author: 11 GLENN B. GREMILLION, Judge. | THIBODEAUX, J.,

text:
    Juan LOPEZ v. MARINE DRILLING COMPANY, et al.
    No. 02-1223.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 22, 2003.
    Rehearing Denied Dec. 10, 2003.

      George Arthur Flournoy, Flournoy, Doggett & Losavio, Alexandria, LA, Paul G. Moresi Jr., Moréis & Moresi, Abbeville, LA, for Plaintiff/Appellant Juan Lopez.
    Douglas C. Longman Jr., Perret, Doise, APLC, Lafayette, LA, for Defendant/Ap-pellee Baroid Drilling Fluids, Baroid Division of Dresser Industries, Inc.
    Dean Anderson Cole, LaBorde & Neuner, Lafayette, LA, for Defendant/Appellee Tidewater Marine, Inc.
    Charles A. Mouton, Preis, Kraft & Roy, Lafayette, LA, for Defendant/Appellee Marine Drilling Company Mar-Drill, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, BILLIE COLOMBARO WOODARD, OSWALD A. DECUIR, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   11 GLENN B. GREMILLION, Judge.

The plaintiff, Juan Lopez, appeals the judgment of the trial court representing a jury verdict finding no liability on the part of the defendants, Tidewater Marine, Inc., Marine Drilling Company, and Baroid Drilling Fluids, Baroid Division of Dresser Industries, Inc., and dismissing his claims against them with prejudice. We affirm.

FACTS

Lopez was employed as a mechanic trainee by Marine Drilling on the Drilling vessel MARINE 300, in state navigable waters off the coast of Vermilion Parish, Louisiana. In the early morning hours of November 28, 1996, he suffered an injury to his left knee, while disembarking from the M/V SHEFFIE TIDE at a dock run by Baroid in Freshwater City, Louisiana. The M/V SHEFFIE TIDE was owned and operated by Tidewater and was chartered by W & T Offshore, Inc. to provide services in connection with its offshore drilling contract with Marine Drilling.

Lopez filed suit against Marine Drilling and Baroid seeking damages for his injury. In response, Marine Drilling answered and filed a third-party demand against Tidewater. Thereafter, Lopez filed a supplemental petition adding Tidewater as a defendant. Following a jury trial, the jury rendered a verdict finding no liability on the part of Marine Drilling, Baroid, or Tidewater in causing Lopez’s accident. Judgment was rendered by the trial court in their favor dismissing his claims against them with prejudice. The trial court further dismissed the third-party demand of Marine Drilling against Tidewater with prejudice. This appeal by Lopez against Marine Drilling and Tidewater followed.

| ¡.ISSUES

On appeal, Lopez argues that the jury erred as a matter of law in finding that neither Marine Drilling nor Tidewater breached their duties owed to him, and, in the alternative, that its conclusion was manifestly erroneous.

LAW

The law pertaining to a Jones Act claim was laid out by the supreme court in Foster v. Destín Trading Corp., 96-0803, pp. 3-4 (La.5/30/97), 700 So.2d 199, 208 (on rehearing):

The Jones Act allows an injured seaman to bring a negligence suit against his employer. 46 U.S.C.App. § 688 (1994). The employer’s potential liability extends to all personal injuries arising during the course of the seaman’s employment but proof of negligence is essential to recovery. See id. Such negligence may arise in many ways including the failure to use reasonable care to provide a seaman with a safe place to work, the existence of a dangerous condition on or about the vessel, or any other breach of the duty of care. See Davis v. Hill Engineering, Inc., 549 F.2d 314, 329 (5th Cir.1977); 1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 6-21, at 312 (2d ed.1994). The duty of care owed by an employer under the Jones Act is that of ordinary prudence, namely the duty to take reasonable care under the circumstances. Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 335-36 (5th Cir.1997). The seaman bears the evidentiary burden of proving that a breach of the duty owed by the employer was a cause of his injuries. However, a seaman need only present “slight evidence” that his employer’s negligence caused his injuries in order to reach the jury or to be sustained upon appellate review. Id. at 334-35. The employer can introduce evidence of the seaman’s own negligence to reduce damages through application of pure comparative fault principles. Like his employer, the seaman must meet the standard of ordinary prudence by acting as a reasonable seaman would act under the same circumstances. Id. at 339.

^General maritime law is settled that a shipowner owes the duty of exercising reasonable care towards persons lawfully aboard its vessel, who are not members of the crew. Kermarec v. Compagnie Generate Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959); Dean v. Ramos Corp., 00-1621 (La.App. 5 Cir. 2/28/01), 781 So.2d 796. Included in this duty is the provision of a safe manner of ingress and egress. Guillory v. Cameron Offshore Servs., Inc., 422 So.2d 592 (La.App. 3 Cir.1982).

In order to succeed in his claim, Lopez must prove that either Marine Drilling or Tidewater owed him a duty, that there was a breach of their duties, that he suffered an injury, that there was a causal connection between Marine Drilling and Tidewater’s conduct and his injury, and that this harm was reasonably foreseeable. The applicable standard of review in Jones Act and general maritime cases is manifest error. Ates v. Mallard Bay Drilling Inc., 01-836 (La.App. 3 Cir. 12/12/01), 801 So.2d 653, writ denied, 02-0100 (La.3/15/02), 811 So.2d 915.

In both instances, Lopez argues that Marine Drilling and Tidewater both violated their own safety policies by failing to provide him with a gangway as a means of egress from the M/V SHEFFIE TIDE. However, after reviewing the record in its entirety, we find that the jury was presented with differing views of the evidence concerning whether Lopez was provided with a safe means of egress and as to the cause of his accident. Thus, pursuant to Stobart v. State, Through DOTD, 617 So.2d 880 (1993), we cannot say that it was unreasonable for the jury to conclude that neither Marine Drilling nor Tidewater was liable to Lopez and that the sole cause of his accident was his own negligence.

LSAFE MEANS OF EGRESS

Lopez presented evidence establishing that it was unsafe for him to disembark from the M/V SHEFFIE TIDE by climbing over the gunwale of the vessel and then climbing down the tires chained to its stern in order to reach the dock, which was located approximately two to three feet below the vessel. Two experts testified for him on the issue of whether Marine Drilling and Tidewater breached their duties of providing him with a safe means of disembarking from the M/V SHEFFIE TIDE. Frank Buck, a retired captain and former employee of Tidewater, was accepted as an expert in the field of safe motor vessel operations. Robert Borison, the president of Total Safety Services, Inc., was accepted as an expert in safe work practices.

