author: CIACCIO, J.

text:
    Nelson DAVIS v. DUNN & BUSH CONSTRUCTION a/k/a Dunn Roadbuilders Company.
    No. 2001 CA 2472.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 20, 2003.

      Ben E. Clayton, Metairie, for Plaintiff/Appellant Nelson Davis.
    Raymond S. Maher, Jr., New Orleans, for Defendant/Appellee Dunn & Bush Construction a/k/a Dunn Roadbuilders Company.
    Before: CARTER, C.J., WHIPPLE, McDonald, McCLENDON, and CIACCIO, JJ.

      . The Honorable Philip C. Ciaccio, Judge (retired), Fourth Circuit Court of Appeal, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   CIACCIO, J.

This workers’ compensation case is before this court following remand to the Office of Workers’ Compensation (OWC) for hearing on the issue of whether the claimant received prior notice of a May 3, 2000 hearing, at which he failed to appear, and following which his case was dismissed. For the reasons that follow, we reverse the OWC denial of the claimant’s motion to annul the judgment of dismissal.

FACTS AND PROCEDURAL HISTORY

The facts and procedural history of this case are as set forth in our prior opinion, Davis v. Dunn & Bush Construction, 2001-2472 (La.App. 1 Cir. 4/9/03), 858 So.2d 451:

In September 1997, Nelson Davis was injured during the course and scope of his employment as a truck driver with Dunn & Bush Construction (“Dunn & Bush”). On November 21, 1997, he filed a disputed claim for compensation contending that Dunn & Bush was late in paying and underpaying his weekly compensation benefits, that he was denied his choice of physician, and that he was entitled to penalties and attorney’s fees. [FN2. He later sought approval for additional back surgery.]
After several continuances, a trial was scheduled for January 27, 2000. But on January 24, 2000, Charlsey Wolff, counsel for Mr. Davis, moved to stay the proceedings indefinitely. Ms. Wolff explained that Mr. Davis had been incarcerated and that she was therefore unable to effectively communicate with him in preparing for trial. OWC denied the motion.
On January 25, 2000, Ms. Wolff moved to continue the January 27, 2000 trial date, arguing that she needed additional time to arrange a trial deposition with prison officials and opposing counsel. OWC granted this motion and rescheduled the trial for May 3, 2000.
Soon after, Ms. Wolff moved to withdraw as attorney of record. Ms. Wolff noted the upcoming trial date, but contended that Mr. Davis’s incarceration hindered her ability to properly represent him. The motion included a contact address for Mr. Davis with the Department of Corrections. OWC granted Ms. Wolffs motion to withdraw on February 18, 2000.
When Mr. Davis failed to appear for trial on May 3, 2000, OWC dismissed his claim without prejudice at his cost. The order noted that the claim could be reinstated “only ... upon a showing of good cause within thirty (30) days of receipt of this order.” A second judgment, dated May 4, 2000, dismissed Mr. Davis’s claim with prejudice for failure to appear and ordered that each party bear its own costs.
On May 14, 2001, represented by new counsel, Mr. Davis moved to annul the judgment and reinstate his claim. Mr. Davis claimed that the judgment of dismissal was obtained by fraud or ill lapractice and should therefore be annulled pursuant to LSA-C.C.P. art.2004. Specifically, Mr. Davis argued that because OWC knew that he was incarcerated and unable to retain new counsel or appear at trial, its decision to dismiss his claim with prejudice rather than continuing the matter constituted an ill practice. After a hearing, OWC denied the motion.
Mr. Davis now appeals, arguing that OWC erred in refusing to annul the prior judgment of dismissal and reinstate his claim.

Concluding that the record was not clear as to whether Mr. Davis had been notified of the trial date, this court remanded the matter to the OWC for the taking of additional evidence on the issue. Upon remand, a hearing was held before the OWC on May 6, 2003.

At the hearing, Mr. Davis testified that he never received any notice of the May 3, 2000 court date. Mr. Davis’s prior counsel, who had withdrawn from representation of Mr. Davis prior to the trial date, testified that it was her normal practice to send a client her motion to withdraw, which contained a reference to the May 3, 2000 court date, or to otherwise notify a client of upcoming hearing dates. However, counsel could produce no written documentation to show that she had, in fact, given Mr. Davis notice of the May 3, 2000 court date, and counsel stated that she had no independent recollection of having provided notice to Mr. Davis.

