author: | MOAN BERNARD ARMSTRONG, Chief Judge.

text:
    Darian DARTY v. TRANSOCEAN OFFSHORE U.S.A., INC. and Bay Coquille, Inc.
    No. 2003-CA-1669.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 12, 2004.

      George B. Jurgens, III, James D. Ber-caw, King, Leblanc & Bland, L.L.P., New Orleans, LA, for Defendant/Appellant.
    Michael R.C. Riess, Charles B. Colvin, Kingsmill Riess, L.L.C., New Orleans, LA, for Defendant/Appellee.

      (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge EDWIN A. LOMBARD and Judge Pro Tempore MOON LANDRIEU).
   | MOAN BERNARD ARMSTRONG, Chief Judge.

The appellant, Bay Coquille, Inc., appeals a judgment of June 26, 2003, denying its motion for summary judgment for indemnity against the appellee, R & B Falcon Drilling USA, Inc. (hereinafter “Falcon”), and granting the motion for summary judgment of Falcon for indemnity against the Bay Coquille in a personal injury claim brought by the original plaintiff, Darían Darty. We affirm. Written reasons were given for designating this partial judgment as final and that determination is not contested on this appeal.

This matter arises out of a personal injury sustained by the plaintiff, Darían Darty, a wage employee of Tom’s Welding, but also arguably a borrowed employee of the appellee, Falcon. The alleged accident took place during the transfer of cargo from a materials barge to Falcon’s Rig #20, a submersible drilling barge employed in drilling the Delesdernier No. 9 well in Plaquemines Parish, where Darty was working. However, the merits of Darty’s personal injury claim are not part of this appeal. The appeal concerns only Falcon and Bay Coquille’s claims for indemnity against each other.

| ?Darty filed his claim in state court under the Jones Act and General Maritime Law against Transocean Offshore USA, Inc. and Bay Coquille, Inc. In an amended petition, Darty named Falcon as a defendant. Falcon filed a cross claim against Bay Coquille alleging that Darty was employed by Tom’s Welding Services and that in turn Tom’s Welding Services was retained by Bay Coquille. More importantly, Falcon alleged that Bay Coquille was contractually obligated to indemnify it. Bay Coquille answered and filed a cross claim for indemnity against Falcon. Falcon moved for summary judgment and Bay Coquille filed a cross motion for summary judgment.

The indemnity claims of Bay Coquille and Falcon against each other arise from the reciprocal indemnity provisions found in § 14.8 and § 14.9 of the “International Association of Drilling Contractors Drilling Bid Proposal and Daywork Drilling Contract” (hereinafter “Contract”) between Falcon and Bay Coquille. It is undisputed that this is a maritime contract. According to the parties, the crux of this case is whether the term “employees” found in § 14.8 and § 14.9 includes “borrowed employees.” However, there is more to interpreting the reciprocal indemnity provisions than just devining the meaning of the term “employees.”

§ 14.9 of the Contract provides in pertinent part for Bay Coquille’s indemnity of Falcon:

Operator’s [Bay Coquille’s] Indemnification of Contractor [Falcon]: Operator agrees to release, defend, indemnify, and hold harmless, Contractor, its officers, directors, employees and joint owners from and against all claims, demands and causes of action of every kind and character, without limit and without regard to the cause or causes thereof or the negligence of any party or ^parties, arising in connection herewith in favor of Operator’s employees or Operator’s [Bay Coquille’s] contractors or their employees, or Operator’s invitees, other than those parties identified in paragraph 14.8 on account of bodily injury, death or damage to property ... [Emphasis added.]

Thus § 14.9 requires Bay Coquille to indemnify Falcon “on account of bodily injury, death or damage to property” for claims made by Bay Coquille’s “contractor’s or their employee.” It is uncontested that Bay Coquille contracted for the services of Tom’s Welding and that the original personal injury plaintiff herein, Darían Darty, was a wage employee of Tom’s Welding. Consequently, if the only issue in the case were whether Darían Darty was an employee of one of Bay Coquille’s contractors we would simply conclude that Bay Coquille owes indemnity to Falcon under § 14.9 of the Contract. However, Bay Coquille points to what it refers to as the “Exception Clause” in § 14.9, which modifies the reference to Bay Coquille’s “contractors or their employees” by limiting them to those “contractors and their employees ... other than those parties identified in paragraph 14.8 ...” [Emphasis added.]

§ 14.8 provides in pertinent part for Falcon to indemnify Bay Coquille:

Contractor’s [Falcon’s] Indemnification of Operator [Bay Coquille]: Contractor agrees to release, defend, indemnify, and hold harmless, Operator, its officers, directors, employees and joint owners from and against all claims, demands, and causes of action of every kind and character, without limit and without regard to the cause or causes thereof or the negligence of any party or parties, arising in connection herewith in favor of Contractor’s [Falcon’s] employees or contractor’s subcontractors or their employees, or Contractor’s invitees, on account of bodily injury, death or damages to property.... [Emphasis added.]

|4The “Exception Clause” in § 14.9 refers to, among others, Falcon’s “employees,” as Falcon’s employees are “parties identified in paragraph 14.8.” Thus when read together § 14.8 and § 14.9 are, § 14.9 requires Bay Coquille to indemnify Falcon for claims of bodily injury for employees of its contractors such as Darty, with the exception of claims made by Falcon’s employees. Bay Coquille alleges that Darty is Falcon’s borrowed employee, thereby, under the Exception Clause transferring the obligation to indemnify from Bay Coq-uille to Falcon. Falcon counters that the term “employees” found in § 14.8 refers only to traditional direct wage paid employees and not to employees by operation of law such as borrowed employees.

Bay Coquille explains that the Exception Clause is necessary because Falcon and its employees would qualify as one of Bay Coquille’s contractor’s or its employees under § 14.9, which would nullify Falcon’s indemnity obligations to Bay Coquille if one of Falcon’s employees were injured. Put another way, it is Bay Coquille’s contention that the “Exception Clause” refers to Falcon and its employees solely for the purpose of preventing the reciprocal indemnity provision from canceling itself out. From this we conclude that the Exception Clause was not intended to apply to situations in which Bay Coquille may have contracted with a party other than Falcon, such as Tom’s Welding, Darty’s wage paying employer. Thus, the Exception Clause provides this Court with no insight into the intention of the parties regarding the question of whether the term “employees” includes | sborrowed employees. Moreover, even if the Exception Clause could be said in some way to support Bay Coquille’s contention that the term “employees” was intended to include borrowed employees, it still doesn’t help us determine whether the fact that Darty may be considered Falcon’s borrowed employee should take precedence over his initial and continuing status as an employee of a non-Falcon contractor retained by Bay Coquille.

While Falcon and Bay Coquille attempt to persuade this Court that, in effect, almost as a matter of law, the term “employees” either includes borrowed employees according to Bay Coquille, or does not according to Falcon, we find that the intent of the parties controls. We find nothing in the law or public policy that prevents the parties form entering into a contract that could be read as either Bay Coquille or Falcon suggest, i.e., the task of this Court in this case is initially to determine whether it was the intent of the parties that the term “employees” in the contract should also include borrowed employees. If it was not the intent of the parties to include borrowed employees, the judgment of the trial court must be affirmed without further inquiry as Bay Coquille effectively concedes that the only sense in which Darty might be considered an employee of Falcon is as a borrowed employee. If, on the other hand, it was the intent of the parties to include borrowed employees, then this Court must concern itself with whether Darty was Falcon’s borrowed employee. But the consideration does not end there. As noted at the conclusion of the previous paragraph, even if we find that Darty is Falcon’s borrowed employee, we must then decide whether Darty’s initial and ongoing | fistatus as an employee of a contractor of Bay Coquille should be given priority over his status as a borrowed employee of Falcon for indemnity purposes.

Falcon argues that these indemnity provisions are what have “been commonly known in the industry as “knock for knock,” reciprocal indemnity” provisions, based solely upon party affiliation, and not based in any way upon fault findings or confusing requirements of determining whether an accident arose in a particular way. Bay Coquille acknowledges that this is a “knock for knock” contract, but contends that the term “employees” found in the indemnity provisions includes “borrowed employees.” Falcon counters that, as a matter of standard industry practice, the term “employees” in the reciprocal indemnity “knock for knock” provision of the Contract was not intended to include “borrowed employees.” Instead, Falcon argues that the intent of the Contract is crystal clear:

[Njamely that the reciprocal indemnity provisions embody the maxim “I’ll take care of mine and you take care of yours”, because that is the easiest, least confusing way for the parties to an IADC drilling contract to apportion responsibilities by was of indemnity in such a contract. Older drilling contracts in the 1970s-1980s, that based indemnity Upon fault findings of some sort, or upon whether an accident occurred from certain work activities, presented confusion and uncertainty, and have thus slowly been discarded over the years in favor of what has now been commonly called the industry norm of “knock for knock based on party affiliation.”

In other words, Falcon argues that Darty’s “party affiliation” must be with Bay Coquille because Bay Coquille contracted with Darty’s employer, Tom’s Welding and it was Bay Coquille, not Falcon, that paid Tom’s Welding for Darty’s services. However, Falcon offered no affidavits, documentary evidence or deposition evidence to support its contention concerning the nature of standard 17industry practice in general, nor to support its specific argument concerning the meaning of the term “employees.” As the industry practice is not a matter of which this Court may take judicial notice, we are unable to find in favor of Falcon based on its industry practice argument. Instead we will review relevant legal authorities cited by the parties, as well as others revealed by the research of this Court.

