author: J¿WALTER J. ROTHSCHILD, Judge.

text:
    Joseph ST. GERMAIN v. Tim COULON, Tim Whitmer and Parish of Jefferson.
    No. 04-CA-531.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 26, 2004.

      Vallerie L. Oxner, Metairie, LA, for PlaintiffiAppellant.
    Daryl A. Higgins, Michael D. Peytavin, Nicole M. Gober, Gretna, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY and WALTER J. ROTHSCHILD.
   J¿WALTER J. ROTHSCHILD, Judge.

' On July 19, 2002, the plaintiff, Joseph St. Germain, filed a “Petition for Defamation, Abuse of Rights, Intentional Misrepresentation of Facts and Intentional Infliction of Emotional Distress,” naming Tim Coulon, Tim Whitmer, and Jefferson Parish as defendants. In his petition, St. Ger-main asserts that he applied for a job with Jefferson Parish as a Mechanical Inspector I, and he was told that he was qualified and eligible for the job. However, St. Germain contends that he was denied the job, because . Coulon and Whitmer used their power and influence to prevent Jefferson Parish from hiring him. He asserts that Coulon and Whitmer prevented him from being hired, because he had complained a few years ago about the fee he was charged to tie into a sewer line during the construction of his residence.

St. Germain claims that Coulon and Whitmer made false and insulting statements about him to various people within Jefferson Parish and that the ^defendants are liable to him for damages caused- by defamation, abuse of rights, intentional infliction of emotional distress, and intentional misrepresentation of facts. St. Ger-main further asserts that Coulon and Whitmer were acting in the course and scope of their employment with Jefferson Parish and, therefore', Jefferson Parish is liable to him for the actions of its employees.

On August 26, 2002, Coulon, Whitmer, and Jefferson Parish filed Exception? of Vagueness, No Right of Action, and No Cause of Action. The matter came for hearing on March 5, 2003, and- the trial court granted the exception of vagueness with regard to the defamation allegations, but allowed St. Germain 30 days within which to amend the petition to state the dates of the alleged defamatory statements, the identity of who madb the statements and to whom, and the manner in which they were communicated. The trial court also granted the exception of no cause of action regarding the abuse of rights allegations, but allowed St. Germain 30 days within which to amend the petition to state the specific constitutional or statutory right allegedly abused. The trial court granted the exception of no right of action with regard to the claims of intentional misrepresentation of facts and dismissed those claims. In all other respects, the exceptions were denied.

On April 4, 2003, St. Germain filed an Amended Petition, in which he set forth his defamation claims with more particularity, indicating what statements were made, who made them, and to whom they were made. He states that the alleged defamatory statements were made either in person or over the telephone. With regard to the abuse of rights allegations, he states that the defendants refused to give him a job because he exercised his constitutional right to question and protest the amount he was charged for sewerage.

In response to the amended petition, Coulon, Whitmer, and Jefferson Parish filed Exceptions of Prescription, No Right of Action, No Cause of Action, |4and Vagueness. A hearing on the exceptions was held on July 2, 2003. With regard to the plaintiffs defamation claims, the trial judge found that the original and amended petitions did not set forth the publication element required to state a cause of action for defamation. Accordingly, the trial judge granted the exception of no cause of action for defamation as to Coulon, Whit-mer, and Jefferson Parish, and dismissed all of St. Germain’s defamation claims. The trial judge also granted the exception of no cause of action for abuse of rights as to Coulon and Whitmer, stating that the plaintiff did not state a cause of action against them in their individual capacity, but he overruled the exception of no cause of action for abuse of rights as to Jefferson Parish.

On July 17, 2003, St. Germain filed a Motion to Designate Judgment as a Final Judgment, seeking to appeal the trial judge’s ruling on the exceptions of no cause of action for defamation, as to all defendants, and no cause of action for abuse of rights, as to Coulon and Whitmer. The trial court granted the motion, finding that there was no just reason for delay, and this appeal ensued.

DISCUSSION

On appeal, St. Germain argues that the trial judge erred in sustaining the defendants’ exception of no cause of action for defamation, because: 1) the statements alleged were defamatory; 2) all of the statements were not intra-corporate communications between the defendants and other Jefferson Parish officials; and 3) the defense of intra-corporate communications is a qualified privilege that can only be raised as a defense and not as an exception of no cause of action. The defendants respond that the statements were not defamatory because they were expressions of opinion, and that communications were not “published” for purposes of a defamation action.

A peremptory exception of no cause of action tests the legal sufficiency of the plaintiffs petition by determining whether the law affords a remedy on the Isfacts alleged in the petition. Donnaud’s Inc. v. Gulf Coast Bank and Trust Co., 03-427 (La.App. 5 Cir. 9/16/03), 858 So.2d 4, 6, writ denied, 03-2862 (La.1/9/04), 862 So.2d 985. When considering an exception of no cause of action, the court must review the petition and presume all of the factual allegations of the petition to be true. Id. When the trial court grants an exception of no cause of action, the appellate court reviews the matter de novo, because the exception raises a question of law and the lower court’s decision is based only on the sufficiency ■ of the plaintiffs petition. August v. Grand Lake Construction, 02-632 (La.App. 5 Cir. 12/30/02), 837 So.2d 78, 81.

Defamation is a tort which involves the invasion of a person’s interest in his reputation and good name. Huxen v. Villasenor, 01-288 (La.App. 5 Cir. 9/25/01), 798 So.2d 209, 212. To maintain an action for defamation, the plaintiff must prove four elements: 1) a false and defamatory statement concerning another; 2) an unprivileged publication to a third party; 3) fault (negligence or greater) on the part of the publisher; and 4) resulting injury. Singleton v. St. Charles Parish, 02-590 (La.App. 5 Cir. 11/26/02), 833 So.2d 486, 496, unit denied, 02-3234 (La.3/14/03), 839 So.2d 44. The plaintiff must prove that the defendant, with actual malice or other fault, published a false statement with defamatory words which caused the plaintiff damages. Id. If even one of the required elements of the tort of defamation is lacking, the cause of action fails. Costello v. Hardy, 03-1146 (La.1/21/04), 864 So.2d 129, 140.

A plaintiff alleging a cause of action for defamation must set forth in the petition with reasonable specificity the defamatory statements allegedly published by the defendant. Fitzgerald v. Tucker, 98-2313 (La.6/29/99), 737 So.2d 706, 713. In a defamation action, the first inquiry is whether the words used are defamatory. Huxen v. Villasenor, supra at 212. Accordingly, we review the |fioriginal and amended petitions to determine whether the words allegedly used by the defendants are defamatory.

In the original petition, St. Ger-main asserts that Coulon and Whitmer “made statements to various people within the Parish saying that the Petitioner was a trouble maker, that he was trash, and that he would never get a job in Jefferson Parish.” In the amended petition, St. Ger-main contends that the following statements made by Coulon and/or Whitmer were defamatory:

1) that St. Germain “complained too much about the sewerage and burnt too many bridges;”
2).that St. Germain “caused too much trouble with the sewerage;”
3) that St. Germain was “out to get” Coulon;
4) that St. Germain was a “thorn in their side.”
5) that Coulon could not have anybody like St. Germain working for him because he complained too much about the sewerage;
6) that St. Germain was “trouble” and “trash” and “don’t give him the job.”

“Defamatory words” are, by definition, words which tend to harm the reputation of another so as to lower the person in the estimation of the community, to deter others from associating or dealing with the person, or otherwise expose a person to contempt or ridicule. Costello v. Hardy, supra at 140. The determination of whether a communication is capable of a particular meaning and whether that meaning is defamatory is ultimately a legal question for the court. Id.

An action in defamation does not lie from a statement of opinion based on the speaker’s subjective view, which does not expressly state or imply the existence of underlying facts, because falsity is an element of any defamation claim and a purely subjective statement can be neither true nor false. Brown v. Connor, 03-282 (La.App. 5 Cir. 10/15/03), 860 So.2d 27, 30; Singleton v. St. Charles Parish, supra at 496. Casual remarks made in informal conversation, even if they include unflattering words, do not constitute actionable defamation. Guillory v. State Farm Insurance Co., 94-1405 (La.App. 4 Cir. 9/28/95), 662 So.2d 104, 112.

In the present case, the words allegedly spoken by Coulon and Whitmer are not defamatory. In the original petition, St. Germain admits that he complained about the fee that he was charged to tie into the sewer line during the construction of his residence. The alleged statements by Coulon and/or Whitmer that he “complained too much about the sewerage” and “caused too much trouble with the sewerage” are clearly statements of opinion. Other alleged statements, such as St. Ger-main being “trash,” “trouble,” and a “thorn in their side,” are obviously statements of opinion based on the speaker’s subjective view, which do not expressly state or imply the existence of underlying facts.

We have carefully reviewed the original and amended petitions. Accepting the well-pleaded factual allegations as true, we find that the plaintiff has failed to allege any defamatory statements made by the defendants. Accordingly, we conclude that the facts alleged by the plaintiff do not state a cause of action for defamation, and the trial court correctly dismissed the plaintiffs claims for defamation against Coulon, Whitmer, and Jefferson Parish. Considering our finding that defamatory statements have not been alleged by the plaintiff, it is unnecessary to discuss the plaintiffs remaining arguments regarding his claims for defamation, such as publication.

On appeal, St. Germain further argues that the trial court erred in dismissing his claim for abuse of rights against Coulon and Whitmer individually. He asserts that Coulon and Whitmer refused to employ him in retaliation for his questioning the cost he was charged to tie in to the sewer line during construction of his | ¿residence. He argues that their refusal to hire him violated all rules of good faith and fairness.