At the conclusion of testimony, the OWC judge stated that his review of the record did not reveal any indication that Mr. Davis had been sent notice of the May 3, 2000 trial. On May 9, 2003, the OWC judge signed a judgment stating, “This court, having heard the evidence and considering the notice requirements of LSA-C.C.P. art. 1571[,] concludes that there is no evidence in the record of the court or elsewhere that Nelson Davis was given notice of the May 3, 2000 trial setting.”

The appellate record has been supplemented with these additional OWC proceedings and the matter is now before this court for determination of the merits of Mr. Davis’s appeal, contesting the validity of the OWC denial of his | ¿motion to vacate the judgment dismissing his claim for failure to appear at the May 3, 2000 trial, and to reinstate the suit.

DISCUSSION

In our prior opinion, we stated:

Davis argues that OWC never notified him of the May 3, 2000 trial date. When a trial court provides written notice of a trial date to the attorney of reeord, but the attorney thereafter moves to withdraw as attorney of record, the trial court bears the responsibility of ensuring that the litigant receives notice of the pending trial in writing. [FN3. LSA-C.C.P. art. 1571.] The court can satisfy this notice requirement by reissuing the notice of trial to the unrepresented litigant directly. Otherwise, the court must receive reasonable proof that the withdrawing attorney has notified the client in writing of the trial date. This can be accomplished by attaching to the motion to withdraw a certified letter to the client or other evidence indicating the client has received unequivocal written notice of trial. If the record demonstrates that a litigant did not receive notice of trial, then he was denied procedural due process and fundamental fairness. [FN4. Id.]
Accordingly, Mr. Davis was entitled to written notice of trial when his attorney was allowed to withdraw.

Adequate notice is one of the most elementary requirements of procedural due process; it is fundamental to our system of laws that there be notice prior to trial, except in extraordinary cases, such as executory process. Howard v. A & M Construction Company, 93-1013, p. 5 (La.App. 1 Cir. 4/29/94), 637 So.2d 575, 578. Further, Louisiana Workers’ Compensation Law dictates that each party to an OWC proceeding shall have the right to be present at any hearing or to appear through an attorney. LSA-R.S. 23:1317. Because the OWC did not notify Mr. Davis of the trial date, and Mr. Davis was not represented at the trial, Mr. Davis’s right to procedural due process was violated. See Howard v. A & M Construction Company, 93-1013 at p. 6, 637 So.2d at 578. Consequently, the judgment of the OWC dismissing Mr. Davis’s claim for his failure to appear at the trial of the matter was improper.

A final judgment obtained by fraud or ill practices may be annulled. LSA-C.C.P. art.2004. Our jurisprudence sets forth two criteria to determine whether a judgment has been obtained by actionable fraud or ill practices: (1) when the circumstances under which the judgment was rendered show the deprivation of lfilegal rights of the litigant who seeks relief, and (2) when the enforcement of the judgment would be unconscionable and inequitable. Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1070 (La.1983). An action to annul a judgment under LSA-C.C.P. art.2004 is not limited to cases of actual fraud or intentional wrongdoing, but is sufficiently broad to encompass all situations wherein a judgment is rendered through some improper practice or procedure which operates, even innocently, to deprive the party cast in judgment of some legal right, and where the enforcement of the judgment would be unconscionable and inequitable. Id. Conduct which prevents a party from having an opportunity to appear or to assert a defense constitutes a deprivation of his legal rights. Id. The lack of notice of trial is a defect falling within the purview of LSA-C.C.P. art. 2004. Sweeney, Inc. v. Olivier, 589 So.2d 61, 63 (La.App. 1 Cir.1991). Thus, the motion to annul the dismissal of Mr. Davis’s OWC claim and reinstate his suit before the OWC had merit and should have been granted.

CONCLUSION

For the reasons assigned herein, the June 14, 2001 judgment of the Office of Workers’ Compensation, denying the motion to annul the judgment of dismissal and reinstate the suit, is hereby reversed and the motion granted. We render judgment herein annulling the May 4, 2000 judgment of the Office of Workers’ Compensation dismissing Mr. Davis’s suit with prejudice, and the matter is remanded for further proceedings in accordance with the foregoing. All costs of this appeal are to be borne by defendant/appellee, Dunn & Bush Construction a/k/a Dunn Roadbuild-ers Company.