Cormier v. Rowan Drilling Co., 549 F.2d 963, 969-970 (5 Cir.1977), provides an excellent explanation of the purpose, operation and intended effect of reciprocal indemnity provisions:

However, Rowan’s half of the agreement contained the following additional provision:
“By way of illustration, but not by way of limitation, any person who is on Contractor’s payroll and receives, has received, or is entitled to receive payment from Contractor in connection with the work performed hereunder shall be the employee of Contractor, even though Company reimburses Contractor the amount paid such employee.”
The whole purpose behind these provisions is to make sure that the contractor (Rowan) and the company (Continental) are each solely responsible for anything that happens to their own respective employees, regardless of fault. In the most specific detail, which writes over or around any possible tort or maritime theory by which liability could be palmed off on the other, the contracts identify precisely the respective indemnity obligations between the parties to the contract with respect to the employees of each. Thus, the waiver of indemnity between the two parties so far as it goes is complete without regard to the negligence of either party, the unseaworthiness of any vessel or the breach of underlying contractual obligations.
But precise as it is as between Rowan and Continental respecting a claim by their respective employees, it prescribes nothing as to claims by third parties or the employee of a third party.
|sThis carefully drawn, commonly used contractual provision reflects a practical, efficient agreement by parties faced with sharing, apportioning or underwriting the economic risks of offshore drilling. It is a means by which unnecessary insurance costs are avoided, the ultimate bearer being the owner for whom others contract.
The reciprocal indemnity provisions between Continental and Rowan avoids this doubling of costs to the owner, Continental. Thus, the reciprocal indemnity provision requires each party to carry adequate self-insurance and results in a dove-tailed, highly integrated insurance program, the practical effect of which is to impose on each (and their insurers) the sole and ultimate loss arising out of injury to the respective employees of each. This inures to the benefit of all involved, since it cuts out needless insurance costs (which are undoubtedly passed along to the final consumer at some point). Also, to the extent that it clearly defines the respective indemnity obligations of both parties, it cuts down on unnecessary litigation costs.
[Emphasis added.]

Id.

We find that the language highlighted above in the quotation from Cormier sets forth the two policy considerations underpinning the use of reciprocal indemnity agreements such as the one at issue in the instant case: (1) The elimination of the expense of redundant insurance coverage and (2) a reduction in unnecessary litigation and its concomitant expense. This means that while an employee may be considered for some purposes such as workers’ compensation to be simultaneously the employee of one employer and the borrowed employee of another, for purposes of a reciprocal indemnity provisions an employee cannot simultaneously be an employee of both parties to the indemnity agreement because that would defeat the purpose of the indemnity agreement of eliminating the cost of both parties having to insure and litigate for the same employee. Thus, reciprocal indemnity provisions such as those involved in the instant case are designed to | flaccomplish more than the ordinary one way indemnity provisions which means that cases involving one way indemnity provisions are not persuasive where reciprocal provisions are involved.

It follows that there is no merit in Bay Coquille’s third assignment of error, in which Bay Coquille argues in the alternative that Falcon’s defense and indemnity obligations to Bay Coquille under § 14.8 for the bodily injury claims of Falcon’s employees and Bay Coquille’s identical defense and indemnity obligations to Falcon under § 14.9 were “extinguished by the doctrine of confusion” as concerns the personal injury claims of Darían Darty.

Falcon had addressed Bay Coquille’s third assignment of error by contending that Bay Coquille failed to raise the issue below and cannot now raise it for the first time on appeal.

La. C.C.P. art. 1005 includes among enumerated affirmative defenses that must be set forth in the answer the “extinguishment of the obligation in any manner.” La. C.C. art.1908 explains that obligations are extinguished by confusion, consistent with the statement quoted above from Bay Coquille’s original brief on appeal. Therefore, the issue of confusion raised by Bay Coquille’s third assignment of error is an affirmative defense that must be raised by Bay Coquille’s answer or any proper amendment thereto.

We note that in its answer, Bay Coquille pleads confusion as its third enumerated affirmative defense. We also find where Bay Coquille pursued the issue in proceedings below. Therefore, Bay Coquille is entitled to have this Court consider its confusion argument, but, as already noted above, we find no merit in that argument.

Rodrigue v. LeGros, 568 So.2d 248 (La.1990) stands for the propositions that, “By allowing indemnity provisions to be fully enforceable, the federal maritime law gives parties the contractual freedom to allocate risks between themselves”; and “each case necessarily turns upon the language of the indemnity agreement at issue.” However, there was no borrowed employee issue before the court in Ro-drigue so that case provides no direct insights into whether the term “employees” in the reciprocal indemnity provision in the instant case includes borrowed employees. What Rodrigue does tell us is that we should give great weight to the intention of the parties and their freedom to contract in our interpretation of the reciprocal indemnity provision, rather than relying on general tort principles. Id., at p. 254-255. Applied to the instant case, Rodrigue supports the conclusion that we should interpret the contract in the manner that best effectuates the dual goals of reciprocal indemnity agreements, i.e., the elimination of both the expense of overlapping insurance coverage and the inefficiency and expense of unnecessary litigation.

That it is possible for the term “employee” in a contract to include borrowed employees may be seen by reference to Porche v. Gulf Mississippi Marine Corp., 390 F.Supp. 624, 628 (E.D.La.1976):

The word “employee” may, or may not, embrace a borrowed servant, depending on the intention of the parties and whether under their arrangement the term “employee” was intended to reflect that person’s Jones Act status or whether it was designed merely to adopt the conventional definition by looking only to the payroll relationship. [Emphasis added.]

The indemnity clause in Porche, provided as follows:

In Coastal’s indemnity claim is based on a contract clause that reads is part:
Fluor assumes all risk of liability in connection with injury or death of any of its employees, its authorized agents or representatives acting as a crew aboard the BARGE as shipri-ders aboard the TUG, or CREW-BOAT and FLUOR agrees to indemnify and hold OWNER harmless and its subsidiary corporations harmless against and from all claims, demands or cause or actions which may be asserted by any such crew member or shiprider against OWNER and/or the TUG or CREWBOAT arising out of or in connection with any such injury or death, however caused and whether resulting in part from the negligence of OWNER, but excluding OWNER’S soul [sic] negligence or fault.
[Emphasis added.]

Id., 390 F.Supp. at 628-629.

This indemnity clause in Porche was not reciprocal. The emphasis in the contested contractual clause in Porche is, first, on the assumption by one party, Flour, of “all risk of liability in connection with injury or death of any of [Flour’s] employees”, and, secondly, on indemnifying the “Owner”, but with the exception of those instances where such injury or death may be caused by the sole negligence of the “Owner.”

The indemnity provisions in the instant case are quite different. The emphasis in the instant case is on unconditional reciprocal indemnification without regard to liability or negligence, whether that negligence be sole or partial, rather than on the assumption of liability by a particular party. The Porche agreement was not intended to accomplish the goal of avoidance of the expense of duplicative insurance coverage by the parties because the “Owner” in Porche would still have l^had to carry insurance as to Flour’s employees because of the Owner’s potential liability in the event that the Owner were determined to be solely negligent. Additionally, the reduction of litigation through simplification of the allocation of risk could likewise not be a primary goal of the Porche indemnity because of the potential for litigation concerning the degree of “Owner” fault. Therefore, the court’s language in Porche saying that, “It, therefore, seems appropriate to define the term ‘employee’ in the context of personal injury liability,” would not be appropriate in defining the term “employees” in the context of the blanket reciprocal indemnity provisions in the instant case which exclude all considerations of liability and negligence. In other words, respondeat supeñor and its related concept of borrowed servant are liability concepts which are employed in an attempt to assign liability based on concepts of responsibility and vicarious negligence, as distinguished from the reciprocal indemnity provisions in the instant case which were intended to simplify matters by making it unnecessary to resolve disputes concerning liability, negligence and vicarious responsibility.

While it may seem unfair at first to saddle Bay Coquille for liability for Darty if he was acting under the supervision of Falcon, which Bay Coquille would have to prove in order to support it borrowed servant allegation, it seems equally unfair to allow Bay Coquille to saddle Falcon with the liability for an employee of a subcontractor, Tom’s Welding, selected by Bay Coquille. Add to this the fact that Bay Coquille admits in its brief that Bay Coq-uille, not Falcon, paid Tom’s Welding for Darty’s work. Moreover, as it has been held that indemnification language that is as sweeping as that found in the instant case is broad enough to infer the intention that the indemnitee should be indemnified even for its own negligence, then there is nothing intrinsically offensive about allowing Falcon to 1 iSbe indemnified for Darty’s injuries in spite of the fact that Falcon’s alleged negligence through its exercise of control over Darty as his borrowing employer may have been a cause of Darty’s injuries.

In Theriot v. Bay Drilling Corp., 788 F.2d 527, 540 (5 Cir.1986), the court found that sweeping indemnity language virtually identical to that found in the instant case was sufficient to express the intention of providing indemnification even in the case of the indemnitee’s own negligence:

“Long-established general principles of interpreting indemnity agreements require that indemnification for an indem-nitee’s own negligence be clearly and unequivocally expressed.” Seal Offshore, Inc. v. American Standard, Inc., 736 F.2d 1078, 1081 (5th Cir.1984). An indemnity provision should be construed to cover “all losses, damages, or liabilities which reasonably appear to have been within the contemplation of the parties.” It should not be read, however, “to impose liability for those losses or liabilities which are neither expressly within its terms nor of such a character that it can be reasonably inferred that the parties intended to include them within the indemnity coverage.” Corbitt v. Diamond M. Drilling Co., 654 F.2d at 333. We find that the above quoted language, indemnifying Bay Drilling “without limit and without regard to the cause or causes thereof or the negligence of any party,” clearly and unequivocally provided Bay Drilling with indemnification for its own negligence. We note that in a recent case we perceived no ambiguity in a mutual indemnity provision identical to that before us today, but described the provision as providing for indemnification of employees “regardless of whose fault caused the injury.” Blanks v. Murco Drilling Corp., 766 F.2d 891, 894 (5th Cir.1985) (emphasis added). [Emphasis added.]

Id.