The abuse of rights doctrine is a “civilian concept which is applied only in limited circumstances because its application renders unenforceable one’s otherwise judicially protected rights.” Wagner v. Fairway Villas Condominium Associates, Inc., 01-0734 (La.App. 3 Cir. 3/13/02), 813 So.2d 512, 518, unit denied, 02-1492 (La.9/20/02), 825 So.2d 1174. The abuse of rights doctrine applies when one of the following conditions is met:

1) if the predominant motive for exercise of the right is to cause harm;
2) if there is no serious or legitimate motive for exercise of the right;
3) if the exercise of the right violates moral rules, good faith, or elementary fairness; or
4) if the exercise of the right is for a purpose other than that for which it was granted.

Truschinger v. Pak, 513 So.2d 1151 (La.1987).

At the hearing on the defendants’ first exception of no cause of action for abuse of rights, the trial court granted the exception, but allowed St. Germain 30 days within which to amend the petition to state the specific constitutional or statutory right allegedly abused. In the amended petition, St. Germain did not comply with the trial court’s ruling. In fact, at the hearing on the defendants’ second exception of no cause of action for abuse of rights, which is at issue in this appeal, counsel for St. Germain admitted:

As far as the abuse of rights, Mr. Peyta-vin is right. I have not provided anything in our amended petition that I have not been able to come up with a constitutional right that I think — that I can allege that was abused at this particular point in time. So I did not amend the petition to include any additional facts for the abuse of rights. So I could concede that argument.

IflAfter a thorough review of the original and amended petitions, we find that the plaintiff has failed to set forth a cause of action for abuse of rights against Coulon and Whitmer individually. The original and amended petitions do not indicate a valid right that was allegedly abused by Coulon and Whitmer. Further, even if accepted as true, the factual allegations do not state a cause of action against these defendants for abuse of rights. Accordingly, we conclude that the trial court was correct in sustaining the exception of no cause of action for abuse of rights as to Coulon and Whitmer.

DECREE

For the reasons set forth above, we affirm the judgment of the trial court.

AFFIRMED.

      . The issue of whether the trial court was correct in finding that St. Germain stated a cause of action for abuse of rights against Jefferson Parish is not before us in this appeal.


source: Caselaw Access Project

author: | JAMES L. CANNELLA, Judge.

license: Public Domain

text:
    Robert SMITH v. MARATHON ASHLAND PETROLEUM LLC, Larry Echelber, XYZ Insurance Company, Harmony Corporation a Subsidiary of and/or Turner Industries, Ltd, Gary Doe, DEF Insurance Company, GHI Insurance Company and JKL Insurance Company.
    No. 04-CA-517.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 26, 2004.

      John J. Finckbeiner, Jr., Chalmette, LA, for Plaintiff/Appellant.
    William D. Wellons, Donna M. Young, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA, CLARENCE E. McMANUS.
   | JAMES L. CANNELLA, Judge.

The Plaintiff, Robert Smith (Smith), appeals from the summary judgment rendered in favor of the Defendants, Marathon Ashland Petroleum LLC (Marathon) and Larry Echelberger (Echelberger), finding that Marathon was a statutory employer. For the reasons which follow, we affirm.

Marathon contracted with Koch TPA, Inc. (Koch) to construct a new sulfur processing facility at Marathon’s refinery. Koch in turn entered into a subcontract with Harmony Corporation (Harmony) and Harmony entered into a subcontract with Basic Industries (Basic) to perform part of the same work. Smith was an employee of Basic, injured on September 25, 2000, while working on the Marathon project.

On September 25, 2001, Smith sued Marathon, its Division Manager, Echelber-ger, Harmony and a number of fictitiously identified insurance companies alleged to have provided insurance coverage for Smith’s injuries. On March 7, 2003, Marathon and Echelberger filed a motion for summary judgment, [¡¡statement of uncontested facts and memorandum in support of the motion on the grounds that Smith’s sole remedy was in Worker’s Compensation. On December 8, 2003 Harmony filed a similar summary judgment motion. The motions for summary judgment were heard on January 23, 2004 and taken under advisement. On, February 5, 2004, Smith voluntarily dismissed Harmony, reserving his rights against Marathon and Echelberger. On February 12, 2004, the trial court rendered summary judgment in favor of the Defendants, Marathon and Echelberger. In her reasons for judgment the trial judge found Marathon to be a statutory employer both under the two contract theory and as per the contractual language in the contracts entered into between the parties. It is from this judgment that Smith appeals.

On appeal, Smith first makes an eviden-tiary argument, arguing that the trial court erred in considering evidence not properly before the trial court, more specifically, the contract between Harmony and Basic. Smith argues that, because the exhibits in support of the motion for summary judgment were attached to the defense memorandum and not offered into evidence, they should not have been considered by the court.

Marathon disputes Smith’s allegations contending that the exhibits were attached to the Motion for Summary Judgment, presented to the trial court, referred to by name in argument, directing the trial court to language in the contracts and were placed in the record, all without objection. Moreover, Marathon points out that they submitted a Statement of Uncontested Material Facts specifically referencing the documents and Smith did not object to the statement of facts. Marathon argues, therefore, that the contracts were properly considered by the trial court.

|4The record indicates that the Motion for Summary Judgment, the Memorandum in Support of the Motion and the Exhibits were all filed at the same time and made part of the record. The contracts were referred to and relied on by Marathon during argument on the motion without objection. The trial judge was. referred to the exhibits during the argument and considered them during the hearing, without objection. Moreover, counsel for Smith also referred to the exhibits during his argument in opposition to the motion for summary judgment. Given the fact that both parties referred to the exhibits during the argument on the motion, the trial court viewed and considered the documents without objection, the exhibits are part of the record, and any objection to the exhibits is being raised for the first time on appeal, we find no merit in Smith’s argument. The exhibits, consisting of the contracts between Marathon, Koch, Harmony and Basic, were properly considered by the trial court and will be considered by this Court on appeal.

Next, Smith argues that the trial court erred in granting the summary judgment based on its finding of a statutory employer/employee relationship between Smith and Marathon. Smith argues that the relationship between Smith and Marathon does not fit the definition of a statutory employer/employee under either the “two-contract” theory or as provided in the contracts between the parties.

It is well settled that appellate courts review summary judgments de novo using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., 93-2512 (La.7/5/94), 639 So.2d 730, 750; Nuccio v. Robert, 99-1327 (La. App. 5th Cir. 04/25/00), 761 So.2d 84, writ denied, 00-1453 (La.6/30/00), 766 So.2d 544; Moody v. United Nat. Ins. Co., 98-287 (La.App. 5th Cir.9/29/98), 743 So.2d 680. Thus, this court must consider whether there is any genuine issue of material fact, | Rand whether the mover is entitled to judgirient as a matter of law. Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191; Smith, supra. Moreover, the summary judgment procedure is favored, and shall be construed,. as it was intended, to secure the just, speedy, and inexpensive determination of most actions. La. C.C.P. art. 966(A)(2); Magnon v. Collins, supra.

La. R.S. 23:1061, on principal liability, provides as follows:

A. (1) Subject to the provisions of Paragraphs (2) and (3) of this Subsection, when any “principal” as defined in R.S. 23:1032(A)(2), undertakes to execute any work, which is a part of his trade, business, or occupation and contracts with any person, in this Section referred to as the “contractor”, for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal, as a statutory employer, shall be granted the exclusive remedy protections of R.S. 23:1032 and shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed. For purposes of this Section, work shall be considered part of the principal’s trade, business, or occupation if it is an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.
(2) A statutory employer relationship shall exist whenever the services or work provided by the immediate employer is contemplated by or included in a contract between the principal and any person or entity other than the employee’s immediate employer.
(3) Except in those instances covered by Paragraph (2) of this Subsection, a statutory employer relationship shall not exist between the principal and the contractor’s employees, whether they are direct employees or statutory employees, unless there is a written contract between the principal and a contractor which is the employee’s immediate employer or his statutory employer, which recognizes the principal as a statutory employer. When the contract recognizes a statutory | ^employer relationship, there shall be a rebuttable presumption of a statutory employer relationship between the principal and the contractor’s employees, whether direct or statutory employees. This presumption may be overcome only by showing that the work is not an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.
B. When the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this Section would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor.

The statutory scheme provides two methods by which a principal can establish the statutory relationship and thus tort immunity: (1) under the “two-contract” theory and (2) where the contract provides for a statutory relationship a rebuttable presumption is created.' The presumption may be rebutted by showing that the work is not an integral part of or essential to the ability of the principal to generate ■ that individual principal’s goods, products, or services.

In reviewing this case we find that the Marathon-Koch contract, the Koch-Harmony contract and the Harmony-Basic contract all possess the requisite statutory employer language necessary to satisfy the requirements of La. R.S. 23:1061(A)(3). More specifically, the contract ‘between Marathon and Koch provided in' paragraph 22.5 as follows:

Work Performed in Louisiana — This Article 22.5 shall apply only to work performed in the State of Louisiana. For purposes of the Louisiana Workers’ compensation Law, La. R.S. 23:1021 et seq., the parties agree that the work performed by contractor and its employees pursuant to the contract are an integral part of and are essential to the ability of company to generate company’s goods, products and services, and that contractor’s work and services shall be considered part of company’s trade, business, and occupation, for purposes of La. R.S. 23:1061(A) only. Irrespective of company’s status either as the statutory employer or as the special employer (as defined in La. R.S. 23:1031(0) of contractor’s employees, regardless of any other relationship or alleged relationship between the parties employees, contractor shall be and remain at all times primarily responsible for the payment of Louisiana Workers’ Compensation Benefits to its 17employees, and neither contractor nor its underwriters shall be entitled to seek contribution for any such payments from company.:

The contract between Koch and Harmony provided the exact same language as that contained in the Marathon-Koch contract. The contract between Harmony and Basic provided:

To the maximum extent permitted by law, Subcontractor [Basic] and Contractor [Harmony] contemplate that Contractor and Owner [Koch and Marathon] shall be considered the statutory employer of any and all of Subcontractor’s employees hired or retained in any manner by Contractor while Contractor’s and/or any such Subcontractor’s employees are performing work and/or services under this contract between Owner and Contractor in the state of Louisiana (Ref. Art 315, La. R.S. 23:1032(A)(2) effective June 17,1997).