REVERSED; RENDERED; AND REMANDED.


source: Caselaw Access Project

author: I «CARTER, C. J.

license: Public Domain

text:
    Alga MILLER, Pearl Miller, Dalton Miller, Vergis Adams, Rita Adams, Anita Miller, Wilbert Miller and Opal Miller v. SUPERIOR SHIPYARD AND FABRICATION, INC., Chris J. Guidry, Louisiana Farm Bureau Mutual Insurance Company, Ulysses Hunter, T.T.C. Illinois, Inc., Lexington Insurance Company, State Farm Mutual Automobile Insurance Company and Allstate Indemnity Company.
    No. 2001 CA 2907-R.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 20, 2003.

      J.B. Jones, Jr., Cameron, for Plaintiffs, Alga Miller, et al.
    Barry Boudreaux, Houma, Patrick J. McShane, Frederick J. Greschner, Jr., New Orleans, for Defendant, Superior Shipyard and Fabrications, Inc.
    Mark C. Dodart, Nora B. Bilbro, New Orleans, for Defendant/Appellant, Lexington Insurance Company.
    Isaac H. Soileau, Jr., New Orleans, for Defendant/Appellee, T.T.C. Illinois, Inc.
    Harold J. Lamy, New Orleans, for Defendant, Ulysses Hunter.
    Thomas L. Hutchinson, New Orleans, for Defendants, Louisiana Farm Bureau Mutual Ins. Co. and Chris Guidry.
    Cheri T. Burlett, New Orleans, for Defendant, Chris Guidry.
    Michael G. Gee, Thibodaux, for Defendant, State Farm Mutual Automobile Ins. Co.
    Christopher E. Lawler, Metairie, for Defendant, Allstate Insurance Company.
    Before: CARTER, C.J., WHIPPLE, and CIACCIO, JJ.

      . Hon. Philip C. Ciaccio, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   I «CARTER, C. J.

This case is before us on remand from the Supreme Court to consider the merits of Lexington Insurance Company’s (Lexington’s) appeal from a partial summary judgment granted in favor of T.T.C. Illinois, Inc. (T.T.C.). For the following reasons, we affirm.

BACKGROUND

This matter arises out of a pedestrian-vehicular accident at Superior Shipyard and Fabrications, Inc. (Superior) in Golden Meadow, Louisiana, on August 11, 1998. The accident occurred when a contract welder for Superior, Chris Guidry (Gui-dry), backed over Alga Miller (plaintiff), while operating his welding truck in connection with a job on Superior’s premises. The accident occurred in full view of another contract welder, Ulysses Hunter (Hunter), who allegedly could have prevented the accident.

Plaintiff brought suit on October 2,1998, against Superior, Guidry, Hunter, and Gui-dry’s insurer. The petition was supple-merited and amended numerous times to name various other insurers, including Lexington, Superior’s commercial general liability (CGL) insurer, and T.T.C. as defendants. T.T.C. contracted with Superior to provide payroll and benefit processing services and other administrative functions such as handling workers’ compensation and unemployment claims. The contract between T.T.C. and Superior required Superior to provide comprehensive liability insurance and name T.T.C. as an additional named insured under the policy.

Plaintiff alleged that T.T.C. was vicariously liable for the negligence of Superior and the contract welders, Guidry and Hunter. T.T.C. denied all liability and filed a cross-claim against Superior and Lexington for its defense, attorney’s fees, costs and expenses pursuant to its agreement with Superior; however, Lexington denied coverage for T.T.C. under its CGL policy.

T.T.C. filed a motion for partial summary judgment against Lexington asking the trial court to grant “additional-insured” status to T.T.C. pursuant to an Lendorsement in the Lexington CGL policy, thereby requiring Lexington to provide T.T.C. with a defense and to reimburse attorney’s fees and expenses. On September 10, 2001, the trial court granted T.T.C.’s motion for partial summary judgment, and Lexington appealed that judgment. The only issue to be addressed is whether T.T.C. is entitled to additional-insured status under the Lexington CGL policy.