It is no more unfair to require Bay Coquille to indemnify Falcon for Falcon’s borrowed employee than it would be to require Bay Coquille to indemnify Falcon for Falcon’s own negligence, which the Contract clearly requires Bay Coquille to ludo under the circumstances defined by the reciprocal indemnity clauses found in § 14.8 and § 14.9. The reciprocal indemnification regardless of fault found in § 14.8 and § 14.9 is repeated and reemphasized in § 14.13 of the Contract which provides:

Indemnity Obligation: Except as otherwise expressly limited herein, it is the intent of parties hereto that all indemnity obligations and/or liabilities assumed by such parties under terms of this Contract, including, without limitation, paragraphs 14.1 through 14.12 be without limit and without regard to the cause or causes thereof (including pre-exist-ing conditions), the unseaworthiness of any vessel of any vessel of such negligence be sole, joint or concurrent, active or passive. ... [Emphasis added.]

In Weathersby v. Conoco Oil Co., 752 F.2d 953, 955 (5 Cir.1984), the injured plaintiff, Tommy Lynn Weathersby, was a direct employee of National Supply Company, which company was engaged by Co-noco, the well and platform owner. Weathersby sued Conoco and Global Marine Drilling Company, the rig owner for personal injury. Conoco and Global Marine filed cross-claims against each other based on the reciprocal indemnity provisions found in the Drilling and Rework Contract (“Contract”) existing between them. Global Marine argued that it was entitled to indemnity because Weathersby should be considered to be a Conoco employee under the Contract in spite of the fact that he was paid by his direct employer, National Supply Company, because Co-noco engaged the services of National Supply. Paragraph IV(D)(3) avoids the inquiry that is the subject of the instant case by specifying who shall be considered to be the employees of whom:

[Global Marine] agrees that all employees or subcontractors engaged by [Global Marine] to perform |1fisuch services shall be the employees and subcontractors of [Global Marine] hereunder, and [Conoco] agrees that all employees or subcontractors engaged by [Conoco] to perform such services shall be the employees and subcontractors of [Conoco] hereunder.
The Weathersby court explained that:
The plain language of § IV(D)(3) indicates that, for whatever purpose, employees engaged by Global Marine are deemed Global Marine employees and employees engaged by Conoco are Co-noco employees.... Hence, we agree with the district court in concluding that the only reasonable explanation for § IV(D)(3) is that it provides a test for identifying the “employer” of a subcontractor’s employees for purposes of indemnity. [Emphasis added.]

Id., at p. 956.

Had there been a provision in the Contract in the instant case such as § IV(D)(3) in the Weathersby case, it would be clear that Darty would be considered to be Bay Coquille’s employee because it was Bay Coquille who retained the services of Darty’s employer, Tom’s Welding, and not Falcon. Therefore, while we can say that Falcon’s argument is not inconsistent with Weathersby, in the absence of a clause defining “employees” in the instant case we cannot say that Weathersby unequivocally supports Falcon.

Bay Coquille cites Dahlen v. Gulf Crews, Inc., 281 F.3d 487, 500 (5 Cir.2002), in support of its contention that under the general maritime law the term “employees” necessarily includes borrowed employees.

Forest tries to distinguish the finding that it is Dahlen’s borrowing employer on the grounds that Johnson and Me-lancon both allowed the platform owner to be considered the borrowing employee for the purposes of the LHWCA but not for the purposes of indemnity between the borrower and the borrowee, i.e., the entity that lent the employee to Forest. As Security points out, |1fihowever, Forest is not seeking indemnity from the company that it borrowed Dahlen from (in this case Island), but is instead seeking indemnity from a third party that for all accounts is unrelated in any way to Dahlen. [FN9 omitted.] The reasoning of the district court that Forest was the borrowing employer should therefore be upheld. [Emphasis added.]

Id.

The result in Dahlen does not mean that Falcon as Darty’s borrowing employer in the instant case should indemnify Bay Coquille. In seeking indemnity from Bay Coquille, Falcon is not “seeking indemnity from a third party that for all accounts is unrelated in any way to” Darty, because it was Bay Coquille who engaged Darty’s services through Tom’s Welding and paid Tom’s Welding for them. Moreover, Falcon is not seeking indemnity from Tom’s Welding, the company from whom it borrowed Darty.

Johnson v. Amoco Production Co., 5 F.3d 949, 951 (5 Cir.1998), stands for the proposition that an employee may be considered to be a borrowed employee of one company for workers’ compensation purposes while simultaneously being considered to be the employee of another company. The plaintiff, Johnson, a wage employee of TCS, was injured at an Amoco facility:

In the main action — Johnson’s tort claim — Amoco successfully argued to the district court that it (Amoco) was Johnson’s statutory employer, thereby barring that claim under Louisiana’s worker’s compensation law. [FN4 omitted.] Having succeeded in avoiding tort liability to Johnson, [FN5 omitted.] Amoco next moved for summary judgment on its indemnity and defense claim against TCS. In opposing that motion, TCS advanced two defenses. [FN6 omitted.] First, TCS argued that|17Amoco’s status as Johnson’s statutory employer excluded him from coverage under the indemnity agreement as it only applies to “employees” of TCS.

Id.

The indemnity provision at issue in Johnson provided as follows:

Contractor [TCS] assumes all liability for and hereby agrees to defend, indemnify and hold Amoco, its joint owner or owners, if any, and their losses, costs, expenses and causes of action, including attorney’s fees and court costs, for injuries to and death of Contractor’s and its Subcontractor’s employees, arising out of, incident to, or in connection with any and all operations under this contract
The Johnson court explained that:
A person may be a statutory employee of one company under Louisiana’s worker’s compensation laws while remaining the “common law” or payroll employee of another. [FN11 omitted.] Johnson has been classified under statutory law as Amoco’s “employee” only for the narrow purpose of limiting Amoeo’s tort liability. A classification under this statutory scheme of risk-avoidance has little if any relevance to the interpretation of a contractual term. Rather, as the district court correctly noted, that term is interpreted by ascertaining the common intent of the parties.

Id. at p. 953.

The Johnson court then held that:
We interpret these terms of the contract (unless they are technical terms or terms of art) by giving them their generally prevailing meaning. [FN14 omitted.] And when the terms of a contract are clear and explicit and lead to no absurd consequences, no further inquiry may be made in search of the parties’ intent. [FN15 omitted.]
The term “employee” used in the master contract between TCS and Amoco is clear and has a generally prevailing meaning: an employee is one who works for another for a salary or wages. [FN16 omitted.] The most frequently encountered confirming criteria of this relationship is the identity of the one who directs and controls the work and |1sthe worker, an issue not disputed in this case as ⅛ TCS has admitted that Johnson was allegedly injured while working in the course and scope of his duties as a field mechanic for TCS. Moreover, TCS’s master contract with Amoco mandated that Amoco would have no direction or control over TCS or its employees other than in the results to be obtained

Id. at p. 953.

While Johnson> as far as it goes, appears to support Falcon, it is not disposi-tive as the indemnity agreement in Johnson was not reciprocal in nature.

Moreover, there is in Johnson an additional provision in the contract clarifying the meaning of employee not found in the contract between Falcon and Bay Coquille in the instant case:

Paragraph six of this contract states that “anyone used or employed by Contractor [TCS] ” shall not be “deemed to be the agent, servant, or representative of Amoco.” Simply put, this paragraph unequivocally declares that TCS’s employees shall remain TCS’s employees for purposes of TCS’s contractual relationship with Amoco. Under that relationship, TCS’s employees are those who are “used or employed” by TCS. Accordingly, we conclude, as did the district court, that Johnson — who was on the payroll of TCS, and was presumably under TCS’s supervision and control, while engaged in performing TCS’s repair and installation work order with Amoco — ■ was the employee of TCS for purposes of the indemnification provision.

Id., at p. 953.

There is no reference, to a reciprocal indemnity agreement in Howell v. America Cas. Co. of Reading, 96-0694 (La.App. 4 Cir. 3/19/97), 691 So.2d 715. As noted earlier in this opinion in connection with the analysis of the Cormier case, cases involving indemnity provisions that are not reciprocal are not persuasive in the instant case. Therefore, while the discussion in Howell of the factors used to determine the existence of a borrowed employer-employee | ^relationship is well expressed, it sheds no light on the interpretation of the reciprocal indemnity provisions in the instant case.

In Melancon v. Amoco Production Co., 834 F.2d 1238, 1243 (5 Cir.1988) the contract also contained a specific clause defining who should be considered an employee of whom:

Contractor [Beraud] shall be an independent contractor with respect to all work done and services performed hereunder, and neither [Beraud] nor anyone used or employed by [Beraud] shall be deemed for any purpose to be the agent, servant, or representative of Amoco in the performance of such work or services or any part thereof, or in any matter dealt with herein, and Amoco shall have no direction or control of [Beraud], or its employees and agents, except in the results to be obtained.

In Melancon, the contractor, Beraud, agreed in the “Well and Lease Service Master Contract” to indemnify Amoco for any injuries to any of Beraud’s employees. The Melancon court held that while the injured plaintiff, Mr. Melancon, was Amoco’s borrowed employee, borrowed from Beraud, he would be considered to be Ber-aud’s employee for purposes of requiring Beraud to indemnify Amoco, because of the above quoted provision. However, there was no question of reciprocal indemnity provisions in Melancon.

The contract in the instant case does not contain provisions such as those found in Weathersby, Johnson, and Melancon, clarifying how to determine which employer to attribute an employer to for indemnity purposes. However, we do not infer from this omission the intention of Falcon and Bay Coquille that Falcon must indemnify Bay Coquille for Falcon’s borrowed employees even when Bay Coquille contracted for and paid for their services.

| i>nWhile the contract in Demette v. Falcon Drilling Co., Inc., 280 F.3d 492 (5 Cir.2002) did have a reciprocal indemnity provision that one of the parties sought to enforce, there was no borrowed employee issue and there was no dispute as to the interpretation of the language in the indemnity agreement. As to the indemnity agreement in Demette, the court was called upon to decide first whether the contract was maritime in nature and second whether § 905(b) of the Longshoremen and Harbors Workers Compensation Act barred recovery under the indemnity clause of the contract. The Demette court found that the drilling contract was a maritime contract and that § 905(c) of the LHWCA created an exception to § 905(b) by providing for the enforceability of indemnity provisions when they were reciprocal. Other than standing for the proposition that reciprocal indemnity provisions are enforceable, Demette provides no guidance for us in the instant case. There is no dispute in the instant case concerning the enforceability vel non of the reciprocal indemnity provision; the dispute is over the meaning of the term “employees.”

Lewis v. Diamond Services Corp., 93-1150 (La.App. 1 Cir. 5/20/94), 637 So.2d 825 is inapplicable to the resolution of the instant case for the same reasons that Demette, supra, is, the only difference being that the Lewis court held that § 905(c) of the LHWCA made the reciprocal indemnity provision enforceable in spite of the Louisiana Oilfield Anti-Indemnity Act, LSA-R.S. 9:2780.

Spell v. N.L. Industries, Inc., 618 So.2d 17 (La.App. 3 Cir.1993), like Rodrigue and Lewis, supra, did not involve the question whether the term “employee” in the reciprocal indemnity provision in the contract included [1 borrowed employees. Nothing in Spell other than the court’s statement that the intent of the parties should govern the interpretation of the contract has any bearing on the outcome of this case.

Curtis Callais Welding, Inc. v. Stolt Comex Seaway Holdings, Inc., 2003 WL 22966344 (E.D.La.), involves reciprocal indemnity provisions, but they are not knock for knock.

After reviewing all of the foregoing cases we conclude that the intention of the parties controls; that the purpose of the reciprocal indemnity agreement is the elimination of the expense of redundant insurance coverage and unnecessary litigation; that this purpose can only be achieved by the enforcement of the reciprocal indemnity provision; that the agreement cannot be enforced if the indemnities are extinguished by confusion or otherwise allowed to cancel each other out; that the fact that Darty might be Falcon’s borrowed employee for workers compensation purposes does not mean that he is Falcon’s employee for indemnity purposes; that the determination of whose employee Darty should be considered to be for indemnity purposes should be made on the basis of what best achieves the objectives of the reciprocal indemnity provisions; and that the parties did not intend that an employee of a contractor hired and paid for by Bay Coquille should be considered to be an employee of Falcon for indemnity purposes.

In order to achieve the objective of avoiding redundant insurance coverage, we must assign Darty solely to Falcon or solely to Bay Coquille for purposes of indemnity. In deciding which party to assign Darty to, we must also bear in mind the second objective of the reciprocal indemnity agreement — the reduction in unnecessary litigation. In the instant litigation it is certainly easier and more efficient to find that Bay Coquille retained and paid for the services of Tom’s | ¡^Welding and its employee, Darty, which is uncontested, than it is to determine whether Darty is Falcon’s borrowed employee. Additionally, Bay Coquille’s retention of Tom’s Welding antedates the instant in time at which Darty arguably became Falcon’s borrowed employee. This is reinforced by Bay Coq-uille’s payment to Tom’s Welding for Darty’s services. In that sense, it follows that deciding that Tom’s Welding is one of Bay Coquille’s “contractors” under § 14.9 should result in the least amount of litigation and, therefore, is the result intended under the contract. Thus, under the facts of the instant case where either party could arguably be found to owe indemnity to the other, the retention of Tom’s Welding by Bay Coquille along with the payment to Tom’s Welding for Darty’s services by Bay Coquille takes precedence under the indemnity contract over Falcon’s alleged status as Darty’s borrowing employer as the most likely intention of the parties and as the most effective means of achieving the purposes of the reciprocal indemnity agreements, the elimination of redundant insurance coverage and a reduction in the expense of litigation.

For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.

      . The exact argument in Bay Coquille's original appellate brief on this point is:
      But for the Exception Clause, Falcon and its employees would qualify as one of Bay Coquille's contractors under Paragraph 14.9, which would nullify Falcon’s indemnity obligations to Bay Coquille if one of Falcon's employees, such as Darty here, was injured.

      . Emphasis original with Falcon.

      . Id., at p. 255.

      . Id., at p.256.

      . Emphasis added.

      . This is apparently what the trial court has done in the instant case. It has been called to our attention that on November 24, 2003, subsequent to the time that the instant appeal was lodged, the trial court rendered another motion for summary judgment support by written reasons finding that Darty was the borrowed employee of Falcon. That judgment is not before this Court on this appeal.

      . Had Falcon borrowed Darty from a third-party unrelated to Bay Coquille we might have reached a different result. See Dahlen, supra.


source: Caselaw Access Project

author: I iLOLLEY, J.

license: Public Domain

text:
    RABURN AND ASSOCIATES, Plaintiff-Appellee, v. BURGUNDY OAKS L.L.C., and James A. Young, Defendant-Appellant.
    No. 38,428-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 20, 2004.

      Jerald R. Harper, for Appellant.
    Booth, Lockard, Politz, LeSage, Hayter & Odom, L.L.C. by Mark W. Odom, Shreveport, for Appellee.
    Before STEWART, MOORE and LOLLEY, JJ.
   I iLOLLEY, J.

Burgundy Oaks, L.L.C. and James A. Young appeal the judgment rendered by the First Judicial District Court, Parish of Caddo, State of Louisiana in favor of Ra-burn & Associates. For the following reasons, we affirm.

Facts

This lawsuit stems from the planning and development by James A. Young, a real estate developer, of a Shreveport residential subdivision, Burgundy Oaks (the “subdivision”). Raburn & Associates provided professional engineering services to Burgundy Oaks, L.L.C. and Young (collectively, “Burgundy Oaks” or appellants) for the entire subdivision, except for the initial unit 1. The parties entered into a contract for the subdivision, which services by Ra-burn & Associates were to include layouts of the various lots, engineering design for streets, drainage and sewer, and the marking of the lots as designed.

Invoices were submitted to Burgundy Oaks by Raburn & Associates for professional services rendered until June 18, 1997. Following that and until November 16, 1998, no invoices were submitted. During this time, Raburn & Associates had been paid in full for all invoices outstanding. On November 16, 1998, Raburn & Associates submitted five (5) invoices in amounts totaling approximately $50,000. These invoices went unpaid, and follow-up invoices were submitted by Raburn & Associates on February 18, 1999 and March 26, 1999, for all past-due amounts. On October 15, 1999, Raburn & Associates made written demand on Burgundy Oaks for the full open account balance, but the amount still went unpaid.

li>,0n June 16, 2000, this action was commenced by Raburn & Associates as a suit on open account seeking the recovery of $53,096.50, together with interest and attorneys’ fees. In response, Burgundy Oaks filed its answer and reconventional demand against Raburn & Associates for its alleged failure to adhere to the professional standards allegedly expected of and ascribed to professional civil engineers and land surveyors (i.e., a claim of professional malpractice).

A six-day bench trial of the matter was held in late October and early November 2002. At the conclusion of trial, the trial court determined that Raburn & Associates had met its burden of proof and awarded it $48,346.50 for services, but denied its request for attorneys’ fees. Burgundy Oaks’ reconventional demand was rejected. Judgment was entered in favor of Raburn & Associates, and this appeal by appellants ensued.

Discussion

In civil cases, the appropriate standard for appellate review of factual determinations is the manifest error/clearly wrong standard, which precludes the setting aside of a district court’s finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. Hall v. Folger Coffee Co., 2003-1734 (La.04/14/2004), 874 So.2d 90; Cenac v. Public Access Water Rights Ass’n, 2002-2660 (La.06/27/03), 851 So.2d 1006. Where the parties to a lawsuit present conflicting evidence on the litigated issues presented to the trial court, one of the basic tenets of the manifest error standard of review is that “reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon | areview, even though the court of appeal is convinced that had it been the trier of fact, it would have weighed the evidence differently.” Hall, supra; Parish Nat. Bank v. Ott, 2002-1562 (La.02/25/03), 841 So.2d 749.

A two-part test for the reversal of the factfinder’s determinations has been used: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Parish Nat. Bank, supra, quoting Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880 (La.1993).

Here, .Raburn & Associates initially brought its action on open account against Burgundy Oaks, L.L.C. and Young, who answered and filed a reconventional demand against Raburn & Associates, generally alleging that Raburn & Associates had committed professional malpractice in connection with its engineering services on the subdivision. As stated, the trial court ruled in favor of Raburn & Associates and against Burgundy Oaks on the claims of professional malpractice, which, generally, appellants argue was in error.

An engineer owes a duty to exercise the degree of professional care and skill customarily employed by others of his profession in the same general area. Rogers v. Price, 29,721 (La.App.2d Cir.08/20/97) 698 So.2d 723, writ not considered, 1997-2406 (La.12/12/97), 704 So.2d 1180; Emond v. Tyler Bldg, and Const Co., 438 So.2d 681 (La.App. 2d Cir.1983); Hogan Exploration, Inc., v. Monroe Eng’g Assocs., Inc., 430 So.2d |4696 (La.App. 2d Cir.1983). Proof of failure to perform commensurate with these standards ordinarily rests with the party making such claims. Hogan, supra at 700.

In its first assignment of error, the appellants argue that the trial court erred in relying on the expert opinion of James Mohr, Raburn & Associates’ expert at trial. Primarily, appellants argue that Mohr’s opinions were not based on any recognizable community standard and should not have been relied upon by the trial court.

We note that a trial court evaluates expert testimony by the same principles that apply to other witnesses and has great discretion to accept or reject expert or lay opinion. Johnson v. English, 34,322 (La.App.2d Cir.12/20/00), 779 So.2d 876, citing, Orea v. Scallan, 32,622 (La.App.2d Cir.01/26/00), 750 So.2d 483. The weight to be accorded to testimony of experts depends largely on their qualifications and the facts upon which they base their opinions. Id. In this case, all the experts were admitted by stipulation of the parties, thus their individual qualifications were never at issue.

On appeal, appellants argue that the trial court erred in relying on Mohr’s opinions, which appellants state were not based on any recognizable community standard. To that issue, however, we reiterate and emphasize that at trial it was the appellants’ burden to prove that Raburn & Associates deviated from the standard of care and skill customarily employed by engineers in this locale. Importantly, the burden did not lie with Raburn & Associates to prove through expert evidence that this standard was met, but |Rthe appellants’ burden to prove that the standard was not met. In other words, if appellants failed to prove their claims at trial, then it is of no consequence whether Ra-burn & Associates’ expert’s opinion was lacking or not. In fact, Raburn & Associates had no burden to even put forth any expert evidence. The trial court’s opinion makes clear, in addressing the various issues litigated, that the appellants failed to meet their burden of proof necessary at trial, which finding we conclude was not in error.

At trial, the appellants utilized the services of two experts, Denzil Blount and Joey French, both civil engineers who had worked on the project. The only general opinion expressed by Blount regarding any malpractice by Raburn & Associates was that the delays and discrepancies on the project were attributable to Raburn & Associates and that such were not those normally typical of North Louisiana engineers.

In French’s trial testimony he pointed out various actions taken by Raburn & Associates he deemed to be mistakes; however, he was never asked whether Ra-burn & Associates’ work product fell short of the work product expected of North Louisiana engineers. Instead, when asked whether Raburn & Associates’ work prod-uet was above the standard of North Louisiana engineers, he replied it was not. Additionally, appellants introduced at trial a written report prepared by French, which was “[I]n response to a request from James Young, a long-standing client of this firm....” In that report, French answered several inquiries regarding the subdivision, and those answers were prefaced by the following:

These responses reflect the professional opinion of the licensed professional whose seal and signature appear below [i.e., |fiFrench]. No assertion is made herein that these opinions are the only correct and/or appropriate ones. In the surveying and engineering professions, there are sometimes numerous approaches to any given problem. The challenge then becomes finding the safest and the most economical approach in order to protect the client’s interests. (Emphasis added).

This statement by French clearly points out that various approaches may be utilized by engineers. Moreover, in his report French never opined that Raburn & Associates failed to exercise the degree of professional care and skill customarily employed by other engineers in the same locale.

A review of the trial transcript from the lengthy and complicated trial shows that the trial judge paid rapt attention to the proceedings, as evidenced by the frequent and understanding questions asked by him. Clearly, the trial court assessed and considered the expert testimony offered by the appellants, as its written opinion repeatedly makes reference to it. In fact, the trial court specifically noted as to one issue that the evidence failed to show that Raburn & Associate’s professional services fell below the standard of care, i.e., the appellants had failed to meet their burden of proof. Considering the record and the expert evidence contained therein, it was not in error for the trial court to make such conclusions. Moreover, in light of the appellants’ failure to prove their claims of professional malpractice, the fact that Mohr’s opinion may have been insufficient (as argued by appellants) is consequently of no import. Simply put, the trial court, after assessing all of the appellants’ evidence, including the expert opinions, concluded that the appellants had failed to prove their claims. Such a finding is reasonable and was not in error.

17In another assignment of error, the appellants specifically argue that the trial court erred in determining Raburn & Associates not responsible for what is characterized by appellants as a misplaced inlet and drain line in unit 4 of the subdivision. Specifically, the trial court opined that “[t]he credible evidence fails to substantiate the necessity of removing and replacing the inlet” for the monetary amount appellants argue they are entitled to. Appellants argue that the incorrectly placed inlet and drain caused flooding in that area of the subdivision, which assertions they claim were supported by the testimony at trial. However, during the trial Mohr stated that the drainage problem was attributable to the improper installation of pipe by the contractor. Additionally, in his report, French opines that, “[t]he curb inlet ... is not built properly. It is impossible to determine from a visual examination whether the fault lies in the stakeout of the inlet or in the construction of the inlet.” Further, when questioned at trial regarding the inlet, French stated that he could not state whether the drainage problem caused by the inlet was due to work by the contractor or Raburn & Associates. Clearly, the trial court was within its realm in weighing the divergent evidence on this issue and assessing, in its proper discretion, whether the appellants had met their burden of proof as to this issue. Its finding that appellants failed to prove their claim is not in error.

In another assignment of error, the appellants maintain that the trial court erred in its conclusion that Raburn & Associates had exercised proper judgment concerning the size of pipe used in connection with the weir. As explained by the appellants, a weir and drainage pipe had been designed and | sconstructed to drain off surface water from the subdivision. Appellants contend that Raburn & Associates chose to use a 54-inch pipe, when, according to their experts, a 36-inch pipe could have sustained all the water that would have possibly gone through the weir, resulting in an unnecessary overcharge to the appellants of nearly $17,000.00. Notably, in French’s report he concludes that, “[t]he drainage structures do not seem to be designed consistently using the guidelines in the City of Shreveport drainage manual; it is possible that alternate design criteria were used.” (Emphasis added). Additionally, he stated that the 54-inch pipe “seems larger than necessary.” (Emphasis added). Clearly, French does not state that the use of the larger pipe was conclusively a failure to exercise the degree of professional care and skill customarily employed, by others of his profession in the same general area. His report obviously leaves open the possibility that Raburn & Associates utilized another method for determining the size of pipe to use. The trial court determined that the design of the pipe was within the proper exercise -of Rayburn & Associates’ professional judgment. This conclusion was not in error.

In this matter, various other allegations of professional malpractice were raised by the appellants against Raburn & Associates, and the trial court made findings as to those issues in its opinion. Although the appellants do raise a final catch-all assignment of error that the record as a whole shows “numerous” examples of manifest error, the issues discussed herein are the only ones raised specifically by the appellants on appeal, thus we will not address those other findings contained in the trial court’s |aopinion. And, whereas the appellants fail to assert any other specific instances of alleged error on the part of the trial court, other than their final catchall assignment of error, this court is not compelled to review the record and find such. We do note, however, that in our review of the record, it is apparent that the trial judge took great effort to understand the difficult and intricate evidence before him. It was clearly within the trial court’s discretion to evaluate the appellants’ evidence, including the expert opinions, and determine that such evidence was insufficient to prove the claims made in the reconventional demand.

Conclusion

Therefore, for the stated reasons, the judgment of the trial court in favor of Raburn & Associates and against Burgundy Oaks, L.L.C. and James A. Young is affirmed. Costs of this appeal are assessed to the appellants.

AFFIRMED.


author: | JAMES L. CANNELLA, Judge.

text:
    Sheldon ANDRUS v. L.A.D. CORPORATION, De Auduong, Acceptance Insurance Company and ABC Insurance Company.
    No. 03-CA-1488.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2004.
    Rehearing Denied July 13, 2004.

      Stephen N. Elliott, Howard B. Kaplan, Francine Giugno, Bernard, Cassisa, Elliott & Davis, Metairie, LA, for Appellants.
    Richard J. Dodson, Kenneth H. Hook, III, Dodson & Hooks, APLC, Baton Rouge, LA, for Appellee.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   | JAMES L. CANNELLA, Judge.

The Defendants, L.A.D. Corporation (L.A.D.) and Acceptance Insurance Company, appeal from the trial court judgment rendered in favor of the Plaintiff, Sheldon Andrus (Andrus), holding the Defendants liable for damages that Andrus suffered in the amount of $30,443.84. For the reasons which follow, we reverse.

Andrus filed suit against the Defendants alleging that he had suffered severe injuries on August 13, 2000 from a dog attack. He alleges that he was a patron at De Auduong’s (Auduong) service station. He stated that he had walked over to the dumpster on the side of the building to dispose of trash. A dog, Princess, owned by L.A.D., is kept behind the fence next to the dumpster for security of the rear of the premises. Andrus contends that the dog was originally behind a dilapidated fence near the trash dumpster but when Andrus walked away from the dumpster, the dog got out by crawling under the fence and attacked him, biting him and causing him to fall and sustain serious injuries. Andrus’ injuries were primarily from the fall and not the alleged bite.

j3The Defendants disputed Andrus’ version of the events. Their witnesses testified that Princess did not get out on the day of the incident and, moreover, had never been out previously nor ever bitten anyone. At most, the Defendants argued that Andrus may have been startled by the dog barking, causing him to fall or he may have simply tripped and fell on his own.

Following a jury trial, the jury returned a verdict in favor of Andrus and against the Defendants, awarding damages in the amount of $30,443.84. However, the jury was charged with an erroneous strict liability charge which, according to communications between the jury and the trial judge, placed on the record by the trial judge, led the jury to believe it should return a verdict in favor of Andrus, even if it found that the dog did not escape from her yard but simply startled him into falling. The trial court entered judgment in accord with the jury verdict. After denying the defense motion for a new trial and Andrus’ motion for judgment notwithstanding the verdict, the defense appealed the liability finding and Andrus answered the appeal requesting an increase in damages.

The first issue raised on appeal by the Defendants is that the trial court erred in failing to charge the jury that the Plaintiff had to prove that the dog “posed an unreasonable risk of harm.” The jury was charged with the law regarding dog bites under La. C.C. art. 2321 as interpreted by Allen v. State Farm & Cas. Co., 36,377 (La.App. 2nd Cir.9/18/02), 828 So.2d 190. The Allen interpretation did not require a showing that the dog posed an unreasonable risk of harm, but rather included a stricter liability obligation. Following the rendition of judgment in this case, Allen was overruled by the Louisiana Supreme Court in Pepper v. Triplet, 03-0619 (La.1/21/04), 864 So.2d 181. In Pepper the Court concluded:

we find that, to establish a claim in strict liability against a dog owner under La. Civ.Code art. 2321 as amended in 1996, the plaintiff must prove that his person or property was damaged by the owner’s dog, that the injuries could have been prevented by the owner, and that the injuries |4did not result from the injured person’s provocation of the dog. We hold that, to establish that the owner could have prevented the injuries under Article 2321, the plaintiff must show the dog presented an unreasonable risk of harm.

Where one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable and, if the record is otherwise complete, the reviewing court should make its own independent de novo review and assessment of the record. Campo v. Correa, 01-2707 (La.6/21/02), 828 So.2d 502; Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742, 746-47; Gonzales v. Xerox Corp., 320 So.2d 163 (La.1975). More specifically, when reviewing courts have found that a lower court utilized an improper burden of proof, the jurisprudence has recognized that such an error may have interdicted the fact-finding process and calls for a de novo review of the evidence. Campo v. Correa, supra; Ferrell v. Fireman’s Fund Insurance Co., supra; Duncan v. Safeway Ins. Co. of La., 35,240 (La.App.2nd Cir. 10/31/01), 799 So.2d 1161, 1163; Valley v. Specialty Restaurant Corp., 98-0438 (La.App. 4th Cir.1/19/99), 726 So.2d 1028, 1032;

Andrus concedes that the trial court charge to the jury was erroneous and that this Court must review the evidence relating to liability de novo.

In reviewing the record de novo to determine whether the Defendant’s dog posed an unreasonable risk of harm to the Plaintiff, we are again guided by Pepper v. Triplet, supra. In Pepper, the Court noted:

In Boyer v. Seal, 553 So.2d 827, 832 (La.1989), we stated that the criterion for determining whether a defendant has created or maintained an unreasonable risk of harm is a balancing of claims and interest, a weighing of the risk and gravity of harm, and a consideration of individual and societal rights and obligations. We have explained that the judicial process involved in deciding whether a risk is unreasonable is similar to that employed in determining whether a risk is unreasonable in a traditional negligence problem, and in deciding the scope of duty or legal cause under the duty risk analysis. Entrevia v. Hood, 427 So.2d 1146 at 1149 (La.1983). The rationale is that in “both delictual areas the judge is called upon to decide questions of social utility that require him to consider the particular case in terms of moral, social and economic considerations, in the same way that the legislator finds the standards or patterns of utility and morals in the life of the community.” Id.

In reviewing this case de novo, the evidence in the case reveals the following. The first witness to testify was Auduong, part owner of L.A.D., which owns Princess. Auduong testified that he was not present on the day of the accident, August 13, 2000. His brother, Sam, was present and an employee. He testified that L.A.D. owned Princess for ten years and she stays in the fenced area behind the store for security. He stated that she does bark at people if they get too close to the fence. He testified that his brother did not tell him about the incident, but a delivery man told his wife about a week later and she told him. He stated that he had security cameras around the store but that most of them did not work. The security camera that worked was focused on the cash register only. He stated that he did not have the tape from the camera because it is his custom to reuse it every week if it is not needed or does not contain anything important. He stated that he goes through the tape each night, the tape from the date of the incident did not contain anything relevant to the incident, and it had been reused. He also stated that he did not inspect his fence regularly because he had never had a problem. He had a Beware of Dog sign on the fence because people go between the dumpster and the fence to urinate. There was a board at the bottom of the fence. He stated that it had been there since he bought the store ten years earlier. He didn’t know why it was there and the dog had never gotten out of the fenced area. Finally, Auduong testified that the dog often stays in the shaded area right outside of the open back door but never comes into the store and has never bitten anyone.

Next, Lan Dinh, Auduong’s wife, testified as the corporate representative. She was not at the store the day of the incident, but stated that she was told of the 1^incident the next day. She testified that Princess had never attacked anyone. She admitted that Princess had been pregnant four times and explained this by stating that she had seen small dogs in the yard with Princess in the morning on occasion when she came to open the store.

Terry McClain, a fence installer, testified. He stated that he was the person who originally installed the fence 20 to 80 years ago. He stated that, when he was hired to put up a new fence to expand the parking area, sometime after the incident in this case, the boards at the bottom of the chain link fence which retained Princess in the rear yard, were nailed to the fence. However, he stated that he did not know how long it had been like that. He frequented the store, but he could not recall how long the boards had been there. He also stated that when he took down the old fence, some of the ties linking the fence to the posts were missing and some were still attached. He stated that the fence was fairly close to the ground.

The next witness to testify was Thao Phan (Phan), the employee at the store on the day of the incident. Phan testified that she had been employed at the store for six years. She was working on August 13, 2000, at the time of the incident. She heard the dog barking and looked out the back and thought she saw Andrus urinating near the dumpster. After going back inside, Phan testified that a customer came into the store and reported the incident. Phan went to the door of the store and saw Andrus getting up off of the ground. Phan asked Andrus if he needed anything and Andrus answered that he did not and he got up and left. She testified that he did not tell her at that time that he had been bitten by a dog. She stated that the dog was inside the fence at this time. Phan also stated that the dog never got out of the fence and never came into the store. She stated that the dog had never bitten anyone in the six years that she worked there. She also stated that the fence was close to the ground.

|7Sam Auduong (Sam) testified that he was working at the store at the time of this incident. Andrus’ counsel called Sam and Sam had told him that he didn’t remember anything about the incident, but now he remembered things. Sam stated that he was very busy when Andrus’ counsel first called so he couldn’t think of anything, but he would try today to remember what he could. He stated that a customer may have come in and reported an accident but he heard something and went outside. He testified that he saw Andrus on the ground and he was breathing heavily. He was worried about Andrus’ heart and asked if he wanted the police or emergency personnel. Andrus stated that he did not and got up and started walking off. Sam stated that at that point he went back inside. Sam testified that when he went to the door, the dog was behind the fence. He also stated that in all the years he was there that the dog had never bitten anyone. He testified that the dog sometimes jumped at the fence when people got too near the fence and that scared people. He also stated that when delivery men go into the back yard for deliveries, Princess has never bitten them. He testified also that there was a large trash barrel between the gas pumps. Sam stated that he had a disagreement with his brother, Auduong, and has not spoken to him in two years.

Darren Mack, the humane officer who responded to the complaint, testified. He stated that his report indicated that An-drus was bitten/scratched on the left leg but that he writes down what the complainant says. He testified that he saw marks on Andrus but did not want to say definitively that they were bite marks. He did not feel that that was his field of expertise. He testified that his office is next door to the store and he has gone to the store approximately two times a day for the past ten years. He has never seen Princess not behind the fence. He estimated that the space between the bottom of the fence and the ground was about two to three inches and that Princess’ head was approximately three to four inches wide. He noted that the wood was at the bottom of the fence along with some trash. He 1 scould not say whether the wood was attached to the fence at the time he went out, three or four days after the incident, and picked up the dog. However, by the time the dog was returned to the store, the wood was attached to the fence. Mack testified that in ten years he had never seen Princess when she was not behind the fence.

Sheldon Andrus III, Andrus’ son, testified that his father called home on Sunday evening and reported that he had been bitten by a dog. When he arrived home he needed help getting from his car into the house and he was limping. He never looked at his father’s leg to say whether there were bite marks or not. He saw scratches on his knee.

Dr. Richard Roberts, the emergency room physician, testified that Andrus came to the emergency room while he was on duty on August 17, 2000, four days after the incident. He stated that the patient reported that he had been bitten by a dog and had fallen down. Dr. Roberts testified that he saw, and put in his report, what he would describe as a minor dog bite on Andrus’ right calf and severe injury and bruising to his left knee and left elbow where he had fallen. Dr. Roberts stated that he was much more concerned with the fall injuries than the dog bite. He recommended that Andrus see an orthopedist immediately. He prescribed anti-inflammatory medication for the knee and elbow and Augmentin for the dog bite.

Finally, Andrus testified stating that he had put gas in his car and wanted to empty some trash from the car. He took a bag of trash over to the dumpster and threw it away. As he was walking away, he heard a dog growling and looked back to see the dog coming out from under the fence, with the dog half way out. He tried to move quickly and the dog clamped on to his left leg' and he fell down onto the asphalt, mainly on his knee and elbows. The dog ' continued ‘ to nip at him. He stated that a female customer saw the incident and ran into the store to tell the employees. Sam came out and stood over him asking him what happened and | aaccusing him of urinating by the dumpster. He testified that he saw another Vietnamese boy grab the dog by the collar and bring her in the front of the store. He stated that he told Sam that his dog bit him. He also stated that after getting up he went into the store and paid for the gas and told the lady behind the counter that the dog bit him. He testified that he went back to the store about a week later and took a picture of the fence. Since he was in the insurance business, he knew to take pictures, and the board was at the bottom of the fence, but it was not there a week earlier at the time of the incident. He testified that he did not use the trash barrel by the pump because he emptied the trash from the passenger side of the car, away from the pumps, and saw the dumpster behind him. He admitted that he had been arrested for possession of cocaine in November of 2000, following this incident and had been convicted of a felony. On cross examination Andrus read from his earlier deposition where he stated that he did not know where the dog came from and did not see it until it was by his legs. Andrus admitted that there had been an incident in April of 1999 where he had fallen at Home Depot and hurt his back. A lawsuit had been filed but Andrus claimed that he had not authorized it. He. just wanted payment for his medical expenses. The suit also alleged damages of the right meniscus. Andrus further admitted that after the incident in this case, he tripped and fell at Frank’s Nursery and filed suit against them. Andrus also stated that he was involved in an automobile accident in May of 2002 where he was rear-ended, totaling his car, and he filed a law suit over that. He stated that the dog first bit him on the lower left leg and above the right knee. However, at the emergency room he only told the doctor about the bite on the right calf because it was most clearly a dog.bite. He admitted that in his deposition he stated that he did not see the dog come from under the fence, but he explained at trial how he did see her coming under the fence.

ImEileen Andrus, Andrus’ wife, testified that her husband came home on the night of August 13, 2000 limping and bloody. She helped him and cleaned the wounds. She noticed what appeared to her to be dog bite marks on his legs.

Andrus had the burden of proving by a preponderance of the evidence that the dog caused damage or injury to his person, which the owner could have prevented and which did not result from the injured person’s provocation of the dog. As recently explained in Pepper v. Triplet, 03-0619 (La.1/21/04), 864 So.2d 181, to ascertain whether the owner could have prevented the injury or damage, the plaintiff must establish that the dog posed an unreasonable risk of harm. After reviewing the evidence in this case de novo, we find that Andrus simply did not meet his burden of proof that, under the facts as presented, the dog posed an unreasonable risk of harm.

The overwhelming evidence by the Defendant’s employees and objective disinterested witnesses was that the dog had never been seen outside of her fenced in space, that she had never bitten anyone and she did not act aggressively. The humane officer, who visited the store twice a day for ten years, had an opportunity to objectively observe the dog and testified that he had never seen the dog outside of the fence, or in the store. He described how the dog was often outside of the rear door to the store without entering the store or acting in an aggressive manner. The only contrary testimony came from Andrus, who had an interest in his testimony. The evidence does prove by a preponderance that Andrus fell outside of the Defendant’s store and seriously injured himself in that fall. However, the evidence simply does not support a finding that these injuries were caused directly by the Defendant’s dog, that is, that the dog escaped from under the fence and bit An-drus, or that the dog, who had never bitten anyone or ever been outside of her fenced in yard where she secured the rear of the store, posed an unreasonable risk of harm by barking inside the fence.

|nUnder Pepper, supra, the Court should, after making a strict liability analysis, go on to consider a negligence cause of action. In this case, there is some evidence that Andrus waived the assertion of his negligence action. Nevertheless, in view of our finding that the evidence does not preponderate in favor of a finding that the dog escaped from under the fence and bit him, that the fence was in disrepair, or that the Defendant knew or should have known that it was possible for the dog to escape, it does not support a negligence cause of action against the Defendants.

Based on the foregoing, because the lower court erred in not properly charging the jury, we have reviewed the evidence de novo and found that the Plaintiff did not prove, by a preponderance of the evidence, his entitlement to damages under either strict liability or negligence pursuant to La. C.C. art. 2321 and, accordingly, we reverse the judgment in favor of Andrus, grant judgment in favor of the Defendants and order Andrus’ case dismissed will prejudice. Costs of appeal are to be paid by Andrus.

REVERSED AND RENDERED.

      . De Auduong, the part owner of L.A.D., was originally sued as a Defendant, but was, on March 27, 2003, dismissed from the case.


author: _[2_LEON A. CANNIZZARO, JR., Judge.

text:
    CENTRAL NATIONAL INSURANCE COMPANY OF OMAHA, et al. v. JACOBS CONSTRUCTORS, INC., et al. Central National Insurance Company of Omaha, et al. v. The Jacobs Constructors, Inc., et al.
    Nos. 2004-C-0512, 2004-C-0562.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 2004.
    Rehearing Denied June 30, 2004.
    Ralph S. Hubbard, III, Celeste D. Elliott, Seth A. Schmeeckle, Legenbuhl, Wheaton, Peck, Rankin & Hubbard, New Orleans, LA, for The Travelers Indemnity Company and Travelers Insurance Company.
    Samuel M. Rosamond, Crawford Lewis, PLLC, New Orleans, LA, for Hartford Accident and Indemnity Company.

      James M. Garner, Darnell Bludworth, Timothy B. Francis, Sharonda R. Williams, Sher, Garner, Cahill, Richter, Klein, McAl-ister & Hilbert, New Orleans, LA, for Central National Insurance Company of Omaha, et al.
    G. Trippe Hawthorne, Mark D. Mese, Todd A. Rossi, Erich P. Rapp, Kean, Miller, Hawthorne, D’Armond, McCowan & Jarman, Baton Rouge, LA, and Julie Par-elman Silbert, Kean, Miller, Hawthorne, D’Armond, McCowan & Jarman, New Orleans, LA, for Jacobs Constructors, Inc. and Jacobs Engineering Group, Inc.
    (Court composed of Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge LEON A. CANNIZZARO, JR.).
   _[2_LEON A. CANNIZZARO, JR., Judge.

The defendants in this case have filed applications for supervisory writs in connection with the trial court’s denial of their exceptions of improper venue. We hereby grant the defendants’ writ applications.

FACTS AND PROCEDURAL HISTORY

Two groups of defendants in this case each filed an application for supervisory writs seeking review of the trial court’s denial of their exceptions of improper venue. One writ application was filed by Jacobs Constructor, Inc. and Jacobs Engineering Group, Inc., and the other was filed by Travelers Indemnity Company, Travelers Insurance Company, and Hartford Accident and Indemnity Company. Because both writ applications sought review of the same trial court judgment, we granted a motion to consolidate the writ applications.

The plaintiffs in this case have sued the defendant relators for a declaratory judgment regarding insurance coverage in connection with a number of individual personal injury lawsuits that have been filed against the Jacobs entities. The plaintiffs filed suit in Orleans Parish, Louisiana. The relators filed exceptions of [^improper venue in the trial court claiming that the only proper venue in this case is in East Baton Rouge Parish.

The trial court denied the relators’ exceptions of improper venue. No written reasons were given for the court’s judgment.

DISCUSSION

La. C.C.P. art. 42 is the general venue provision in the Louisiana Code of Civil Procedure. Article 42 provides in relevant part as follows:

The general rules of venue are that an action against:
(2) A domestic corporation, a domestic insurer ... shall be brought in the parish where its registered office is located.
(4) A foreign corporation ... licensed to do business in this state shall be brought in the parish where its primary business office is located as designated in its application to do business in the state, or, if no such designation is made, then in the parish where its primary place of business in the state is located.
(7) A foreign or alien insurer shall be brought in the parish of East Baton Rouge.

In the instant case one of the Jacobs entities is a domestic corporation with its domicile in East Baton Rouge Parish, and the other is a foreign corporation registered to do business in Louisiana with its domicile in East Baton Rouge Parish. Under paragraphs (2) and (4) of La. C.C.P. art. 42, venue in East Baton Rouge Parish is proper in the case of both of the Jacobs entities. The defendant insurance companies are all foreign insurers. Therefore, under the general rules set forth in paragraph (7) of La. C.C.P. art. 42, the proper venue in this case with respect to the defendant insurance companies is East Baton Rouge Parish.

| ^Additionally, La. C.C.P. art. 76 provides in relevant part that “[a]n action on any other type of insurance policy [one other than a life or health and accident insurance policy] may be brought in the parish where the loss occurred or where the insured is domiciled.” Under article 76, venue as to the Jacobs entities would be proper in East Baton Rouge Parish, because that is where they are domiciled. Under La. C.C.P. art. 76, East Baton Rouge Parish is also a proper venue as to the defendant insurance companies, again because the insured Jacobs entities are domiciled there.

The trial court, however, denied the re-lators’ exceptions of improper venue. In their response to the relators’ writ applications, the plaintiffs have argued that the trial court’s determination that venue in Orleans Parish was proper, because La. C.C.P. art. 76.1 provides that “[a]n action on a contract may be brought in the parish where the contract was executed or the parish where any work or service was performed or was to be performed under the terms of the contract.” The plaintiffs argue that an insurance policy is a contract governed by the general rules regarding interpretation of contracts and, as such, falls under the provisions of article 76.1.

Because at least two lawsuits filed against the Jacobs entities are pending in Orleans Parish, and because the plaintiffs are issuers of insurance polices that may require them to defend the Jacobs entities in Orleans Parish, the plaintiffs argue that a determination of proper venue in this case must be made under La. C.C. P. art. 76.1. The plaintiffs argue that article 76.1 sanctions proper venue in Orleans Parish, because service under the insurance policy contracts may be required to be 1 ¿performed in Orleans Parish. Although venue for the defendant insurance companies would ordinarily be proper only in East Baton Rouge Parish under La. C.C.P. art. 42 or La.C.C. P. art. 76, the plaintiffs argue that in this case under the concept of ancillary venue, Orleans Parish is also a proper venue for suit against those companies.

In Landry v. Prime Insurance Syndicate, Inc., 99-0577, p. 3 (La.App. 4 Cir. 5/12/99), 732 So.2d 1291, 1292, quoting Underwood v. Lane Memorial Hospital, 97-1997 (La.7/8/98), 714 So.2d 715, 719, this Court discussed the concept of ancillary venue as follows:

Ancillary venue applies when separate claims involving common or identical question of fact share no common venue. The concept of ancillary venue allows such claims to be tried together for reasons of judicial economy and efficiency, even though venue is not proper technically for one claim or one party.

(Emphasis added.)

In the instant case, however, the parties share a common venue, which is East Baton Rouge Parish. Venue is proper in East Baton Rouge Parish for the Jacobs entities under La. C.C. P. 76 as well as under the general venue provisions of La. C.C.P. art. 42. Venue in East Baton Rouge Parish is also proper for the insurance company defendants under La. C.C.P. art. 42 and La. C.C.P. art. 76. I ./Where there is a common venue shared by all parties, the concept of ancillary venue is not applicable. In this case, there is a shared common venue in East Baton Rouge Parish, and that is the proper venue for this case.

CONCLUSION

Based on the foregoing discussion, we find that venue in this case is proper in East Baton Rouge Parish and that the trial court erred in denying the defendants’ exceptions of improper venue. We reverse the trial court’s judgment and remand this matter to the trial court for further proceedings in accordance with this opinion.

REVERSED AND REMANDED.

      . A much larger number of lawsuits against the Jacobs entities have been filed in East Baton Rouge Parish, however.

      . Because La. C.C.P. art. 76 specifically applies to actions on insurance policies, we find that it, rather than La. C.C.P. art. 76.1, is applicable in the instant case. See also Judge Tobias’ concurrence in Crawford v. Blue Cross and Blue Shield of Louisiana, 2000-2026, p. 2 (La.App. 4 Cir. 12/5/01), 814 So.2d 574, 583, where he states that "[i]t is apparent, in view of the title to Act 217, that article 76.1 was intended to apply to construction contracts and not all contracts of every nature.”


text:
    STATE of Louisiana, Applicant, v. Marilyn BUSH, Respondent.
    No. 39,150-KW.
    Court of Appeal of Louisiana, Second Circuit.
    July 8, 2004.
    Charles Foti, Attorney General, Walter E. May, Jr., District Attorney, for Applicant.
    Johnson, Johnson & Johnson, Eric Gerard Johnson, for Respondent.
    Before CARAWAY, MOORE and LOLLEY, JJ.
   |,WRIT GRANTED AND MADE PEREMPTORY

An investigation by the State’s Legislative Auditor disclosed that defendant Bush embezzled more than $400,000 from the Town of Haynesville while she was the town clerk. She ultimately pled guilty to one count of felony theft and was ordered to serve an agreed sentence of ten years at hard labor. She obtained new counsel who filed a motion for reconsideration of sentence. The state filed an opposition, noting that a defendant cannot seek review of an agreed sentence.

The trial court ruled that in spite of the statutory language of La. C. Cr. P. art. 881.2 that a defendant cannot seek judicial review of an agreed sentence, such a defendant could move for reconsideration of sentence. The court found that this defendant had understood that she would be sentenced to ten years. The court found that the ten-year sentence was not excessive. However, the court found the motion for reconsideration had merit and agreed to accept a $100,000 payment of restitution and to release defendant from confinement.

The state presented nine assignments of error, eight of which relate to the district court’s untimely acceptance of restitution in exchange for release from an executory hard labor sentence. The state also sought review of the article 881.2 issue and contends that the district court erred in allowing any judicial review of the agreed sentence.

IsLa. C. Cr. P. art. 881.2(2) provides “the defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” Numerous cases affirm that rule. See, for example, State v. Jefferson, 36,562 (La.App.2d Cir.1/29/03), 837 So.2d 733.

Furthermore, the jurisprudence holds that a trial court is without authority to amend a hard labor sentence once the defendant has begun serving it. La. C. Cr. P. art. 881 A; State v. Neville, 95-0547 (La.App. 4th Cir.5/16/95), 655 So.2d 785, writ denied, 95-1521 (La.9/29/95), 660 So.2d 851.

The trial court’s ruling that Article 881.2(2) does not preclude a defendant from filing and obtaining a favorable ruling on a motion to reconsider an agreed sentence flies in the face of logic as well as against the settled jurisprudence cited above. The ruling, if allowed to stand, would mean that any defendant could plead guilty with an agreed sentence but still subject it to judicial review by the imposing court. That would eviscerate the efficacy of plea negotiations involving agreed sentences and would remove the district attorney’s power to obtain final resolutions of cases as provided by La. C. Cr. P. art. 61.

Accordingly, we find that the trial court erred in even considering the motion for reconsideration. This ruling pretermits discussion of the other assigned errors. The writ is granted and made peremptory. Defendant’s agreed hard labor sentence is reinstated.


text:
    LIFECARE HOSPITALS, INC., Plaintiff-Appellee, v. B & W QUALITY GROWERS, INC., Defendant-Appellant.
    No. 39,065-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 8, 2004.

      Cook, Yancey, King & Galloway by Bryce J. Denny, Shreveport, for Appellant.
    Wiener, Weiss & Madison by James R. Madison, Shreveport, for Appellee.
    Before GASKINS, PEATROSS and MOORE, JJ.
   J¿ORDER

Appellee, Lifecare Hospitals, Inc., filed a motion to dismiss the above-captioned appeal on the basis that the appellant failed to obtain an order of appeal within the delays allowed under the provisions of La. C.C.P. art. 2121. This failure resulted when the appellant failed to attach an order of appeal to its motion for appeal that was timely filed with the clerk of the First Judicial District Court. Although appellant, B & W Quality Growers, Inc., supplied the missing order on March 17, 2004, the appeal delays expired in February 2004. Thus, the question presented by this motion to dismiss is whether the timely filing of the motion for appeal without an accompanying order was sufficient to preserve B <& W’s appeal.

Under the provisions of La. C.C.P. art. 2121, an appeal is taken by obtaining an order therefor, within the delay allowed, from the court which rendered the judgment. Such an order may be granted on oral motion in open court, on written motion, or on petition. Although the wording of the article lends support to the argument that dismissal would be appropriate if an order of appeal was not obtained until after the appeal delays had expired, the jurisprudence establishes that such is not always the case. In Traigle v. Gulf Coast Aluminum Corp., 399 So.2d 183 (La.1981), a motion for an appeal was timely filed, but the order of appeal was not signed until after appellate delays would have expired. The defendants moved for dismissal on the ground that the order was not timely, the court of appeal dismissed the appeal, but the supreme court reversed. The court of appeal had relied on the language of La. C.C.P. art. 2121, holding that an order of appeal must be obtained, i.e., signed, within the delay allowed for appeal. However, the supreme court stated that the signing of an order of devolu-tive appeal “has become a mere formality.” The supreme court pointed out that the former provisions of La. C.C.P. art. 2124 required that security be furnished for a devolutive appeal, and that Article 2121 required that the order of appeal fix the amount of the appeal bond to be furnished. Thus, because the cost of the bond had to be furnished within the delays provided for taking an appeal, the order also had to be signed during that period. However, because Article 2124 was amended to eliminate security for devolutive appeals, and the trial court was no longer required to fix an appeal bond, the signing of a devolu-tive appeal order “has been reduced to a mere formality.”

laThe supreme court went on to point out that the Articles of the Code of Civil Procedure are to be construed liberally and are not an end in themselves (La. C.C.P. art. 5051), that the right to appeal has constitutional sanction, and that appeals are favored in the law and aided by the courts. The supreme court also pointed out that La. C.C.P. art. 253 requires pleadings to be delivered to the clerk of court, and that after pleadings are filed, the clerk of court has a duty to obtain a judge’s signature, but an appellant does not have any absolute right to personally deliver his order to the trial judge for signature. Furthermore, the trial judge is not the only person who can grant an appeal because, in all parishes except Orleans, a clerk of court and his chief deputy clerk are authorized under La. C.C.P. art. 282 to grant appeals. Finally, the supreme court pointed out that when an appellant timely files an order of appeal with the clerk of court, he has delivered it to a public official that has a duty either to obtain the judge’s signature or sign the order himself. Thus, when a timely filed order of appeal is not signed during the delay period, this is not a fault or defect imputable to the appellant, and the appeal should not be dismissed when the motion for appeal is timely filed, but the order is not signed until after the delay has run.

In support of the motion to dismiss the instant appeal, appellee cites our decision in Hough v. Brookshire Grocery Co., 24590-CA (La.App.2d Cir.5/5/93), 618 So.2d 587; writ denied, 93-1997 (La.11/5/93), 629 So.2d 346. In Hough, we dismissed an appeal because both the motion and order for appeal were delivered to a judge’s receptionist, but an order of appeal was neither signed, nor filed with the clerk of court until after the delays for taking a devolutive appeal had run. We discussed Traigle, supra, in Hough, noting that the supreme court in Traigle explicitly relied on La. C.C.P. art. 253 which requires that all pleadings filed in an action be delivered to the clerk of court, but we concluded that a judge’s receptionist could not be equated to the clerk of court who was a public official required by law to retain possession of motion and order or appeal and to either obtain the judge’s signature on the appeal order or sign it himself.

In the instant case, unlike Hough, the appellant timely filed a motion for appeal with the clerk of court. Thus, the appellant clearly manifested an intent to seek appellate review of the trial court’s decision, the intent was formally manifested through the filing of the motion for appeal, and the filing was timely. Furthermore, as pointed out by the supreme court in Traigle, supra, after the amendment to La. C.C.P. art. 2124, the signing of an order of devolutive appeal has become “a mere formality.” Accordingly, we distinguish Hough, supra, and hold that the inadvertent failure to attach an order to the motion for appeal herein will not defeat appellant’s right to appellate review.

While there is no question that an order of appeal should be filed along with a motion for appeal, as required under Rule 9.8(C)' of the Louisiana District Court Rules, and as practiced in the courts of this state, the missing order in this case was supplied after the omission was called to appellant’s attention. In the interim, the motion apparently remained in the clerk of court’s office for approximately two months. We observe that not uncommonly, when a pro se litigant makes a written request for an appeal, or perhaps simply makes a filing that may be interpreted as a request for an appeal, a trial judge may simply write an order on the filing granting an appeal. Presumably, the clerk of a district court could do the same pursuant to La. C.C.P. art. 282. Furthermore, as previously noted, an order of appeal may be granted on oral motion in open court; in that instance a ■written order of appeal need never be signed. Accordingly, we agree with the supreme court’s observation in Traigle, supra, that the signing of an order for a devolutive appeal has become “a mere formality,” and we observe that the interest of justice hardly would be furthered by allowing a party to timely | afíle a motion for a devolutive appeal, only to have the appeal dismissed because the party unknowingly failed to furnish ah order of appeal and the motion simply sat in a clerk’s office for a month or more while the appeal delays expired.

For the reasons set forth above, appel-lee’s motion to dismiss is hereby denied.