF KENNER, Kenner Municipal Fire and Police Civil Service Board.
    No. 04-CA-69.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2004.

      Gilbert R. Buras Jr., New Orleans, LA, for Plaintiff/Appellant.
    Alvin J. Bordelon, Jr., Regina S. Wedig, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and WALTER J. ROTHSCHILD.
   1 .WALTER J. ROTHSCHILD, Judge.

Plaintiff, Michael Giarrusso, a firefighter employed by the City of Kenner Fire Department, appeals a decision of the trial court which granted summary judgment in favor of defendant, the City of Kenner. For the reasons stated herein, we affirm.

Facts and Procedural History

Michael Giarrusso was confirmed in a permanent position as a firefighter with the City of Kenner Fire Department on June 18, 1991. On October 1, 2001, he was promoted to the class of probational fire driver after successfully passing the Civil Service Fire Driver examination on October 24, 2000. According to the personnel action form appointing him to the probationary position, the stated requirements during the probationary period included maintaining the weight standard, passing a physical, becoming certified as a pumper operator, successfully passing the working test period, and successfully passing the street and map test. Giarrusso unsuccessfully attempted the Kenner Fire Department street and map test on four separate occasions, March 13, 2002, March 19, 2002, April 30, 2002 and September |s24, 2002. On September 24, 2002, Giarrusso was demoted from the title of probational fire driver to permanent firefighter for failure to successfully pass the working test period and failure to pass the street and map test for the fourth time.

Giarrusso filed a request for hearing of an appeal of this action with the Civil Service Board. Following a hearing on January 27, 2003, the Board was unable to reach a determination on Giarrusso’s appeal after two hours of deliberation. On February 3, 2003, Giarrusso filed a petition against the City of Kenner in district court on the basis that the street and map test cannot be used as a basis for qualification of employment because it was not approved or adopted by the Civil Service Board.

In response to this petition, the City of Kenner filed a motion for summary judg-merit seeking dismissal of plaintiffs action on the basis that the street and map test is administered as part of the working test which is authorized by state statute. The City argued that authorization of this test by the Civil Service Board is not required. Giarrusso filed a cross motion for summary judgment contending that the use of the street and map test as a criterion of employment and promotion in the Kenner Fire Department is in contravention of law until such time as its use is approved by the Civil Sendee Board.

This matter was set for hearing on September 2, 2003, and the matter was submitted on memoranda and attachments. By judgment rendered on October 16, 2003, the trial court denied Giarrusso’s motion for summary judgment and granted summary judgment in favor of the City of Kenner, dismissing plaintiffs claims. The trial court also assigned reasons for judgment.

\ ¿Discussion

Giarrusso now appeals from the trial court’s judgment, arguing that because the street and map test was not approved by the Civil Service Board as required by law, plaintiff could not be denied a promotion to fire driver on the basis of the illegally administered test. In support of his argument that the map test must be approved by the board, appellant relies on La. R.S. 33:2493(D), which provides:

D. Special requirements or qualifications for admission to tests, or for eligibility for appointment, such as age, education, physical requirements, etc., may be established by the rules adopted by the board, after consultation with the appointing authority.

Appellant contends that the map test is a “special requirement ... for eligibility for appointment,” and thus it must be established in a rule adopted by the board. Although appellant concedes that the City is free to propose such a test, it is not free to implement such tests without civil service board approval by adoption of an appropriate rule as required by La. R.S. 33:2493.

In its reasons for judgment, the trial court stated in part as follows:

Based on the law and the evidence, the court finds that the City’s administration of the street and maps test during the working test period was pre-approved in Giarrusso’s case, as the personnel action form had been approved by the Chairman of the Municipal Fire and Police Civil Service Board. The court further finds that the maps test can be used as a qualification for confirmation of promotion. R.S. 33:2495. This is based on a statutory promotion scheme beginning with the firefighter’s [sic] passing the State Examiner test, and later his placement on an “eligible for appointment” list. Next one must be the most senior firefighter eligible, [sic]. After being probationally promoted per the personnel action sheet, additional requirements can be imposed by the local civil service boards. Id. The additional test noted and approved on the personnel action sheet was the map test, to ascertain whether the probational appointee has the required knowledge to | sperform the job. The court finds the test fundamental to the performance of the fire driver job in the specific locality. The court further finds that nothing in R.S. 2478 prohibits the City from testing its employees to determine their ability to perform.

After a review of the record in this case, including the documentation introduced by the City from Giarrusso’s personnel file, we agree with the reasoning of the trial court. We fail to find genuine issue of material fact as to whether the City is authorized to implement the street and map test to fire drivers, and we conclude that the City is therefore entitled to judgment as a matter of law.

The Kenner Fire Department is a classified civil" service system governed by a statutory system established by Title 33, Chapter 5, Part II, of the Louisiana Revised Statutes. Although appellant relies on La. R.S. 33:2493(D) to support his position that the special requirement of the street and map test requires approval of the Civil Service Board, we find that this section of the statutory scheme governs the promotional test which is administered by the state examiner. The promotional test determines the eligibility of applicants for entry upon promotional and competitive employment lists. La. R.S. 33:2492. The record indicates that the promotional test was administered to appellant on October 24, 2000, and he achieved a passing score. Appellant’s appointment as probational fire driver was based on the results of this test.

However, the statutory scheme also provides for the administration of working tests for “every person appointed to a position in the classified service following the certification of his name from a promotional or a competitive employment.” This working test is administered while the | (¡employee is occupying the position before he may be confirmed as a regular and permanent employee in the position. La. R.S. 33:2495 A.

In the present case, the personnel action form dated October 1, 2001 appointing appellant as a probational fire driver listed as a requirement that appellant must successfully pass the working test period and the street and map test prior to confirmation as a fire driver. As indicated on the bottom of the form, these requirements were approved by the Chairperson of the Municipal Fire and Police Civil Service Board. The record also contains copies of the three-part street and map test administered to appellant on the four occasions listed, as well as the time limitation and score achieved for each test. A review of the testing documents show that the test requires the employee to know the established zone in named streets as well as the specific location of certain addresses within the City of Kenner.

We find that under the facts of this particular case, the administration of the street and map test to a probational fire driver is authorized under the provisions of La. R.S. 33:2495 relating to working tests. Although the test is administered in written form, it is equivalent to requiring a firefighter to drive to each of the listed locations within a specified period of time, which would be part of his required job function as a fire driver. As stated by the trial court, we find that the successful passing of the street and map test is fundamental to the performance of the fire driver job in the specific locality. The information necessary to achieving a passing score on this test is crucial to the firefighter’s ability to complete his job as a fire driver. We fail to find that this test as administered by the City of Kenner Fire Department requires additional approval of the Civil Service Board by adoption of a specific rule.

| ^Conclusion

Accordingly, for the reasons assigned herein, we conclude that the City of Ken-ner met its burden of proving that it is authorized by law to administer the street and map test to a probational fire driver prior to certification of a permanent position as part of the working test. The summary judgment rendered in favor of the City of Kenner dismissing the claims of Michael Giarrusso is hereby affirmed.

AFFIRMED.


author: | JAMES L. CANNELLA, Judge.

text:
    GREATER NEW ORLEANS EXPRESSWAY COMMISSION v. Honorable Rebecca M. OLIVIER, Judge First Parish Court, Division “A” and Honorable George W. Giacobbe, Judge First Parish Court, Division “B”.
    No. 04-CA-79.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2004.
    Burgess E. McCranie, Jr., Thomas P. Anzelmo, Kyle P. Kirsch, McCranie, Sis-trunk, Anzelmo, Hardy, Maxwell & McDaniel, Metairie, LA, for Appellant.
    Richard C. Stanley, Jennifer L. Thornton, Stanley, Flanagan & Reuter, L.L.C., New Orleans, LA, for Appellees.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and WALTER J. ROTHSCHILD.
   | JAMES L. CANNELLA, Judge.

The Plaintiff, the Greater New Orleans Expressway Commission (GNOEC), appeals from a judgment denying its Petition for Mandamus against the Defendants, Judges Rebecca Olivier and George Gia-cobbe of the First Parish Court for the Parish of Jefferson. This case comes to us on remand from the Louisiana Supreme Court. We dismiss the appeal and remand.

The GNOEC polices the Huey P. Long Bridge and operates, polices, and maintains the Lake Pontchartrain Causeway Bridge. Pursuant to La. R.S. 32:57(G)(1), an additional five dollar cost is imposed on “any person who is found guilty, pleads guilty, or pleads nolo contendere to any motor vehicle offense when the citation was issued for a violation on the Huey P. Long Bridge or the Lake Pontchartrain Causeway Bridge or approaches to and from such bridges by police employed by the Greater New Orleans Expressway Commission.” R.S. 32:57(G)(2) requires that the proceeds generated by this additional cost be deposited first into the state treasury, then credited to a special fund that shall be used by the GNOEC to supplement the salaries of P.O.S.T. certified officers and |sfor the acquisition and upkeep of police equipment. The Defendants have declined to collect the additional five dollar cost in cases arising in their jurisdiction on the ground that La. R.S. 32:57(G) is unconstitutional.

On December 6, 2001, the GNOEC filed a petition for writ of mandamus against the Defendants in their capacities as public officers, seeking the issuance of a writ of mandamus directing the judges to comply with the provisions of R.S. 32:57(G)(1). In their answer to the petition, the Defendants alleged that La. R.S. 32:57 is unconstitutional on several grounds. A hearing was held on February 19, 2002, during which the parties argued, inter alia, the standing of the Defendants to challenge the constitutionality of the statute, an essential element of the writ of mandamus is standing of the Defendants. On March 5, 2002, the trial judge denied the GNOEC’s petition for writ of mandamus. In written reasons for judgment, he found that the Defendants had sufficient interest to question the constitutionality of La. R.S. 32:57(G) (standing) and determined that La. R.S. 32:57(G) is unconstitutional on the grounds asserted by the Defendants.

The GNOEC appealed the district court’s judgment directly to the Louisiana Supreme Court, pursuant to La. Const, art. V, § 5(D). The Supreme Court de-dined to address the issues because it lacked jurisdiction because the judgment 1 rendered by the trial judge did not declare the statute unconstitutional. The declaration that the statute is unconstitutional is only in the written reasons for judgment. Because a judgment and reasons for judgment are two separate and distinct documents, and appeals are taken from only the judgment, not the written reasons for judgment, the Supreme Court found that the case was not properly before it. Greater New Orleans Expressway Com’n v. Olivier, 02-2795, p. 3 (La.11/18/03), 860 So.2d 22, 24. The Supreme Court then transferred the case to this Court.

Although we have appellate jurisdiction over this case, because the trial court by judgment does not declare R.S. 32:57(G) unconstitutional, like the Supreme Court, we cannot rule on whether the trial judge erred in finding the statute unconstitutional. As the Supreme Court stated, appeals are taken from the judgment, not the reasons for judgment. Proeedurally then, the only matter properly before us is the denial of the petition for writ of mandamus. Nevertheless, because of the unique procedural posture of this case, justice dictates that we act to have the issue properly appealed. Therefore, we conclude that the claim is still pending and the proeedurally correct resolution is to remand the case to the trial court for a determination of the unconstitutionality issue and to issue a modified judgment forthwith to include his decision into the judgment denying the writ of mandamus.

IsAccordingly, we hereby dismiss the appeal and remand the ease to the trial court for a determination of the unconstitutionality issue and to issue a modified judgment forthwith, incorporating constitutionality into the judgment.

APPEAL DISMISSED, CASE REMANDED.

      . La.R.S. 32:57(G) provides:
      (1) Notwithstanding any provision of law to the contrary, any person who is found guilty, pleads guilty, or pleads nolo contendere to any motor vehicle offense when the citation was issued for a violation on the Huey P. Long Bridge or the Lake Pontchartrain Causeway Bridge or approaches to and from such bridges by police employed by the Greater New Orleans Expressway Commission shall pay an additional cost of five dollars. (2) All proceeds generated by this additional cost shall be deposited into the state treasury. After compliance with the requirements of Article VII, Section 9(B) of the Constitution of Louisiana relative to the Bond Security and Redemption Fund, and prior to monies being placed in the state general fund, an amount equal to that deposited as required in this Subsection shall be credited to a special fund hereby created in the state treasury to be known as the Greater New Orleans Expressway Commission Additional Cost Fund. The monies in this fund shall be appropriated by the legislature to the Greater New Orleans Expressway Commission and shall be used by the commission to supplement the salaries of P.O.S.T. certified officers and for the acquisition or upkeep of police equipment. All unex-pended and unencumbered monies in this fund at the end of the fiscal year shall remain in such fund. The monies in this fund shall be invested by the state treasurer in the same manner as monies in the state general fund and interest earned on the investment of monies shall be credited to this fund, again, following compliance with the requirements of Article VII, Section 9(B) of the Constitution, relative to the Bond Security and Redemption Fund. The monies appropriated by the legislature pursuant to this Paragraph shall not displace, replace, or supplant appropriations otherwise made from the general fund for the Greater New Orleans Expressway Commission.

      . La. Const. art. V, § 5(D) provides, in pertinent part, that "a case shall be appealable to the supreme court if (1) a law or ordinance has been declared unconstitutional....”

      . See: La. C.C.P. art.1918.

      . Justice Weimer stated in his dissent that the remand to this Court leaves us "in the unenviable position of having to determine what disposition can be made of the case in its present posture, necessitating further delay in a matter that has been pending for quite some time.” Olivier, 02-2795 at 3, 860 So.2d at 27.

      . Generally, when a judgment is silent as to a party's request, silence is construed as a denial of the claim. That is not the case here as reasons for judgment evidence otherwise.

      . We note that we are empowered to do what is just, legal and proper upon the record on appeal. See: La.C.C.P. art. 2164.


author: | ¡WALTER J. ROTHSCHILD, Judge.

text:
    Mary CLULEE, Wife of/and Neal Clulee, Homeplace Batture Leasing, Inc., and N/C Materials, Inc. v. BAYOU FLEET, INC., et al. Mary Clulee, Wife of/and Neal Clulee, et al. v. St. Charles Parish, Through its Chairman, Terry Authement, et al.
    Nos. 04-CA-106, 04-CA-107.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2004.

      Joel T. Chaisson, Destrehan, LA, Catherine Leary, Westwego, LA, for Plaintiff/Appellant.
    Gustave A. Fritchie III, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and WALTER J. ROTHSCHILD.
   | ¡WALTER J. ROTHSCHILD, Judge.

This is an appeal from a summary judgment rendered in favor of Coregis Insurance Company (“Coregis”) on the issue of insurance coverage. For the reasons stated herein, we affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

The plaintiffs, Mary and Neal Clulee, Homeplace Batture Leasing, Inc., and N/C Materials, Inc. (hereinafter referred to as “Clulee Plaintiffs”) filed two lawsuits, which were later consolidated, against several defendants, including St. Charles Parish and certain parish officials in their official capacities (“Parish Defendants”).

In the “first lawsuit,” which was filed on July 1, 1998, the Clulee Plaintiffs filed a Petition for Damages and a First Supplemental and Amended Petition setting forth numerous claims against the Parish Defendants, including allegations that some of the Parish Defendants, including former Parish President Chris Tregre Land former Parish Attorney Randy Lewis, conspired to aid Bayou Fleet in the operation of its sandpit by re-zoning the property in violation of the parish’s zoning code. The Clulee Plaintiffs assert that, unlike Bayou Fleet, they had to spend significant funds on their facilities in order to re-zone their property and to satisfy the zoning requirements necessary to expand their operation. The Petition for Damages and Amended Petition set forth many other claims including, but not limited to, allegations of violations of the Louisiana Unfair Trade Practices Act and violations of the plaintiffs’ rights to due process and equal protection under the Louisiana Constitution. The Clulee Plaintiffs contend that the actions of the Parish Defendants have caused them damages and led to litigation in federal court.

In the “second lawsuit,” which was filed on January 14, 1999, the Clulee Plaintiffs originally sought a writ of mandamus to St. Charles Parish, its Department of Planning and Zoning, and certain parish officials, ordering them to enforce the St. Charles Parish zoning laws. On August 27, 2001, a First Supplemental and Amended Petition was filed, in which the plaintiffs withdrew their request for mandamus and sought declaratory and injunc-tive relief, as well as damages caused by the alleged zoning violations.

Coregis issued two separate insurance policies to the St. Charles Parish Council for the period of November 1, 1996 to November 1, 1997. One policy issued was a Commercial General Liability insurance policy, and the other one was a Public Officials and Employees Liability insurance policy. On August 26, 2003, Coregis filed a Motion for Summary Judgment, arguing that it should be dismissed from this litigation, because neither of the policies issued to St. Charles Parish provides coverage for the claims asserted by the plaintiffs. After a hearing on September 10, 2003, the trial court granted Coregis’ Motion for Summary | ¿Judgment, dismissing it from this litigation with prejudice. It is from this judgment that the Clulee Plaintiffs appeal.

LAW AND DISCUSSION

Appellate courts review summary judgments de novo under the same criteria governing the trial court’s consideration of whether a summary judgment is appropriate. Prince v. K-Mart Corporation, et al., 01-1151 (La.App. 5 Cir. 3/26/02), 815 So.2d 245, 248. Summary judgments are now favored in the law and the rules should be liberally applied. Nutt v. City of Gretna, 00-1864, 00-1865, p. 9 (La.App. 5 Cir. 5/16/01), 788 So.2d 617, 619; Carr v. Wal-Mart Stores, Inc., 00-896 (La.App. 5 Cir. 10/31/00), 772 So.2d 865, 866, writ denied, 00-3247 (La.1/26/01), 782 So.2d 636. It is well settled that a motion for summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits submitted, if any, show there is no genuine issue of material fact such that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966; Ekere v. Dupont Chemical Plant, 99-1027 (La.App. 5th Cir.2/16/00), 757 So.2d 33, 34, writ denied, 00-778 (La.4/28/00), 760 So.2d 1181. Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183.

An insurance policy is a contract between the parties and should be construed by using the general rules of contract interpretation set forth in the Louisiana Civil Code. Mayo v. State Farm Mutual Automobile Insurance Company, 03-1801 (La.2/25/04), 869 So.2d 96. Words and phrases used in an insurance policy are to be construed using their plain, ordinary, and generally | ¡^prevailing meaning, unless the words have acquired a technical meaning. Id. When the words of an insurance contract are clear and explicit and lead to no absurd consequences, courts must enforce the contract as written. Succession of Fannaly v. Lafayette Insurance Co., 01-1355 (La.1/15/02), 805 So.2d 1134, 1137. However, if the insurance policy is susceptible to two or more reasonable interpretations, then it is considered ambiguous and must be liberally interpreted in favor of coverage. Vintage Contracting, L.L.C. v. Dixie Building Material Company, Inc., 03-422 (La.App. 5 Cir. 9/16/03), 858 So.2d 22, 26; Newby v. Jefferson Parish School Board, 99-98 (La.App. 5th Cir.6/1/99), 738 So.2d 93, 96.

The determination of whether a contract is clear or ambiguous is a question of law. Mayo, supra. Any ambiguity in insurance policy provisions should be narrowly construed to afford coverage. Gottsegen v. Hart Property Management, Inc., 02-129 (La.App. 5 Cir. 5/29/02), 820 So.2d 1138, 1141, writ denied, 02-1776 (La.10/4/02), 826 So.2d 1129; Peterson v. Schimek, 98-1712 (La.3/2/99), 729 So.2d 1024, 1029. Insurance policies should be interpreted to effect, not deny, coverage. Yount v. Maisano, 627 So.2d 148, 151 (La.1993). An insurer seeking to avoid coverage through summary judgment must prove that some exclusion applies to preclude coverage. Smith v. Reliance Insurance Co. of Illinois, 01-888 (La.App. 5 Cir. 1/15/02), 807 So.2d 1010, 1014.

With these principles of law in mind, we consider whether the trial court correctly found that neither of the insurance policies issued by Coregis to St. Charles Parish provides coverage as a matter of law for the damages asserted by the plaintiffs in these consolidated cases.

As stated above, the two insurance policies issued to St. Charles Parish were a Commercial General Liability (“CGL”) policy and a Public Officials and Employees Liability (“POD”) policy. The CGL policy provides coverage within the policy period for “personal injury” and “property damages” caused by an | (¡“occurrence,” which unexpectedly or unintentionally causes damage. Therefore, intentional acts are generally not covered. However, the CGL policy also contains a discrimination endorsement which states:

Under Section II: Definitions, Personal Injury, is amended to include Discrimination or Violation of the Federal Civil Rights Act of 1871, or 42 U.S.C.1983, and similar laws. (Emphasis added.)

The POD policy specifically excludes coverage for claims arising from the intentional violation of a statute, ordinance, rule, or law. This policy does not contain the discrimination endorsement that is in the CGL policy.

In Bayou Fleet v. Alexander, 97-2205 (E.D.La.9/11/98), 1998 WL 623909, which is the federal litigation primarily between these same parties, the federal district court for the Eastern District of Louisiana considered the same insurance policies at issue in the present case. In the federal litigation, the allegations were very similar to those asserted in this case, but the roles of the parties were reversed. In that case, Bayou Fleet was the plaintiff and it sued the Clulees, some of the Parish Defendants, and others, alleging that Alexander, who was a member of the St. Charles Parish Council, conspired with the Council and others to destroy Bayou Fleet’s business, in violation of 42 U.S.C. § 1983, the Sherman Act, and the Louisiana Unfair Trade Practices Act. Coregis moved for summary judgment contending that the claims asserted by Bayou Fleet against the Parish Defendants were not covered by either of the two insurance policies issued to St. Charles Parish, which are the same policies at issue in the present litigation. The federal district court issued a judgment finding that all of Bayou Fleet’s causes of action, except the alleged civil rights violations under 42 U.S.C. § 1983, arose from intentional conduct, for which coverage is excluded under both policies. The court found that Bayou Fleet’s claims under 42 U.S.C. § 1983, albeit intentional and not |7within the policy definition of “occurrence,” were covered under the endorsement to the CGL policy.

In the instant case, the Clulee Plaintiffs agree that the CGL policy generally does not provide coverage for intentional torts. However, they argue that the state constitutional law claims set forth in the first lawsuit are covered under the CGL policy, because the discrimination endorsement provides coverage for “Discrimination or Violation of the Federal Civil Rights Act of 1871, or 42 U.S.C. § 1983, and similar laws,” and the Clulee Plaintiffs’ state constitutional law claims are “similar” to federal constitutional law claims under 42 U.S.C. § 1983.

In response to the plaintiffs’ appeal and in their Motion for Summary Judgment, Coregis argues that all of the Clulee Plaintiffs’ claims against the Parish Defendants are allegations of intentional wrongful acts for which there is no coverage under either insurance policy. They note that the only claims for which there was coverage in the federal litigation were allegations of civil rights violations under 42 U.S.C. § 1983, and there are no federal civil rights violations alleged in this lawsuit. They contend that the discrimination endorsement applies only tu federal law violations and, therefore, there is no coverage for the state constitutional law violations asserted in this case.

A thorough review of the Petition for Damages and Amended Petition filed in the first lawsuit reveals that the allegations set forth by the plaintiffs consist of claims of intentional wrongful acts. The POD policy contains exclusions which clearly and unambiguously exclude coverage for intentional acts. Therefore, the POD policy does not provide coverage for the Clulee Plaintiffs’ claims in the first lawsuit. Intentional acts are also excluded under the CGL policy, but there is an exception for violations of the Civil Rights Act of 1871, 42 U.S.C. § 1983, and similar laws. The issue before us with regard to the first lawsuit is whether the claims for ^violations of state constitutional law are claims under “similar laws” to 42 U.S.C. § 1983 and thus, covered under the CGL policy.

The language in the discrimination endorsement does not specify whether “similar laws” to 42 U.S.C. § 1983 are limited under the policy to federal laws or whether similar state constitutional laws are covered. The state constitutional protections at issue are indeed similar to the federal laws granting these same rights, and the “similar laws” language in the discrimination endorsement could reasonably be interpreted as including coverage for state constitutional law violations. As stated above, if the insurance policy is susceptible to two or more interpretations, then it is ambiguous and must be liberally interpreted in favor of coverage. Vintage Contracting, L.L.C. v. Dixie Building Material Company, Inc., supra at 26. This language in the discrimination endorsement is unclear and ambiguous as to what violations are covered under the policy. Therefore, it must be construed in favor of coverage.