STANDARD OF REVIEW

An appellate court reviews a trial court’s decision to grant a motion for summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Robinson v. Heard, 2001-1697, p. 3 (La.2/26/02), 809 So.2d 943, 945. Interpretation of an insurance policy is usually a legal question that can be properly resolved by means of a motion for summary judgment. Sanchez v. Callegan, 99-0137, p. 5 (La.App. 1 Cir. 2/18/00), 753 So.2d 403, 405. When determining whether a policy affords coverage for an incident, the insured bears the burden of proving the incident falls within the policy’s terms. See Doerr v. Mobil Oil Corp., 2000-0947, p. 5 (La.12/19/00), 774 So.2d 119, 124, modified on other grounds on reh’g, 2000-0947 (La.3/16/01), 782 So.2d 573. Summary judgment declaring a lack of coverage under an insurance policy may be rendered only if there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Sanchez, 753 So.2d at 405.

DISCUSSION

An insurance policy is a contract between the insured and the insurer and has the effect of law between the parties. Highlands Underwriters Ins. Co. v. Foley, 96-1018, p. 6 (La.App. 1 Cir. 3/27/97), 691 So.2d 1336, 1340. Because | fian insurance policy is a contract, the rules established for the construction of written instruments apply to contracts of insurance. Billiot v. Terrebonne Parish Sheriff’s Office, 98-0246, p. 9 (La.App. 1 Cir. 2/19/99), 735 So.2d 17, 24, writ denied, 99-1376 (La.7/2/99), 747 So.2d 22. The parties’ intent, as reflected by the words of an insurance policy, determines the extent of coverage, and the intent is to be determined in accordance with the plain, ordinary, and popular sense of the language used in the policy, unless the words have acquired a technical meaning. LSA-C.C. art.2047; Highlands Underwriters, 691 So.2d at 1340. If the language in an insurance contract is clear and unambiguous, the agreement must be enforced as written and a reasonable interpretation consistent with the obvious meaning and intent of the policy must be given. Id.; Robinson, 809 So.2d at 945. The determination of whether a contract is clear or ambiguous is a question of law. Watts v. Aetna Cas. and Sur. Co., 574 So.2d 364, 369 (La.App. 1 Cir.), writ denied, 568 So.2d 1089 (La.1990).

In the instant case, it is undisputed that Superior and T.T.C. had a written contract that required Superior to name T.T.C. as an additional named insured under the Lexington CGL policy. It is also undisputed that T.T.C. was not specifically named as an additional insured in the Lexington CGL policy. However, the Lexington CGL policy contained an endorsement with very specific language regarding additional-insured status when required by a written contract.

The interpretation of the additional-insured endorsement is a question of law, and we must examine the specific language of the endorsement to determine its meaning. The endorsement provides:

It is agreed that, if required by written contract, any person, firm or organization is included as an Additional Insured but only with respect to operations performed by the Named Insured or to acts or IfiOmissions of the Named Insured in connection with the Named Insured’s operations.

It is undisputed that the only named insured in the Lexington CGL policy was Superior. Thus, under the clear and unambiguous language of the endorsement, additional-insured status extends only when required by contract (as in this case) and only with respect to operations performed by Superior or to acts or omissions of Superior in connection with Superior’s operations. The endorsement was clearly intended to limit the additional-insured status to claims arising out of Superior’s acts or omissions in connection with its operations and to protect the additional insured from exposure to liability for Superior’s acts or omissions.

Lexington argues that T.T.C. was brought into the instant case based on plaintiffs allegations of T.T.C.’s own negligence and for the negligence of its alleged employees, Guidry and Hunter. Lexington contends that the endorsement does not provide additional-insured status for T.T.C.’s own negligence. We find no merit to Lexington’s argument. The plain wording of the endorsement shows that it applies to any potential liability sought to be imposed upon the additional insured (T.T.C.) because of something the named insured (Superior) is alleged to have done or failed to have done in connection with the named insured’s (Superior’s) operations.

A review of the pleadings reveals that T.T.C. was brought into the litigation based on plaintiffs allegations of vicarious liability for the negligent actions of Guidry, Hunter and Superior, not for any allegation of individual negligence on the part of T.T.C. Plaintiff was allegedly injured on Superior’s premises as a result of an accident directly connected with Superior’s business operations. The accident arose out of the business operations (preparations for welding on Superior’s premises) performed by Superior, not operations performed by T.T.C. (processing and computing payroll, benefits, workers’ compensation, or unemployment benefits claims). Plaintiff makes no allegations regarding |7individual negligent acts or omissions by T.T.C. that led to his injury. The additional-insured coverage arises out of the allegations made by plaintiff that T.T.C. was vicariously liable for the negligence of Superior, in that Superior allegedly failed to adequately light the premises and failed to adequately warn and provide for rules of passage around the premises. Plaintiff also alleged that Superior violated various statutory regulations. Thus, the specific requirement of the additional-insured endorsement (allegations of Superior’s acts or omissions in connection with its operations) is met, and we find that T.T.C. is an additional insured under the Lexington CGL policy.

