author: RPARRO, J. h GUIDRY, J.,

text:
    ANGELO IAFRATE CONSTRUCTION, L.L.C. and Edward L. Leonard v. STATE of Louisiana Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 2003 CA 0892.
    Court of Appeal of Louisiana, First Circuit.
    May 14, 2004.

      Murphy J. Foster, III, John T. Andri-shok, Breazeale, Sachse & Wilson, L.L.P., Baton Rouge, for Plaintiffs-Appellees Angelo Iafrate Construction, L.L.C. and Edward L. Leonard.
    Lawrence A. Durant, Baton Rouge, for Defendant-Appellee Louisiana Department of Transportation & Development.
    Louis L. Robein, Jr., Karen M. Torre, Robein, Urann & Lurye, Metairie, for In-tervenor-Appellant International Union of Operating Engineers, Local 406.
    Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   RPARRO, J.

The intervenor in this Public Records Act case, the International Union of Operating Engineers, Local 406 (the union), appeals a judgment preliminarily and permanently enjoining the State, through the Department of Transportation and Development (DOTD), from disclosing to the union or any other person or entity the names, addresses, and social security numbers in certified payroll records submitted to DOTD by Angelo Iafrate Construction, L.L.C. (Iafrate) concerning its employees. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Iafrate is a general contractor for a number of federally funded state highway construction projects owned by DOTD. As such, Iafrate must submit periodic certified payroll information to DOTD to ensure compliance with the Davis-Bacon Act, a federal law designed to protect workers by guaranteeing them minimum wages based on local prevailing wage rates. The payroll information must contain the Iafrate employees’ names, addresses, social security numbers, job classifications, hourly wage rates, number of hours worked daily and weekly, deductions, and actual wages. The union made a public records request for Iafrate’s payroll records on one of the projects, and DOTD agreed to provide all the information requested except the names, addresses, and social security Information of the Iafrate employees. The union reiterated its request, and Iafrate feared DOTD might release the information. This suit was filed against DOTD by Iafrate and one of its employees, Edward L. Leonard, seeking to enjoin DOTD from providing Iafrate’s complete payroll information to the union; the union intervened to assert its right to acquire that information. Although Iafrate and Leonard are the nominal plaintiffs and DOTD the nominal defendant, their positions in this litigation are actually aligned in opposition to the union’s request.

After a hearing, the court granted the motion for a preliminary injunction' and the | -^petition for preliminary and permanent injunctions. In granting the injunc-tive relief, the court found that the privacy concerns of the employees far outweighed any public interest in the information. The court also found DOTD had enforcement and investigatory responsibilities under the Davis-Bacon Act and therefore could rely on the provisions of LSA-R.S. 44:4(3), which exempts from disclosure any records in the custody of a state agency whose duties are to investigate, manage, or liquidate the business of any private corporation in this state, when the records pertain to that corporation’s business and are in their nature confidential.

The union contends in this appeal that the trial court erred in: (1) engrafting a balancing test on the public records law; (2) finding that an individual worker on a certified payroll has a privacy interest in his or her name and address that outweighs the public interest in being able to ensure compliance with the Davis-Bacon Act; and (3) applying the investigatory document exemption of LSA-R.S. 44:4(3) to the payroll records requested. As pointed out to this court by Iafrate, this case appears to be res nova, as no Louisiana case has evaluated competing interests in connection with public records requests seeking disclosure of the Davis-Bacon Act payroll information.

APPLICABLE LAW

Public Records Act

Article XII, Section 3 of the Louisiana Constitution provides that no person shall be denied the right to examine public documents, except in cases established by law. This constitutional provision has been codified in the Public Records Act, LSA-R.S. 44:1, et seq. (the Act), which includes in its definition of “public records” all documentary materials “having been used, being in use, or prepared, possessed, or retained for use” in the performance of any function under the authority of the constitution or laws of this state by a public body. LSA-R.S. 44:l(A)(2)(a). Louisiana Revised Statute 44:31 states:

A. Providing access to public records is a responsibility and duty of the appointive or elective .office of a custodian and his employees.
|4B. (1) Except as otherwise provided in this Chapter or as otherwise specifically provided by law, and in accordance with the provisions of this Chapter any person of the age of majority may inspect, copy or reproduce, or obtain a reproduction of any public record.
(2) The burden of proving that a public record is not subject to inspection, copying, or reproduction shall rest with the custodian.

The legislature, by the Act, sought to guarantee, in the most expansive and unrestricted way possible, the right of the public to inspect and reproduce those records which the laws deem to be public. There was no intent on the part of the legislature to qualify, in any way, the right of access. As with the constitutional provision, the Act should be construed liberally, and any doubt must be resolved in favor of the right of access. Landis v. Moreau, 00-1157 (La.2/21/01), 779 So.2d 691, 694-95. Louisiana Revised Statute 44:32(B) recognizes that portions of the requested material may be nonpublic records and allows the custodian the option to separate that portion from the requested material. Elliott v. District Attorney of Baton Rouge, 94-1804 (La.App. 1st Cir.9/14/95), 664 So.2d 122, 125-26, writ denied, 95-2509 (La.12/15/95), 664 So.2d 440.

The right of access to public records is fundamental; therefore, access may be denied only when the law specifically and unequivocally denies access. Hilliard v. Litchfield, 01-1987 (La.App. 1st Cir.6/21/02), 822 So.2d 743, 746. All exceptions, exemptions, and limitations to the laws pertaining to public records and their disclosure pursuant to the Act must be provided for in the Act or in the Louisiana Constitution. See LSA-R.S. 44:4.1. A public employee may, request that his home telephone number and home address remain confidential. LSA-R.S. 44:11(A)(2) and (3). The public employee’s social security number, medical records, and the name and account number of any financial institution to which his wages or salary are directly deposited shall be confidential. LSA-R.S. 44:11(C) and (D). Under LSA-R.S. 44:4(3), the Act does not apply:

To any records, writings, accounts, letters, letter books, photographs or copies thereof, in the custody or control of any officer, employee, agent or agency of the state whose duties and functions are to investigate, examine, manage in whole or in part, or liquidate the business of any private person, firm or corporation in this state, when the records, writings, accounts, letters, letter books, photographs or copies thereof, ^pertain to the business of the private person, firm or corporation, and are in their nature confidential.

Any exemption to the Act is in derogation of the public’s right to be reasonably informed and must be narrowly interpreted. Times Picayune Pub. Corp. v. Board of Sup’rs of Louisiana State Univ., 02-2551 (La.App. 1st Cir.5/9/03), 845 So.2d 599, 605, writ denied, 03-1589 (La.9/5/03), 852 So.2d 1044.

Under LSA-R.S. 44:35(A), any person who has been denied the right to inspect or copy a record under the provisions of the Act may institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief, attorney fees, costs, and damages. If the person seeking the right to inspect or to obtain a copy of a public record prevails in such suit, he shall be awarded reasonable attorney fees and other costs of litigation. If such a person prevails in part, the court may in its discretion award reasonable attorney fees or an appropriate portion thereof. LSA-R.S. 44:35(D). If the party requesting enforcement of the Act is required to appeal the action of the trial court, that party, if successful, is entitled to an award of additional attorney fees for prosecuting the appeal. Thornton v. Dep’t of Public Safety, 536 So.2d 595, 597-98 (La.App. 1st Cir.1988).

Confidentiality /Right to Privacy

Article I, Section 5 of the Louisiana Constitution expressly prohibits unreasonable invasions of privacy. The right to privacy in Louisiana has been described as the right to be let alone and to be free from unnecessary public scrutiny. Capital City Press v. East Baton Rouge Parish Metro. Council, 96-1979 (La.7/1/97), 696 So.2d 562, 566. The right to privacy protects varied interests from invasion. Among the interests protected is the individual’s right to be free from unreasonable intrusion into his seclusion, solitude, or private affairs. The right is not absolute; it is qualified by the rights of others. The right to privacy is also limited by society’s right to be informed about legitimate subjects of public interest. Id.

In ascertaining whether individuals have a reasonable expectation of privacy that is constitutionally protected, a court must determine not only whether the individual has an actual or subjective expectation of privacy, but whether that expectation is also of a | Rtype which society at large is prepared to recognize as being reasonable. Local 100, Service Employees’ Int’l Union v. Forrest, 95-1954 (La.App. 1st. Cir.5/10/96), 675 So.2d 1153, 1156, writ denied, 96-1499 (La.9/20/96), 679 So.2d 441. When a request .for public records is at issue, the custodian or the individual claiming the privacy right must prove that there is a reasonable expectation of privacy against disclosure of the information to a person entitled to access to the public information. If, and only if, a reasonable expectation of privacy is found, the court must weigh or balance the public records disclosure interest against the privacy interest. Webb v. City of Shreveport, 371 So.2d 316, 319 (La.App. 2nd Cir.), writ denied, 374 So.2d 657 (La.1979). In Webb, a union representative sought to obtain the names and addresses of a city’s employees. The city asserted the employees’ privacy interests in an effort to shield the information from disclosure; however, the court found the city employees did not have a reasonable expectation of privacy against governmental disclosure of their names and addresses. Because the Webb court found there was no reasonable expectation of privacy in the names and addresses of public employees, .it did not engage in a balancing test and held that Louisiana law mandated disclosure of the information. Local 100, 675 So.2d at 1156-57.

Applying the balancing test in the Local 100 case, this court addressed a union’s public records request to the Louisiana Department of Health and Hospitals (DHH) for a list of the names and addresses of all certified nurse’s aides, which information was maintained by DHH to comply with federal law. This court ordered the disclosure, finding there was no reasonable expectation of privacy in the names and addresses of public or private employees and no specific exemption in the public records act that justified withholding the information. Local 100, 675 So.2d at 1157.

In the Capital City Press case, the Louisiana Supreme Court found no specific exemption shielding applications for public employment from disclosure under the Act, |7nor any reasonable expectation by the applicants that their applications would remain private. Because there was no constitutionally protected privacy interest, there was no need to apply a balancing test. Capital City Press, 696 So.2d at 567. The court summarized its conclusions, stating:

Because employment applications for public employment have not been exempted from the public records law by statute, and both the constitution and statutory law require such legislative action, and because the resumes at issue have not been shown to contain facts which would expose the applicants to public disgrace or would intrude upon the applicants’ seclusion, solitude, or private affairs, all such applications, regardless of the responsibilities of the job at issue, are accessible under La. R.S. 44:31. In sum, under existing Louisiana law, the applicants for public employment have no right of privacy in their resumes.

Id. at 568-69. In reaching this conclusion, the court distinguished this situation from similar' cases seeking information under the federal Freedom of Information Act (FOIA), 5 U.S.C.A. § 552, which has a specific exemption in 5 U.S.C.A. § 552(b)(6) (Exemption 6), shielding personnel files.

Exemption 6 was a key factor in many of the cases from federal courts cited to this court by Iafrate and DOTD. See, e.g., U.S. Dept. of Defense v. Federal Labor Relations Auth., 510 U.S. 487, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994); Sheet Metal Workers Int’l Ass’n, Local Union No. 19 v. U.S. Dep’t of Veterans Affairs, 135 F.3d 891 (3rd Cir.1998); Sheet Metal Workers Int’l Ass’n, Local No. 9 v. U.S. Air Force, 63 F.3d 994 (10th Cir.1995); Painting Industry of Hawaii Market Recovery Fund v. U.S. Dep’t of Air Force, 26 F.3d 1479 (9th Cir.1994). In those and other cases, the courts determined that Exemption 6 shielded certain information concerning employees from disclosure under the FOIA. Although there is no similar exemption in the Act or in any other Louisiana statute for the employees of private companies, Article I, Section 5 of the Louisiana Constitution is similar to Exemption 6 in prohibiting any unreasonable invasions of privacy, and the Act recognizes that constitutional limitations might exempt certain information from disclosure. Therefore, the federal cases can be instructive in their analysis of the privacy interests of individuals vis-a-vis the public’s right to know.

I «In the U.S. Dep’t of Defense case, the Federal Labor Relations Authority had directed federal agencies to provide unions with the home addresses of agency employees represented by unions. In reversing this direction, the Court found that employees had an interest in the confidentiality of their home addresses, which, however slight that interest might be, was not outweighed by the “virtually non-existent FOIA-related public interest in disclosure” of that information. U.S. Dep’t of Defense, 114 S.Ct. at 1015. The Court noted that a specific federal statute, the Privacy Act, shielded all such records from disclosure unless mandated by the FOIA. Id. at 1014. The Court also emphasized that the identity or specific purpose of the party requesting the information was immaterial; if a court concluded that the general public interest in disclosure outweighed the individual’s privacy interest and made the information available to one party making a FOIA request, that information would have to be provided to anyone who asked, regardless of the intent or motive of the party seeking the information. Id. at 1015-16.

The Sheet Metal Workers cases, like the case before this court, involved unions’ FOIA requests for private contractors’ employees’ certified payroll records, which were provided to public entities in order to comply with the Davis-Bacon Act. Sheet Metal Workers, Local No. 9, 63 F.3d 994; Sheet Metal Workers, Local No. 19, 135 F.3d 891. In both cases, the courts found that employees of private contractors performing federal construction projects had substantial privacy interests in the personal financial information linked to their names and addresses. These interests far outweighed the generally recognized public interest underlying the FOIA’s disclosure provisions, that being to provide understanding of the operations or activities of the government, as this interest would not be served by disclosing this information. Sheet Metal Workers, Local No. 9, 63 F.3d at 997-98; Sheet Metal Workers, Local No. 19, 135 F.3d at 903-04.

IgA similar analysis and result was obtained in the Painting Industry case, in which, concerning the names, addresses, job classifications, and particularized wage information, the court noted that “[i]t cannot be disputed that this information is normally considered private.” Painting Industry, 26 F.3d at 1483. Like the Supreme Court, the Ninth Circuit court also emphasized that if such information were made available to people engaged in the construction trade, that information would also have to be available to anyone else who made a request under the FOIA. Id. at 1482-83.

ANALYSIS

Unlike the employees whose records were sought under the FOIA, there is no Louisiana Privacy Act or Exemption 6 shielding such information regarding employees of private companies. Therefore, the protection for the employees’ right to privacy must be found in a specific exemption within the Act or in Article I, Section 5 of the Louisiana Constitution. The specific exemption cited by the trial court is in LSA-R.S. 44:4(3), under which records “in their nature confidential” and in the custody of a state agency whose duties and functions are to investigate, examine, manage in whole or in part, or liquidate the business of any private person, firm, or corporation, are exempt from the Act. Iaf-rate and DOTD contend, and the district court found, that this exemption applied to the certified payroll records in this case, because DOTD uses those records to “investigate” and “manage” Iafrate’s compliance with the Davis-Bacon Act.

This exemption has not been addressed in this context before, so this court has little guidance on its intended application. However, exemptions to the Act are to be narrowly construed, and we do not believe this provision was intended to have such a broad scope that it would cover the situation before us. The primary function of DOTD is not investigatory, nor is it generally involved in managing or liquidating a business; these are the duties and functions generally assigned to an auditor, receiver, trustee, or liquidator. From a simple reading of the Act, it appears this provision was intended to shield a private entity’s trade secrets and similar proprietary data from disclosure when that entity puts its records under the control of a public agency whose primary duty and function is investigating wrongdoing, examining records, issuing licenses, managing a | infaltering business, or liquidating a business. See La. Atty. Gen. Op. No. GO-36. This interpretation is reinforced by reading this provision in pari materia with the other provisions in LSA-R.S. 44:4, many of which exempt from the Act private records submitted to licensing boards, professional examiners, auditors, financial institutions, and the like, as well as specifically protecting financial and trade secrets, confidential mineral exploration data, technical research data, and similar proprietary information. We conclude, therefore, that the trial court erred in relying on LSA-R.S. 44:4(3) as a basis for enjoining disclosure of the certified payroll information in this case.

However, our inquiry does not end there. We must also address whether a private contractor’s employees have a constitutionally protected right to privacy in their names and addresses, when linked to their job classifications, hourly wage rates, number of hours worked daily and weekly, deductions, and actual wages. In considering this issue, we will address the union’s other two assignments of error, those being that the trial court erred in engraft-ing a balancing test on the public records law and in finding that an individual worker on a certified payroll has a privacy interest in his or her name and address that outweighs the public interest in being able to ensure compliance with the Davis-Bacon Act.

We note first that the trial court did not err in using a balancing test. The law is clear that once a constitutionally protected right to privacy is found, that right must then -be balanced against the public’s right of access to information in the public records. Admittedly, the trial court did not make a finding that the employees’ privacy interests met the test stated by this court in the Local 100 case, before balancing those interests against the public interest, as the Webb case requires. The appellate court criticized the lower court in Webb for failing to determine the threshold issue of reasonable expectation and going directly to the weighing or balancing of interests, although impliedly perhaps finding that the claimants’ expectation of privacy was ^reasonable. Webb, 371 So.2d at 319. A similar observation is appropriate in this case. Although the trial court did not err .in using a balancing test, it perhaps erred in applying the test without first analyzing whether the employees’ privacy interests were constitutionally protected. Therefore, this court must evaluate the issue to determine first whether the employees have a subjective expectation of privacy in the certified payroll information, and whether that expectation is objectively reasonable. Any balancing of interests is dependent upon this initial finding.

In support of its contention that its employees consider their wage information private and confidential, Iafrate submitted an excerpt from its employee handbook, which states:

All information in employee personnel files is considered confidential. This information will only be available to the Human Resources Department, the Safety Director, the Claims Manager, the employee, officers of the company, and supervisors or managers who are responsible for the employee.

The handbook also contained another assurance that personnel files would be “treated the same as any other confidential company information,” but included a caveat that “[it] is also possible federal, state, and local agencies may have access to employee personnel files in certain situations.” The affidavit of Bret M. Willuhn, Iafrate’s Senior Vice-President, certified that these statements were included in Iafrate’s handbook and that each employee had to acknowledge in writing his receipt and review of the handbook, as well as his acceptance of its provisions. Edward L. Leonard’s affidavit was also submitted, in which he referred to the confidentiality provisions of the handbook and averred that he “has at no time consented to and he does oppose the dissemination of the personal and confidential information contained in [Iafrate’s] certified payrolls .... ” He further averred that other Iafrate employees, constituting a “vast majority of the employees,” had expressed to him similar opposition to disclosure of the certified payroll information. DOTD submitted the affidavit of its EEO/Labor Officer, Construction for the State of Louisiana, Gene McArdle, who stated:

“[T]he social security numbers, names and addresses represent records of a personal and confidential nature, the disclosure of which would not advance the enforcement of the provisions of the Davis-Bacon Act by third persons. Davis-Bacon compliance can be confirmed by reviewing the |12wage history along with the particular employee job classification. Names, addresses, and social security numbers are not necessary to confirm Davis-Bacon Act compliance.

McArdle further stated that the United States Department of Labor had informed him that DOTD is not to disclose certified payroll records without first redacting the names, addresses, and social security numbers. He opined that the disclosure of this personal and confidential information would implicate the privacy rights of the individual employees.

Clearly, under established Louisiana jurisprudence, private employees’ names and addresses in the custody of a public agency are not afforded constitutional protection when disclosure is sought under the Act. Local 100, 675 So.2d at 1157. As several cases have noted, such information is available in the telephone book — and we note it is now generally available also on the internet. Moreover, the linkage of names and addresses with the fact of employment by a particular employer has also not been afforded constitutional protection. Id. However, when those names and addresses are coupled with those employees’ hourly wages, hours worked, deductions, and net paycheck amounts, a qualitatively different type of information is involved. In evaluating the employees’ interest in maintaining the confidentiality of such information, we must keep in mind that if the information must be made available to the union, which certainly has a legitimate interest in organizing the employees, it must also be made available to anyone else who seeks access to it under the Act, regardless of the legitimacy or illegitimacy of the seeker’s purpose in obtaining that information. Thus, marketing entities could obtain names and addresses, as well as income information, for target marketing of the employees at their homes. More disturbing is the possibility that someone, intent on committing crimes against persons or property and knowing these employees’ income levels and home addresses, could target them for criminal activity. The identity and purpose of the person seeking the information is immaterial if there is no constitutionally protected privacy interest to shield it from disclosure.

We conclude that Iafrate established, by a preponderance of the evidence, that its employees have an expectation of privacy in the certified payroll information. | ^Moreover, we find that their expectation of privacy in this detailed personal financial information, coupled with their names and home addresses, is of a type that society at large is prepared to recognize as being reasonable.

We must proceed to the next step in the analysis and weigh or balance the public records disclosure interest against the privacy interests. In so doing, we keep in mind that DOTD has offered to release all of the certified payroll information with the identifying information removed. This disclosure would enable the recipient, in this case, the union, to determine whether Iafrate is in compliance with the Davis-Baeon Act and whether DOTD is properly monitoring that compliance. Therefore, the issue is whether there is some other public interest in obtaining the names, addresses, and particularized wage information about employees of a private company performing work on public projects, and whether that public interest is sufficiently compelling to override the employees’ privacy rights. The purpose of the Act is to keep the public reasonably informed about how public bodies conduct their business and how the affairs of government are handled. The public body involved in this case is DOTD; its business is the building and maintenance of public highways, bridges, and other transportation infrastructures and facilities. The public’s interest in DOTD’s records is to ensure that those activities are effectively accomplished for the public’s convenience and safety at the most reasonable price and in compliance with applicable laws. We fail to discern in this regard any public interest that would be served by the disclosure of the complete certified payroll information concerning the employees of a private contractor working on DOTD projects. Accordingly, we conclude the employees’ right to privacy concerning their personal particularized wage information outweighs any public interest there might be in disclosure of that information linked to the employees’ names and addresses.

I ^CONCLUSION

For the above reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to the International Union of Operating Engineers, Local 406.

AFFIRMED.

CARTER, J., concurs in the result.

GUIDRY, J., dissents and assigns reasons.

h GUIDRY, J.,

dissenting.

In affirming the judgment of the trial court, the majority carefully bootstraps exceptions and exemptions found in federal statutes to shore up perceived gaps in the Louisiana Public Records Act, La. R.S. 44:1-41 (the Act) — a task better left to the legislative branch. As noted by the majority, the Act does not expressly exempt from disclosure the names and addresses of private employees working on a federally funded, state highway construction project.

The right of access to public records is fundamental; therefore, access may be denied only when the law specifically and unequivocally denies access. Williams Law Firm v. Board of Supervisors of Louisiana State University, 03-0079, p. 5 (La.App. 1st Cir.4/2/04), 878 So.2d 557, 562. Whenever there is doubt as to whether the public has the right of access to certain records, the doubt must be resolved in favor of the public’s right to see. To allow otherwise would be an improper and arbitrary restriction on the public’s constitutional rights. Times Picayune Publishing Corporation v. Board of Supervisors of Louisiana State University, 02-2551, p. 7 (La.App. 1st Cir.5/9/03), 845 So.2d 599, 605, writ denied, 03-1589 (La.9/5/03), 852 So.2d 1044. Laws providing for the examination of public records must be liberally interpreted to extend rather than restrict access to public records. Skamangas v. Stockton, 37,996, p. 6 (La.App. 2nd Cir.3/5/04), 867 So.2d 1009, 1013.

Judicial decisions are not intended to be an authoritative source of law in Louisiana; they are secondary to legislation. See A.N. Yiannopoulos, Louisiana Civil Law System § 35, p. 53 (1977); Doerr v. Mobil Oil Corporation, 00-0947, p. 13 (La.12/19/00), 774 So.2d 119, 128. Louisiana Revised Statute 44.4.1(A) expressly states “the legislature declares that all exceptions, exemptions, and limitations to the laws pertaining to public records shall be provided for in this Chapter or the Constitution of Louisiana.”

In this case, the legislature, in its abundant wisdom, chose not to exempt from disclosure the names and addresses of private employees working on public projects. As noted by the majority, La. R.S. 44:11(A)(3) only designates the home address of public employees of any public body as confidential; there is no similar provision for private employees working on public projects. Nor am I persuaded that private employees who work on public projects have a reasonable expectation of privacy with respect to the disclosure of this information, in conjunction with the employees’ job classifications, hourly wage rates, number of hours worked daily and weekly, deductions and actual wages paid. Excepting those employees who request that their home address be kept confidential pursuant to La. R.S. 44:11(A)(3), such information is subject to disclosure for public employees under the Act. See La. R.S. 44:l(A)(2)(a).

|sThe public has a fundamental right to view this information in order to evaluate whether their tax dollars are being spent wisely. Therefore, I respectfully dissent from the majority’s opinion in this matter.

      . 40 U.S.C.A. §§ 3141-3148.

      . The union’s letter requesting the payroll records stated the union did not seek disclosure of the social security numbers and understood that DOTD would delete that information.

      . The parties stipulated the hearing would determine Iafrate’s right to both the preliminary and permanent injunctions and that the issue could be decided by the court on the basis of documents, briefs, and oral argument, without the necessity of live testimony.

      . The Act has since been amended, and in effect, legislatively overruled Webb v. City of Shreveport in part. As noted above, LSA-R.S. 44:11 (A)(2) and (3) now exempt the home address and telephone number of any public employee who requests that such information be kept confidential. See also Local 100, Service Employees, Int’l Union v. Smith, 36,454 (La.App. 2nd Cir. 10/23/02), 830 So.2d 417, writ not considered, 02-2858 (La.1/31/03), 836 So.2d 75. There is no similar provision for private employees.

      . Exemption 6 states that the FOIA does not apply to "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C.A. § 552(b)(6).

      . The Privacy Act states, in part, that "[n]o agency shall disclose any record which is contained in a system of records by any means of communication to any person, ... unless disclosure of the record would be required under section 552 of this title [FOIA]” or unless prior written consent to disclosure was given by the party whose records were sought. 5 U.S.C.A. § 552a(b)(2).

      . Id. at 1013.

      . "[A] court must determine not only whether the individual has an actual or subjective expectation of privacy, but whether that expectation is also of a type which society at large is prepared to recognize as being reasonable.” Local 100, 675 So.2d at 1156.

      . "If a reasonable expectation of privacy is found, then and only then, need we weigh or balance the public records or documents disclosure interest against the privacy interest.... ” Webb, 371 So.2d at 319.

      . A compelling analysis of the juxtaposition of the two Louisiana constitutional provisions — the right of privacy and the public’s right of access to information — along with protections of names and addresses in the federal statutes and jurisprudence, is found in La. Atty. Gen. Op. No. 01-435.

      . We recognize the irony of this conclusion, in that if the union had sought just the names and addresses of the employees, which is probably the information it is most interested in, there would not have been any protected privacy interest in that information under the established jurisprudence.


source: Caselaw Access Project

author: J^FITZSIMMONS, J.

license: Public Domain

text:
    James M. STEPHENS v. A.R. LEBLANC and U.S. Agencies Casualty Insurance Company.
    No. 2003 CA 1460.
    Court of Appeal of Louisiana, First Circuit.
    May 14, 2004.
    James M. Stephens, Winnsboro, Pro Se Plaintifl/Appellee.
    Richard S. Thomas, Elizabeth B. Powell, Jonathan D. Mayeux, Christian P. Fasullo, Baton Rouge, Counsel for Defendant/Ap-pellee A.R. LeBlanc.
    Donald R. Smith, Brad J. Brumfield, Baton Rouge, Counsel for Defendant/Appellant U.S. Agencies Casualty Insurance Company.
    Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.
   J^FITZSIMMONS, J.

The issue on appeal is whether the defendant, Mr. Ashton R. LeBlanc, had automobile insurance coverage under a policy issued by defendant, U.S. Agencies Casualty Insurance Company, Inc. (U.S. Agencies). After the trial court found coverage, U.S. Agencies appealed. Based on an error of law, we reverse.

FACTS AND PROCEDURAL BACKGROUND

The insured, Mr. LeBlanc, purchased insurance from U.S. Agencies. He financed his premium through an insurance premium finance company, LIFCO, L.L.C. (LIFCO). The only parties named in the premium finance agreement were the buyer, Mr. LeBlanc, the agent, “USAgencies Management Services,” and the lender, LIFCO. After Mr. LeBlanc failed to make his payment on the due date, LIFCO sent him a notice of cancellation. Subsequently, LIFCO sent to the insurer, U.S. Agencies, a copy of the notice of cancellation and a statement certifying that: (1) the finance agreement contained “a valid power of attorney,” (2) the finance agreement was “in default and the default [had] not been timely cured,” (3) “a Ten (10) Day Notice of Cancellation was mailed to the insured ... [, c]opies of these notices are enclosed and the Affidavit Proof of Mailing is available upon request,” and (4) “[c]opies of the Ten (10) Day Notice of Cancellation were mailed to all persons shown by the premium finance agreement to have an interest in any loss which may occur thereunder.” The statement also provided the policy number, a “Notice Date” of September 1, 2001, a “Cancel Date” of September 12, 2001, and the name of the insured, Mr. LeBlanc.

On September 22, 2001, Mr. LeBlanc and the plaintiff, Mr. James Stephens, were involved in a vehicular accident in Baton Rouge, Louisiana. On November 20, 2001, Mr. Stephens filed a suit for damages naming as defendants, Mr. Le-Blanc and his insurer, U.S. Agencies. In its answer, U.S. Agencies denied coverage based on cancellation of the policy prior to the accident. Mr. LeBlanc | ¡¡filed a cross-claim against U.S. Agencies on the issue of coverage. At the trial on the merits, the parties stipulated that Mr. LeBlanc was the sole cause of the accident. Evidence was submitted on the issues of damages and coverage.

In oral reasons, the trial court found that Mr. LeBlanc had not timely paid his premium. That issue has not been appealed. However, the court continued, as follows:

And I was prepared to rule that the policy had been cancelled; but in reviewing the statute, there is no indication on the notice of cancellation to [Mr. LeBlanc] that his lienholder or the Department of Motor Vehicles was being informed. There is no notification on the ten-day notice of cancellation to either him or the lienholder of the name or of the notification to the agent or ... any indication that a notice of cancellation was made to the agent. And for that reason, I find the cancellation to be ineffective and the policy to have been in effect.

A judgment was signed on April 29, 2003, finding coverage by U.S. Agencies for Mr. LeBlanc, and awarding damages to the plaintiff, Mr. Stephens. Only the issue of coverage was appealed.

APPLICABLE LEGAL PRECEPTS

The laws governing cancellation pursuant to an insurance premium finance company’s exercise of its power of attorney must be strictly applied. Delatte v. Lemotte, 633 So.2d 686, 689 (La.App. 1 Cir.1993). The pertinent part of the applicable statute in effective at the time of the cancellation, La. R.S. 9:3550, provides that:

A. This Section shall apply to any person engaged in the business of financing insurance premiums for consumers entering into premium finance agreements or otherwise acquiring premium finance agreements.
H* *1* H*
G. Insurance contracts may be canceled upon default as follows:
(1) When a premium finance agreement contains a power of attorney enabling the insurance premium finance company to cancel any insurance contract or contracts listed in the agreement, the insurance contract or contracts shall not be canceled by the insurance premium finance company unless such cancellation is effectuated in accordance with this Subsection.
L(2) Upon default of the insurance premium finance agreement by the debtor, the premium finance company may mail a notice of cancellation to the insured, at his last known mailing or electronic address as shown on the records of the insurance premium finance company. A copy of the notice of cancellation of the insurance contract shall also be mailed to the insurance agent negotiating the related insurance contract whose name and place of business appears on the premium finance agreement. Such notice of cancellation shall also state the name of any governmental agency, mortgagee, or third party also requiring notice of cancellation as shown on the insurance premium finance contract.
(3)(a) Ten days after notice of cancellation has been mailed to the insured, or fourteen days when notice is sent from outside of this state, if the default has not been cured, the insurance premium finance company may thereafter effect cancellation of such insurance contract or contracts by mailing to the insurer, by depositing in the mail or with a private carrier within five business days after the date of cancellation, except when the payment has been returned uncollected, a copy of the notice of cancellation together with a statement certifying that:
(i) The premium finance agreement contains a valid power of attorney as provided in Paragraph (1) of this Subsection.
(ii) The premium finance agreement is in default and the default has not been timely cured.
(iii) Upon default, a notice of cancellation was sent to the insured as provided in Paragraph (2) of this Subsection, specifying the date of sending by the premium finance company to the insured.
(iv) Copies of the notice of cancellation were mailed to all persons shown by the premium finance agreement to have an interest in any loss which may occur thereunder, specifying the names and addresses of any governmental agencies, mortgagees, or third parties to whom the insurance premium finance company has sent notice of cancellation.
(b) Upon receipt of such notice of cancellation and statement from the premium finance company, the insurer shall consider that cancellation of the insurance contract or contracts has been requested by the insured but without requiring the return of the insurance contract or contracts and the insurer may proceed to cancel such contract or contracts as provided in R.S. 22:637. The effective date of cancellation shall be as of 12:01 a.m. on the tenth day after the date of mailing of the notice of cancellation as shown in said statement furnished to the insurer by the premium finance company.
(c) The receipt of such notice [of cancellation] and statement by the insurer shall create a conclusive presumption that the facts stated in said notice and statement are correct, that the insurer is entitled to rely on such facts and that the cancellation of the insurance contract or contracts is concurred in and authorized by the insured. No liability of any nature whatsoever either in favor of the insured, any governmental agency, holder of a security interest in the insured property, or third party shall be imposed upon the insurer as a result of any misstatement of fact contained in said notice of cancellation or statement furnished by the insurance premium finance company to the insurer, or as a result of failure by the insured, any governmental agency, holder of a security interest in |fithe insured property, or third party to receive the notice of cancellation required by Paragraph (2) of this Subsection, or as a result of failure of the insurance premium finance company to comply with any of the requirements of this Subsection. Upon mailing of any unearned premium and unearned commission to the insurance premium finance company as soon as practicable following such cancellation, the insurer shall be fully discharged from all liability under the insurance contract or contracts for any loss occurring subsequent to the effective date of cancellation. (Emphasis added.)

Based on our review of the record and applicable law, we can find no statutory basis for the trial court’s belief that LIFCO was required to send the insured, Mr. LeBlanc, a notice that his lien-holder and the Department of Motor Vehicles were being notified of the cancellation. LIFCO, however, was required to send a copy of the notice of cancellation to “USA-gencies Management Services,” the “insurance agent ... whose name and place of business appears on the insurance premium finance agreement.” La. R.S. 9:3550 G(2). Although the trial court may have been correct in finding that, at the very least, LIFCO failed to send the requisite notice to the specifically named agent, the trial court committed legal error by not applying La. R.S. 9:3550 G(3)(c).

Under section G(3)(e), and in spite of LIFCO’s procedural failures, the insurer, defendant U.S. Agencies, is entitled to the “conclusive presumption” provided by statute upon its receipt of the notice of cancellation and certifying statement. Section G(3)(c) further provides that the insurer cannot be held liable “in favor of the insured,” Mr. LeBlanc, “as a result of any misstatement of fact contained in said notice of cancellation or statement furnished by the insurance premium finance company to the insurer, ... or as a result of failure of the insurance premium finance company to comply with any of the requirements of this Subsection.” The statutory directive is clear. Although LIFCO may have made mistakes, under the specific facts here, the legislature has determined that the insurer cannot be held liable for the coverage based only on the procedural failures |fiof the insurance premium finance company asserted by Mr. LeBlanc. Thus, the policy was properly cancelled by the insurer prior to the accident.

For these reasons, we reverse the judgment on the issue of insurance coverage, and dismiss defendant, U.S. Agencies, from the suit. We affirm the judgment in all other respects. The costs of the appeal are assessed to defendant, Mr. LeBlanc.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.


author: |,PLANCHARD, Judge.

text:
    Linda C. LUNEAU and R.J. Luneau v. STATE of Louisiana Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 2003-1064.
    Court of Appeal of Louisiana, Third Circuit.
    June 2, 2004.

      James E. Calhoun, Assistant Attorney General, Monique Freeman Rauls, Alexandria, LA, for Defendant-Appellant, State of Louisiana.
    John Taylor Bennett, Marksville, LA, for Plaintiffs-Appellees, Linda C. Luneau and R.J. Luneau.
    Jimmy Roy Faircloth, Jr., Mark Felipe Vilar, Alexandria, LA, for Plaintiffs-Appel-lees, Linda C. Luneau and R.J. Luneau.
    Court composed of BILLIE COLOMBARO WOODARD and ELIZABETH A. PICKETT, ARTHUR J. PLANCHARD , SYLVIA R. COOKS and MICHAEL G. SULLIVAN, Judges.

       Judge ARTHUR J. PLANCHARD, Retired, participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   |,PLANCHARD, Judge.

The State of Louisiana through the Department of Transportation and Development (DOTD) appeals the decision of the trial court finding it 100% at fault and awarding damages to the Plaintiffs, Linda C. Luneau and R.J. Luneau in connection with the Ms. Luneau’s one vehicle accident which occurred on December 23,1998.

On that date, at approximately 8:00 a.m., Mrs. Luneau drove her vehicle onto the Monda Bridge in Avoyelles Parish, Louisiana. She alleges that she lost control of her vehicle due to the icy condition of the bridge, striking both rails of the bridge before coming to a stop. She filed suit against the DOTD alleging that it had actual and constructive notice of the icy, dangerous condition of the bridge and failed to remedy it within a reasonable length of time. The trial judge, who found in favor of the Plaintiffs, pursuant to oral reasons for judgment and awarded damages as follows: “$3,581.83 for the property damages, $175.00 for the wrecker fee, $344.80 for the vehicle rental, $1,500.00 for loss of consortium to R.J. LUNEAU, $7,105.53 for medical bills and $17,500.00 for general damages to LINDA LU-NEAU,” for a total damage award of $31,703.16.

The DOTD appeals asserting that the trial judge erred in finding that the DOTD had notice and failed to remedy the icy condition of the bridge within a reasonable amount of time, and in finding Linda Lu-neau to be free from fault.

DUTY

The State owes a duty to the motoring public to maintain highways in a reasonably safe condition and remedy conditions which make a roadway unsafe. The duty of the State to maintain highways in a reasonably safe condition arises from knowledge of an unsafe condition of the highway. Before the State may be held liable for an accident caused by a hazardous or dangerous condition of a highway, it |3must be shown that the State had actual or constructive notice of the condition and a sufficient opportunity to remedy the situation or at least warn motorists of its presence, and failed to do so. Naylor v. Louisiana Department of Public Highways, 423 So.2d 674 (La.App. 1 Cir.1982), writ den., 427 So.2d 439 (La.1983), writ den., 429 So.2d 127 & 134 (La.1983).
La.R.S. 9:2800 sets forth when a public entity may be held for damages under La.C.C. art. 2317 as follows:
“A. A public entity is responsible under Civil Code Article 2317 for damages caused by the condition of buildings within its care and custody.
B. Except as provided for in Subsection A of this Section, no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.
C. Constructive notice shall mean the existence of facts which infer actual knowledge.”

Gaspard v. State, Through Dept. of Transp. and Development, 596 So.2d 336, 338 (La.App. 3 Cir.), writ denied, 600 So.2d 664 (La.1992).

The DOTD avers that, because it did not have notice of the icy condition within a reasonable amount of time prior to Ms. Luneau’s accident to allow it to remedy the situation, it cannot be held liable for the damages she received in that accident.

The trial court, in oral reasons for judgment found that:

The first question is whether or not the State had actual or constructive notice. And then we must ponder whether or not the State should have been checking the bridges given the weather conditions that ... I think we can say it has been shown in this courtroom beginning with Ms. Bell’s testimony. Again I’m going to go slowly as I review all of the evidence and the testimony.
The reasonable opportunity I’ll take that issue first. Reasonable opportunity to remedy the defect. One has to ponder whether the response was slow or not by the State. As everyone said Ms. Bell was |4at work by 6:30 a.m. At 7:20 a.m. it appeared that Mr. Friels was out on the roads, possibly checking bridges. But the plaintiff has shown there were two major bridges in the parish, at least those two if not three. And perhaps those should have been cheeked first. If another person that was available and apparently they weren’t. It appears that perhaps there is some way to see if a police agency wasn’t notified, the Department of Transportation that a bridge was icy. [sic] And that’s why I believe that the State needs to be more proactive in sending out DOTD workers to major bridges in icy conditions and I just don’t see where that was done here. I see there was some efforts made, apparently ... apparently Mr. Friels happened upon the wreck on Highway 71, so he must have been checking the roads and that’s good. But there should have been other persons checking the other major bridges. Simmesport and what’s commonly called the Monda bridge, where this accident occurred. The truck or trucks, at least one truck, the truck which was eventually sent with sand, with salt I’m sorry possibly should have been better prepared, they should have been prepared quicker.
Again it wasn’t prepared and it was later until a third party who came that there was ice on the bridge. And then the salt was loaded, that appears to be what happened. And again I just think a more proactive position by the State is in order in these icy conditions. Especially regarding major bridges. A major bridge to me is one that spans over such a length that you get on it and you’re on it for more than a half a minute traveling and some (inaudible) rate of speed. But not one of these small bridges where you .. one that comes to mind in Bayou DuLac Bridge which is an extremely small bridge. The length of time that a vehicle passes over it is so little, small. And of course the State will have trouble getting to all of those small bridges and that’s more understandable. But the major bridges, I believe this falls into that category, would be checked sooner.
Regarding whether or not the State failed to remedy the defect, if it had a reasonable opportunity, I believe they ... I think that one way to remedy the defect is to call the state police and say we’ve got icy conditions, can you please get troopers out there now. I’m not saying the troopers can do that, but they possibly can. But I didn’t have testimony saying we have a protocol we call the sheriffs department, we ask them to get at the foot of the bridge on each side and please turn their lights on, their hazard lights. I mean advise other vehicles.
Does the police department have to do that, no, but I wish there was a protocol from the State that showed that those calls were made, a request was made until a truck could get there. (INAUDIBLE) review the log and again the 6:30 arrival time and we don’t see anything until 7:30 regarding the Monda bridge when the sheriffs department called. I would rather see the State it would be more appropriate for the State to take a proactive stance and say 6:30 a.m., we’ve got icy conditions, | ¡^somebody get out to Simmesport bridge, somebody get out to the Monda bridge and someone get out to the 71 overpass and check the small bridges on your way .. on your return or on your way to those sites.
Regarding the icy conditions there certainly was an icy condition on that bridge that morning. That’s been shown. I believe that especially with the deposition corrected as it was, it’s clear that the plaintiff lost control on the paved section and the loss continued onto the grated section of the bridge. But again due to ice and the Court believes that certainly ice was the cause of the accident, there’s no other conclusion that the Court can draw. It appears from the report that the vehicle veered in a counter clockwise motion into the oncoming lane.
The Court has reviewed the deposition of Mr. Cleary who’s testimony is unrefuted. And he discusses the dangers on bridges regarding ice buildup and oil build up. I’m not going to give much weight to the testimony regarding the oil buildup because there was nothing introduced to show us that there was any type of oil slick either on the grating or on the paved section. However, again certainly ice did build up on the bridge on the paved section as well as the grated section apparently. And caused the set of events into motion which led to the accident.
Mr. Cleary testified regarding that the grates on this particular bridge were on there had been a previous check of the bridge, by the State I think just a few months earlier. And perhaps those grates were left worn because the bridge was scheduled to be demolished. And that would be acceptable, it doesn’t mean that the State did anything sinister in that fashion. Though it did leave grates that were how can you say slippery when icy and Mr. Cleary his deposition is in the record and it is unrefuted as to his findings. Weather certainly was the cause of this accident. And I cannot access any fault to Ms. Luneau. However this is a slight ... this is not a huge case as they say, there were no severe injuries. And everyone should be thankful for that. Plaintiff was traveling at approximately 35 miles per hour, I believe she testified, which was a safe speed.
To access liability again, and again I’ve noted my opinion that the State should be more proactive regarding major bridges when it’s an icy condition. It seems as though although Mr. Friels was out there, doing a good job, it seems that the- State’s position was in effect waiting for someone to call about an icy bridge, or waiting for an accident to happen. And I would rather again to see the State ... that’s why I mean the State should be more proactive. If an ice storm is called for, the trucks should be loaded down with ice, with the salt, I’m sorry and there should be State crews out checking the major bridges and then the small bridges and then salt to be applied more readily upon their findings, rather than waiting for a third agency to hopefully notice something or an accident. 1 ^Because we all know an accident can be extremely severe.
Mr. Friels testimony was helpful, he discussed that they do inspect the bridges but sometimes wait for a third party police agency to call. If the weather is cold, then it would be checked and cheeked by them. And then he discussed in good detail that the truck may not be loaded the night before because the salt might go to waste, and I understand that. I know that would be a loss to the State financially. If the salt is lost it cannot be used. But I just think that expense outweighs the gravity of what can occur if trucks are not ready and icy conditions do hit. Also, the use of personnel, the cost of that use of personnel to send them out immediately to major bridges is outweighed by the possible gravity of harm that can occur from an accident on, I an icy bridge. So I believe that the salt should be ready for more quick distribution in the case of icy conditions.
He indicated the boxes were put on and he explained how that occurred, possibly the night before. But the boxes were not loaded with salt. Most of the time they were not loaded with salt so, in this case probably they were not loaded with salt until that morning or until the call was I received. He also agreed that an ice glaze on the bridge is dangerous. He has seen ice on this particular bridge about three times in the past. He indicated that a bridge cannot be left unattended and again I believe someone from the State should have been out there checking on it and possibly trying to get a police agency to assist them earlier, before the accident.
There was a lot of discussion about whether or not 40 minutes with the ice glaze is reasonable. Mr. Friels could not answer that question, I would not have allowed that into evidence in a legal context. And it’s a good question and it’s not an easy question to answer, if I had four hours to deal with it, it would be a very easy decision. If I had ten minutes to deal with, I would have a very easy decision. But forty minutes is not an easy case to resolve. Again that’s why I said I don’t think that the State is sinister in it’s actions. I think the employees are very good employees. And they tried to do the best that they could. But the management protocol needs to look at it, reassess it, make it a little bit better, make it a little bit sharper, make the distribution time of salt a lot quicker. Somebody needs to be out there. Mr. Friels indicated at some point I think that there was an assumption that the sheriffs department was there or that some police agency might share.
He did indicate that you can’t put the sand or the salt prior to the icing, and that makes sense. So again it boils down to being proactive, checking the bridges at the appropriate time on icy conditions and having trucks ready to do, loaded and ready to go, when those conditions warrant and I think the conditions warranted that in this particular case. I think the conditions warranted it but apparently it|7appears that no one was available, at least managing the radio station until 6:30 that morning. Which by then everyone knows the traffic is starting to pick up.
The findings on the issue of liability I will just note that the plaintiff did say to the trooper at the scene that she thought she hit an icy condition or an ice patch, I don’t remember the exact wording. But it just tendered to lend credibility to the cause of this accident which I think we all know the results. Considering the cases cited by the State which I am aware of, the number of-bridges, again I think the major bridges can be distinguished. Again this is a matter of management protocol to look at and say’ let’s have a meeting, let’s make a list of bridges, this is the ones that we think are major bridges and should be checked first. And there aren’t that many major bridges in this parish. Now I understand that DOTD has a regional area but someone in the area can simply look at the parish bridges, someone must do that and I think that’s appropriate to ask. The miles to cover this is a large parish, geographically, but if you know where the major bridges are, it doesn’t take that long to get to. There are a number of personnel just ... we’re not talking, about 40 major bridges, we’re just talking about a few. So I don’t think the number of personnel is greatly strained by asking them to take a proactive stance in icy conditions.