A contract has the effect of law between the parties. La. C.C. art. 1983. If the words of a contract are clear, explicit,, and lead to no absurd results, they must be interpreted by reference to the four corners of the document and enforced as written. La. C.C. art. 2046; LeBlanc v. Babin, 00-1813 (La.App. 5th Cir.4/24/01), 786 So.2d 850, 855. On review we find the words and intent of these provisions clear and unambiguous, creating a statutory employer/employee relationship between Marathon and Smith, a Basic employee.

According to the statute, once it is found that a valid written contract establishes a statutory employer relationship, there is a rebuttable presumption between the principal and the contractor’s employee that can only be overcome by showing that the work is not an integral part of or essential to the ability of the principal to generate that principal’s goods, products, or services. La. R.S. 23:1061(A)(3). Smith argues that the work under contract was for the construction of a sulfur plant and that Marathon was not.engaged in this kind of work at the time of the injury.

^Marathon argues to the contrary that the contracted for work being performed by Smith as a Basic employee was an integral part of or essential to the ability of Marathon to generate its goods, products, or services. Marathon operated a refinery which was constantly undergoing change and updating its facility. The construction of a sulfur plant was a necessary update for Marathon to continue to produce petroleum products from crude oil.

Smith counters that the sulfur plant may in the future be an integral part of or essential to the ability of Marathon’s refinery, but at the time of the accident, it was not. In other words, the construction being done at the time of the accident was in the nature of new construction which is not covered by the statute.

Prior to the 1997 amendment to La. R.S. 23:1061, new construction was not considered an integral part of a principal’s business. However, this Court has had occasion to reconsider this issue subsequent to the amendment and has determined that the legislature intended that new construction come within the section and be considered an integral part of or essential to the ability of the principal to generate its goods, products, or services. Applegarth v. Transamerican Refining Corp., 00-1547 (La.App. 5th Cir.2/28/01), 781 So.2d 804, twits denied, 01-0834 (La.5/11/01), 792 So.2d 738. We note further that Apple-garth has been followed by our brethren on the Third Circuit where they likewise held that new construction was an essential part of the principal’s ability to generate its goods, products or services. Trent v. PPG Industries, Inc., 03-1068 (La.App. 3rd Cir.2/4/04), 865 So.2d 1041. Thus, because Smith failed to rebut the presumption of statutory employee established by the clauses in the contracts between the parties, and upon finding no material issues of fact and that Marathon is entitled to judgment as a matter of law, we find that the summary judgment was properly granted.

| sAccordingly, for the reasons stated above, the summary judgment rendered in favor of Marathon and Echelberger and against Smith is affirmed. Costs of appeal are assessed to Smith.

AFFIRMED.

      . Another Defendant, Turner Industries, was also named in the original suit but dismissed shortly thereafter.

      . Smith concedes that if the judgment is proper as to Marathon it would be proper as to Echelberger, therefore, the arguments herein applicable to Marathon will be held to apply to Echelberger also.

      . The first page of the Harmony-Basic contract provided that Harmony would be referred to as the Contractor, Basic as the Subcontractor and Koch and Marathon as the Owner.

      . Based on our determination regarding the contractual provisions, the presumption and the lack of a rebuttal, we find it unnecessary to address Smith's arguments regarding the two-contract theory.


author: 1 PEATROSS, J.

text:
    Johnny JACKSON, et al., Plaintiffs-Appellees v. ESTATE OF Ellen P. JONES, et al., Defendants-Appellants.
    No. 39,056-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 27, 2004.

      W. James Singleton, Shreveport, for Appellants.
    Lunn, Irion, Salley, Carlisle, & Gardner, by Jack E. Carlisle, Jr., W. Orie Hunter, III, James A. Mijalis, Shreveport, for Ap-pellees.
    Before GASKINS, PEATROSS & LOLLEY, JJ.
   1 PEATROSS, J.

This is an appeal from a judgment granting an exception of improper cumulation of actions in a wrongful death lawsuit. For the reasons stated herein, we find that plaintiffs-in-intervention/appellants Betty Jean Thomas, Herman Powell, Roy Powell, Stella Powell, Clyde Powell and Tommy Powell (collectively referred to herein as “the Jones nieces and nephews”) have no right of action in this lawsuit; and, therefore, we affirm the dismissal of the petition for intervention in this case as to those individuals. As to plaintiff-in-intervention/appellant Dallas Powell, we reverse the judgment of the trial court and remand the matter to the trial court for further proceedings.

FACTS

On May 14, 2001, Geneva Jackson was riding as a guest passenger in an automobile owned and operated by Ellen P. Jones on Louisiana Highway 509. While making a left turn, the Jones vehicle was struck by a truck driven by Roland D. Haines and owned by Donny Fountain. Both Ms. Jackson and Ms. Jones died as a result of injuries suffered in the accident. On October 26, 2001, Ms. Jackson’s children filed a wrongful death suit against the estate of Ellen P. Jones and her insurer, Mutual Service Casualty Insurance Company (“Mutual Service”). The suit also named Roland G. Haines (“Haines”) and Donny Fountain (“Fountain”) as defendants and asserted that Haines was either an employee of Fountain at the time of the accident, or was on a joint mission and errand for him and Fountain. Texas All Risk Direct Bill Insurance Company (“Texas All Risk”) also was named as a defendant for being Fountain’s liability insurer.

|gIn May 2003, the plaintiffs, along with the estate of Ellen P. Jones and Mutual Service, filed a joint motion and order to dismiss the plaintiffs’ claims against these two defendants as the result of a compromise and settlement. The motion was granted, and the plaintiffs’ claims against these two defendants were dismissed with prejudice.

Subsequently, in August 2003, Betty Jean Thomas, Herman Powell, Roy Powell, Stella Powell, Clyde Powell and Tommy Powell filed a petition for intervention, containing the following allegation:

2.
Petitioners aver that they are the surviving nieces and nephews of Ellen P. Jones, deceased, who died on May 14, 2001.

The Jones nieces and nephews sought wrongful death damages as the result of Ms. Jones’ death and made virtually identical factual allegations to those in the original wrongful death petition, except for asserting that Ms. Jones in no way contributed to the accident and was free of fault. An amended petition for intervention followed on October 2, 2003, adding Dallas Powell as a petitioner in intervention who was alleged to be “an heir of Ellen P. Jones.”

On October 23, 2003, the original plaintiffs’ demands against Fountain, Haines and Texas All Risk were dismissed with prejudice as the result of a joint motion and order filed by these parties based on a compromise agreement. Then, on October 30, 2003, Fountain, Haines and Texas All Risk filed an exception of improper cumu-lation of actions seeking dismissal of both the petition for intervention and the amended petition for [..¡intervention. Following a hearing on February 17, 2004, on the exception of improper cumulation of actions, the trial court took the exception under advisement, subsequently granted the exception and dismissed the would-be intervenors’ petitions. This appeal followed.

DISCUSSION

The Jones nieces’ and nephews’ right of action

In their brief on appeal, the Jones nieces and nephews state that, as intestate heirs of Ms. Jones, they have the “right” to represent their deceased parents in this action. The issue, more correctly stated, is whether the Jones nieces and nephews have a “right of action” or are plaintiffs with interest to institute the suit for wrongful death damages for the death of their aunt. La. C.C.P. art. 927. Stated differently, the query is whether the children of the deceased’s brothers and sisters inherit a right of action for their aunt’s alleged wrongful death.

An action can be brought only by a person having a real and actual interest which he asserts. La. C.C.P. art. 681. In cases where the law grants a remedy to certain persons for the particular harm alleged by the plaintiff, the exception of no right of action raises the issue of whether the plaintiff belongs to that particular class to which the law grants the remedy. Day v. Morehouse General Hospital, 37,803 (La.App.2d Cir.1/28/04), 865 So.2d 924, unit denied, 04-0504 (La.4/8/04), 870 So.2d 275; Deal v. Powell, 37,686 (La.App.2d Cir.12/10/03), 862 So.2d 398, writ not considered, 04-0165 (La.3/19/04), 869 So.2d 836; Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328 (1972). When the facts alleged in the |4petition provide a remedy to someone, but the plaintiff who seeks the relief for himself is not the person in whose favor the law extends the remedy, the exception of no right of action should be sustained. Vincent v. Vincent, 98-1346 (La.App. 1st Cir.6/25/99), 739 So.2d 920; Guidry v. Dufrene, 96-0194 (La.App. 1st Cir.11/8/96), 687 So.2d 1044.

An exception of no right of action is peremptory and may be pled at any stage of the proceeding or on appeal. La. C.C.P. art. 927(B). The existence, or lack thereof, of a plaintiffs right of action, or interest to institute the suit, may also be noticed by either the trial court’s or appellate court’s own motion. Id.

During oral argument in the case sub judice, this court requested clarification regarding the identities of the plaintiffs-in-intervention and their respective relationships to the -deceased Ms. Jones. In response, the appellants advised this court that Dallas Powell is a surviving brother of' the deceased Ms. Jones. Betty Jean Thomas, Herman Powell and Roy Powell are the children of Lena Powell, a predeceased sister of Ms. Jones. Stella Powell, Clyde Powell and Tommy Powell are children of Dick Powell, a predeceased brother of Ms. Jones.

La. C.C. art. 2315.2 states.in pertinent part:

Art. 2315.2. Wrongful death action
A. If a person dies due to the fault of another, suit may be brought by the following persons to recover damages which they sustained as a result of the death:
(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children:
| s(2) The surviving father and mother of the deceased, or either of them if he left ■no spouse or child surviving.
(3) The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.
(4) The surviving grandfathers and grandmothers of the deceased, or any of them, if he left no spouse, child, parent, or sibling surviving.
* * *
C. The right of action granted under this Article is heritable, but the inheritance of it neither interrupts nor prolongs the prescriptive period defined in this Article.

This court has interpreted the heritability of the right of action created by article 2315.2- in Rachal v. Peters, 28,655 (La. App.2d Cir.9/25/96), 680 So.2d 1280, wherein we held that “it is -only when the codal beneficiary who survives the decedent later dies that the beneficiary’s heir ‘inherits’ the beneficiary’s right to bring” the wrongful death action. (Emphasis in original.)

In the case sub judice, Ms. Jones’ siblings, Lena and Dick Powell, through whom the nieces and nephews attempt to inherit this right of action, predeceased Ms. Jones. In other words, those siblings did not survive Ms. Jones, which is required for the right of wrongful death action to come into existence. Had they survived Ms. Jones and then died, the right of action would have been passed to the nieces and nephews herein. For this reason, and noticing the exception of no right of action on our own motion, we conclude that the Jones nieces and nephews are not part of the class of persons to whom article 2315.2 affords a remedy. Accordingly, the petition for intervention filed by the Jones nieces and nephews is dismissed.

| ^Dallas Powell, however, may be a proper plaintiff-in-intervention under article 2315.1 as he is the surviving brother of Ms. Jones. Nothing in the record indicates that Ms. Jones was survived by any of the persons described in article 2315.2(1) or (2), who would be higher in priority than brothers and sisters as far as the wrongful death action is concerned. Our finding of no right of action, therefore, does not extend to the amended petition in intervention adding Dallas Powell as a plaintiff and our discussion of the exception of improper cumulation of actions is limited to the wrongful death action of Dallas Powell.

Improper Cumulation of Actions

The provisions of La. C.C.P. art. 1091 on intervention state:

A ■ third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:
(1) Joining with plaintiff in demanding the same or similar relief against the defendant;
(2) Uniting with defendant in resisting the plaintiffs demand; or
(3) Opposing both plaintiff and defendant.

We must determine whether Dallas Powell is a third person having an interest in this wrongful death action to enforce a right “related to or connected with the object of the pending action” who could intervene by joining with the plaintiffs (prior to the plaintiffs’ dismissal of their claims against these defendants) in demanding “the same or similar relief’ against Fountain, Haines and Texas All Risk.

In Williams v. Jefferson, 586 So.2d 666 (La.App. 2d Cir.1991), the driver of an automobile involved in a collision filed suit against the driver |7of the other vehicle, but not against the father of the driver of the other vehicle, who owned that vehicle and who was a passenger in it at the time of the collision. Subsequently, the father and son defendants filed a document styled as an answer and reconventional demand in which they contended that the collision was caused by a combination of the plaintiffs’ negligence and the glare from a light owned by Louisiana Power and Light Co. (LP & L) that was alleged to be too close to the road. The defendants’ document named both the plaintiff and LP & L as defendants. On appeal, we noted that this court had previously taken a liberal view of interventions in the case of Banks v. Rattler, 426 So.2d 362 (La.App. 2d Cir.1983), and we held that the tort claim filed by the father mét the requirements of an intervention as set out in La. C.C.P. art. 1091. We noted that the father’s claim was “to enforce a right related to or connected with the object of the pending action” and sought similar relief to that demanded by the son against the same defendants. In Banks, supra, a Mrs. Rhymes was brought into a lawsuit by a third-party demand; she answered and reconvened against two of the defendants, and her husband, who had not previously been a party to the lawsuit, then sought to intervene by the same pleading. We held that Mr. Rhymes had properly intervened, citing other cases that had broadly interpreted the scope of interventions.

In Home Indemnity Co. v. Central Louisiana Electric Co., 384 So.2d 455 (La.App. 3d Cir.1980), writ refused, 392 So.2d 664 (La.1980), a workman was injured while the company for which he worked was constructing a railroad for a third party. The workmens’ compensation | insurer of the injured worker’s company brought suit against Central Louisiana Electric Co., whose negligence was alleged to be a proximate cause of the worker’s injuries. The third party subsequently sought to intervene in the action seeking indemnity or contribution from CLECO after having paid tort damages to the injured worker in a separate lawsuit filed by that worker in a Texas federal court. One of the issues on appeal was whether the intervention was proper. Although the trial court had sustained the exception of improper use of intervention, the appellate court reversed, finding that more recent cases gave a more liberal interpretation to the right of intervention. The appellate court found there was a sufficient connexity between the third party claim against CLECO and the principal demand of the workmens’ compensation insurer’s claim for recovery of payments made to the injured worker. The court stated that both claims arose out of the same accident and rested upon the same alleged acts of negligence of CLE-CO. The third party’s intervention, therefore, sought “to enforce a right related to or connected with the object of the pending action.”

In light of the foregoing discussion, we again affirm a liberal view of interventions and conclude that the intervention of Dallas Powell meets the requirements of intervention set forth in La. C.C.P. art. 1091 because he seeks to enforce a right related to or connected with the object of the action pending at the time the petitions for intervention were filed. Dallas Powell 19seeks similar relief against Fountain, Haines and Texas All Risk to that sought by the original plaintiffs against those defendants.

CONCLUSION

For the reasons set forth above, finding that Betty Jean Thomas, Herman. Powell, Roy Powell, Stella Powell, Clyde Powell and Tommy Powell have no right of action for the wrongful death of their aunt, Ellen P. Jones, the judgment of the trial court dismissing those individuals claims is affirmed. The judgment of the trial court sustaining the exception of improper cu-mulation of actions as to the remaining plaintiff-in-intervention, Dallas Powell, is hereby reversed, and this matter is remanded for further proceedings. Costs are assessed equally among appellants Betty Jean Thomas, Herman Powell, Roy Powell, Stella Powell, Clyde Powell, Tommy Powell and appellees Donny Fountain, Roland G. Haines and Texas All Risk Direct Bill Insurance Company.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

      . Appellees cite authority from the third and fourth circuit courts of appeal in support of their argument that, in order for the right asserted by an intervenor to be sufficiently connected or related to the principal action, a judgment on the principal action must "have a direct impact on the intervenor's rights.” See Sawtelle v. American National Agents Insurance Group, 94-1091 (La.App. 3d Cir.3/1/95), 651 So.2d 456 and Harvey v. Cole, 02-1704 (La.App. 4th Cir.4/30/03), 845 So.2d 591. We note that this court has not utilized this stringent standard, but, rather, as previously stated, has consistently held a liberal view toward intervention. Nonetheless, we conclude that in the case sub judice, a judgment on the principal action could directly impact Dallas Powell's rights. For example, if there is only one insurance policy providing coverage for the loss, the proceeds of which will be distributed among successful plaintiffs, clearly any money judgment against the insurer would directly impact the other potential plaintiffs’ rights.


author: | .MOORE, J.

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.
    Oct. 27, 2004.

      Cook, Yancey, King & Galloway, by Bryce J. Denny Shreveport, for appellant.
    Wiener, Weiss & Madison, by James R. Madison, Shreveport, for appellee.
    Before WILLIAMS, PEATROSS and MOORE, JJ.
   | .MOORE, J.

A local acute care hospital admitted an out-of-state minor patient for treatment after verifying her dependent insurance coverage through the employer’s self-funded insurance plan administrator. Subsequently, the employer reduced the patient’s maximum benefits retroactively, thereby eliminating coverage for a large part of the treatment costs' provided by the hospital. The hospital sued for tor-tious misrepresentation. From a summary judgment granted in favor of the hospital, the defendant appeals. For the reasons that follow, we affirm.

FACTS

This is an action for damages allegedly arising out of tortious misrepresentation. Lifecare Hospitals, Inc: (“Lifecare”) is an acute care hospital located in Shreveport, Louisiana. The defendant, B & W Quality Growers, Inc., is a multi-state farming operation based in Fellsmore, Florida. The dispute in this case arose out of insurance coverage for 58 days of hospital care provided by Lifecare to an acutely ill, 17 year-old patient, Jennifer Franco (“Franco”). Franco was covered as an employee dependent under B & W’s self-funded health insurance plan (“Plan”).

Lifecare alleges that Franco’s hospital bill for the medical services it rendered amounted to $142,908.47. Prior to admitting Franco on December 20, 2000, Life-care verified that Franco had health insurance that would cover Lifecare’s services. Lifecare alleged that it was advised by B & W’s Plan administrator, Professional Administrators, Inc. (“PAI”), that Franco’s health insurance provided a two million dollar, lifetime maximum benefit, of which $380,000 had been used, leaving $1,620,000 benefits remaining. | ^Lifecare alleged that it admitted Franco for treatment based on representations of coverage by B &■ W’s agent, PAI, and it would not have admitted Franco had it known that insurance coverage would not be available because of B & W’s decision to retroactively reduce benefits.

On January 17, 2001, Franco’s mother informed Lifecare that B & W told her husband that its health care Plan had been modified to decrease the lifetime maximum benefit from $2,000,000 to $400,000, and the reduction applied retroactively to the date coverage began. At that time, Franco was seriously ill and could not be safely released until February 17, 2001. Because of the reduction in the maximum lifetime ' benefit, Franco’s lifetime maximum benefit was already exhausted before Lifecare could be paid for all its services, leaving an unpaid balance of $81,762.92.

Lifecare filed the instant suit on June 29, 2001 against B & W for breach of its duty to provide complete and accurate information through its agent, PAI, regarding Franco’s insurance coverage, including its plans to reduce the lifetime maximum benefit. It sought damages equal to the amount owed for the patient’s treatment, plus legal interest on that amount from the date of judicial demand, and that defendant be cast for costs of the proceedings.

B & W did not file an answer to Life-care’s petition, but instead filed a petition for removal of the case to Federal District Court for the Western District of Louisiana, Shreveport Division, alleging that the .case was governed by 29 USC § 1001 et seq., commonly known as ERISA, an acronym for the Employee Retirement Income Security Act. B & W [..¡contended that any remedy to which Lifecare is entitled is exclusively provided under ERISA.

Lifecare filed a motion to remand the case back to state district court. On December 10, 2001, U.S. Magistrate Roy Payne granted the motion to remand and ordered the case remanded back to the First Judicial District Court. B & W appealed to the district court for review of the magistrate’s order. U.S. District Judge Tom Stagg reviewed the magistrate’s order de novo and affirmed the order to remand the case back to state district court on March 15, 2002.

Following remand to the First Judicial District Court, B & W filed the declinatory exception of lack of jurisdiction in person-am. B & W alleged that it owns no property in Louisiana and does not engage in any of the activities under La. R.S. 13:3201 that would confer personal jurisdiction. Additionally, it alleged that the exercise of personal jurisdiction over B & W would offend traditional notions of fair play and substantial justice.

The court overruled the exception, expressly relying on the analysis in the case of Guidry v. United States Tobacco Co. Inc., 188 F.3d 619 (5th Cir.1999), a case which held that a tort committed outside the state that causes damage within the state can confer personal jurisdiction over the tortfeasor. Subsequently, the trial granted Lifecare’s motion to compel compliance with its discovery requests in the form of interrogatories and production of documents, including any and all agreements between B & W and PAI.

On June 30, 2003, Lifecare filed a motion for summary judgment on its' negligent misrepresentation claim. B & W opposed the motion, again |4asserting that the trial court lacked in personam jurisdiction and that the claim was preempted by ERISA. B & W insisted that the claim was really a claim for coverage under the Plan, and the claim was without evidentiary support, claiming that there was no proof that the claim would have been paid but for the change in coverage limits. It further argued that neither the Plan administrator, PAI, or the case management company, Beachtree, both of whom. Lifecare had communicated with regarding the admission and care of Franco under the Plan, were authorized by B & W to misrepresent coverage under the Plan.

The trial court granted Lifecare’s motion for summary judgment. B & W filed this appeal, alleging that the trial court erred in finding that the district court had personal jurisdiction over B & W, that it erred finding that this claim was not preempted by federal law, and that it erred in granting summary judgment on insufficient evidence.

Discussion

Personal Jurisdiction

B & W is a large-scale agricultural corporation domiciled in Florida with farms located in Florida, Tennessee, Alabama, West Virginia, Maryland and Pennsylvania. The company grows and markets herbs such as cilantro, mint and watercress. B & W does not conduct business in Louisiana and has never conducted agricultural business in this state and has no customers or employees in this state. The only contact with this state has been through its agent, PAI, the Plan administrator for its self-funded medical insurance plan, and that contact amounted to telephone calls verifying coverage. B & W argues that a telephone call to verify insurance ^coverage does not constitute minimum contacts sufficient to support the exercise of personal jurisdiction. Memorial Hospital System v. Blue Cross, 830 F.Supp. 968 (S.D.Tex.1993).

Jennifer Franco was a dependent of one of B & W’s employees, Tony Franco. Mr. Franco lives in Tennessee and manages one of B & W’s farms in New Market, Alabama. Jennifer, age 17, suffered a severe stroke and was brought to Louisiana by her mother for special acute care treatment at Lifecare Hospital. B & W argues that since it had no control over the parent’s decision to bring Franco to Louisiana, it did not “purposely avail itself of the benefits” and protection of Louisiana.

Lifecare, on the other hand, alleges that the tortious conduct of B & W and its Plan administrators outside the state caused injury in Louisiana, and, therefore, Louisiana can exercise specific personal jurisdiction over B & W. Guidry v. United States Tobacco Company, Inc. et al., supra. The tortious conduct of B & W consisted of a breach of its duty to give accurate and current information regarding the limits of medical coverage under the Plan. Lifecare contends that B & W knew that it was going to reduce the lifetime maximum benefits retroactively but failed to disclose that information to Lifecare through its Plan administrator. As a result of B & W’s failure to give accurate information in this regard, Lifecare suffered a considerable economic loss.

Additionally, Lifecare contends that the several telephone conversations regarding coverage, the care plan agreement for Ms. Franco, and payment of part of her medical bill at Lifecare constituted minimum contacts sufficient to support the exercise of personal jurisdiction.

|fiWe begin our analysis with Louisiana’s “long-arm” statute, La. R.S. 13:3201, which provides that a Louisiana court may assert personal jurisdiction over a non-resident defendant under the following circumstances:

Personal jurisdiction over nonresidents
A. A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from any one of the following activities performed by the nonresident:
(1) Transacting any business in this state.
(2) Contracting to supply services or things in this state.
(3) Causing injury or damage by an offense or quasi offense committed through an act or omission in this state.
(4) Causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives revenue from goods used or consumed or services rendered in this state.
(5) Having an interest in, using or possessing a real right on immovable property in this state.
(6) Non-support of a child, parent, or spouse or a former spouse domiciled in this state to whom an obligation of support is owed and with whom the nonresident formerly resided in this state.
(7) Parentage and support of a child who was conceived by the nonresident while he resided in or was in this state.
(8) Manufacturing of a product or component thereof which caused damage or injury in this state, if at the time of placing the product into the stream of commerce, the manufacturer could have foreseen, realized, expected, or anticipated that the product may eventually be found in this state by reason of its nature and the manufacturer’s marketing practices.
B. In addition to the provisions of Subsection A, a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and of the Constitution of the United States.

^Louisiana’s long-arm statute extends personal jurisdiction to the limits of due process, which means that this court need only determine whether subjecting B & W to suit in Louisiana would offend the Due Process Clause of the Fourteenth Amendment. Thomas v. Kennedy, 75 Fed. Appx. 281, 2003 WL 22134568 (5th Cir.(La.) Sep 16, 2003); Fox v. Board of Supervisors of Louisiana State, 576 So.2d 978 (La.1991). Personal jurisdiction may be asserted over a nonresident defendant only if that defendant has certain “minimum contacts” with the forum such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). There are two categories of minimum contacts with a state that may subject a defendant to jurisdiction in that forum. A state has specific jurisdiction over a defendant when the suit arises out of or is related to the defendant’s contacts with the forum state. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 8, 104 S.Ct. 1868, 1872 n. 8, 80 L.Ed.2d 404 (1984). A state has general jurisdiction over a defendant when the defendant has continuous and systematic contacts with the forum state. Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 72 S.Ct. 413 96 L.Ed. 485 (1952). In the context of general jurisdiction, “minimum contacts” means that the defendant has purposely availed himself of the privilege of conducting activities within the forum state and should reasonably anticipate being haled into court in the forum state. Langley v. Oxford Chemicals, Inc., 634 So.2d 950 (La.App. 2 Cir.1994) citing Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). Personal jurisdiction may be | Sexercised over a defendant even when the suit does not arise out of the defendant’s contacts with the forum state. Helicopteros, 466 U.S. at 415 n. 9, 104 S.Ct. at 1872 n. 9.

When a defendant alleges that the court does not have personal jurisdiction, a plaintiff need only make a prima facie showing of jurisdiction. Asarco, Inc. v. Glenara, Ltd., 912 F.2d 784, 785 (5th Cir.1990). The allegations in the complaint are taken as true except as controverted by the defendant’s affidavit. Id. All conflicts are resolved in favor of the plaintiffs. Id.

B & W argues that there is no jurisdiction because this is not a case of misrepresentation. It contends that it was under no duty to inform Lifecare that it was considering reducing the maximum benefit for its employees under its healthcare Plan on December 15, 2000 when PAI told Lifecare that Jennifer Franco had a $1,620,000 lifetime benefit remaining. B & W apparently withheld disclosure of that information until the decision to reduce the lifetime benefit was implemented retroactively to the date of coverage in early January. B & W insists, therefore, that there was never any misrepresentation to Lifecare regarding the amount of coverage. Accordingly, personal jurisdiction must be based on the telephone calls to PAI verifying coverage, and these are insufficient to meet the “minimum contacts” requirements under the law.

In Guidry v. U.S. Tobacco Co., Inc., supra, a Louisiana tobacco consumer brought a suit against several tobacco trade associations alleging that the associations, through their advertisements and published articles, created a false impression that the addictive and carcinogenic effects of |3tobacco products were much less than the associations knew them to be, and that the consumer suffered physical injuries as a result of relying on those false representations. Taking as true the alleged facts in the plaintiffs complaint and shown by the depositions and affidavits, the court concluded that the plaintiffs made a prima facie showing that each of the tobacco trade associations had engaged in acts and omissions that included intentional and negligent misrepresentations that caused the plaintiff to suffer injury, and that this constituted sufficient minimum contacts with Louisiana to confer personal jurisdiction. Citing a long line of cases, the court stated that when a nonresident defendant commits a tort within the state, or an act outside the state that causes toHious injury within the state, that tortious conduct amounts to sufficient minimum contacts with the state by the defendant to constitutionally permit courts within that state to exercise personal jurisdiction. Guidry, supra at 628. (Emphasis ours). An act committed outside the state that has consequences or effects in the state will suffice as a basis for jurisdiction in a suit arising from those effects if the consequences or effects are seriously harmful and were intended or highly likely to follow from the nonresident defendant’s conduct. Id.

The facts in Guidry are somewhat distinguishable from the instant case in that the consequences or effects of the misrepresentation resulted in physical harm to the plaintiff. In this case, Life-care alleges that it suffered economic loss as a result of B & W’s failure to inform Lifecare that it planned to reduce the lifetime maximum benefit. The question is whether merely an economic loss in the state caused by an out-of-state defendant is sufficient to warrant the exercise of personal jurisdiction over the defendant. | Additionally, we note that B & W had no direct communication with Lifecare. The only communications Lifecare had regarding coverage was with PAI and the care plan. Finally, the situation is further complicated by this fact: At the time Lifecare communicated with PAI regarding the limits of coverage in mid-December of 2000, B & W was considering, but had not yet acted upon, the suggestion of PAI to reduce the lifetime benefit for members in the Plan.

We conclude initially that the consequences or effects in the form of an economic loss suffered by Lifecare are sufficient to support the assertion of personal jurisdiction. The scenario depicted in this case is one that is reenacted each day across the country when a patient in need of medical care requests admission to a hospital (or seeks treatment from a doctor). Because of the high cost of medical care, many providers like Lifecare have only limited budget allocations for indigent care and for losses from patient nonpayment. Naturally, the provider wants to know if payment can reasonably be expected. Thus, one of the first steps in accepting a patient for treatment is to determine a financial source for the cost of care to be provided.

If a provider believes that a patient may be covered under a health care plan, it is a customary practice to communicate with the plan agents to verify eligibility and coverage. If the provider confirms that a patient has health insurance that covers a substantial part of the expected costs of the health care, it will normally agree to admit the patient without further inquiry. An insurer should recognize the commercial implications to the provider of its assurances regarding coverage benefits. The consequences In of misinformation or false representation as to coverage can be dramatic and far reaching.

The only question is whether the risk of non-payment should remain with the provider or be shifted to B & W, which through its agent misrepresented to the provider that the patient’s lifetime benefit was sufficient to cover the treatment Life-care was offering. This determination is best made through the duty/risk analysis, provided that the state recognizes an action for damages for misrepresentation.

Louisiana is a jurisdiction which allows recovery in tort for purely economic loss caused by misrepresentation even where privity of contract is absent. Barrie v. V.P. Exterminators, Inc., 625 So.2d 1007 (La.1993) (Citations omitted). Although negligent misrepresentation is a common law tort, Louisiana Civil Code articles 2315 and 2316 are sufficiently broad to encompass a cause of action for negligent misrepresentation. Devore v. Hobart Mfg. Co., 367 So.2d 836 (La.1979); Barrie, supra. Louisiana appellate courts have integrated the common law negligent misrepresentation tort doctrine into the duty/risk analysis in negligent misrepresentation eases. Barrie, supra. In cases where there is no privity of contract, our supreme court has found that the duty of care owed under La. C.C. arts. 2315 and 2316 is compatible with the duty stated in the Restatement (2d) of Torts, § 552. Barrie, supra at 1016. Direct communication of the information from the misin-former to the person acting in reliance on it is not necessary. Barrie, supra at 1014. However, in those cases where there has 'been no direct communication between the misinformer and the person acting in reliance on ' the erroneous information, | pliability is generally limited to a select group who the misinformer actually knows will receive inaccurate information and act in reliance on it, even if the person is not known or identified to the misinformer. Barrie, supra.

B & W knew that Jennifer Franco was undergoing medical treatment for' a very serious medical condition and therefore must have known that medical care providers were relying on information supplied by its agent, PAI, regarding the limits of insurance coverage. We thus conclude that Lifecare was a member of the limited group for whose benefit accurate information regarding coverage must be supplied. We further conclude that B & W was under a duty to act in good faith and provide up-to-date information regarding its plan to reduce coverage through its agent to third parties such as Lifecare Hospital, who rely on that information in making their admission and patient treatment decisions. Lifecare’s use of the coverage information was certainly foreseeable, and B & W was surely aware of the economic loss that would ensue as a result of their decision.

Accordingly, we find that B & W’s omission constituted a misrepresentation resulting in economic loss in this state. We further conclude that the economic loss suffered by Lifecare and the potential economic loss to other third party health care providers similarly situated is of such gravity that the assertion of personal jurisdiction will not offend due process.

Pre-Emption by ERISA

. B & W argues that Lifecare’s claim is pre-empted by federal law, namely ERISA, even though that issue was decided against B & W in Federal District Court. B & W’s argument is as follows: Lifecare’s claim has |13nothing to do with negligent misrepresentation because on December 15, 2000, shortly before Jennifer Franco was admitted to Lifecare Hospital, PAI accurately told Lifecare that the maximum - benefit under the Plan was $2,000,000. B & W argues that Lifecare’s suit is actually a challenge as to whether B & W could legitimately amend the Plan reducing the maximum benefit to 400,000 retroactively, and this is a question governed by ERISA.

We have previously determined in this opinion that B & W was under a duty to provide accurate, up-to-date information to third parties who rely on it and that duty encompassed disclosure of its plans to retroactively reduce coverage. Therefore, B & W’s omission in this respect constituted negligent misrepresentation.

Negligent misrepresentation is a state-law tort claim. Memorial Hospital System v. Northbrook Life Insurance Co., 904 F.2d 286 (5th Cir.1990). ERISA does not preempt state law when the state-law claim is brought by an independent third party health care provider against an insurer for its negligent misrepresentation regarding the existence of health care coverage. Transitional Hospitals Corporation v. Blue Cross and Blue Shield of Texas, Inc., 164 F.3d 952 (5th Cir.1999).

Nor do we accept B & W’s argument that the instant case is distinguishable because the dispute is not about coverage but whether B & W could lawfully retroactively reduce the maximum benefit. For example, in Memorial Hospital System, supra, although the patient was not insured under the Plan, the hospital was misinformed by the defendant’s agent that she was covered under the Plan.

114Lifecare’s suit is a suit for damages arising out of negligent misrepresentation. It is not a suit to establish coverage under the Plan, nor to dispute B & W’s right to reduce the maximum lifetime benefit under the Plan. Further it is not a suit disputing the decision to make the reduction of such benefits retroactive to the date of the inception of coverage. Accordingly, this state law tort claim is not preempted by ERISA.

Summary Judgment

At the hearing on the motion for summary judgment, B & W agreed that there were no facts in dispute. Louisiana law recognizes the tort of negligent misrepresentation. Daye v. General Motors Corp., 720 So.2d 654 (La.1998). The plaintiff must establish (1) the existence of a legal duty on the part of the defendant to supply the correct information; (2) a breach of that duty, and (3) causation. Lifecare contends that B & W, through its Plan administrator, had a duty to disclose correct and accurate information regarding its healthcare plan coverage when it verified that Ms. Franco was covered under the Plan. It breached this duty when it did not inform Lifecare that it was planning to reduce the maximum available lifetime benefit under the Plan which would result in the retroactive exhaustion of Ms. Franco’s benefits. The failure to disclose this fact to Lifecare resulted in Ms. Franco’s admission and subsequent treatment of Ms. Franco’s illness by .Lifecare. As a result, Lifecare suffered a loss of $81,762.92 in unpaid hospital bills for treatment of Ms. Franco. Accordingly, it contends it is entitled to judgment as a matter of law.

B & W contends that summary judg1 ment is inappropriate because'Lifecare did not prove that the losses incurred by Life-care would have been 11Kcovered under the Plan. This argument carries little weight in light of B & W’s admission that there were no disputed facts in the case.

B & W also contends that it did not misrepresent anything to Lifecare. It had no dealings with Lifecare. Moreover, PAI’s representations regarding coverage were accurate when they were made. It was only considering reducing the lifetime maximum benefit when Ms. Franco was admitted to Lifecare Hospital and it had no duty to disclose that fact.

Because we have previously discussed the duty/risk analysis for the tort of misrepresentation and the duty to third parties absent any privity of contract in our analysis of personal jurisdiction, we need not repeat the discussion here. We determined therein that B & W had a duty to provide accurate and up-to-date information, even indirectly to those third parties who it knew would rely on that information in making its decisions to admit and treat patients. The record in this case shows that the general manager of PAI wrote the general manager of B & W suggesting a reduction of the maximum benefit to $500,000. On this same day, Lifecare contacted PAI for the first time to confirm coverage for Jennifer Franco and was told that she had $1,620,000 remaining on her $2,000,000 lifetime maximum benefit. This coverage amount was confirmed again on December 18, 2000. There were several more telephone conversations between Lifecare and PAI and its case manager- regarding Jennifer’s treatment care plan, including the treatment costs and their payment in the ensuing weeks. At no time did B & W’s agent inform Lifecare that it planned to retroactively reduce benefits to $400,000' and thereby eliminate coverage for the treatment they were actively approving. B & W’s- subsequent retroactive reduction in the | ^lifetime benefit in January rendered the information it gave-Lifecare in December inaccurate. Lifecare relied on this inaccurate information and suffered eco-noniic loss as a result.

' -Hence, we conclude that B & W had a duty to disclose to Lifecare its plans to reduce the maximum lifetime benefit since it knew that Lifecare would be affected by the decision. B & W breached its duty to provide accurate and up-to-date information regarding coverage and that breach caused economic loss to Lifecare.

For these reasons, the summary judgment in favor of Lifecare is affirmed. B & W is east in judgment for costs of this appeal.

AFFIRMED.


author: 11 SAUNDERS, J.

text:
    Charles M. ATWOOD and George W. Gondron v. GRAND CASINOS OF LOUISIANA, INC., et al.
    No. CA 04-715.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 2004.

      Charles J. Foret, Briney & Foret, Lafayette, LA, for Defendant/Appellee, Grand Casinos of Louisiana, Inc.

      Michael R. Mangham, Mangham. & Hardy, Lafayette, LA, for Plaintiff/Appellant, Charles M. Atwood.
    Sylvia M. Fordice, Lafayette, LA, for Defendant/Appellee, State of Louisiana, Dept, of Public Safety & Corrections.
    Michael Edward Parker, Allen & Gooch, Lafayette, LA, for Defendant/Appellee, Zurich Insurance Co.
    George W. Gondron, Nederland, TX, for Plaintiff/Appellee, George W. Gondron.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and OSWALD A. DECUIR, Judges.
   11 SAUNDERS, J.

Plaintiff, Charles Atwood, is appealing the trial court’s grant of summary judgment in favor of the defendants. After careful consideration of the facts, we reverse the trial court’s decision and remand the case.

FACTS

The plaintiff, Mr. Atwood, became employed with the Coushatta Tribe of Louisiana’s casino in Kinder, Louisiana, as a black jack dealer in May 1994. Grand Casino is the managing company for the Tribe and they oversee the day-to-day operations, maintenance and management of the casino, personnel management, personnel policies, and employment decisions. Mr. Atwood was hired by Grand Casino. Mr. Atwood’s employment continued until July 3, 1997, when Mr. Atwood was terminated. The termination was based on accusations that Mr. Atwood allegedly assisted Mr. Gondron, a patron, in cheating. Both Mr. Atwood and Mr. Gondron were escorted out of the casino and barred from returning.

Prior to that eyent, when Mr. Gondron gambled, he routinely requested a private black jack table and also Mr. Atwood’s expertise as a dealer. During the course of these private games, Mr. Atwood, became concerned about the appearance of impropriety, as he had received two gifts from Mr. Gondron (a stuffed animal and a bag of tomatoes). He expressed these concerns to his pit boss and other supervisors. Despite his concerns, he was required to continue dealing to Mr. Gondron. At some point, the Louisiana Gaming Commission began conducting surveillance of these private games. Based on the surveillance, Mr. Atwood was terminated and removed from the casino on July 3, 1997.

The defendants’ reasons for termination included violations of Tribal and |2Grand Casino’s policies and procedures, as well as card marking and inappropriate behavior with a patron. Mr. Atwood requested the defendants supply him with the basis for his termination. On his request, Thomas Michael Jones composed a letter that contained the allegations and sent it to Mr. Atwood and his attorney. There is some dispute concerning whether this letter, once composed, was approved by the commission. The letter was subsequently distributed to the members of the commission.

These allegations were also communicated to those outside of this casino; An employee of the casino told Lawrence Beale, the Casino’s Director of Surveillance, about Mr. Atwood’s termination. Lawrence Beale then communicated some form of that information to Robert Thurs-by, the Director of Table Games at the Isle of Capri Casino.

Since Mr. Atwood’s termination, he has not worked as a dealer. He has sued for damages for defamation and intentional infliction of emotional distress.

PROCEDURAL FACTS

Mr. Atwood sued Grand Casino, Trooper Ivey, the Louisiana State Police, Mr. Jones and Mr. Beale. The Louisiana State Police and Trooper Ivey were dismissed on October 7, 1999. On January 10, 2003, the remaining defendants filed a motion for summary judgment. The trial court granted a partial summary judgment for the defendants against Mr. Gondron but reserved Mr. Atwood’s rights. On October 10, 2003, the court heard arguments concerning the motion for summary judgment. The judge issued a ruling on the motion on December 12, 2003. On January 16, 2004, the plaintiff requested leave of court to file a devolutive appeal from the December 12, | ¡¡2003 ruling. On May 13, 2004, the judgment granting the defendant’s motion for summary judgment was signed. Leave was granted and plaintiff was given until June 21, 2004 to file the appeal, which he timely filed.

ASSIGNMENTS OF ERROR

Whether the trial court erred in granting the motion for summary judgment filed on behalf of the defendants and dismissing the appellant’s action?

LAW AND ANALYSIS

The proper standard of review for an appellate court considering summary judgment is de novo. “Appellate courts review summary judgments de novo. It is well established that a summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” Palma, Inc., v. Crane Servs. Inc., 03-0614, p. 3 (La.App. 3 Cir. 11/5/03), 858 So.2d 772, 774 (citations omitted). The Louisiana Supreme Court has provided guidance in determining when a fact is material.

A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. “[Fjacts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” Simply put, a “material” fact is one that would matter on the trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits.

Davis v. M & E Food Mart, Inc., No. 2, 02-0585, p. 4 (La.App. 3 Cir. 10/30/02), 829 So.2d 1194, 1198 citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 751.

^DISCUSSION

The plaintiff/appellant, Mr. Atwood, has brought a defamation suit against the defendants. In a defamation suit, there are several elements that must be proven.

Defamation is an invasion of a person’s interest in his reputation and good name. Sassone v. Elder, 626 So.2d 345, 350 (La.1993), citing W. Page Keeton, et al., Prosser and Keeton on the Law of Torts Sec. Ill (5th ed.1984) The essential elements of a defamation action are (1) defamatory words, (2) publication or communication to a third person, (3) falsity, (4) malice (actual or implied) and (5) resulting injury. Brannan v. Wyeth Laboratories, Inc., 526 So.2d 1101, 1105 (La.1988); Cangelosi v. Schwegmann Bros. Giant SuperMarkets, 390 So.2d 196 (La.1980).

Huxen v. Villasenor, 01-288 (La.App. 5 Cir. 9/25/01), 798 So.2d 209, 212.

The first requirement is that the words must be defamatory. What are defamatory words?

Defamatory words are, by definition, words which tend to harm the reputation of another so as to lower the person in the estimation of the community, to deter others from associating or dealing with the person, or otherwise expose a person to contempt or ridicule. Words which convey an element of personal disgrace, dishonesty, or disrepute are defamatory.

Costello v. Hardy, 03-1146, p. 22-23 (La.1/21/04), 864 So.2d 129 (citations omitted.)

Were the statements in question defamatory? There are two specific allegations of defamation; (1) the letter Mr. Jones prepared and circulated to the commission, and (2) Mr. Beale’s statement to Mr. Thursby.

A. Mr. Jones’ letter

Following Mr. Atwood’s removal and termination from the casino, he requested a list of specific allegations against him. Upon his request, Mr. Jones, Chief Investigator for the Tribal Gaming Commission, was instructed to prepare these allegations. The letter in question contained the following allegations:

|,4- Violated Tribal-State Compact Section 7(C)(l)(u): Has created or fostered appearance of impropriety, by virtue of their present or past activities, criminal record, reputation, habits, or associations, or has otherwise engendered a situation which threatens the public interest in the integrity of gaming, the effectiveness of gaming regulation and control, or in fair and lawful practices, methods and financial arrangements in gaming.
2.Violated Tribal-State Compact Section 10(A): All Class III gaming shall be conducted in such a manner, that ensure to the maximum extent practicable, that it is secure, honest, and that the interests of the Cous-hatta Tribe of Louisiana, the State of Louisiana, and the public are protected at all times.
3. Violated Grand Casinos, Inc., Policy and Procedures No. 23,010 entitled, “Conflict of Interest/Business Ethics” Part III-A: Associates are expected to represent the Company in a positive and ethical manner while on or off duty and have an obligation both to avoid conflicts of interest and to refer questions and concerns about potential conflicts to their supervisor.
4. Violated Grand Casinos, Inc. Standard Procedure Manual, Table Games Dealer Manual-General: Paragraph 9. A dealer may not deal to close friends or relatives.
After Mr. Gondron and Mr. Atwood was finished gaming, the shoe was pulled from the table by Inspectors and given to the La. State Police for analysis. The cards were found to be marked on all of the high denomination cards.

Based on the definition of defamatory, the last statement, without more, appears to be defamatory and is the basis of the Mr. Atwood’s argument.

The next requirement for a defamation suit is publication, which is the primary issue of this case. “Publication refers to any nonprivileged communication of defamatory words, written or oral, and it renders a defendant liable ‘for all republication that is the natural and probable consequence of the author’s act.’ ” Doe v. Grant, 01-0175, p. 8 (La.App. 4 Cir. 1/29/03), 839 So.2d 408, 416, writ denied, 03-0604 (La.5/2/03), 842 So.2d 1102. This letter, prepared by Mr. Jones, was | ^subsequently distributed to members of the commission. The plaintiff contends that Mr. Jones’ circulation of this letter to the members of the commission is publication, and therefore, not protected by the defense of privilege. The defendant argues that it is not considered publication if circulated only within the ranks of management.

An intra-corporate communication, among officers or agents of the same corporation, and in relation to their duties for the corporation, is merely a communication of the corporation itself. It cannot be construed as being a communication to a third party. This position is supported by Cangelosi v. Schivegmcmn Brothers Giant Super Markets, 390 So.2d 196 (La.1980), in which the Supreme Court found that statements made by and in the presence of other supervisory personnel, to an employee concerning an altered check, did not constitute publication, since the supervisory personnel were essential to the investigation. We interpret this case to mean that statements between employees, made within the course and scope of their employment, are not statements communicated or publicized to third persons.

Commercial Union Life Ins. Co., v. Melikyan, 424 So.2d 1114, 1115, (La.App. 1 Cir. 1982).

However, Commercial Union must be received in conjunction with the case of Heflin, which requires an additional element of good faith. “An employer’s communication regarding a subject in which it has an interest or a duty is not considered published when made in good faith.” Heflin v. Sabine Ass’n of Retarded Citizens, 96-782 (La.App. 3 Cir. 12/26/96), 685 So.2d 665, 667. “... [Gjood faith means having reasonable grounds for believing that the statement is true.” Melancon v. Hyatt Corp., 589 So.2d 1186, 1189 (La.App. 4 Cir.1991), writ denied, 592 So.2d 411 (La.1992). The question then arises, was Mr. Jones in good faith when he circulated the letter to the members of the commission containing these allegations?

the facts> the inddent oc_ curred on July 3, 1997 and either on that day or shortly thereafter, but prior to the hearing, Mr. Jones met with Trooper Ivey Rand discussed whether or not the cards had in fact been marked. Both were unsure whether the cards were marked as evidenced in the deposition of Mr. Jones and the deposition of Trooper Ivey.

Trooper Ivey’s deposition states:

Q Did you conclude that this was a marked deck?
A No, sir. I told them that, you know, the percentage — just looking at it, it was peculiar that there was a larger percentage of ten, you know, nine, ten, face cards that had indentions rather than ones that didn’t, and told them that we needed to look into it further, that they may want to get one of their people that’s you know, from Vegas or Atlantic City that they had here — Mike Frawley was the VP of Table Games. I said he’s worked in Atlantic City. So we need somebody that’s an expert, you know, to look at them, I said, because I can’t — This isn’t what I was trained to see as marked cards....
Q Did you at any time say to any of the people present here that you found or determined these cards to be marked?
A No, sir.
(Emphasis added.)

As clearly indicated by Trooper Ivey’s deposition, he was not an expert in examining cards and he did not say that the cards were marked. During Mr. Jones deposition, when questioned concerning the conversation he had with Trooper Ivey, Mr. Jones states, that Trooper Ivey did not tell him the cards were marked.

Q All right. And what do you recall about the substance of that discussion about the cards?
A Basically, that he was no expert, but it appeared to be that a lot of high denomination cards had been crimped somehow, like a little bit of a dent put on it.
i};#*#**#*
Q Did he show you what he was taking to be a dent in the cards?
A He showed me what he — looked like a — or showed me what it looked like.
Q Did he tell you that that consisted or was marking of the cards?
A No. He said it appeared to be a crimp on the cards. He [¿never said marked, and he definitely didn’t say he was an expert, so I didn’t — just taking his — what he saw.
Q Did he also show you any other cards other than high denomination cards that appeared to be—
A We looked at — I guess — we didn’t look at all the cards, but there were a few small cards that were crimped that I did look at.
Q And were there also some large or high denomination — by high I mean either face cards, tens or aces—
A That’s what I mean by high denomination cards, tens and above.
Q Now, were there any ten or above cards that did not appear to have a crimp on them?
A Not all of them are crimped. It didn’t look like it.
(Emphasis Added)

There is no indication if this discussion with Trooper Ivey occurred prior to the creation of the letter containing the allegations, but it was prior to the hearing of August 19, 1997. However, even at that hearing, Mr. Jones own statements as to whether the cards were marked is unclear.

A I just said that the cards were found to be marked on all the high-denomination cards, which might be a mistaken wordage for me, I guess.
Q Is it true or is it not true?
A We’d have to look at all the deck and look at them.
Q All right.
A But I would say most right now of the cards, or most of the high denomination cards were marked, and this was told to us by the state police and we looked at — they showed us the cards.
Q And who — who made that determination that these cards were marked?
A They did not say they were, you know, words, “They are marked.” It appears to be marked, and that was the State Police Sergeant Chris Ivey.
(Emphasis Added)

Mr. Jones made three separate statements all indicating different things. In the letter, he stated that all of the high cards were marked. Later at the hearing, he corrected himself and stated that most of the high cards were marked and that he was told this | aby the State Police. In the deposition, he stated that some but not all of the high cards were crimped, and that even some low cards were crimped, and that Trooper Ivey did not tell him the cards were marked.

Clearly, Mr. Jones’ good faith is in question. At three different times, he has communicated three different tales. Due to the discrepancies in the statements, the question of whether Mr. Jones was in good faith or not remains a material issue of genuine fact which should be determined by the trial court.

Therefore, finding that there exists a definite question as to Mr. Jones’ good faith concerning the distribution of the letter to the commission, we find a material issue of fact which requires the trial court’s adjudication of the matter, as summary judgment was not appropriate.

B. Mr. Beale’s statement to Mr. Thursby

The trial court determined that Mr. Beale’s alleged defamatory statements were excused by the defense of truth. The plaintiff challenges the trial court’s finding in this regard. The trial court stated, “[t]he court again finds that the alleged defamatory statements of Robert Beale to Robert Thursby were the truth and therefore the truth is an absolute defense to an action of defamation.” The court considered statements made during the course of Mr. Beale’s deposition. The court took note of Mr. Beale’s candid admission that he relayed the information to Mr. Thursby and the court stated, “[bjased on the depositions and other related evidence, the court finds that it is the truth that there had been an alleged incident between a dealer and a guest and the Commission had 86’d Mr. Gondron and had fired Mr. Atwood. As stated in the court’s ruling in the Gondron opinion, truth is an absolute defense to an action of | indefamation.” The deposition of Robert Beale clearly evidences the fact that Mr. Beale did in fact share this information with Mr. Thursby, but the question remains as to exactly what he shared with Mr. Thursby.

Q Tell me how you first became aware of these two individuals.
A I took over the Surveillance Department in August of '97, and the supervisors that were working or the acting manager of the Department, Mike Brown, had told me that there was — had been an alleged incident between a dealer and a guest.
Q Now, what did he tell you had happened?
A From what I recall, he just said it was a dealer-agent thing, and that the Commission had 86’d Mr. Gon-dron and had fired Mr. Atwood. (Emphasis Added)
Q Tell me what a dealer-agent thing is.
A Where a dealer gives the player unfair advantage over the house. They give a little help. (Emphasis Added)
* * * * :k * * #
Q Now, during September or October of 1997 or after your conversation with Mike Brown, did you relate that information to anyone else?
A Yes, sir.
Q To whom?
A It would have been Bob Thursby
# ❖ # ❖ ‡ ‡ >'.<
A Bob Thursby is the director of Table Games at the Isle of Capri.
‡‡‡‡‡‡‡‡
Q And how did that occur; how did that come about?
A Mr. Thursby and I are acquaintances. We’re friends. We’ve been friends for some years. He works at the Isle of Capri and I work up here, and we occasionally talk.
Q And you exchange information concerning known mechanics and undesirables?
A. Occasionally, we do, you know, if we see that it—
Q Is it customary for casinos to share that type of information with one another?
A Yes, sir

From the deposition, it is clear that Mr. Beale did in fact communicate some form of this information to Mr. Thursby. How- ’ ever, what is unclear is exactly what | ^information was conveyed. Mr. Beale learned more than that an “alleged incident between a dealer and a guest” had occurred as evidenced by the deposition. He knew the parties involved and that it was a “dealer-agent thing.” When asked to define a dealer agent thing, he unequivocally characterized it in a way so as to suggest cheating. He defined a dealer agent thing as “where a dealer gives the player unfair advantage over the house. They give a little help.” Considering that Mr. Thursby is the director of table games, if Mr. Beale merely stated that there had been a “dealer-agent thing,” Mr. Thursby, would at least arguably, suspect someone was cheating because this would be language he clearly understood based on his position.

The trial court committed an error when they dismissed this case on a motion for summary judgment stating that Mr. Beale’s statement to Mr. Thursby was truthful when a genuine issue of material fact exists as to exactly what Mr. Beale told Mr. Thursby. Mr. Beale’s statement is susceptible of multiple interpretations and therefore remains a genuine issue of material fact which must be decided before it’s truthfulness can be weighed.

C. Intentional Infliction of Emotional Distress

In oral arguments Mr. Atwood raised the issue of intentional infliction of emotional distress. However, this issue was not raised in the brief as an assignment of error, and therefore, the issue is not before us today. As we are remanding this case, the issue remains alive and the plaintiff may argue it at the trial court level.

D. Other Arguments

The defendants argue in brief that Grand Casino should be dismissed from the suit as there are no allegations of liability against it and that Mr. Beale and Mr. Jones |1?are not employed by them, but rather that the interested party is the Coushatta Tribe of Louisiana. Although the issue was argued, it is not an assignment of error. However, we note that formerly this court considered the same issue in a peremptory exception for non-joinder of an indispensable party and considered all of the defendant’s arguments. In that matter, just as in this one, the defendants argued “that the Tribe, as ‘employer of all relevant actors, has a significant interest in the outcome of this suit.’ ” Atwood v. Grand Casinos of La., Inc., 01-1425 (La.App. 3 Cir. 6/5/02), 819 So.2d 440, writ denied, 02-1873 (La.10/14/02), 827 So.2d 426. Therefore, as this court has previously decided this issue, we will not revisit it today.

CONCLUSION

Based on this court’s determination that genuine issues of material fact exists, we reverse the trial court’s grant of a motion for summary judgment and remand for further adjudication. Costs of this appeal are assessed to the defendants.

REVERSED AND REMANDED.