We also find that Lexington’s argument that there remain genuine issues of material fact regarding whether Guidry and Hunter were employees of Superior or T.T.C., or both, is irrelevant for purposes of determining T.T.C.’s additional-insured status. T.T.C.’s potential vicarious liability for the negligent acts of its alleged employees is one aspect of plaintiffs claim against T.T.C. Another part of plaintiffs claim against T.T.C. is its potential vicarious liability for the negligent acts of Superior. It is the exposure to liability for Superior’s negligence that triggers the additional-insured status for T.T.C., as well as Lexington’s duty to defend. Although Lexington’s CGL policy may not provide coverage for each of plaintiffs claims against T.T.C., it does provide coverage for some of the claims and that is sufficient to trigger Lexington’s duty to defend the entire claim.

It is well settled that an insurer’s obligation to defend suits against its insured is broader than its liability for damage claims. The duty to defend is determined by the allegations of the injured plaintiffs petition, and the insurer is obligated to furnish a defense unless the petition unambiguously excludes coverage. See Meloy v. Conoco, Inc., 504 So.2d 833, 838 (La.1987); American Home Assur. Co. v. Czarniecki, 255 La. 251, 269, 230 So.2d 253, 259 (1969). Furthermore, the allegations of the petition are to be liberally interpreted in ascertaining whether they engender a duty to defend. If they do not unambiguously exclude coverage, then the insurer is required to defend, Ishrespective of the outcome of the suit. Yount v. Maisano, 627 So.2d 148, 153 (La.1993).

Plaintiffs petition (as supplemented and amended) contains allegations of Superi- or’s acts or omissions in connection with its operations and the potential vicarious liability of T.T.C. for Superior’s acts or omissions. Thus, Lexington’s duty to defend T.T.C. as an additional insured was triggered, and T.T.C. has the right to call upon Lexington to provide a defense and to reimburse it for defense expenses it has previously incurred. The remaining issue of whether Superior’s alleged acts or omissions actually rise to a level of negligence and whether Lexington will ultimately be responsible for damages is irrelevant to the issue of Lexington’s duty to defend T.T.C.

CONCLUSION

We conclude that the trial court correctly granted T.T.C. additional-insured status under the clear language of the endorsement to Lexington’s CGL policy. T.T.C. was entitled to summary judgment as a matter of law, and we affirm the trial court’s ruling in all respects. Costs of this appeal are assessed against defendant/appellant, Lexington Insurance Company.

AFFIRMED.

      . Plaintiff was on Superior’s premises to clean the yard and cut the grass.

      .Plaintiff and his wife died subsequent to the filing of suit and his adult children were substituted as parties to assert the decedents’ claims.

      . Several motions for summary judgment were heard on August 16, 2001. The trial court signed the partial summary judgment at issue on September 10, 2001, and designated the judgment as final and appealable. Lexington appealed, and on November 8, 2002, this court dismissed the appeal after determining that the trial court improperly certified the partial summary judgment as final. See Miller v. Superior Shipyard and Fabrication, Inc., 2001-2907 (La.App. 1 Cir. 11/8/02), 835 So.2d 693. On May 2, 2003, the Supreme Court reversed the dismissal and remanded the case for us to consider the merits of Lexington's appeal. See Miller v. Superior Shipyard and Fabrications, Inc., 2003-0539 (La.5/2/03), 847 So.2d 1182.

      . The written service agreement contract between Superior and T.T.C. provided as follows:
      [Superior] shall obtain and maintain in full force and effect ... comprehensive liability and property damage insurance with respect to the use or operation of equipment or property owned, possessed, transported or leased by [Superior], and [Superi- or] shall assume full liability to the public for the use or operation thereof. [Superior] shail have T.T.C. added as an additional named insured on all policies providing such coverage. (Emphasis added.)