By this language, the trial judge appears to be expanding the duty of the DOTD beyond that set out in La.R.S. 9:2800, to a duty to inspect its roads and bridges in anticipation of hazardous conditions. The Plaintiffs cite Moraus v. State, Through Dept. of Transp. & Development, 396 So.2d 596 (La.App. 3 Cir.1981) in support of the trial judge’s conclusion. However, in that case, the evidence showed that the DOTD had both actual and constructive notice of an impending ice storm as early as 7:00 a.m. on December 4. As a result, the court, in that case,' found that the trial court correctly held the DOTD liable for an accident which occurred at 6:45 a.m. on December 5, where the DOTD did not display signs or spread gravel on a bridge until after the occurrence of the accident. The situation before us, -however, differs from that in Moraus. The record herein contains no evidence that the DOTD had advance warning of the ice storm. In light of the provisions of La. R.S. 9:2800, we find that the trial court erred in finding that the DOTD had a duty to “proactively” inspect | abridges for ice where there was no advance warning of inclement weather.

In light of this finding, this court will conduct a de novo review of the evidence.

The district judge’s apparent misunderstanding of the DOTD’s duty was a legal error of such magnitude as to make a de novo redetermination of the facts appropriate. “[W]hen the court of appeal finds that a reversible error of law ... was made in the trial court, it is required, whenever possible, to redetermine the facts de novo from the entire record and render a judgment [97-0293-La. 5] on the merits.” Ferrell v. Fireman’s Fund Insurance Co., 94 1252 (La.2/20/95), 650 So.2d 742, 745 (citing to Rosell v. ESCO, 549 So.2d 840 (La.1989)). Here the trial court committed reversible error of law, inter alia, by determining that the state had a duty to clear all overhanging obstructions within the highway’s right of way. Therefore, the court of appeal’s de novo review and subsequent judgment on the merits was appropriate.

Thompson v. State, 97-0293, pp. 4-5 (La.10/31/97), 701 So.2d 952, 956.

Therefore, we will examine the evidence to determine whether the DOTD had actual or constructive notice of the dangerous condition and failed to rectify it within a reasonable period of time.

DE NOVO REVIEW

The Plaintiff had the burden of showing that the DOTD had actual or constructive notice of a dangerous condition on the bridge and failed to rectify it within a reasonable amount of time. The trial testimony of the DOTD employees was that it was the practice at the Marksville office to put the office on 12 hour around the clock shifts when an ice storm was predicted. The’ testimony further showed that the office was not put on 12 hour around the clock shift on either December 22 or 23, 1998. There ¡is nothing of record which would tend to show that an ice storm was predicted for that period. The evidence shows that the DOTD was first notified of ice on the Monda Bridge at 7:30 a.m. on December 23, when the Avoyelles Parish ^Sheriff’s Office notified Beverly Bell of the DOTD’s Marksville Office that there was a glaze of ice on- the Monda Bridge. At that time, she called the foreman and instructed him to send a truck with salt or sand to spread on the bridge. The uncontradicted testimony of Donald Friels, a DOTD foreman in the Marksville office, was that it takes approximately thirty to forty minutes to load the truck with salt, take the normal tailgate off the truck and replace it with a spreader, and get to the Monda Bridge under the prevailing weather conditions. Given this time frame, and in the absence of prior warning that icy conditions were expected, it would not have been possible for the road crew to reach the accident within the 30 minute time period between the warning and the accident. Although the trial judge made much of the fact that Mr. Friels stated that he was out checking the roads at 7:20 on December 23, there is nothing of record to show the earliest time he could have reached the- Monda Bridge and that it would have made a difference to the time by which a crew could have gotten there with a load of sand. In the absence of any proof that the DOTD had or should have had sufficient advance notice of the icy weather conditions, and although the DOTD received actual notice of an icy condition of the bridge at 7:30 a.m. on December 23, 1998, they did not have a sufficient opportunity to remedy the problem. Additionally, although there is evidence that the metal grating which made up the center span of the bridge was dangerously worn, Mrs. Luneau herself testified that her car went out of control before she reached that portion of the bridge. Nor is there any evidence which shows that the signage at the bridge was inadequate or that different signage could have prevented the accident. In the absence of any testimony from an accident reconstruction expert, we cannot say that the condition of the grating contributed to the accident. Therefore, we find that Mrs. Luneau failed to carry her |10burden of proving that the accident was caused by a hazardous condition of which the DOTD had actual or constructive notice and failed to remedy in spite of having sufficient opportunity to do so. See Gaspard, 596 So.2d 336.

CONCLUSION

For these reasons, the judgment of the trial court is reversed. Judgment is rendered dismissing Plaintiffs’ demands at her cost. Costs of this appeal are assessed to the Plaintiffs.

REVERSED AND RENDERED.

PICKETT, J., dissents.


author: I,AMY, Judge.

text:
    Judah D. POWELL v. Carrie JOHNSON.
    No. 2004-187.
    Court of Appeal of Louisiana, Third Circuit.
    June 2, 2004.

      Elvin C. Fontenot, Jr., Leesville, LA, for Plaintiff/Appellee, Judah D. Powell.
    Lisa K. Nelson, Williams & Nelson, Leesville, LA, for Defendant/Appellant, Carrie Johnson.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, BILLIE COLOMBARO WOODARD, and MARC T. AMY, Judges.
   I,AMY, Judge.

The defendant appeals the trial court’s naming of the plaintiff as domiciliary parent of the couple’s minor child. She further asserts that the trial court erred in failing to grant a new trial due to the fact that she was unrepresented at the hearing on the rule. For the following reasons, we affirm.

Factual and Procedural Background

The instant matter involves the naming of the plaintiff, Judah D. Powell, as domiciliary parent of the parties’ minor child. In August 2003, the plaintiff filed a “Petition to Establish Filiation and For Sole Custody” seeking a determination that he is the biological father of the child born during a relationship he had with the defendant, Carrie Johnson. Additionally, the plaintiff sought an award of the “sole care, custody and control of the minor child subject to reasonable visitation in favor of the defendant.”

In her answer to the petition, the defendant admitted that the minor child was born as a result of the couple’s relationship. However, she contested the plaintiffs petition for custody. The custody issue was heard by the court in November 2003. The defendant appeared at the hearing in proper person. Following the hearing, the trial court ruled in favor of the plaintiff, awarding the parties joint custody of the minor child, but designating the plaintiff as the domiciliary parent. A visitation schedule, including alternating weekends, holidays, and periods of weekday visitation, was set forth detailing those days on which the defendant could exercise physical custody.

The trial court denied the defendant’s motion for new trial, wherein the defendant alleged that she arrived at the November 2003 hearing without knowledge that the custody issue was to be tried. She asserted that such knowledge would have | ^permitted her to adequately prepare for the hearing, including securing the appearance of witnesses.

The defendant appeals, assigning the following as error:

1. Appellant contends that the trial court committed reversible error in finding that the parties should share the joint care, custody and control of the minor child with the plaintiff, Judah Powell, being named domiciliary parent.
2. Appellant contends that the trial court committed reversible error in denying her Motion for New Trial.

Discussion

Custody

In her first assignment of error, the defendant appears to contest the award of joint custody as well as the designation of the plaintiff as the domiciliary parent. Although the defendant concedes that the trial court correctly considered the factors necessary for determining custody, she asserts that the factors were misapplied, resulting in an incorrect result. In particular, she points to the trial court's determination that she did not offer a stable place for the minor child to live when she testified that she has been employed for six months and has been living with her grandmother.

Louisiana Civil Code Article 131 provides: “In a proceeding for divorce or thereafter, the court shall award custody of a child in accordance with the best interest of the child.” ^Furthermore, La. Civ.Code art. 134 sets forth the factors to be considered in determining the best interest of the child, providing:

The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
■ (4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

A trial court’s determination as to child custody matters is to be afforded great weight on review. AEB v. JBE, 99-2668 (La.11/30/99), 752 So.2d 756. The trial court’s | ¿determination in this regard will not be disturbed on review absent an abuse of discretion. Id.

Our review of the record and the trial court’s reasoning reveals no abuse of discretion. The trial court addressed the factors listed in La.Civ.Code art. 134, extensively reviewing the evidence presented by the parties, ultimately concluding:

When the court looks at all the evidence as a whole it appears that at this point in time, and, in the past, there is some question as to whether or not Ms. Johnson actually has a stable home environment where she stays all the time and that she can keep her child there with her. She has testified that she stays with her grandmaw [sic], and, there are other people that say she stays with the grandmaw, but, then there is a lot of other evidence that says she stays elsewhere too, and, she doesn’t ever stay in a single place that long, and, that the child has been picked up at other people’s houses, and, when you weigh all the testimony, and, you look at it from that standpoint, and, you look at the knowledge these other people have about having affairs, and, about drinking, and, about not knowing where she lived all the time, and you look at Mr. Powell’s testimony about he has picked the child up at several different places, then, the court has to really start considering a stable, adequate environment, and, is there one — is there one being provided at this time that would leave the court comfortable with leaving domiciliary status with the mother. Perhaps, grand-maw — this grandmaw, if she had been here to testify she could have enlightened us more about this, but, she is not here to testify for whatever reason. The court feels uncomfortable, at best, without her testimony as to really where this child really stays most of the time, so, given that, and, this is a difficult decision, these are never easy, never easy, the court considers, for now, that the best interest of the child would be served in this fashion; That joint custody is awarded between the parties. The court is going to name Mr. Powell as domiciliary custodian of the child, and, order that Ms. Johnson have visitation, liberal visitation, as liberal as it can get, and, I’ll specify it in this respect....”

The trial court continued, setting forth a visitation schedule.

Our review of the record reveals support for the above determination. In short, the plaintiff testified as to his history with the defendant and his difficulty in locating the minor child when he attempted to spend time with her. He testified that, at times, he found the child in the care of others and that he was unsure where the defendant | Band child resided. Furthermore, he testified as to his employment, explaining that he owned a three-bedroom home, adequate for the child’s care. He also presented testimony from his family members who testified as to their willingness to assist him in caring for the child while he was working or unable to do so himself. The defendant presented her own testimony, wherein she explained that she is now employed and that she lives with her grandmother. She denied that she regularly left the child with others for care. The defendant’s cousin testified similarly.

The trial court considered the totality of the evidence, as is evidenced by the detailed and lengthy reasons for ruling rendered in this matter, before making the credibility determinations necessary for the ruling. As these credibility determinations are reasonable, and the ultimate custody determination does not demonstrate an abuse of discretion, we find no merit in this assignment.

Motion for New Trial

In her next assignment of error, the defendant contends that the trial court erred in failing to grant a new trial. She contends that a new trial was necessary as she arrived at the hearing without preparation to defend the custody issue. The defendant asserts that she felt the hearing was to be limited to the question of paternity and that, if she had known that the custody issue was to be resolved, she would have arranged for witnesses on her behalf. She contends that a new trial was required due to this lack of notice.

The Louisiana Code of Civil Procedure offers the following with regard to the granting of a new trial:

Art.1971. Granting of a new trial
A new trial may be granted, upon contradictory motion of any party or by the court on its own motion, to all or any of the parties and on all or part of the issues, or for reargument only. If a new trial is | Rgranted as to less than all parties or issues, the judgment may be held in abeyance as to all parties and issues.
Art.1972. Peremptory grounds
A new trial shall be granted, upon contradictory motion of any party, in the following cases:
(1) When the verdict or judgment appears clearly contrary to the law and the evidence.
(2) When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.
(3) When the jury was bribed or has behaved improperly so that impartial justice has not been done.

A trial court’s ruling on a motion for new trial is subject to the manifest error standard of review. Campbell v. Tork, 03-1341 (La.2/20/04), 870 So.2d 968.

Contrary to the defendant’s assertion, the record supports a finding that she was provided with notice as to the matters to be litigated. The petition instituting this matter stated:

6.
Petitioner would show that in the event he is ruled to be the biological father that he should be awarded the sole care, custody and control of the minor child subject to reasonable visitation in favor of defendant.
7.
Petitioner would further show that the defendant’s lifestyle is unstable and therefore feels it is in the best interest of the minor child that petitioner be granted the sole care, custody, and control of the minor child that petitioner be granted the sole care, custody, and control of the minor child subject to reasonable visitation in favor of defendant.
8.
Petitioner would further show that defendant has never been the primary caregiver of the minor child and further, that the minor child has not been adequately provided for by defendant in the past.
Petitioner requests that a rule nisi issued herein directed unto the defendant ordering her to show cause on a date and time to be fixed by this Honorable Court why petitioner, JUDAH D. POWELL, should not be granted the sole care, custody and control of the minor child subject to reasonable visitation in favor of defendant.
| ^Petitioner further prays that in the event he is determined to be the biological father of the minor child that he be awarded the sole care, custody and control of the minor child subject to reasonable visitation in favor of defendant.

In the trial court’s order for the defendant to appear on November 3, 2003, it indicates that the defendant must show cause not only as to the paternity issue, but also:

In the event [the plaintiff] is determined to be the biological father of the minor child that he be awarded the sole care, custody and control of the minor child subject to reasonable visitation in favor of defendant.

In the defendant’s answer to the petition, she denied the contents of the above petition excerpt, stating, in part:

6. I do not agree with all[e]gation number six, he should not be awarded the sole care, custody and control of the minor child.
7. I deny allegation number seven. My lifestyle is not unstable. However I do feel that Judah D. Powell’s lifestyle is unstable and I should be awarded sole custody of the minor child.
8. I deny all[e]gation number eight. I have always been the primary caregiver of the minor child and she has always been adequately provided for. I the defendant prays [sic] in the event I be awarded the sole care, custody and control of the minor child.

Finally, when the defendant appeared in proper person at the hearing, the trial court apprized her of the nature of the proceedings. The following colloquy is contained in the record:

BY THE COURT:
Okay. Mr. Fontenot (counsel for the plaintiff), this comes before the court actually on just a rule to establish whether or not the defendant, Ms. Johnson, and her child be ordered to submit to blood testing.
BY MR. FONTENOT:
That was before she filed an answer, Your Honor, and, in Paragraph Number Three admitted that he is the father of the child which is a judicial admission, Your Honor. We also asked for sole custody in that same Rule, Your Honor.
BY THE COURT:
Which one? Which Paragraph?
I «BY MR. FONTENOT:
She filed an answer, I don’t know if she filed it in the record or not, I’ve got a copy of it, Paragraph Number Three, I admit as the result of this relationship a minor child was born, Jenea Powell, on August 27, 2001. So, I’m assuming that’s a judicial admission which along with my client’s testimony would be sufficient to establish filiation, Your Honor.
BY THE COURT:
Yeah, I see that. Okay. Well, let’s make sure Ms. Johnson knows what is going on here today before we start. Do you understand what counsel said, Ms. Johnson?
BY MS. JOHNSON:
I admitted that he was the father.
BY THE COURT:
Okay. Now, Ms. Johnson, this hearing today goes a step further now, it’s for the sole care, custody, and, control of the child, and, visitation. Do you understand that?
BY MS. JOHNSON:
Yes sir.
BY THE COURT:
Are you ready to proceed?
BY MS. JOHNSON:
Yes sir.
BY THE COURT:
Okay.

Given the record’s clear indication that the defendant was aware of the proceedings at the time of the November 2003 hearing, we find no abuse of discretion in the trial court’s denial of the motion for new trial.

This assignment lacks merit.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of these proceedings are assigned to the defendant, Carrie Johnson.

AFFIRMED.

      . Further, La.Civ.Code art. 245 provides:
      In a proceeding in which custody of an illegitimate child formally acknowledged by both parents is sought by both parents, and in proceedings for change of custody after an original award, custody shall be awarded in accordance with the provisions on custody incident to divorce contained in Title V of this Book.