Accordingly, we find as a matter of law that the CGL policy issued to St. Charles Parish by Coregis provides coverage for the alleged state constitutional law violations asserted by the plaintiffs in the first lawsuit, and we reverse the summary judgment rendered in favor of Coregis insofar as it found that Coregis’s CGL policy did not provide coverage for these claims. We affirm the trial court’s decision to grant summary judgment in favor of Coregis with regard to the finding that the POD policy provides no coverage for the claims set forth in the first lawsuit.

With regard to the second lawsuit, we consider the issue of whether either of the two Coregis insurance policies provides coverage for the allegations set forth in the Petition for Mandamus and the Amended Petition. The Clulee Plaintiffs argue that the claims in this lawsuit do not specifically characterize the failure of the parish officials to enforce the zoning laws as negligent or intentional. Therefore, Inthey assert that, because the plaintiffs’ claims are not limited to intentional acts and negligence could be found under these allegations, both the CGL and POD policies provide coverage for the claims in the second lawsuit. The Parish Defendants respond that the plaintiffs set forth intentional, not negligent, allegations in this lawsuit, but even if negligence had been alleged, there is no cause of action against the Parish Defendants for “negligent zoning.”

In the first lawsuit, the crux of the plaintiffs’ argument is that the Parish Defendants intentionally engaged in selective enforcement of the zoning laws in order to assist Bayou Fleet in its sandpit operation. However, in the second lawsuit, the claims set forth by the plaintiffs in the original Petition for Mandamus and Amended Petition are not limited to intentional acts. The original Petition for Mandamus includes allegations that “none of the official defendants conducted any investigation to determine whether there was a zoning violation” by Bayou Fleet. It also states that “.... relying on the Lewis letter and without independent investigation as required by law, the Department of Planning and Zoning issued a permit which authorizes Ronald Adams Contractors, Inc. to conduct a sand pit operation on the Bayou Fleet, Inc. property and which further classifies the property as B-2 rather than B-l, effectively working a zoning change of said property without the public hearing required by law.” In the First Supplemental and Amended Petition, the Clulee Plaintiffs have asserted, among other things, “[p]etitioners have reported the non-conforming sand pit use to parish officials informally and through filing the original petition in this matter, but parish officials have refused to abate the non-conforming use and have, instead, tacitly or specifically permitted such use.” (Emphasis added.) While these claims allege improper acts by the Parish Defendants, they do not suggest that the Clulee Plaintiffs have limited their claims to intentional acts. Rather, the facts set forth in both the Petition for Mandamus and the Amended Petition, if proven, could hosupport a negligence action. Both the CGL and POD policies cover negligent acts by the Parish Defendants. Accordingly, insofar as any negligence by the Parish Defendants is found at trial, we conclude that the CGL and POD policies provide coverage. Accordingly, the trial judge erred when he granted summary judgment in favor of Coregis with regard to any negligence claims in the second lawsuit.

Furthermore, the first and second lawsuits set forth similar facts and related claims. In the second lawsuit, our review of the facts and claims asserted in the First Supplemental and Amended Petition reveals that the state constitutional claims set forth in the first lawsuit could be at issue in this lawsuit as well. Previously in this opinion, we found that state constitutional violations are covered under the CGL policy. Since there are issues of material fact as to whether state constitutional claims are at issue in the second lawsuit and thus, covered under the CGL policy, summary judgment is not appropriate. Accordingly, because Coregis is not entitled to summary judgment with regard to any state constitutional law claims in the second lawsuit, we reverse the trial court’s ruling to the extent that it found no coverage under the CGL policy for any state constitutional claims in the second lawsuit.

Considering the claims set forth in the second lawsuit, along with the language of the CGL and POD policies, we conclude that both policies provide coverage insofar as any negligence by the Parish Defendants is found, and the CGL policy provides coverage insofar as any state constitutional violations are found in the second lawsuit.

DECREE

For the reasons set forth above, the summary judgment rendered by the trial court in favor of Coregis Insurance Company is affirmed in part and reversed in part. We reverse and vacate the summary judgment as to any state constitutional claims in the first and second lawsuits, because we have found that there is |n coverage under Coregis’ CGL policy issued to St. Charles Parish for the alleged violations of state constitutional laws. We further reverse and vacate the summary judgment rendered in favor of Coregis insofar as any negligence by the Parish Defendants is found in the second lawsuit. In all other respects, the summary judgment granted in favor of Coregis is affirmed.