      . Plaintiff's First Supplemental and Amending Petition for Damages names T.T.C. as a defendant and specifically alleges: "T.T.C. is liable under the Doctrine of Respondeat Superior for the fault of Guidry, [Hunter], and Superior.” There is no specific allegation of T.T.C.'s individual fault. Plaintiff made no other allegations against T.T.C. in any pleading, other than to allege that Guidry and Hunter were T.T.C.'s employees.


author: J^FOIL, J. hMcCLENDON, Judge, 11KLINE, J.

text:
    Richard CADOR v. NEAL’S CYPRESS INN and Commercial Union Insurance Company.
    No. 2002 CA 1976.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 20, 2003.
    Writ Denied Dec. 12, 2003.
    John Lambremont, Sr., Baton Rouge, for Appellant Plaintiff Richard Cador.
    Robert May, Metairie, for Appellees Defendants Neal’s Cypress Inn and Commercial Union Ins. Co.
    Walter Smith Baton Rouge, for Appel-lees Defendants Craig Neal, Linda Neal, Michael Neal, Jack Neal and Lisa Neal.

      Michael Clegg, Baton Rouge, for Appel-lee Defendant Craig Neal.
    Christopher Philipp, Lafayette, for Ap-pellee Defendant Mississippi Physicians Insurance.
    Donald Moore, Gulfport, MS, for Appel-lee Defendant Neal’s Magnolia Inn.
    Panel composed of Judges FRANK FOIL, PAGE McCLENDON and WILLIAM F. KLINE, JR.

       Judge WILLIAM F. KLINE, Jr., Retired, serving Pro Tempore by special appointment of the Louisiana Supreme Court.

   J^FOIL, J.

Claimant, Richard Cador, appeals from a judgment dismissing his claim for workers’ compensation benefits against his employer, Neal’s Cypress Inn, Inc. (NCI), and several other defendants. We affirm.

NCI, a hotel located in New Roads, Louisiana, employed Mr. Cador as a maintenance worker. The shareholders of NCI also owned Neal’s Magnolia Inn, Inc. (NMI), a hotel in Woodville, Mississippi. Mr. Julius Carter owned a building near NMI. Mr. Cador’s right leg was fractured in several places when he fell from a ladder while painting Mr. Carter’s building.

Mr. Cador filed a workers’ compensation claim against NCI, NMI, the individual shareholders of both corporations, as well as various insurers. After a trial, the workers’ compensation judge found Mr. Neal had failed to prove he was an employee of NCI, NMI, or any of the corporate shareholders at the time he was injured. Rather, the workers’ compensation judge found Mr. Neal was performing work as an independent contractor at the time of his accident. Mr. Cador appeals.

On appeal, Mr. Cador contends the workers’ compensation judge erred in finding he was an independent contractor at the time of his accident. Mr. Cador also argues that, even if he were an independent contractor, he is still entitled to workers’ compensation benefits under the “manual laborer” exception in La. R.S. 23:1021(6).

An appellate court must affirm a workers’ compensation judgment unless it is based on legal error or factual findings that are manifestly erroneous. Novak v. North Oaks Medical Center, 00-0005 (La.App. 1 Cir. 9/28/01), 809 So.2d 340, 341. After a thorough review of the record, we conclude the legal conclusions and factual findings of the workers’ compensation judge are correct.

Accordingly, we affirm the workers’ compensation judgment. Costs of the appeal are assessed to Mr. Cador.

AFFIRMED.

McCLENDON, J., concurs with reasons.

KLINE, J., dissents with reasons.

hMcCLENDON, Judge,

concurring.

I respectfully concur. In applying the manifest error rule, a court of appeal may not substitute its own view of the evidence for factual findings of the trier of fact that are reasonable and supported by the evidence. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Herein, the workers’ compensation judge’s determination that Mr. Ca-dor was an independent contractor was based heavily on credibility determinations. Therefore, although my opinion may differ, I cannot say that it was manifestly erroneous.

11KLINE, J.

dissents.

I respectfully dissent and would remand this case to the trial court to determine under the facts or any additional circumstances if the plaintiff is afforded coverage under La. R.S. 23:1021(6), to wit:

‘Independent Contractor’ means any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or as a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished, and are expressly excluded from the provisions of this Chapter unless a substantial part of the work time of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter.