author: | t CARAWAY, J.

text:
    Cong DUONG and Yen Nguyen, Plaintiffs-Appellees v. Carolina SALAS, Allstate Insurance Company and USAgencies Casualty Insurance Company, Defendants-Appellant.
    No. 38,613-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 23, 2004.

      Bodenheimer, Jones, Szwak & Winchell, LLP by Mary E. Winchell, Shreveport, for Appellant, U.S. Agencies Casualty Insurance Company.
    Peters, Ward, Bright & Hennessy by J. Patrick Hennessy, Shreveport, for Appel-lees.
    Before BROWN, STEWART and CARAWAY, JJ.
   | t CARAWAY, J.

Through an interpreter, the Vietnamese plaintiff obtained automobile liability insurance and purportedly signed a waiver of uninsured motorist coverage. Following an accident with an underinsured motorist, the plaintiff seeks uninsured motorist coverage from his insurer, challenging the validity of his waiver. The trial court determined that the plaintiff had no capacity to read and understand English and that the waiver of uninsured motorist coverage was invalid. Finding no manifest error in the trial court’s ruling, we affirm.

Facts

On October 31, 1999, Cong Duong and his wife, Yen Nguyen, were involved in an automobile accident with a vehicle driven by Carolina Salas. As a result, Duong and his wife filed suit naming Salas, her liability insurer, Allstate Insurance Company, and their own insurer, USAgencies, as defendants. Plaintiffs’ claim against USA-gencies arises out of the uninsured/under-insured motorist (“UM”) coverage portion of the policy which USAgencies alleges was rejected by Duong on three separate occasions. Allstate paid its policy limits of $20,000.00 in a settlement agreement pursuant to which it and Salas were released from the suit.

The trial proceeded against USAgeneies on the UM coverage. The parties stipulated that the underlying coverage to which any potential underinsured coverage might apply was $20,000.00, and that the policy limits of any such coverage that might be found to exist under the USA-gencies’ policy would be $10,000.00. The parties also stipulated that 12the plaintiffs’ damages exceeded $30,000.00. Therefore, the only issue for the trial court to consider was whether the plaintiffs were entitled to UM coverage under their USAgeneies policy.

USAgeneies submitted into evidence copies of the original insurance application purportedly executed on March 30, 1999, and two successive endorsed applications dated May 11, 1999, and July 13, 1999. The insured’s signatures on all three sets of documents are distinctly different from each other. The May 11, 1999 application was executed after it was determined that Duong had not obtained a Louisiana driver’s license at the time he completed the application on March 30, 1999. The July 13, 1999 application occurred because of the addition to the policy of another vehicle, a 1988 Toyota Camry. Each application was purportedly executed by Duong and each is accompanied by a UM rejection form also purportedly executed by Duong on the three separate dates. The parties agreed to the introduction of the documents but not to the authenticity of the signatures affixed thereto. Lastly, plaintiffs submitted into evidence a copy of Duong’s driver’s license issued on May 10, 1999.

On the UM coverage issue, the trial court heard from Duong, Mr. Tran, Duong’s U.S. sponsor, and Daphne Ver-hayden, the USAgeneies’ representative who sold Duong the policy in question. Duong testified through an interpreter that he and his wife came to this country from Vietnam around February 1999 and that with Tran as their sponsor, they moved to Shreveport. When they arrived, Duong took a job at a carpenter’s |ashop owned by Mr. Hoe, also from Vietnam. Duong testified that he does not speak English.

Duong testified he obtained a 1987 Nissan Stanza and a driver’s license around March of 1999, after which his sponsor took him to purchase insurance on the vehicle. Duong denied that the signatures on the applications purportedly executed on March 30, 1999 and May 11, 1999 were his, but admitted that he executed the application dated July 13,1999. Specifically, he admitted that the signature on the UM rejection form for the July 13 application belonged to him. This form reflects Duong’s initials next to the option which reads:

I do not want UMBI Coverage. I understand that I will not be compensated through UMBI coverage for losses arising from an accident caused by an uninsured/under insured motorist.

Duong testified, however, that he did not understand any of the documents which he signed as he was unable to read in English. He stated that Tran speaks very little English, but that he explained to Duong that Duong needed to sign the documents in order to obtain insurance. Accordingly, he signed them. He denied, however, that Tran explained to him the details of the documents he was signing. Duong was unable to answer any questions regarding the content of the documents at trial.

Tran, also through an interpreter, testified that he took Duong to USAgeneies on two different occasions to obtain insurance. While he confirmed that he speaks and reads limited English, he testified that the UM rejection form was not explained to him by USAgencies nor did he explain it to Duong. To the contrary, Tran testified that he needed the help of his |4own son when he purchased liability insurance so that his son could assist him in understanding the documents. Furthermore, Tran testified that he does not understand the function of UM coverage. He confirmed, however, that on each occasion he accompanied Duong, Duong signed documents although he could not state specifically what documents he signed.

Daphne Verhayden testified that at the time of trial she was employed as a license producer for USAgencies and that she had been employed by the company for over five years. In March of 1999, however, Verhayden was a customer service representative who had been employed with US-Agencies for about one year. As a customer service representative it was her job to help customers who wanted to make an application for insurance and to collect payments from customers. Verhayden testified that Duong and a friend came into the USAgencies wanting to purchase insurance. She asked for his driver’s license, registration, title and bill of sale, and filled in the necessary paperwork.

Verhayden testified that she spoke with Duong and was given no indication that he or Tran could not speak English. To the contrary, Verhayden was certain Duong could and did speak English. She testified that she went over the application with him and specifically explained the UM rejection form. After doing so, Duong allegedly indicated to her that he did not want UM coverage, but only that coverage which “would make him legal to drive on the road.”

Duong then allegedly signed the application, the UM rejection form, and the named driver exclusion endorsement excluding his wife as a [scovered insured. According to Verhayden, Duong then returned on July 13, 1999, and completed an endorsed application to his policy in order to add coverage for another vehicle, namely a Toyota Camry. When he did so, Verhayden testified that Duong signed a new set of documents including another UM rejection form. Verhayden also testified that she witnessed Duong come in on one other occasion although he was assisted by another salesperson on that date.

The trial court concluded in its written reasons for judgment rendered on August 6, 2003, that there had been no admission as to Duong’s signature on the UM rejection forms and that even if Duong had signed them, he did not sufficiently understand the English language so as to have effectively waived under insured motorist coverage. Therefore, the court awarded Duong damages to be paid by USAgencies in the amount of $10,000.00. A final judgment ordering USAgencies to pay this sum to the plaintiffs was signed on August 18, 2003. The instant appeal followed.

Discussion

Despite the signed waiver of UM coverage, Duong claimed at trial that the waiver was invalid since he could not read or speak English and since no one explained the waiver to him. He therefore attacks his consent to the contract waiver.

A party’s consent to a contract may be vitiated by error. La. C.C. art. 1948. Error vitiates consent only when it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party. La. C.C. art. 1949.

| fiA written insurance contract can be reformed to conform to the original intention of the parties thereto, whether for mutual error or for the negligent, mistaken or fraudulent conduct of the agent who issues the policy. If an insurance agent knows of a policyholder’s true intention as to the coverage desired, the insurance company is bound by the agent’s knowledge, and a policy erroneously issued will be reformed so as to conform to the original intention. An insurer is bound by its agent’s actions in completing a policy application. Dunn v. Pons, 03-1486 (La.App. 5 Cir. 4/27/04), 873 So.2d 811; Raymond v. Zeringue, 422 So.2d 534 (La.App. 5 Cir.1982).

The law requires that a liability policy issued in Louisiana has to contain UM benefits in the amount “not less than the limits of bodily injury liability provided by the policy” unless the insured validly rejects UM coverage or selects lower limits. However, such UM coverage is not required where any insured named in the policy in writing rejects the coverage and opts not to select lower limits. La. R.S. 22:1406(D)(l)(a).

A valid rejection must be in writing and signed by the named insured or his legal representative. The insurer must place the insured in a position to make an informed rejection of UM coverage. The form used by the insurance company must give the applicant the opportunity to make a meaningful selection from his options provided by statute: (1) UM coverage equal to bodily injury limits in the policy; (2) UM coverage lower than bodily injury limits in the policy; or (3) no UM coverage. Tugwell v. State Farm Ins. Co., 609 So.2d 195 (La.1992); Thomas v. Goodson, 26,356 (La.App.2d7 Cir.12/7/94), 647 So.2d 1192. A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage. La. R.S. 22:1406(D)(l)(a)(ii).

This statute embodies strong public policy and is to be liberally construed in favor of coverage, such that statutory exceptions to the UM coverage requirements are interpreted strictly. Croker v. Reliance Natl Indem. Co., 00-0474, 00-0475, & 00-0476 (La.App. 1st Cir.5/11/01), 800 So.2d 4. Where the validity of a rejection of uninsured motorist coverage is at issue, the insurer bears the burden of proving that the insured rejected such coverage in writing or selected lower limits. Tugwell, supra; Dixon v. Gene Moody Trucking, Inc., 36,420 (La. App.2d Cir.10/23/02), 830 So.2d 392. Once the insurer has shown that a rejection form is valid, the burden shifts to the insured to prove otherwise. Dixon, supra.

The coverage for uninsured motorist risk as statutorily provided is a “cause” within the meaning of La. C.C. art. 1949 underlying the policy of insurance and intended for the benefit of the insured. Its importance was well known to USA-gencies, upon which the law placed the burden of obtaining a clear rejection or waiver of coverage. Duong attempted to prove at trial that USAgencies also knew that his waiver of UM coverage was executed in error because of his inability to understand English.

The factfinder’s determination as to whether Duong was sufficiently proficient in basic English so as to understand the nature of the UM rejection form is a factual determination not to be disturbed on review | Runless clearly wrong or absent a showing of manifest error. In applying the manifest error standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Rosell v. ESCO, 549 So.2d 840 (La.1989).

USAgencies challenges the trial court's conclusion on the basis that Duong signed these documents on three separate occasions and that he was well advised of the waiver by Tran on all three occasions. These assertions, however, were disputed at trial, allowing for the trier-of-fact to conclude otherwise.

First, the evidence is not conclusive that Duong signed the UM rejection form on three separate occasions. To the contrary, Duong testified that only the signature on the July 13, 1999 UM rejection form was his. This is substantiated by the fact that the signature on the three separate forms are different. It is also noteworthy that Duong’s license, issued on May 10, 1999, bears a signature most similar to that on the UM rejection form of July 13, 1999, the one confessed by Duong as being his.

Second, the record does not support the assertion that Duong was accompanied by Tran on all three separate occasions. Daphne Verhayden, USAgencies’ employee, testified that she assisted Duong on both March 30, 1999, and July 13, 1999, but that Tran only accompanied Duong on the first of these visits. Duong and Tran both testified that Tran was only present on March 30, 1999, and May 11, 1999. Furthermore, the record strongly suggests that while Tran may speak more English than Duong, his English is by no means good.

|sThe record before us supports the trial court’s conclusion that Duong was not sufficiently proficient in the English language to understand the UM rejection form. Duong had only arrived in the United States from his native Vietnam about one month before making his initial application for insurance with USAgencies, and less than six months before signing the final application and UM rejection form on July 13, 1999. While Verhayden testified that Duong had spoken English to her, the trial court could conclude to the contrary that Duong had no capacity to read and understand the UM waiver and that his incapacity was known or should have been known to USAgencies. Because the trial court’s findings are reasonable in light of the record reviewed in its entirety, this court is precluded from reversing those findings, even if it were convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La.1990).

Our conclusion that a signatory’s inability to read, write, or speak the English language, and thus, inability to understand the nature of that which he signs, is sufficient to warrant the rescinding of an agreement is not without precedent. See Lervick v. White Top Cabs, Inc., 10 So.2d 67 (La.App.Orl.1942); Davis v. Whatley, 175 So. 422 (La.App. 1st Cir.1937). Thus, in keeping with the policy that statutory exceptions to the uninsured motorist coverage requirements are to be strictly construed, we find the rejection of UM coverage under the present circumstances was invalid.

IwConclusion

Accordingly, the judgment of the trial court finding that UM coverage existed under Duong’s USAgencies’ insurance policy and awarding him $10,000.00 in damages under said coverage is affirmed. Costs of this appeal are assessed to USA-gencies.

AFFIRMED.


source: Caselaw Access Project

author: | GARRISON, J. (Pro Tempore).

license: Public Domain

text:
    Charles RUSHING, Plaintiff-Appellant, v. ST. PAUL FIRE AND MARINE, INSURANCE COMPANY, et al., Defendant-Appellee, Christian Services Program Institute, Intervenor-Appellee.
    No. 38,611-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 23, 2004.

      Eron J. Brainard, Amy Brainard, Shreveport, for Appellant.
    Mark Perkins, Shreveport, for Appellee, St. Paul Fire and Marine Insurance Company and Giovanni Reid.
    Bobby Sutton, Jr., Shreveport, for Ap-pellee, Christian Services Program Institute.
    Musa Rahman, Baton Rouge, for Appel-lee, Louisiana Worker’s Compensation Commission.
    Before BROWN, LOLLEY and HARRISON (Pro Tempore), JJ.
   | GARRISON, J. (Pro Tempore).

The plaintiff, Charles Rushing, appeals a judgment in favor of the defendants, St. Paul Fire & Marine Insurance Company (“St.Paul”) and Giovanni Reid. The district court granted defendants’ motion for summary judgment on the grounds that plaintiffs exclusive remedy was a claim for workers’ compensation because he was injured in an accident while in the course of his employment. For the following reasons, we affirm.

FACTS

On November 7, 2001, Charles Rushing was a passenger in a 1997 GMC vehicle owned by the Order of Franciscan Friars and operated by Brother Giovanni Reid, a member of that religious order. Rushing was accompanying Reid to a meeting at the local office of the cable television provider. Reid was proceeding west on Hollywood Avenue in Shreveport, Caddo Parish, when he failed to stop for a red light at an intersection and collided with another vehicle. As a result of the collision, Rushing was physically injured and received medical treatment. At the time of the accident, Reid was Executive Director of the Christian Services Program Institute (“Christian Services”). Rushing was employed by Christian Services as the director of its homeless shelters.

Subsequently, the plaintiff, Rushing, filed a petition for damages against the defendants, Christian Services, Reid and St. Paul, the automobile liability insurer of the Franciscans. Reid and St. Paul filed a motion for summary judgment alleging that plaintiffs exclusive remedy was a claim for workers’ compensation benefits because he was injured in the course of his employment.

| ¡¡After a hearing, the district court granted defendants’ motion for summary judgment, dismissing the plaintiffs claims with prejudice. Plaintiff appeals the judgment.

DISCUSSION

In three assignments of error, the plaintiff contends the district court erred in granting the motion for summary judgment. Plaintiff argues that he should not be limited to a claim for workers’ compensation because he was not injured in an accident arising from and in the course of his employment.

Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, admissions on file and any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966. The mover has the burden of establishing the absence of a genuine issue of material fact. However, if the mover will not bear the burden of proof at trial on the matter, the mover is not required to negate all essential elements of the adverse party’s action or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim or action. The non-moving party must then produce factual support sufficient to satisfy his evidentiary burden at trial. LSA-C.C.P. art. 966(C)(2). Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. NAB Natural Resources v. Willamette Industries, Inc., 28,-555 (La.App.2d Cir.8/21/96), 679 So.2d 477.

LSA-R.S. 23:1031 provides for workers’ compensation benefits to an |semployee who receives personal injury by accident “arising out of and in the course of his employment.” Except for intentional acts, workers’ compensation benefits granted to a worker due to injury shall be exclusive of all other rights, remedies and claims for damages. This exclusive remedy excludes any claims that may arise against his employer or any principal, officer or director of such employer. LSA-R.S. 23:1032. The terms “arising out of’ and “in the course of’ constitute a dual requirement. The former suggests inquiry into the character or origin of the risk, while the latter concerns the time and place relationship of the risk and the employment. Guillory v. Interstate Gas Station, 94-1767 (La.3/30/95), 653 So.2d 1152.

To determine that an accident arises out of employment, a court must consider (1) whether the employee was engaged in his employer’s business and not merely pursuing his own.interest, and (2) whether the employer’s business reasonably required the employee’s presence at the accident location when the accident occurred. Haywood v. Dugal, 00-334 (La.App. 5th Cir.10/31/00), 772 So.2d 240. If the employee was called to the place and time of the accident due to his employer’s business, then his injuries arose from his pursuit of the employer’s interests and not from pursuing his own business or pleasure. Haywood v. Dugal, supra.

An accident occurs in the course of employment when the employee sustains an injury while actively engaged in the performance of his duties during work hours, either on the employer’s premises or at other places where employment activities take the employee. Keith v. Gelco Corp., 30,022 (La.App.2d Cir.12/10/97), 705 So.2d 244; May v. Sisters of Charity of the Incarnate Word, 26,490 (La.App.2d Cir.3/1/95), 651 So.2d 375. The principal criteria for determining course of employment are time, place and employment activity. Tucker v. Northeast La. Tree Service, 27,768 (La.App.2d Cir.12/6/95), 665 So.2d 672.

In support of their motion for summary judgment, defendants filed excerpts from the deposition of Reid, who testified that he was the Executive Director of Christian Services. Reid stated that on the day of the accident, he was driving to the local cable television office to attend a meeting to discuss the broadcast of the annual fund raising telethon for Christian Services. Reid testified that plaintiff and his staff at the homeless shelter needed to be interviewed for the telethon by cable station personnel and that scheduling times for those interviews was part of plaintiffs job. Reid stated that plaintiff could have done this task over the telephone and he was not obligated to go to the cable office, but that plaintiff wanted to go.

Plaintiff submitted his deposition for inclusion in the record of this case. Plaintiff testified that he had been employed by Christian Services as director of homeless shelters and that he was responsible for screening shelter applicants and operation of the facilities. Plaintiff stated that he typically worked from 8 a.m. to 4 p.m. and that part of his job description involved tape-recording a television program. Plaintiff testified that he had asked to ride with Reid when he went to the cable office to discuss the telethon fund raiser. Plaintiff stated that on the day of the accident, he had been working in his office when Reid asked if he was going to the station. The plaintiff testified that although his job duties did not require him to 1 ^accompany Reid to the meeting, he wanted to go to satisfy his “intellectual curiosity” and because he was interested in the various functions of his employer. Plaintiff stated that he received a salary and was paid for his time while riding with Reid and attending the meeting at the cable station. The plaintiff testified that after the accident, they continued to the cable office and he sat with Reid in the meeting.

In support of his position, plaintiff cites the cases Tucker and Hebert v. Jeffrey, 94-1230 (La.App. 1st Cir.4/7/95), 653 So.2d 842. However, unlike the present situation, the accidents in those cases did not occur during work hours and the employees were not paid for their travel time.

In this case, the evidence presented demonstrates that the accident occurred during plaintiffs working hours and at a time for which plaintiff was paid a salary. Although the accident did not occur on the employer’s premises, the plaintiff was injured while he and Reid were en route to a meeting scheduled to discuss plans for broadcasting the employer’s primary fund raising event.

The record shows that the purpose of Reid’s trip was related to the employer’s interest in preparing for the fund raising telethon. The meeting at the cable station was scheduled for the benefit of the employer and this meeting was the only reason for plaintiffs presence in the van at the time of the accident. Thus, the needs of the employer’s business formed the basis for plaintiff to be at the place of the accident when the injury occurred. In addition, the plaintiff was injured while performing the employment activity of being available to his supervisor during working hours. Consequently, |fithe evidence submitted established that the plaintiff was injured in an accident arising out of and in the course of his employment. Immunity

The plaintiff contends that Reid and St. Paul are not immune from a tort suit. Plaintiff argues that because Reid took a vow of poverty and was not paid a salary by Christian Services, he should be considered a volunteer and not an employee for the purposes of workers’ compensation. Under LSA-R.S. 23:1032(0(1), the immunity provided by the statute shall extend to any officer, director or employee of the employer who is engaged in the normal course and scope of his employment at the time of injury.

In his deposition, Reid testified that as a member of the Franciscan order, he had taken a vow of poverty and did not receive a salary from Christian Services. Reid explained that instead, Christian Services paid a stipend of $1,000 per month to the Franciscans for his services. The deposition testimony demonstrates that Reid was not a volunteer, since Christian Services paid compensation on his behalf to the Franciscan order. In addition, the record shows that Reid was executive director of the employer and was performing an activity within the course and scope of his employment at the time of plaintiffs injury. Thus, the plaintiffs argument lacks merit.

Plaintiff also contends the district court erred in finding the lack of a genuine issue of material fact. Plaintiff argues that the affidavits of Tracy Bureham and of himself raise a disputed issue of fact regarding plaintiffs duties at the cable station that precludes summary judgment.

17A fact is material if its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable theory of recovery. Facts are material if they potentially affect the litigant’s ultimate success or determine the outcome of a legal dispute. Keith v. Gelco, supra.

The affidavits referenced by plaintiff state that after the accident, Reid made statements denying that plaintiff was performing job duties at the time. However, plaintiff acknowledged in his deposition that he had filed a claim with the Office of Workers’ Compensation and was receiving workers’ compensation payments for medical expenses resulting from his injury sustained in the accident. In addition, any factual dispute concerning the duties plaintiff would or would not perform once at the cable station is not material in light of the evidence that plaintiff accompanied Reid on the day of the accident because of a meeting related to the employer’s interests. Plaintiffs argument lacks merit.

Based upon this record, the district court reasonably determined that Reid and St. Paul established that plaintiff was injured in an accident arising out of and in the course of his employment, such that his exclusive remedy is workers’ compensation benefits. Therefore, we cannot say the district court erred in granting summary judgment in favor of Reid and St. Paul.

CONCLUSION

For the foregoing reasons, the district court’s judgment is affirmed. Costs of this appeal are assessed to the appellant, Charles Rushing.

AFFIRMED.


author: J^LOLLEY, J.

text:
    Lois DYKES, Plaintiff-Appellant, v. Richard DYKES, Defendant-Appellee.
    No. 38,723-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 23, 2004.

      John B. Morneau & Associates, A.P.L.C., by John B. Morneau, Vivian, for Appellant.
    Casten & Pearce, A.P.L.C. by Marshall R. Pearce, Shreveport, for Appellee.
    Before BROWN, LOLLEY and HARRISON (Pro Tempore), JJ.
   J^LOLLEY, J.

Lois Dykes (“Lois”) appeals the judgment of the First Judicial District Court, Parish of Caddo, State of Louisiana, granting the motion for summary judgment filed by State Farm Mutual Automobile Insurance Company (“State Farm”). For the following reasons, we reverse and remand for further proceedings.

Facts

Richard Dykes (“Richard”) and Lois were married in February 1998 in Arkansas. In December 1999 the couple’s daughter was born. In January 2002 Lois filed a petition for divorce, and on April 1, 2002, she obtained a judgment of separation.

On May 25, 2002, Lois and the couple’s minor child were living with Richard’s father, Johnny Dykes (“Johnny”) in Jefferson, Texas. Johnny was a truck driver, and when he was not at home, he allowed Lois the use of his vehicle, which was insured by State Farm for both liability and uninsured/underinsured motorist coverage (the “policy”). On that day, Lois was driving Johnny’s vehicle on La. Highway 2 in Cad-do Parish, Louisiana with both the child and another passenger in the vehicle when Richard approached them in his vehicle. According to Lois, Richard forced her into the opposing lane of traffic, where she remained until she saw an oncoming vehicle. To avoid a collision with that vehicle, Lois drove into the roadside ditch and came to a sudden stop when she hit a concrete culvert.

Originally, Lois filed suit against only Richard, but later supplemented her petition, naming State Farm, Johnny’s insurer, and Progressive Security Insurance Company, Richard’s liability insurer, as | ^additional defendants. She claimed that she and the couple’s minor child had both been injured as a result of Richard’s actions and the subsequent collision.

State Farm filed a motion for summary judgment, arguing that certain policy exclusions prevented coverage for Lois’ damages. Specifically, State Farm maintained that as alleged in Lois’ petition, Richard’s actions were not considered an accident, as required by the policy, and, thus, were not covered by the policy. State Farm also argued in its motion that there was no coverage under a specific exclusion contained in the uninsured/ un-derinsured motorist (“UM”) portion of the policy regarding bodily injury sustained when any person is struck by a vehicle owned by a family member of the insured. The trial court granted State Farm’s motion, without giving any reasons in support, and this appeal by Lois ensued.

Discussion

On appeal, Lois raises three assignments of error. In her first, she generally argues that the trial court erred in granting summary judgment, while her second and third assignments of error address the two specific issues upon which State Farm’s motion for summary judgment was based.

A motion for summary judgment shall be granted “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.” La. C.C.P. art. 966 B. Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of all except certain disallowed | aactions; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2); Magnon v. Collins, 98-2822 (La.07/07/99), 739 So.2d 191. The burden of proof remains with the mover; however, if the mover will not bear the burden of proof at trial on the matter before the court on the motion for summary judgment, then the mover may merely point out to the court that there is an absence of factual support for one or more elements essential to the plaintiffs claim. The burden then shifts to the non-moving party to present evidence demonstrating that genuine issues of material fact remain. La. C.C.P. art. 966 C(2); Racine v. Moon’s Towing, 2001-2837 (La.05/14/02), 817 So.2d 21; Hardy v. Bowie, 98-2821 (La.09/08/99), 744 So.2d 606.

Once the burden has shifted, the opponent must produce factual support to avert the summary judgment. If the opponent fails to produce such evidence, summary judgment is mandated. La. C.C.P. art. 966 C(2); Racine, supra; Garsee v. Bowie, 37,444 (La.App.2d Cir.08/20/03), 852 So.2d 1156. Mere speculation is not sufficient; the prospect that a fact finding might discredit the mover’s summary judgment evidence will not defeat a properly supported motion. Babin v. Winn-Dixie La. Inc., 2000-0078 (La.06/30/00), 764 So.2d 37; Garsee, supra.

A fact is “material” when its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable theory of recovery. Facts are material if they potentially assure or preclude recovery, affect a litigant’s ultimate success or determine the outcome of the legal dispute. Hardy, supra; Garsee, supra.

Appellate review of the grant or denial of summary judgment is de novo. Ross v. Conoco Inc., 2002-0299 (La.10/15/02), 828 So.2d 546.

As stated, one basis for State Farm’s motion for summary judgment was that Richard’s actions were excluded under the policy. Specifically, State Farm points to the following policy language from the applicable UM portion of the policy:

INSURING AGREEMENT
A. We will pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by a covered person or property damage caused by an accident. (Emphasis added).

There is no other exclusionary clause pertinent to this precise issue pertaining to UM coverage.

State Farm argues that Richard’s actions were clearly intentional and that Lois’ injuries were not “caused by an accident.” As proof of this, State Farm’ points to Lois’ petition, wherein she clearly characterized Richard’s actions as intentional and deliberate. Although Lois repeatedly characterizes Richard’s actions as “intentional” in her petition, such characterization is a conclusion of law. As to Lois’ claim against State Farm, we consider only the underlying factual scenario regarding the incident with Richard. Furthermore, whereas we agree that Richard’s actions were seemingly intentional, it is a questionable fact whether he intended to cause harm or damage to Lois and his minor child. Importantly, we note that State Farm bears the burden of proving the applicability of the stated exclusion. Yount v. Maisano, 627 So.2d 148 (La.1993).

In Sanford v. Reeves, 554 So.2d 1328 (La.App. 1st Cir.1989), the insured’s UM carrier denied coverage for an injury to her daughter, claiming an intentional act exclusion, which exclusion language was virtually identical to that in the policy of the case sub judice. There, the court determined that:

The jurisprudence in this area clearly distinguishes between intentional acts and intentional harm. Where the act is intentional, but the damage is not, this Court has held there was no exclusion from coverage under a contract of insurance, even with an exclusionary clause with language more restrictive than [the insurer’s] policy.

Id. at 1335.

In Breland v. Schilling, 550 So.2d 609 (La.1989), the supreme court interpreted an intentional injury exclusion which was even more explicit than the one at issue herein and stated:

[W]hen minor bodily injury is intended, and such results, the injury is barred from coverage. When serious bodily injury is intended, and such results, the injury is also barred from coverage. When a severe injury of a given sort is intended, and a severe injury of any sort occurs, then coverage is also barred. But when minor injury is intended, and a substantially greater or more severe injury results, whether by chance, coincidence, accident, or whatever, coverage for the more severe injury is not barred. Whether a given resulting bodily injury was intended “from the standpoint of the insured” within these parameters is a question of fact. Such factual determinations are the particular province of the trier of fact, in this instance the trial jury.

Id. at 570 (Emphasis added). Although the tort-feasor in the instant case was not the actual insured under the policy (i.e., a claim being made against a liability policy), the rationale in Breland would still be applicable for a claim made in a UM coverage scenario.

| (¡Richard’s subjective intent or expectation must be determined, not only from what he said or how he acted before, at the time of, and after his pertinent conduct, but from all the facts and circumstances bearing on such intent or expectation. See West v. Watson, 37,100 (La. App.2d Cir.04/09/03), 843 So.2d 565, writ denied, 2003-1297 (La.09/05/03), 852 So.2d 1043. Significantly, Richard answered Lois’ petition and denied the allegations she made therein, responding specifically that he was “Not guilty.” Of perhaps more significance, however, is the fact that Richard’s minor child was in the vehicle with Lois. It is seriously questionable that Richard would have intended to harm his young child, even if he had wanted to harm Lois. Clearly, these facts and circumstances bear on what Richard’s subjective intent or expectation was and further demonstrate how the fact of whether the harm to which he caused Lois was indeed intended. Such a question is obviously determinative of the outcome of this litigation and makes summary judgment inappropriate as to this issue.

Lois also argues that the “family member” exclusion is inapplicable in this case. In its motion for summary judgment, State Farm took the position that Lois was excluded from coverage for her bodily injury when she was struck by a vehicle owned by Richard, because he was a family member. Specifically, the pertinent portions of the policy state:

We do not provide uninsured/underin-sured motorist coverage for any person:
1. For bodily injury sustained while occupying, or when struck by, any motor vehicle or trailer of any type owned by you or any family member which is not insured for this coverage under this policy....

17Further, under the policy, a “family member” is defined as:

... a person who is a resident of your household and related to you by blood, marriage or adoption. This definition includes a ward or foster child who is a resident of your household, and also includes your spouse even when not a resident of your household during a period of separation in contemplation of divorce.

In this case, Lois is the “any person” referred to in the first line of this clause, and her injuries could potentially be excluded from coverage if she was struck by any motor vehicle owned by Johnny or any family member which was not insured for UM coverage under the policy. Here, Lois was not struck by a motor vehicle owned by Johnny, the insured. The question then becomes, was she “struck by” a vehicle owned by a “family member” of the insured — as that term is defined in the policy? Under the clear policy definition, Richard is not a family member, because in order to be such, he would have to meet two distinct criteria, i.e., be a resident of Johnny’s household and a relation by blood, marriage or adoption. Although Richard was related to Johnny by blood (i.e., his son), he was not a resident of Johnny’s household; therefore, Richard is not a family member as defined in the policy. This exclusion is therefore inapplicable as claimed by State Farm and not a valid basis for a grant of summary judgment in its favor.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting State Farm’s motion for summary judgment is reversed, and this case is remanded for further proceedings.

REVERSED AND REMANDED.


author: h GASKINS, J.

text:
    Travis M. HOLLEY, Plaintiff-Appellant, v. PLUM CREEK TIMBER CO., INC., et al., Defendant-Appellee.
    No. 38,716-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 23, 2004.

      Travis M. Holley, Bastrop, for Appellant, Morehouse Parish Police Jury.
    Kean, Miller, Hawthorne, D’Armond, McCowan & Jarman, L.L.P., by Vance A. Gibbs, Christopher J. Dichary, Phyllis Sims and Tiffany C. Sues McAlpine, Baton Rouge, for Appellees, Georgia-Pacific Corp., North American Timber Corporation, Plum Creek, Southern Timber, L.L.C. and Plum Creek Timber Co., Inc.
    Rankin, Yeldell, Herring & Katz, by Stephen J. Katz, for Appellee, Michael Wooden, Tax Assessor for Morehouse Parish.
    Danny McGrew, In Proper Person, Ap-pellee, Ex-Officio Tax Collector/More-house Parish.

      Terry F. Hessick, Burton P. Guidry, Assistant Attorney Generals, for Appellee, La. Dept, of Justice.
    Frederick C. Whitrock, Baton Rouge, for Appellee, La. Dept, of Wildlife and Fisheries.
    Before BROWN, GASKINS and PEATROSS, JJ.
   h GASKINS, J.

The plaintiff, Morehouse Parish Police Jury (MPPJ), appeals a trial court ruling granting summary judgment in favor of the defendants, Plum Creek Timber Company, Inc.; North American Timber Corporation; Georgia-Pacific Corporation; Plum Creek Southern Timber, LLC; Danny McGrew, sheriff and ex-officio tax collector for Morehouse Parish; and Michael Wooden, tax assessor for Morehouse Parish. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.

FACTS

On June 9, 1994, Georgia-Pacific entered into a lease with the Louisiana Department of Wildlife & Fisheries (DWF) covering 25,480 acres of land in Morehouse Parish. The property was to be used for a wildlife management area (WMA). DWF agreed to fence and manage the property for hunting and fishing by the public. As a result of the lease, Georgia-Pacific and its successors in title claimed exemption from ad valorem taxes under La. R.S. 56:24 which provides that the DWF may contract with a private landowner for use of his land for not less than 25 years to establish a WMA, and may agree that where the use is granted without compensation, the lands may be relieved of all state, parish, and district taxes, with certain exceptions.

Travis M. Holley is an attorney who claimed standing to sue as a resident and property owner in Morehouse Parish. On behalf of himself and the Holley Homestead Trust, he filed a petition , for declaratory judgment and mandamus. He argued that the land was not dedicated to public use and that 12La. R.S. 56:24 is unconstitutional because the legislature may not exempt property from ad valorem taxes. He contended that La. R.S. 56:24 is contrary to La. Const, art. 7, § 21 which sets forth a specific list of certain categories of property which are exempt from ad valorem taxes. He claims that the property in this case does not fall into any of those categories.

Holley named as defendants Georgia-Pacific and its successors in title, the parish sheriff, the parish tax assessor, the DWF, and the Louisiana Attorney General. He sought a ruling that La. R.S. 56:24 is unconstitutional and asked that a writ of mandamus be issued ordering the tax assessor to place the property on the assessment role for collection of ad valorem taxes retroactive to 1994, or alternatively from the date of filing of. the petition. He also sought an order directing the sheriff to collect the tax.

The MPPJ later joined the suit as a plaintiff. Holley remained as counsel for the police jury, but he and the Holley Homestead Trust withdrew, leaving only MPPJ as the plaintiff in this matter. The request for mandamus was denied.

On August 14, 2002, the trial court disposed of numerous exceptions. An exception of nonjoinder was denied. An exception of prescription was referred to the merits. Exceptions of vagueness and ambiguity were denied as moot. Certain defendants who had not answered were ordered to do so.

The parties then filed cross motions for summary judgment. The MPPJ filed a motion for partial summary judgment asking that La. R.S. 56:24 be declared unconstitutional under La. Const art. 7, § 21. The defendants filed a motion for summary judgment, asserting that the lease | scomplied with La. R.S. 56:24 and that the statute is constitutional. They contend that the lease was for a term of 25 years, the property was to be used for a WMA, and that the property owners were entitled to be relieved of ad valorem taxes. They argue that the leased property is dedicated for public use and that it constitutes public lands or other .public property used for public purposes under La. Const, art. 7, § 21.

On February 25, 2003, a hearing was held on the motions for summary judgment, limited to the issue of the constitutionality of La. R.S. 56:24. No decision was rendered. The court ordered the parties to file additional briefs in the matter. The plaintiff filed a fourth supplemental and amending petition raising the issue of whether the lease is for a term of at least 25 years as required by La. R.S. 56:24.. It asserted that, because the lease contained a provision that either party could terminate the lease with 30 days’ notice, it did not contain the 25-year term required by the statute.

It appears that settlement negotiations were pursued, but were not successful. Pretrial orders and briefs were filed into the record. A hearing was held on November 7, 2003. The court indicated that the matter was considered for trial; however, at the conclusion of the hearing, the trial court granted summary judgment in favor of the defendants. The court found that the lease complied with the provisions of La. R.S. 56:24, that the statute is constitutional on its face, and that it is constitutional as applied to the leased property in question, exempting it from ad valorem taxation during the time period that the property is leased to the DWF. The court adopted the pretrial brief of the defendants, Georgia-Pacific Corporation, Plum Creek |4Southern Timber, L.L.C., North American Timber Corporation, and Plum Creek Timber Company, Inc., as its written reasons for judgment. The MPPJ appealed, claiming that the lease did not meet the requirements of La. R.S. 56:24, and that the statute is unconstitutional under La. Const, art. 7, § 21.

SUMMARY JUDGMENT

Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action and the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). Summary judgment shall be rendered forthwith 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. La. C.C.P. art. 966(B). Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. NAB Natural Resources, L.L.C. v. Willamette Industries, Inc., 28,-555 (La.App.2d Cir.8/21/96), 679 So.2d 477.

Although the initial burden in summary judgment remains with the mover to show that no genuine issue of material fact exists, once the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that material factual issues remain. Estate of Levitz v. Broadway, 37,246 (La.App.2d Cir.5/14/03), 847 So.2d 170. Despite the legislative mandate |fithat summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 2000-2507 (La.12/8/00), 775 So.2d 1049. The court must draw those inferences from undisputed facts that are most favorable to the party opposing the motion for summary judgment. Independent Fire Insurance Co. v. Sunbeam Corp., 1999-2181 (La.2/29/00), 755 So.2d 226; Estate of Levitz v. Broadway, supra.

CONSTITUTIONALITY OF LA. R.S. 56:24

The MPPJ asserts that La. R.S. 56:24 is unconstitutional on its face. It argues that La. Const, art. 7, § 21 describes property that is exempt from taxation. According to the police jury, the property at issue here does not fall under any of those definitions. Specifically, it argues that the land is not “public property or other public lands” exempt from taxation under this provision. The MPPJ further contends that the legislature is powerless to grant an exemption from taxation, therefore La. R.S. 56:24 is unconstitutional. These arguments are without merit.

An elementary principle of statutory construction in constitutional law holds that all statutory enactments are presumed to be constitutional. Unless the fundamental rights or privileges and immunities of a person are involved, a strong presumption exists that the legislature in adopting legislation has acted within its constitutional authority. Polk v. Edwards, 626 So.2d 1128 (La.1993).

|fiThe legislature of Louisiana, elected by the state’s citizenry, may enact any legislation that the state constitution does not explicitly prohibit. Thus, in order to hold legislation invalid under the constitution, it is necessary to rely on some particular constitutional provision that limits the power of the legislature. Polk v. Edwards, supra.

The party challenging the constitutionality of a statute bears the burden of proving clearly that the legislation is invalid or unconstitutional. Specifically, the party must rely upon a constitutional provision which restricts the power of the legislature to enact the particular legislation and must establish that the legislation is barred by such provision. Any doubt as to the legislation’s constitutionality must be resolved in favor of constitutionality. Polk v. Edwards, supra; Board of Directors of the Louisiana Recovery District v. All Taxpayers, Property Owners, and Citizens of the State of Louisiana, 529 So.2d 384 (La.1988).

Accordingly, in an attack upon a legislative act as falling within an exception to the legislature’s otherwise plenary power, an opponent must establish more than that the constitutionality of the legislation is fairly debatable. The opponent must establish clearly and convincingly that the constitutional aim was to deny to the legislature the power to enact the legislation. Board of Directors of the Louisiana Recovery District v. All Taxpayers, Property Owners, and Citizens of the State of Louisiana, supra.

The legislature is powerless to create tax exemptions or enlarge the scope of those provided by the Louisiana Constitution. Kansas City Southern Railway Company v. Louisiana Tax Commission, 95-2319 (La.App. 1st Cir.6/28/96), 676 So.2d 812.

La. R.S. 56:24 provides:

The commission [DWF] may contract with any private landowner for the use of his lands for a term of not less than twenty-five years for the purpose of establishing wildlife management areas, and may agree, where such use is granted without compensation or payment therefor, that the lands shall be relieved of all state, parish, and district taxes, except in cases where a tax has been contracted to be levied thereon for the retirement of a bond issue or for other outstanding debts or obligations, so long as the lands are used for the purpose stated. Any existing agreement to the foregoing effect is validated.

In order to find that La. R.S. 56:24 unconstitutionally grants an exemption from ad valorem taxation, the plaintiff must show that the statute is prohibited by a provision of our state constitution. La. Const, art. 7, § 21 provides in pertinent part:

In addition to the homestead exemption provided for in Section 20 of this Article, the following property and no other shall be exempt from ad valorem taxation: (A) Public lands; other public property used for public purposes.

Exemptions from taxation are strictly construed, an exemption being an exceptional privilege which must be clearly and unequivocably and affirmatively established. Hibernia National Bank in New Orleans v. Louisiana Tax Commission, 195 La. 43, 196 So. 15 (1940). The language of La. Const, art. 7 § 21 sets forth a mandatory prohibition against exemptions of any property other than that specifically enumerated and is thus a self-executing constitutional provision. Prohibitive or negative constitutional provisions are self-executing as no supplementary legislation is needed to give them effect. Given the mandatory prohibition set forth in La. Const. art. 7, § 21, the legislature is prohibited from granting any exemptions from ad valorem taxation different from the exclusive exemptions established in the Louisiana Constitution. In re Pitre, 93-2322 (La.1/14/94), 630 So.2d 700; Kansas City Southern Railway v. Louisiana Tax Commission, supra.

La. Const, art. 7, § 21 provides that public property or other public lands are exempt from ad valorem taxation. We must determine whether the property at issue here, owned by the private defendants, but leased to the DWF for use as a WMA, is public property. The jurisprudence indicates that privately owned property may be dedicated to public use and may qualify for the ad valorem tax exemption granted by La. R.S. 56:24. Also, no particular form of dedication is necessary.

The character of taxability is not ineffaceably stamped on property, and it may be removed by the act of its owner. Whenever he dedicates it to public use, it passes under the dominion of the exemption that is accorded to public property. Administrators of the Tulane Education Fund v. Board of Assessors, 38 La.Ann. 292 (La.1886). The court in Tulane held that property, dedicated to public use, the revenues of which serve a public purpose, is public property although the title “be not in the public.”

It is not necessary that title to the property be vested in the state or in any of its political subdivisions in order for it to be exempt as public property. If the property is consecrated to public use, it is not taxable irrespective of the nature of the ownership. Warren County, Mississippi v. Hester, 219 La. 763, 54 So.2d 12 (1951), cert. denied, 342 U.S. 877, 72 S.Ct. 167, 96 L.Ed. 659 (1951).

No particular form of deed, or deed at all, is necessary for the dedication of land to the public; it suffices that the owner permits the land to be used by the public with the intention of making the dedication. Dedications to public use and servitudes in favor of the public are not governed by the strict rules which apply to private property; the visible signs of dedication and open use of the property by the public supply the place of both title and registry. Joyce v. Brothers Realty Company, 127 So.2d 756 (La.App. 3d Cir.1961).

There is no sacramental form to be followed in dedicating property to public use in order that the dedication be effective. Furthermore, there is no requirement that the title be in the public, nor is it necessary that the word “dedicate” be used as it is not decisive of the character of the conveyance of the property to the city. Joyce v. Brothers Realty Company, supra.

A WMA is defined in La. R.S. 56:8(108) as:

[A]ny area set aside, maintained, and supervised by the commission for the purpose of managing and harvesting wild birds, wild quadrupeds, fish, and other aquatic life under controlled conditions to afford maximum public hunting and fishing opportunity. [Emphasis supplied.]

The public is informed of the establishment of a WMA by the procedure set forth in La. R.S. 56:109 which provides:

The commission [DWF] may establish, maintain, and manage any state wildlife management area, wildlife refuge, public hunting ground, or outdoor recreation area, as it deems proper for wildlife management purposes. With the approval of the governor, it may lease, buy, or accept donation of, and set apart, any other lands suitable and desirable for such purposes and thereon establish, maintain, and operate such areas. The public shall be notified of the fact of the establishment of such areas by publication of a proclamation by the governor, describing the exact location and description of the lands setlinapart and the objects and purposes of the dedication, for thirty days in the official journal of the state and the official journal of the parish where the lands are located. The commission shall cause suitable signs to be placed at reasonable distances along the boundaries of the lands and at roads and other entrances for the information of the public. No person shall willfully or maliciously remove, destroy, or deface any sign or notice placed or posted. The commission shall authorize persons over the age of sixty to use trails in the wildlife management areas which are set aside for use exclusively by disabled persons.

In the present case, the lease agreement demonstrates that the land was intended to be used by the DWF for a public purpose, the establishment of a WMA. The terms of the agreement specify that the DWF is to establish and locate a WMA on the land by reason of development, improvement, preservation, and protection of the lands in their natural state for the propagation of wildlife at the expense of the DWF.

Although Louisiana Attorney General opinions are merely advisory and not binding, the courts of this State have recognized their persuasive authority. City of New Orleans v. Board of Directors of Louisiana State Museum, 1998-1170 (La.3/2/99), 739 So.2d 748. We note that La. Att. Gen. Op. 1946-48, pp. 1024-1025 provides that contracts with property owners for fish and game preserves serve a sufficient public purpose to bring the property within the constitutional exemption from taxation.

We conclude, as did the trial court, that the lease of private property to the DWF for the public purpose of establishing a WMA falls within the exemption from taxation contained in La. Const, art. 7, § 21. The legislature, in enacting La. R.S. 56:24, specifically granting a tax exemption on property used for a WMA, did not exceed its authority. La. R.S. 56:24 is |nm compliance with and authorized by La. Const, art. 7, § 21. The trial court did not err in finding the statute to be constitutional.

REQUIREMENTS OF LA. R.S. 56:24

The MPPJ claims that the trial court erred in finding that the lease in this matter complied with the requirements of La. R.S. 56:24. The MPPJ acknowledges that the wording of La. R.S. 56:24 grants an exemption from ad valorem taxes under certain conditions. The plaintiff argues that the lease does not comply with the statute because it does not have a term of at least 25 years. Although the lease specified its term was 25 years, it also contained a clause allowing either party to terminate the lease with a 30-day notice. Therefore, the MPPJ urges that this was nothing more than a monthly lease. Because the requirements of the statute were not met, MPPJ argues that the ad valorem tax exemption should not have been granted.

The lease provides:

That the LESSOR, in consideration of the benefits, uses and advantages, accruing to LESSOR by reason of the LESSEE establishing and locating a Wildlife Management Area on the above described lands, and by reason of the development, improvement, preservation and protection of said above described lands in their material state for the propagation of wildlife at the expense of the LESSEE in accordance with existing laws, DOES HEREBY LEASE, LET AND HIRE the said above described lands for the purpose of establishing a Wildlife Management Area thereon for a period of twenty-five (25) years, beginning on the 9th day of June, 1994, and ending on the 8th day of June, 2019, unto the LESSEE here present, accepting and acknowledging delivery and possession thereof.

A listing of conditions of the lease follows, including provisions that:

[T]his lease may be terminated upon thirty (30) days written notice by LESSOR or LESSEE.

|iaThe trial court adopted the reasoning of the defendants who argued that the 30-day notice provision was only a condition of the lease and was not the term. According to the defendants, La. C.C. art. 2674 provides:

To let out a thing is a contract by which one of the parties binds himself to grant to the other the enjoyment of a thing during a certain time, for a certain stipulated price which the other binds himself to pay him. [Emphasis supplied.]

The defendants maintain that the “certain time” of the lease was 25 years and the “certain price” was the defendants’ relief from the payment of all state, parish and district taxes. The defendants argue that the lease contained other conditions such as specifying action that the lessee is required to take in furtherance of the obligation to supervise and manage the wildlife thereon; an indemnity provision; provisions as to the lessee’s right, at the termination of the agreement, to remove any improvements installed during the lease; the lessor’s right to mine minerals; and the right of the lessor or lessee to terminate the lease upon 30 days’ written notice.

The defendants cite La. C.C. art. 2684 which provides that:

The duration and the conditions of leases are generally regulated by contract, or by mutual consent.

They argue that this language indicates that the legislature made a distinction between the duration or term of a lease and other conditions of the lease. The defendants contend that the 30-day notice for cancellation of the lease is only a condition which the parties are required to carry out in good faith. They maintain that a determination that the lease is only for 30 days would be contrary to the intent of the parties.

11sLa. C.C. art. 2024 provides:

A contract of unspecified duration may be terminated at the will of either party by giving notice, reasonable in time and form, to the other party. [Emphasis supplied.]

La. C.C. art. 2024 specifically contemplates a contract without a specified term. To include such a provision in a lease agreement for a fixed term makes both provisions ambiguous.

The Louisiana Civil Code provides that the interpretation of a contract is the determination of the common intent of the parties. La. C.C. art. 2045. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. C.C. art. 2050.

When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art. 2046. However, a doubtful provision must be interpreted in light of the nature of the contract, equity, usages, and the conduct of the parties before and after the formation of the contract. La. C.C. art. 2053.

When the terms of a written contract are susceptible of more than one interpretation, or where there is uncertainty or ambiguity as to its provisions, or the intent of the parties cannot be ascertained from the language employed, extrinsic evidence is admissible to clarify the ambiguity or to show the parties’ intent. Such intent is to be determined in accordance with the plain, ordinary and popular sense of the language used, and by construing the entirety of the document on a practical, reasonable and fair basis. Head’s Video Poker Company, Inc. v. Jordan, 31,745 (La.App.2d Cir.3/31/99), 731 So.2d 946.

In the case of Head’s Video Poker Company, Inc. v. Jordan, supra, this court examined an ambiguous phrase in a three-year lease that the lessor claimed abrogated the term of the lease. In that case, a lease of space for video poker machines provided that the term of the agreement was for three years, if appropriate. The lessor claimed that this provision was a suspensive condition dependent solely upon his whim, therefore creating a nullity under La. C.C. art. 1770. We found that the phrase was ambiguous and examined the evidence to determine the intent of the parties. We then concluded that the parties in fact intended to enter into a lease for three years, contingent upon obtaining the appropriate licensing to operate the video poker machines. We concluded that the term “if appropriate” was not a sus-pensive condition dependent upon the lessor’s whim, making the agreement null.

In the present case, the plaintiff argues that the provision allowing either party to terminate the lease at will abrogates the language specifying that the term of the lease is 25 years. The MPPJ contends that since the lease has no term, it does not meet the requirements of La. R.S. 56:24 and therefore, DWF is not entitled to the ad valorem tax exemption.

We find that the inclusion of a 25-year term of the lease and a clause allowing either party to terminate the lease with 30 days’ notice creates an 11fiambiguity as to the intent of the parties. Either a term of 25 years was intended and the termination-at-will language is not valid or the parties intended a month-to-month lease, rather than a 25-year term. This ambiguity creates a genuine issue of material fact which precludes summary judgment on this issue. We remand this matter to the trial court for proceedings to determine the intent of the parties in executing this lease. If the intent was to specify a term of 25 years, then the requirements of La. R.S. 56:24 regarding exemption from ad valorem taxation have been met. If the parties had no intent to enter into a 25-year lease, then the defendants are not entitled to the tax exemption found in the statute.

CONCLUSION

For the reasons stated above, we affirm that portion of the trial court judgment finding that La. R.S. 56:24 is constitutional under La. Const, art. 7, § 21. We reverse the granting of summary judgment that the lease sub judice complied with the 25-year minimum requirement of La. R.S. 56:24. The case is remanded to the trial court for further evidentiary proceedings in compliance with this opinion. Costs are assessed one-half to the plaintiff and one-half to the defendants.

AFFIRMED IN PART; REVERSED IN PART; REMANDED FOR FURTHER PROCEEDINGS.

      . La. C.C. art. 1770 provides:
      A suspensive condition that depends solely on the whim of the obligor makes the obligation null.
      A resolutory condition that depends solely on the will of the obligor must be fulfilled in good faith.


author: | PEATROSS, J.

text:
    LOUISIANA CLAIMS ADJUSTMENT BUREAU, INC., et al, Plaintiff-Appellant, v. STATE FARM INSURANCE COMPANY, Defendant-Appellee.
    No. 38,709-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 23, 2004.

      . Tommy K. Cryer, Shreveport, for Appellant.
    Casten & Pearce, A.P.L.C., by Marshall R. Pearce, Shreveport, for Appellee.
    Before BROWN, PEATROSS & MOORE, JJ.
   | PEATROSS, J.

This appeal arises from a summary judgment granted by the trial court in favor of Defendant, State Farm Insurance Company (“State Farm”), and against Plaintiff, Louisiana Claims Adjustment Bureau, Inc. (“LCAB”). LCAB now appeals the judgment of the trial court. For the reasons stated herein, we affirm.

FACTS

LCAB is a business that acts on behalf of individuals as a “third party adjuster” in the negotiation of personal injury claims with insurance companies. Specifically, LCAB acts as an attorney-in-fact and legal representative for individuals under an agreement of mandate, representing those individuals seeking assistance in the adjustment of their personal injury claims. The “Act of Mandate” gives LCAB the full power and authority to act for, in the name of and on behalf of the client and it allows LCAB to do all acts necessary or deemed appropriate to “adjust, negotiate, and collect” any and all of its clients’ claims arising out of a motor vehicle accident. LCAB refers clients for medical treatment, sends letters of representation and demand letters, gathers information on accidents, collects medical records and performs legal research to determine the value of claims. In consideration for its services, LCAB retains a 25 percent interest in any and all amounts recovered for its clients. No employee of LCAB is a licensed attorney in Louisiana or elsewhere.

Shortly after beginning operations, LCAB attempted to represent certain individuals who had claims against individuals insured by State Farm. State Farm alleged that LCAB was committing the unauthorized 12practice of law in representing these individuals and it refused to discuss the settlement of their claims. In addition, State Farm advised LCAB clients that LCAB was engaging in the unauthorized practice of law and that it would not discuss their claims further until they had terminated their business relationship with LCAB.

Subsequently, LCAB filed suit against State Farm, seeking damages for defamation and intentional interference with a business relationship. State Farm filed a motion for summary judgment, asserting its defense that its allegations against LCAB were true and that it could not have interfered with LCAB’s contracts with claimants because they were illegal contracts, violating the statutes prohibiting the unauthorized practice of law. The trial court agreed with State Farm’s assertions, including the assertion that LCAB’s contracts were illegal and, therefore, null and void. Granting State Farm’s motion for summary judgment, the trial court found that there was no genuine issue of material fact in dispute. LCAB now appeals, raising the following assignments of error (verbatim):

1. The trial court erred in finding that the Mandate issued to appellant called for the unauthorized practice of law, and, as such absolutely null and void;
2. The trial court erred in holding that the agreement to act as an insurance adjuster and to perform all acts customarily performed by insurance adjusters on behalf of a claimant “amounts to the unauthorized practice of law, and, accordingly the Act of Mandate null and void;
3. The trial court erred in finding that the statements made by representatives of State Farm that appellant was engaging in the authorized practice of law were true, notwithstanding the submission of significant competing and contradictory evidence;
4. The trial court erred in finding (by inference) that there was no genuine issue of material fact relative to State Farm’s claims of affirmative defenses to appellant’s |acauses of action for defamation and for intentional interference with business relationships; and
5. The trial court erred in granting the appellee’s Motion for Partial Summary Judgment.

DISCUSSION

Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action and the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). Summary judgment shall be rendered forthwith 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. La. C.C.P. art. 966(B). Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. NAB Natural Resources, L.L.C. v. Willamette Industries, Inc., 28,-555 (La.App.2d Cir.8/21/96), 679 So.2d 477.

The initial burden of proof in summary judgment remains with the mover to show that no genuine issue of material fact exists. Johnson v. Sunbelt Builders, Inc., 02-0959 (La.App. 3d Cir.2/5/03), 838 So.2d 907. Under La. C.C.P. art. 966(C), once the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that material factual issues remain. Id.

14Defamation Claim

In the case sub judice, State Farm argues that there is no genuine issue of material fact in this case and the trial court judgment giving it judgment as a matter of law should be affirmed. We agree.

Representatives of State Farm allegedly accused LCAB of the unauthorized practice of law. LCAB filed this action claiming that this alleged accusation defamed it and its business. It is well settled that truth is an absolute defense to an action for defamation. Bell v. Rogers, 29,757 (La.App.2d Cir.8/20/97), 698 So.2d 749; Wyatt v. Elcom of Louisiana, Inc., 34,786 (La.App.2d Cir.6/22/01), 792 So.2d 832.

La. R.S. 37:212(A)(2) provides:

The practice of law means and includes: For a consideration, reward, or pecuniary benefit, present or anticipated, direct or indirect;
(a) The advising or counseling of another as to secular law;
(b) In behalf of another, the drawing or procuring, or the assisting in the drawing or procuring of a paper, document, or instrument affecting or relating to secular rights;
(c) The doing of any act, in behalf of another, tending to obtain or secure for the other the prevention or the redress of a wrong or the enforcement or establishment of a right; or
(d) Certifying or giving opinions as to title to immovable property or any interest therein or as to the rank or priority or validity of a lien, privilege or mortgage as well as the preparation of acts of sale, mortgages, credit sales or any acts or other documents passing titles to or encumbering immovable property.

Further, La. R.S. 37:213(A) provides:

No natural person, who has not first been duly and regularly licensed and admitted to practice law by the supreme court of this state, no corporation or voluntary association except a professional law corporation organized pursuant to Chapter 8 of Title 12 of the Revised Statutes, and no partnership or 1 filimited liability company except one formed for the practice of law and composed of such natural persons, corporations, voluntary associations, or limited liability companies, all of whom are duly and regularly licensed and admitted to the practice of law, shall:
(1) Practice law.
(2) Furnish attorneys or counsel or an attorney and counsel to render legal services.
(3) Hold himself or itself out to the public as being entitled to practice law.
(4) Render or furnish legal services or advice.
(5) Assume to be an attorney at law or counselor at law.
(6) Assume, use, or advertise the title of lawyer, attorney, counselor, advocate or equivalent terms in any language, or any phrase concerning any of these titles in such manner as to convey the impression that he is a practitioner of law.
(7) In any .manner advertise that he, either alone or together with any other person, has, owns, conducts, or maintains an office of any kind for the practice of law.

State Farm contends that it is true that LCAB was engaging in the unauthorized practice of law; and, therefore, what its representatives allegedly stated was true and an absolute defense to LCAB’s defamation claim. We agree.

In her deposition, Renee Yurg-Lies-mann, an employee for LCAB, testified that it was LCAB’s goal to act on its clients’ behalf to assist in the settlement of their claims. LCAB would enter into contingency contracts to negotiate client claims for 25 percent of the recovery. A representative of LCAB would act as an adjustor to act for, and in the name of and on behalf of its claimants, to do all acts deemed by the adjustor to be appropriate to investigate, document, adjust, negotiate and collect claimants’ respective claims arising out of a motor vehicle accident. Further, a representative of LCAB would evaluate claims, researching the law, and then explain to the client what they thought the injury was worth. The representative would 1 fithen begin the process of negotiating the settlement by sending out a demand letter, outlining liability and special and general damages. After the letter was sent, the LCAB representative would follow-up with further negotiations and threatening litigation when necessary. If it was necessary to refer a claim to an attorney, the Act of Mandate allowed LCAB to retain a 10 percent interest in the claim.

In Louisiana State Bar Association v. Edwins, 540 So.2d 294 (La.1989), reconsideration denied, 550 So.2d 619 (La.1989), the supreme court held that:

The prohibition against the practice of law by a layman is grounded in the need of the public for integrity and competence of those who undertake to render legal services. Competent professional judgment is the product of trained familiarity with law and legal processes, a disciplined, analytical approach to legal problems, and a firm ethical commitment. A non-lawyer who undertakes to handle legal matters is not governed as to integrity or legal competence by the same rules that govern the conduct of a lawyer....
Functionally, the practice of law relates to the rendition of services for others that call for the professional judgment of a lawyer. The essence of professional judgment of the lawyer is his educated ability to relate the general body and philosophy of law to a specific legal problem of a client; and, thus, the public interest will be better served if only lawyers are permitted to act in matters involving profession judgment.

The statutes dealing with the unauthorized practice of law were established to protect the public.

This court has previously held that, when a person who is not an attorney represents another in the negotiation and settlement of a personal injury claim for consideration, pursuant to a contingency fee contract, that person has engaged in the unauthorized practice of law. Duncan v. Gordon, 476 So.2d 896 (La.App. 2d Cir.1985). It is the unauthorized practice of law because the person must advise the client of issues concerning the redress of a legal wrong. Id. In order to dispense the kind of legal advice to its clients necessary in this case, the representatives of LCAB would have had to perform the functions of a licensed attorney. Only a licensed attorney would be able to verify whether or not a case would have merit, and, yet, the representatives of LCAB acted on behalf of their clients as if they had the knowledge necessary to make that determination. Evaluating a claim and determining whether it has merit or is, instead, frivolous must be done by a licensed attorney. Without a licensed attorney on staff making this determination, LCAB was committing the unauthorized practice of law when its representatives evaluated client claims and advised clients of their causes of action against others. LCAB representatives attempted to function as, and perform the duties of, a duly licensed attorney. LCAB’s use of several codal articles to support its claims that it can participate in the activities found in the “Act of Mandate” is unpersuasive based on the irrelevance of these statutes to the instant case. We find that State Farm’s alleged assertions of LCAB’s unauthorized practice of law were true and an absolute defense to LCAB’s claim of defamation; and, therefore, we pretermit discussion of any issues related to privilege.

Intentional Interference tvith Business Relations

In order to show that a defendant intentionally interfered with a business relationship between a plaintiff and a third party, it must be shown that a contract existed between the plaintiff and the third party. See 9 to 5 Tashions, Inc. v. Spurney, 538 So.2d 228 (La.1989). If a contract did not exist, then there can be no cause of action for intentional interference.

A null contract is deemed never to have existed. A contract is null if the requirements for its formation were not met. A contract is an absolute nullity if it violates a rule of public order. La. C.C. art.2030. An absolutely null contract cannot be confirmed.

State Farm argues that it could not have interfered with the contract between LCAB and its clients because no contract existed since the contract was based on LCAB representative’s unauthorized practice of law. We agree. One sister court in our state has previously held that contracts involving the unauthorized practice of law are absolutely null. See Meunier v. Bernich, 170 So. 567 (La.App.Orleans 1936). We likewise find that a contract of employment for a person who is not a licensed attorney, who agrees to perform legal services without being authorized by law to do so, is against public policy; and, consequently, the contract is absolutely null. Moreover, we note that State Farm was attempting to protect a legitimate business interest when it notified LCAB’s clients of its refusal to deal with LCAB and, therefore, is protected and LCAB is prevented from recovering for intentional interference with business relationships. See McCoin v. McGehee, 498 So.2d 272 (La.App. 1st Cir. 1986). All of LCAB’s assignments of error are without merit.

| flCONCLUSION

For the foregoing reasons, the judgment of the trial court granting State Farm Insurance Company’s motion for summary judgment is affirmed. Costs of this appeal are assessed to Plaintiff, Louisiana Claims Adjustment Bureau, Inc.

AFFIRMED.

      . This motion for partial summary judgment later became a full motion for summary judgment.