AFFIRMED IN PART; REVERSED IN PART.

      . Policy No. 651-006406-8

      . Policy No. POD-000123-1

      .The insured, St. Charles Parish, has not joined in the appeal or filed any documents with this Court.

      . 42 U.S.C. § 1983 grants an individual the right to sue government officials who deprive a person of his rights under the U.S. Constitution.


author: LMARION F. EDWARDS, Judge.

text:
    Edward WARE v. Dezria R. MUMFORD and Farm Bureau Insurance Company.
    No. 04-CA-118.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2004.

      James I. Maher, III, New Orleans, LA, for Plaintiff/Appellee.
    James S. Thompson, Chauntis T. Jenkins, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   LMARION F. EDWARDS, Judge.

On February 15, 2001, plaintif'f/appellee Edward Ware was operating a pick-up truck owned by his employer, Jefferson Parish Department of Public Works, when it was struck from the rear by Dezria Mumford. Ms. Mumford was uninsured at the time of the accident, and the pickup truck was self-insured by the Parish of Jefferson. Ware was, however, the named insured on a policy of automobile liability insurance issued to him by Farm Bureau Insurance Company, which included uninsured/underinsured motorist coverage.

Ware filed suit against Ms. Mumford and Farm Bureau. Farm Bureau denied coverage. A supplemental and amending suit was subsequently filed, naming Anthony Voiron, the insurance agent for Ware, as an additional defendant.

It was alleged that the policy, originally issued on August 28, 1996 for an initial 6-month term, was renewed at the expiration of each 6-month period. In September, 1998, Farm Bureau revised the policy to exclude UM coverage for |s“any automobile or trailer owned by or furnished for the regular use of the named insured.”

Farm Bureau filed a Motion For Summary Judgment, alleging that under the UM provision in the revised policy, it did not provide coverage for the accident which occurred while Ware was driving the vehicle owned and supplied to him by Jefferson Parish.

In an affidavit submitted in connection with an opposition to the Motion For Summary Judgment, Melvina Ware, who manages the family insurance matters, denied that she ever received either the original or any revised policies from Farm Bureau noticing the change in UM coverage, and further denied that their insurance agent ever informed them that coverage would be unavailable while her husband operated his employer’s vehicle.

The matter was argued and submitted to the trial court, which denied the Motion For Summary Judgment on July 22, 2003. On August 19, 2003, Farm Bureau filed a motion to make the judgment final and appealable pursuant to La.Code Civil Procedure art. 1915(A). On September 26, Farm Bureau filed a Notice of Intent to apply to this court for supervisory writs, but writs were not taken. On October 1, 2003, Farm Bureau filed a motion for appeal.

La.Code of Civil Procedure Article 968 provides that “An appeal does not lie from the court’s refusal to render any judgment on the pleading or summary judgment.” Code of Civil Procedure Article 1915 provides for the certification of partial final judgments. However, article 1915 does not supercede article 968. The certification of the denial of Farm Bureau’s Motion for Summary Judgment by the trial court did not convert a non-ap-pealable judgment into an appealable judgment.

RReview of this type of judgment is properly taken under this court’s supervisory jurisdiction. However, this court does not convert appeals into Writ Applications. Further, under the circumstances of this case, Farm Bureau is not entitled to bring this matter in an application for writs. The record indicates that the judgment and notice of judgment were signed and mailed on July 22, 2003. The Notice of Intent to file a writ application was filed on September 26, 2003, long after the expiration of the 30-day time period enunciated in Rule 4-3, Uniform Rules of the Courts of Appeal.

For the foregoing reasons, this appeal is dismissed. Farm Bureau is to pay all costs.

APPEAL DISMISSED.

      . Rubin v. Westport Ins. Corp., 02-643 (La.App. 5 Cir. 12/11/02), 833 So.2d 1245.

      . Rubin v. Westport Ins. Corp., supra; also see Short v. Ochello, 01-1358 (La.App. 5 Cir. 2/26/02), 811 So.2d 1009.

      . Rubin v. Westport Ins. Corp., supra; see also State v. Goodman, 03-1279 (La.App. 5 Cir. 2/23/04), 868 So.2d 861.