Buck testified that Lopez’s accident would not have occurred had he been provided a gangway to disembark from the M/V SHEFFIE TIDE. He opined that crews typically do not climb over a vessel’s stern and then down the tires in order to access the dock. He stated that gangways are vital for the safety of passengers and that all of the Tidewater vessels he worked on, as far back as 1964, and other companies’s vessels, were provided gangways. Buck explained that it is the responsibility of the captain to ensure the safe ingress and egress of passengers from his vessel. However, he did not feel that the use of gangways should be left to the captain’s discretion, rather, he stated that a company’s rules should mandate their use.

Buck testified that captains typically do not carry gangways on crew boats, but explained that they are easy to disassemble and could be left at the location where the crew boats loaded and offloaded passengers. However, he admitted that a member of the vessel would have to exit the vessel over the stern and climb down |sthe tires in order to set up the gangway. This, he stated, did not make the practice safe. He further stated that he had captained vessels out of Freshwater City, and said that the tides there could fluctuate as much as two feet. He did not dispute a witness’s statement that there was five to six feet between the deck of the M/V SHEFFIE TIDE and the dock.

Buck inspected the M/V SHEFFIE TIDE, which is now the M/V PEGGY LEE, and stated that the setup of tires on her stern was typical. He further admitted that the M/V SHEFFIE TIDE was a Coast Guard inspected vessel, but stated that he was unaware of any Coast Guard regulation requiring this type of vessel to carry a gangway. He opined that the type of gangway shown to the jury would be adequate, although he was unsure if its twelve foot length would be suitable for a five to six foot drop in elevation. He measured the free board of the M/V SHEFFIE TIDE, the distance between her deck and the water’s surface, which was approximately seven feet, and determined that the gunwale was twelve and one-half inches from the deck. He also measured the tires, which were approximately four feet from top to bottom. However, Buck testified that he did not calculate the steepness of the angle if a gangway was used from the stern of the M/V SHEFFIE TIDE, and the vessel rode four feet above the dock’s surface. He admitted that it might be too dangerous to use a gangway if the angle from the vessel to the dock was too steep.

Borison opined that an employer’s most important responsibility is to provide its employee with a means of safe ingress and egress on the job. He further opined that all employers have the responsibility of providing gangways for their workers on rigs, and that fault in this incident belonged to Marine Drilling and | fiTidewater for not providing Lopez with one. He testified that using the tires to climb down the M/V SHEFFIE TIDE was a violation of Marine Drilling’s own accident prevention and investigation policy. This policy states, “Marine Drilling’s Safety Program is based on recognizing and eliminating the two main accident causes; unsafe acts and unsafe conditions.” Attached to Marine Drilling’s manual is the International Association of Drilling Contractor’s (IADC) Accident Prevention Reference Guide, which states in part, “K. Personnel should not use boxes, chairs, sawhorses, tables, etc., to improvise a ladder.” Borison stated that James Guidroz, the Marine Drilling supervisor on board the M/V SHEF-FIE TIDE, was responsible for ensuring that all Marine Drilling employees exited the vessel safely. However, he admitted that he did not refer to the IADC’s Accident Prevention Reference Guide’s crew boat safety procedures before reaching his opinion. Nor did he have any opinion about the guide’s failure to require drilling contractors to provide gangways.

Borison testified that Lopez’s accident was caused by an unsafe condition, the lack of a gangway, and not from any action on his part. He stated that the unsafe condition could have been eliminated easily and inexpensively during the five month period that Marine Drilling used the Freshwater City dock. He further differentiated between a step and a jump, describing a step as when both the trailing and leading foot are in contact with the area being left/reached. He stated that a jump occurs when the leading foot is in contact with the area trying to be reached, but the trailing foot is no longer in contact with the area left. He described the difference between a step and a jump as typically being twelve to fifteen inches. He opined that the two to three foot drop from the tires on the M/V SHEFFIE TIDE’S stern to the |7dock would be a jump rather than a step.

Borison testified that he did not feel that it was safe for workers to exit a vessel, which was three to five feet above the dock and one to three feet from the dock, by climbing down the tires. He stated that he would rather they use a gangway. He further opined that climbing over the stern was not how workers commonly disembarked from small crew boats during the 1990’s. Borison testified that he visited every dock in Intracoastal City in 1992, and determined that, of the ten to fifteen docks he visited, only two did not provide gangways. Had he been on board the M/V SHEFFIE TIDE, Borison stated that he would have disembarked in the same manner as Lopez. He further stated that he could not recall a crew boat ever having a gangway as part of its appurtenances and he admitted that swing ropes and personnel baskets were used all the time in the oil field, and that both were very hazardous.

Lopez testified that workers routinely disembarked from the crew boat by climbing down tires located at the stern of the vessel and then crawling or jumping down onto the dock. He stated that some of his co-workers sat on the tires before getting down. He testified that the tires were welded onto the vessel with chains and were securely fastened. He likened climbing down the tires to climbing down a ladder and agreed that it could be performed without accident, if done carefully.

Lopez stated that the M/V SHEFFIE TIDE was not tied up flush against the dock and that there was approximately one and one-half to two feet between the vessel and the bulkhead of the dock. He further stated that he was hanging by his knee above the water after he fell. However, in his December 4, 1996 statement, he 1 «stated that the M/V SHEFFIE TIDE was right up against the dock when he fell, but that it rode four feet above the dock. He also stated that he landed on his back on the ground comprising the dock. However, during his testimony, he denied landing on his back, stating that he would have cut his back up had he done so.

Scott Causey, a derrick hand for Marine Drilling in 1996, testified that no gangway was provided for them to exit the M/V SHEFFIE TIDE, and that the only way to exit the vessel was by climbing over the gunwale located at the stern, stepping onto the tops of the tires, and then climbing down to the dock. He stated that the M/V SHEFFIE TIDE was pushed up against the dock and the tires were against the dock, although not perfectly flush against it. Causey testified that he sometimes jumped down from the tires onto the dock, but that he remembers the vessel riding high in the water on the date of Lopez’s accident, approximately two to three feet above the dock.

Keveran Ned, a Marine Drilling employee in 1996, testified that employees were never provided a gangway during the time Marine Drilling used the Baroid dock at Freshwater City. He stated that the only way to get off the vessel was to climb over the stern and down the tires. He stated that there was approximately a two to three foot drop from the tires to the dock, and that this was normal depending upon the tides. Ned testified that he normally jumped down from the tires to the dock prior to Lopez’s accident, but that he stopped doing so afterwards. He stated that women getting off the vessel would sit down on the top of the tires before climbing down. Although he testified that he had never hurt himself while disembarking from crew boats in this manner, he stated that the practice was dangerous. If he had been | provided a gangway, he said that he would have used it.

John Dixon, an offshore cook, testified that no gangways were ever provided for Marine Drilling’s workers at the Baroid dock. After learning of Lopez’s accident, he stated that he called the Coast Guard in Port Arthur, Texas, and asked if they had jurisdiction to require crew boats to provide gangways. If a gangway was provided, he testified that a captain would require his passengers to use it. Dixon further stated that he had never been hurt disembarking from a vessel in this manner, and he felt that a worker, who was careful, could disembark in this fashion without suffering an accident. However, he did not feel that the practice was safe. Additionally, he testified that he was not present when the accident occurred, and that he did not know where the M/V SHEFFIE TIDE docked the morning of the accident.

A host of witnesses testified that the manner provided for Lopez to disembark from the M/V SHEFFIE TIDE was safe. Baroid employees, Gary Humble, manager of the Freshwater City dock, and Pivon Dupius, facility coordinator and operations supervisor of the dock, both testified that crew boat companies operating out of the dock customarily loaded and offloaded passengers in this manner.

James Guidroz, a driller for Marine Drilling, was on the M/V SHEFFIE TIDE the morning of Lopez’s accident. He testified that the crew boat was tied up flush to the dock, but was riding approximately two and one-half to three feet above the dock, which he stated was normal. He was assisting Randy Malenca, an injured worker, down from the tires located at the crew boat’s stern at the time of Lopez’s accident. He stated that there was no gap between the M/V SHEFFIE TIDE and the dock, otherwise Malenca would have fallen into the water.

ImGuidroz testified that he disembarked from the crew boat by stepping over the gunwale and down onto the top of the tires located there. He stated that the then put his foot into the middle of a tire, before stepping down onto the dock. He testified that he has been getting off crew boats in this manner for the entire twenty-five years that he has worked offshore, including crew boats operated by companies other than Tidewater. However, he stated that he will use a gangway if provided and if safe to do so.

Ronnie Lambert, a maintenance supervisor for Marine Drilling, testified that he has boarded and exited crew boats by climbing down tires located at their sterns for the sixteen years he has worked offshore. He stated that rig workers are commonly not provided with gangways to access vessels, and he could think of only one dock where an oil company had a permanent gangway. He further stated that he could safely board or exit a crew boat in this manner if he was careful.

Sam Galle, an engineer and deck hand aboard the M/V SHEFFIE TIDE at the time of Lopez’s accident, testified that he has worked on crew boats since 1978, and that crews generally boarded and exited the vessels by climbing over the stern via the tires located there. He stated that gangways are rarely used by crew boats of this size and that he has seen situations where the use of a gangway would be unsafe. He further testified that the M/V SHEFFIE TIDE is a Coast Guard inspected vessel, and that inspectors from the Coast Guard boarded the vessel in this same fashion.

Galle testified that the M/V SHEFFIE TIDE was backed up flush with the Baroid dock on the date of Lopez’s accident, and that there was no space between the tires and the bulkhead. He described the slip where the boat was tied up as a Ndead-end slip, and stated that there was no wave action in the slip. Galle stated that he got off the vessel by climbing over the gunwale and then down the tires to the dock. He estimated that the M/V SHEF-FIE TIDE rode five feet above the dock. He further could recall no problems with the lighting at the dock.

Malenca, a Marine Drilling roustabout, testified that he had injured his knee the week prior while working on the rig. He stated that he disembarked from the M/V SHEFFIE TIDE by sitting down on the gunwale and then pushing himself onto the tires. He stated that two guys on the dock helped him off the tires so that he would not have to jump down. He testified that the tires were approximately three feet above the dock, which he stated was normal. Malenca stated that he exited crew boats in this manner at other locations for Marine Drilling and that he has never complained of this practice being unsafe, nor has he heard anyone else doing so.

Robert Arceneaux, the Director of Health, Safety, and Environmental management for Tidewater and a former crew boat captain, testified that safety is paramount to Tidewater. However, he stated that Tidewater’s safety standards do not require its small crew boats, such as the M/V SHEFFIE TIDE to carry gangways. He testified that Tidewater has approximately 250 vessels working in the Gulf of Mexico, of which approximately ten are of the 100 foot crew boat class, like the M/V SHEFFIE TIDE. Arceneaux testified that smaller crew boats do not carry gangways because they have limited deck space and because they ride higher in the water, such that the angle created by a gangway might be so steep that it would not be prudent to use.

1 ^Arceneaux testified that Tidewater’s policy relating to gangways was outlined in its 1995 Safe Operations System Manual. In the section dealing with access to vessels, it states, “Gangways with handrails or steps with handrails should be provided where practical. If not practical, extreme caution should be used.” The 1972 Manual of Safe Work Practices provided, “Gangways will be provided where practical.” Arceneaux stated that the responsibility for the safety and well being of the vessel, crew, and passengers rests with the vessel’s master. This includes the determination of whether it would be practical to use a gangway, if provided. He further testified that it is the vessel owner’s responsibility to know, maintain, and support company safety policies. However, he stated that Tidewater and other operators believe that climbing down tires located off the stern of a vessel is a safe, practical, and effective practice. He testified that Coast Guard inspectors board the smaller crew boats in this fashion, as do officials from the American Bureau of Shipping, and other government officials.

Arceneaux further stated that Tidewater’s policy has never required its crew boats to use gangways. In its Safeop Lesson Plans, pertaining to persons in addition to the crew, it states that mates should, “Advise to use care when leaving boat; always use gangway.” Arceneaux testified that the lesson plans have never constituted Tidewater policy, rather, they are training guidelines and safety meeting topics. He further stated that Tidewater has larger vessels which do carry gangways, and that the lesson plans were written to try and address all of the needs of all of its vessels, large and small. Finally, Arceneaux testified that he had no problem with his crew climbing down a two to three feet drop to the dock when he was a captain, and |13that he still has no problem with this practice now that he is a safety officer.

After reviewing the evidence presented, we find that the jury was clearly presented with differing views pertaining to whether Marine Drilling and Tidewater provided Lopez with a safe means of egress from the M/V SHEFFIE TIDE. Lopez’s witnesses testified that requiring him to climb over the stern of the crew boat and then down the tires located there before having to jump down to the dock, a distance of approximately two to three feet, did not meet this requirement. However, Tidewater and Marine Drilling’s witnesses testified that disembarking from a vessel in this fashion has been a normal practice in the oilfield for at least twenty-five years, and that even the Coast Guard inspectors used this means in order to access the vessel during its annual inspection.

Finally, what constitutes a means of safe egress is a fact driven determination based on the size of the vessel, its distance from the dock, its height above the water, and the size of the provided gangway. The testimony regarding the height at which the tires were located above the dock on the night in question varied from two to five feet. Depending on the actual height that the M/V SHEFFIE TIDE was riding above the dock, there was testimony that the use of a gangway may have been more dangerous than climbing over the vessel’s stern. Finally, considering the fact that all of the other passengers on board that night were able to safely disembark over the stern, we cannot say that the jury was manifestly erroneous in finding that Tidewater and Marine Drilling did not breach their duty of providing Lopez with a safe means of egress from the M/V SHEFFIE TIDE.

^COMPARATIVE NEGLIGENCE

Lopez further argues that the jury’s verdict finding that he was the sole cause of his accident is manifestly erroneous. As stated previously, “the seaman must meet the standard of ordinary prudence by acting as a reasonable seaman would act under the same circumstances.” Foster, 700 So.2d at 208.

Lopez testified that he and other members of the day shift were allowed to leave the MARINE 300 early because of Thanksgiving. He stated that the M/V SHEFFIE TIDE reached the Baroid dock at Freshwater City at around midnight on November 28, 1996. On the morning in question, he stated that he was carrying a duffle bag filled with his belongings, including some breakable items. To protect these, Lopez stated that he set his bag down on the gunwale before climbing over it and stepping onto the rim of a tire, which was hanging approximately one foot below the vessel’s deck. In describing what happened next, he stated, “Then I reached over like that, grabbed my bag, and I squatted down to lower myself to let my bag go like that. And when I let go of my bag, my foot went; and then all I remember I was hanging there.”

Lopez testified that the duffle bag weighed approximately forty to fifty pounds. Although he admitted that he could have dropped the bag down onto the dock, handed it down to someone, or asked someone to hand it down to him, he stated that he did not do so because no one else asked for help. Lopez further testified that he thought he grabbed the duffle bag with one hand, because if he had grabbed it with both hands and tried to pull it over, he would have slipped. However, in his December 4, 1996 statement, he stated that he reached over the railing and grabbed 11shis duffle bag with both hands. He also disagreed with the testimony of Ned, who testified that Lopez stepped off the tire and that the vessel was flush against the dock. When questioned if the accident would have happened if he had either dropped his bag onto the dock before climbing over or asked someone for help, Lopez stated, “Probably not.”

Causey testified that he was helping Malenca off the M/V SHEFFIE TIDE when he looked down and saw that Lopez had fallen and was hanging upside down from a tire. When he got off the crew boat, he stated that he climbed over the gunwale and was facing the vessel’s bow as he climbed down the tires. With regard to duffle bags, Causey stated that they normally placed all of the bags at the back of the vessel and then handed them down once everyone had disembarked. He stated that it was safer to hand the bags down. Although he could not recall how Lopez’s bag got off the M/V SHEFFIE TIDE, he stated that he would have handed it down to him had he asked for help.

Ned was listed as a witness to the accident in Marine Drilling’s first report of injury. On the morning in question, he stated that he was standing behind Lopez, waiting to get off of the M/V SHEFFIE TIDE. He stated that Lopez stepped over the gunwale and onto the tires and was facing away from him, so that he was looking at the back of Lopez’s head and shoulders. He stated that Lopez was carrying his duffle bag in one hand and his overalls in his other hand. He understood that Lopez intended to step onto the tire and then step forward onto the dock, but he stated that Lopez just disappeared. Ned yelled and jumped down from the vessel to help Lopez, who was hung up by his foot in the tire.

hfiDixon testified that he would sometimes hand his bag down to someone else when he was getting off a crew boat, or that he would have someone hand it down to him after he disembarked. He stated that he never tried to get down while holding his bag in his hand because he considered this unsafe.

Guidroz did not see Lopez’s accident' because he was helping Malenca down from the vessel. However, he stated that he does not hold onto his luggage while exiting a crew boat. He testified that he either throws it down onto the dock or he hands it down to someone already on the dock. Lambert testified that he took a statement from Lopez on December 17, 1996, which states: “Rec. statement by phone 12-17-96 — Departing crew boat with baggage Employee put foot on edge of tire — foot slipped into tire. Employee fell.” Lambert stated that he read this statement back to Lopez, who agreed that it was correct. He further stated that his impression was that Lopez was facing the dock when his foot slipped.

Galle testified that he tied up the MTV SHEFFIE TIDE on the morning in question and then assisted the Marine Drilling workers off the vessel. He did not see Lopez’s accident; however, he stated that someone told him about the accident and then he immediately reported it to his captain. He stated that he filled out an accident report at the request of Marine Drilling at a later time. The statement provides, “On 11-28-96 one man stepped of (sic) the Sheffie Tide. Stepped in a hole on the dock while getting off the Sheffie Tide. I Sam Galle asked the man if he was O.K., and he stated to me that he was O.K. This incident happened during crew change.” Galle stated that the person who was involved in the accident did not mention anything about the incident involving the M/V SHEFFIE TIDE or a tire. 117 However, Galle could not say if the person described in the accident report was Lopez.

Malenca testified that he did not see Lopez’s accident because he was being helped down from the M/V SHEFFIE TIDE at the same time that Lopez was disembarking. He stated that Lopez was already on the ground by the time that he got down onto the dock. However, had he not been injured, Malenca stated that he would have put his bag down, placed one foot on the tire, and then climbed down to the dock.

Buck testified that he understood that Lopez faced the cabin of the M/V SHEF-FIE TIDE, turned around, and then backed up. He stated that he then stepped onto the tire and put his foot down in the bottom rim of the tire. At this point, when he started to lean over, his foot slipped and went into the tire, causing him to become hung up in the tire. Buck stated that a worker disembarking in this manner should always hold onto something while doing so, and that it would be unsafe for a worker to get off of a crew boat without holding on. He further testified that it would be very foolish for a worker to jump down from the tires at night, especially with something in each hand.

Borison testified that he did not think Lopez had his duffle bag in his hand while he was trying to disembark. However, he stated that it would not matter if he did, since Lopez’s accident could have occurred in the same manner with or without the duffle bag. He further testified that it would be unsafe for Lopez to try and climb down from the crew boat while carrying his duffle bag in his hand.

| isThe jury was presented with three possible scenarios as to the cause of Lopez’s accident. In his statement, Lopez said that he reached over and grabbed his duffle bag with both hands, however, at trial, he stated that he only reached over with one hand. He stated that he did not think he would have used both hands because had he tried to do so he would have slipped, which is exactly what happened. The second scenario was provided by Ned, the closest thing to an eyewitness in this matter, who stated that Lopez stepped over the gunwale of the M/V SHEFFIE TIDE while carrying his coveralls in one hand and his duffle bag in the other hand, and that he then proceeded to step off the tires onto the dock. This testimony is substantiated by the statement taken by Lambert on December 17, 1996. The final version is supplied by Lopez, wherein he placed his duffle bag on the deck of the vessel, stepped over the gunwale and onto the tire, reached over the gunwale with one hand and picked up his bag, and then squatted down in order to drop the bag onto the dock, at which time he slipped and became hung up in the tire.

Considering the conflicting testimony presented as to the exact cause of Lopez’s accident, we cannot say that the jury was unreasonable in finding that neither Marine Drilling nor Tidewater were at fault in this instance. Accordingly, the judgment of the trial court finding no fault on the part of Marine Drilling and Tidewater is affirmed. Lopez’s assignment of error is dismissed as being without merit.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. The costs of this appeal are assessed to the plaintiff-appellant, Juan Lopez.

AFFIRMED.

THIBODEAUX, J., dissents and assigns written reasons.

DECUIR, J., dissents for reasons assigned by Judge THIBODEAUX.

| THIBODEAUX, J.,

dissenting.

Generally, an appellate court gives great deference to the trier of fact’s findings as long as its conclusions are reasonable ones. However, as a reviewing court, we are also guided by the law set out in Stobart v. State, Through DOTD, 617 So.2d 880, 882 (La.1993) and Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989), which adds “where documents or objective evidence so contradict the witness’s [testimony], ... [a] court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination.” After examining the objective evidence, I conclude that Tidewater and Marine Drilling were required to provide safe egress from the M/V SHEFFIE TIDE. Further, I find no support for defendants’ arguments that their duty to provide safe egress from the vessel via a gangway depended upon whether the vessel was a small or large crew boat.

Throughout the Tidewater Safe Operations System Manual, Tidewater promotes safety and precautionary measures to prevent injuries to crew members as well as other authorized personnel as they move to and from and about the boat. According to the manual, “the number one cause of injuries on [their] boats has always | ^.been falling down.” Additionally, “[a] high percentage of accidents occur while vessels are in port at dockside,” as in the case of Mr. Lopez. Mr. Lopez testified as well as many others that the only means of disembarking the MTV SHEFFIE TIDE was the tires located on the stern of the boat. In examining this safety manual, it is clear that, this means of disembarking from the boat contradicts the safety measures imposed by Tidewater.

As a precautionary measure to “Prevent slips, trips, and falls,” the manual specifically states “Rig gangway,” when disembarking a vessel. Under the “Dockside Safety” section of the manual, the policy reads: “Gangways should be deployed whenever practical and secured properly, and should have handrails sturdy enough to prevent a person from falling off the gangway. Extreme caution must be exercised when a gangway cannot be deployed.” Additionally, “[approaches to gangways on the dock and on the vessel should be unobstructed; properly lighted and steps and platforms to provide access to gangways should not create hazardous conditions.”

When Mr. Lopez was injured, no gangway was provided for safe ingress and egress from the boat. Mr. Areeneaux asserts a gangway is not required on smaller crew boats. I find no evidence in the manual that gangways are not required for smaller crew boats and that the policy provisions differ depending on whether the boat is smaller or larger. Even if Mr. Areeneaux is correct, there were clearly no handrails or other apparatus that would assist Mr. Lopez in disembarking from the boat safely. The failure to attach a gangway was hazardous and Tidewater should have recognized that injuries may occur without the use of a gangway.

Further, Mr. Areeneaux asserts that limited deck space prevents a gangway from being placed aboard smaller crew boats. However, a gangway could have been left dockside without interfering with the deck space. The manual indicates | ¡¡that crew members should be instructed “to use care when leaving [a] boat; always use gangway.” (Emphasis added). Again, I find no evidence that this rule applies to specific vessels.

Mr. Areeneaux states that the lesson plans contained within the manual have never constituted Tidewater policy per se; however, I find it difficult to believe that Tidewater would trouble itself with producing such an extensive manual on safety without implementing and following its own policies and guidelines. This argument has no merit.

The manual also contains policies stating that gangways should be used whenever practical. Mr. Arceneaux’s testimony indicated that the use of a gangway is at the discretion of the captain or master of the vessel. Under “Responsibilities of the Master,” the Master is responsible for the safety and well-being of the vessel’s crew and any other persons on board, and the safety of the equipment/cargo carried on board .... The master is responsible for knowing and adhering to the provisions of the SOS [Safe Operations System] manual.” As I read this provision, the master is required to follow the policies of the manual, including using a gangway, and ensuring safety is not at his discretion. Even if Mr. Areeneaux is correct in his assertion, Tidewater has not shown that the use of a gangway, under the circumstances, was impractical.

Further, Mr. Areeneaux provided in his testimony that “Tidewater’s Safe Operations Manual is a document that was written to give our crews guidance for operation of their vessels; and it covers everything from our basic policy, where we’re saying safety is our highest priority, to operation of the vessel.” (Emphasis added). Additionally, he stated that “we wrote a manual that we hoped would provide guidelines and address issues for all of our boats.” (Emphasis added). Therefore, it |4is clear that Tidewater’s policies apply to all of its vessels, rather than distinguishing one class of boats from another class, as Tidewater has done as an afterthought and in preparation for trial of this case.

Similarly, Marine Drilling has attached to its manual an Accident Prevention Reference Guide produced by the International Association of Drilling Contractors which states that “Personnel should not use boxes, chairs, sawhorses, tables, etc. to improvise a ladder.” The tires located on the stern of the boat were used to improvise a gangway and created an unsafe condition despite Marine Drilling’s policies on safety which guard against “unsafe acts and unsafe conditions.” Using tires, rather than a gangway, to disembark from a boat is comparable to using one of the above apparatus to improvise a ladder. Surely, the use of tires, particularly wet tires, does not equate to the use of a gangway.

Both Tidewater and Marine Drilling are liable for Mr. Lopez’s injuries. “[Gjeneral maritime law imposes on a vessel owner a duty to provide a reasonably safe means of access for those boarding or leaving the vessel.” Walton v. Cooper/T. Smith Stevedoring, 97-0100, p. 9 (La.App. 4 Cir. 3/4/98), 709 So.2d 941, 946. Tidewater failed to provide a gangway, as stated in its safety manual, for safe ingress and egress from the M/V SHEFFIE TIDE. As a result, Mr. Lopez had no other means of disembarking from the vessel other than to use the tires located on the boat’s stern. Tidewater failed to follow its own safety policies. I conclude that Tidewater is sixty-five percent liable for the injuries of Mr. Lopez.

Marine Drilling is also liable for Mr. Lopez’s injuries. “The Jones Act employer owes his employee-seaman the duty to provide a safe working area and proper equipment.” Walton, 709 So.2d at 945. Just as Tidewater had a duty to provide a gangway for disembarking the boat, Marine Drilling had a duty as employer |Bto ensure that its personnel worked under safe conditions. Tidewater’s obvious duty to provide a gangway, however, does not negate Marine Drilling’s duty. According to its safety regulations, Marine Drilling had a duty to guard against unsafe acts and conditions. Any hazardous situation present on the vessel and dock was a substantial reason for Marine Drilling to ensure that a gangway was provided. Marine Drilling’s duty to its employees did not end once its personnel had gone aboard the vessel. For this reason, I would impose thirty-five percent fault on Marine Drilling.

The majority’s focus on the plaintiffs comparative negligence is puzzling. It concludes that “we cannot say that it was unreasonable for the jury to conclude that neither Marine Drilling nor Tidewater was liable to Lopez and that the sole cause of his accident was his own negligence.” The trial court’s judgment incorporated the first three interrogatories on the jury’s Special Verdict form dealing with the negligence of Marine Drilling, Tidewater, and Baroid Drilling. The judgment then read, “[cjonsidering the above findings having been made by the jury, the Court enters the following judgment.” The jury never reached Interrogatory 6 on the Special Verdict form which asked, “Do you find by nine or more jurors that Juan Lopez was negligent which was a cause of the accident in question?”

However, even if it is proper to address the issue of Mr. Lopez’s negligence, a reading of the entire record leads to the inescapable conclusion that he was not at fault. The plaintiff’s theory, we must remember, was that the absence of a gangway was the cause of his injuries. Mr. Lopez testified that “[t]he slip came after I let go of the bag.” (Vol.HI, p. 579). (Emphasis added). In response to the question, “So you had already let go of the bag; and then you slipped?,” Mr. Lopez answered, “yes, sir. I let go of the bag, and I was probably going to turn to lower myself down. And that’s probably when it happened.”

1 ^Furthermore, Frank Buck, one of the experts retained by the plaintiff, testified that “[i]f you would have had a gangplank, this accident would not have happened.” The safety consultant, Robert Borison, explained that, in his professional opinion, Mr. Lopez did not do anything unsafe under the circumstances that caused his injury. He further explained that Mr. Lopez would have been injured in the same manner even if he did not have a duffle bag. The reason for this is simple. According to Mr. Borison, “[t]he unsafe condition [was] the failure to provide a gangway ... and the hazards associated with the various types of ingress and egress from this vessel could have been prevented and would have been prevented if a gangway was provided.”

The majority’s emphasis on Mr. Lopez’s comparative negligence is even more puzzling because Mr. Lopez had nothing to do with the failure to provide a gangway — the main point of contention in this case. We do not' know if the jury even considered the duffle bag argument. As I previously indicated, the jury was not required to address Interrogatory 6 on the Special Verdict form. It determined only that a gangway was not a necessary means of egress and ingress. The objective evidence and even the defendants’ own objective rules and regulations belie this conclusion.

For the foregoing reasons, I dissent.

      . Although Lopez's Motion and Order for De-volutive Appeal does not designate which parties he is appealing against, he notes in his appellate brief that he is not appealing the judgment rendered in favor of Baroid. As a result, Baroid has filed a Motion for Partial Dismissal of Appeal seeking to have his appeal against it dismissed. The motion was referred to the merits of this appeal. In light of Lopez’s failure to appeal the judgment against Baroid, its motion to dismiss his appeal against it is hereby granted.


source: Caselaw Access Project

author: JjDAVID S. GORBATY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Lawrence J. MATTHEWS.
    No. 2001-KA-0868.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 22, 2003.
    Rehearing Denied Dec. 10, 2003.

      Eddie J. Jordan, Jr., District Attorney, Julie C. Tizzard, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appel-lee.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS SR., Judge DAVID S. GORBATY).
   JjDAVID S. GORBATY, Judge.

The facts of the instant case are set forth in State v. Matthews, 2001-0868 (La.App. 4 Cir. 3/20/02), 814 So.2d 619. Earlier, this court vacated the conviction and sentence of defendant. The State of Louisiana applied for a writ of certiorari and review with the Louisiana Supreme Court, which was granted. State v. Matthews, 2002-1121 (La.9/19/03), 855 So.2d 740. The Supreme Court remanded the matter to this court for purposes of determining whether the evidence supported the jury’s verdict on the issuing count and therefore supports the judgment of the trial court that the defendant was properly convicted of a single offense of forgery.

DISCUSSION

Forgery is defined by La. R.S. 14:72 as follows:

A. It shall be unlawful to forge, with intent to defraud, any signature to, or any part of, any writing purporting to have legal efficacy.
B. Issuing, transferring, or possessing with intent to defraud, a forged writing, known by the offender to be a forged writing, shall also constitute a violation of the provisions of this Section.
C. For purposes of this Section:
(1) Forge means the following:
|g(a) To alter, make, complete, execute, or authenticate any writing so that it purports:
(i) To be the act of another who did not authorize that act;
(ii) To have been executed at a time or place or in a numbered sequence other than was in fact the case; or
(iii) To be a copy of an original when no such original existed.
(b) To issue, transfer, register the transfer of, pass, publish, or otherwise utter a writing that is forged in accordance with the meaning of Subpara-graph (l)(a).
(c) To possess a writing that is forged within the meaning of Subparagraph (1)(a).
(2) Writing means the following:
(a) Printing or any other method of recording information;
(b) Money, coins, tokens, stamps, seals, credit cards, badges, and trademarks; and
(c) Symbols of value, right, privilege, or identification.

By count one of the bill of information, defendant was charged with forgery by false making. By count two, on which the trial court granted the motion for post judgment verdict of acquittal, defendant was charged with forgery by false issuing or as it is known at common law, uttering.

In evaluating the sufficiency of the evidence to support a conviction, a reviewing court must determine whether, taking the evidence in a light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Additionally, [w]hen a case involves circumstantial evidence, and the jury reasonably rejects the hypothesis of innocence presented by the defendant’s own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Captville, 448 So.2d 676, 680 (La.1984). However, jurors must rationally reject the hypothesis advanced by the defendant. While the Jackson standard of review does not permit an appellate court to substitute its own opinion for that of the trier of fact as to what has or has not |sbeen proved by the state’s evidence, ‘the jury cannot be permitted to speculate if the evidence is such that reasonable jurors must have a reasonable doubt.’ State v. Mussall, 523 So.2d 1305, 1311 (La.1988) (quoting 2 Charles Wright, Federal Practice Procedure, Criminal 2d, 467 (2d ed.1982)).

In Louisiana, a person who acts with an intent to defraud commits the crime of forgery either by falsely altering or making any writing purporting to have legal efficacy or by issuing (transferring) a forged writing with knowledge of its falsity. State v. Marston, 2000-0589 (La.3/16/01), 780 So.2d 1058. As discussed in our original opinion, at trial, the evidence and testimony established that the Regiscope photograph and the handwriting exemplar linked the defendant to the check at issue. The criminal intent required for forgery is the intent to defraud any person, and it suffices if. the forged instrument has prejudiced or might prejudice the rights of another. State v. Satchfield, 35,631 (La.App. 2 Cir. 8/14/02), 824 So.2d 537. The specific intent required for forgery is a state of mind and need not be proved as a fact but may be inferred from the circumstances and transactions of the case. Id. We find the evidence and testimony support an inference that defendant possessed the requisite criminal intent to be convicted of issuing a forged writing.

We now address the remaining assignments of error originally urged by defendant.

ASSIGNMENT OF ERROR NO. 2:

Defendant contends the trial court erred in denying his motion to declare a mistrial. The following exchange occurred while Inspector Paulis was testifying:

Q. Can you tell us how you developed the suspect without telling us what anyone told you?
A. During the course of my investigation I developed Lawrence Matthews as a suspect in this case. With |4that name, Lawrence Matthews, I then took that name, ran it through the motions computer for N.O.P.D. and gleaned Mr. Mathews’ name and S.I.D. number, his criminal I.D. number.

At this point defense counsel objected and moved for a mistrial. The court sustained the objection and denied the motion for mistrial, saying further, “I don’t want to hear that kind of discussion. Okay?” The court then called a brief recess and reiterated to Inspector Paulis that he was not to make any references to the defendant having a criminal history.

When a witness refers directly or indirectly to another crime committed or alleged to have been committed by the defendant, as to which evidence is not admissible, the defendant’s remedy is a request for an admonition or a mistrial pursuant to La.C.Cr.P. art. 771. The remark or comment must constitute an unambiguous reference to other crimes. State v. Lewis, 95-0769, p. 7 (La.App. 4 Cir. 1/10/97), 687 So.2d 1056, 1060, writ denied, 97-0328 (La.6/30/97), 696 So.2d 1004. On request, the trial court shall admonish the jury to disregard such remark or comment. La.C.Cr.P. art. 771. Upon motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant of a fair trial. Id. The granting of a mistrial under La.C.Cr.P. art. 771 is at the discretion of the trial court and should be granted only where the prejudicial remarks of the witness make it impossible for the defendant to obtain a fair trial. State v. Smith, 418 So.2d 515, 522 (La.1982); State v. Allen, 94-1895, p. 9 (La.App. 4 Cir. 9/15/95), 661 So.2d 1078, 1085, writs denied, 95-2557, 95-2475, (La.2/2/96), 666 So.2d 1087. Mistrial is a drastic remedy which is only authorized where substantial prejudice will otherwise result to the defendant. Id. The determination of whether prejudice has resulted lies within the sound discretion of the trial court. State v. Banks, 96-2227, p. 2 (La.4/18/97), 692 So.2d 1051, 1053. A trial court’s ruling on whether or not to grant a mistrial because of comment by a police officer referring to other crimes evidence should not be disturbed absent a clear abuse of discretion. State v. Nicholson, 96-2110, p. 13 (La.App. 4 Cir. 11/26/97), 703 So.2d 173, 180, ...; State v. Manuel, 94-0087, 94-0088, p. 4 (La.App. 4 Cir. 11/30/94), 646 So.2d 489, 491. “Errors are harmless unless the reviewing court is thoroughly convinced that the remarks inflamed the jury and contributed to the verdict.” State v. Nicholson, supra, citing State v. Byrne, 483 So.2d 564 (La.1986), cert. denied, Byrne v. Louisiana, 479 U.S. 871, 107 S.Ct. 243, 93 L.Ed.2d 168 (1986).

1State v. Finch, 97-2060 pp. 9-10 (La.App. 4 Cir. 2/24/99), 730 So.2d 1020, 1025-1026.

In the present case, the officer’s remark was not a specific reference to a previous conviction or arrest and was made without elaboration. The decision not to grant a mistrial was well within the trial judge’s discretion.

Defendant contends further that the trial court erred in not issuing an admonition to the jury. However, the record does not reflect that an admonition was requested. In State v. Tribbet, 415 So.2d 182 (La.1982), the Louisiana Supreme Court in examining La.C.Cr.P. art. 771 stated:

As for the trial judge’s failure to admonish the jury after the officer’s statement, it is evident that C.Cr.P. art. 771 mandates a request for an admonishment. As a result, the judge’s failure to instruct the jury to disregard the allegedly prejudicial reply, absent a request, was not, in itself, reversible error. State v. Williams, 375 So.2d 364 (La.1979); State v. Lee, 340 So.2d 180 (La.1976). Further, a review of the testimony reveals that the officer’s statement was nothing more than an obscure reference to other crimes and was made without explanation or elaboration. An admonition by the trial judge in the present case would have brought the other crimes issue to the jury’s attention. Considering the innocuous nature of the officer’s answers, it is our opinion that the trial judge, by not instructing the jury, probably followed a better course of action. In any event, the defendant was not prejudiced by the officer’s statement.

Id. at 185.

The trial judge’s failure to instruct the jury to disregard the Inspector Paulis’s remark was not error.

ASSIGNMENT OF ERROR NUMBER 3:

Defendant contends he received an excessive sentence. The sentence imposed by the trial court related to the defendant’s conviction of false making. We have vacated that conviction and the corresponding sentence. We therefore remand this matter to the trial court for sentencing on the false issuing count.

| (¡PRO SE SUPPLEMENTAL ASSIGNMENT OF ERROR NO. 4:

Defendant reiterates the conclusion of his counseled assignment of error number one that the evidence was insufficient to establish the crime of false making. As discussed in the original opinion in this matter, defendant’s contention is correct.

Defendant contends further that this court cannot sustain the conviction by reversing the post verdict judgment of acquittal. The state did not notice an appeal when the trial court granted the post verdict judgment of acquittal, nor does it contend here that the trial court erred in granting the motion. The state simply contends that the evidence was sufficient to prove the crime charged. As such, the false issuing count has not specifically been appealed, and ordinarily would not be considered by this court. However, this court has been specifically ordered to consider this issue by the Louisiana Supreme Court, so we do so here in compliance with that direct order.

PRO SE SUPPLEMENTAL ASSIGNMENT OF ERROR NO. 5:

Defendant contends the jury did not reflect a fair cross section of the community. The record reflects that after the jury had been selected, defense counsel raised an oral motion to quash on the basis of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Counsel argued that the jury’s composition did not reflect the racial composition of Orleans Parish. Of the six jurors selected five were white. The record reflects that the jury venire consisted of 12 black jurors and 13 white jurors. The first panel to be seated for selection consisted of nine white jurors and four black jurors. Counsel argued vaguely that there was a problem with the system in which jurors are randomly selected to be seated for voir dire.

|7In the first instance, defendant does not allege that the state peremptorily excused jurors because of their race; accordingly, counsel’s reference to Batson was misplaced.

In State v. Lee, 559 So.2d 1310, 1313-1314 (La.1990), the Louisiana Supreme Court reviewed the jurisprudence of a claim of underepresentation of a minority in the jury venire as follows:

A general jury venire “shall not be set aside for any reason unless fraud has been practiced, some great wrong committed that would work irreparable injury to the defendant, or unless persons were systematically excluded from the venires solely upon the basis of race.” La.C.Cr.P. art. 419(A). The defendant bears the burden of proving the grounds for setting aside the venire. State v. Liner, 397 So.2d 506 (La.1981); State v. Manning, 380 So.2d 54 (La.1980). That burden of proof requires that the defendant show more than the underrepre-sentation of blacks on the petit jury venire in order to prove a systematic exclusion of blacks. Manning, supra; State v. Anderson, 315 So.2d 266 (La.1975). The law requires that there must not be a systematic exclusion of blacks in the source or sources from which jury venires are chosen. However, that does not mean that a defendant is entitled to a petit jury which reflects the population of the community in every respect. “Defendants are not entitled to a jury of any particular composition.” Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); State v. George, 371 So.2d 762 (La.1979). In fact, a jury comprising a complete representation of the various groups within the community would be virtually impossible to seat. State v. Cage, 337 So.2d 1123 (La.1976).

In State v. Melancon, 563 So.2d 913, 914 (La.App. 3 Cir.1990), the court addressed a claim similar to that asserted here as follows:

In the case sub judice, it is undisputed that the 200 persons in the petit jury venire were selected at random by a computer. After several persons were excused from jury service, the clerk pulled twelve names at random from the jury box, and continued accordingly until a twelve-person jury was selected. During voir due, the State successfully challenged two jurors for cause but did not peremptorily challenge any jurors. The defendant successfully challenged two jurors for cause and peremptorily challenged five jurors. Although the petit jury venire was approximately 5% to 10% black, no blacks were selected for voir dire. After an all white jury was selected, accepted and sworn in, the defendant filed a motion to quash the petit __[giury venire on the basis that it did not contain a representative cross-section of the community. According to the defendant, this forced him “to go to trial with an all white jury.”
In State v. Kirts, 447 So.2d 1 (La.App. 3rd Cir.1983), writ not considered, 464 So.2d 306 (La.1985), this court addressed and rejected the same argument defendant asserts in the case sub judice. In Kirts, defense counsel filed a motion to quash the petit jury venue on the morning of trial, contending that the petit jury venire was racially imbalanced. Although no allegation of discrimination was offered for the racial imbalance, counsel for defendant asserted that a newly drawn venire, representative of a crosssection of the community, was necessary to assure that defendant would be judged by a fair and impartial jury. On appeal from the trial court’s refusal to grant the motion to quash, we rejected Kirts’ argument. We held that the defendant failed to make a prima facie showing of discrimination where there are no allegations of fraud, and the record is devoid of any indications of such, or that some great wrong was committed that would work irreparable injury to him. Id., 447 So.2d at 3.
In the case sub judice, defendant asserts that he was prejudiced by the petit jury venire. We disagree. At the argument of the motion to quash, defense counsel stated that he was not alleging fraud, and offered no evidence of discrimination or irreparable injury attributable to the petit jury venire. Therefore, based on a careful examination of the record, we find that the trial court properly denied defendant’s motion to quash the petit jury venire, finding that defendant failed to make a prima facie showing of discrimination. State v. Kirts, supra. Defendant’s assignment of error is without merit.

For the reasons discussed in State v. Melancon, defendant’s assignment of error is without merit. A defendant will not be heard to complain unless he can show that the exclusion of black persons from the venire was not a nondiscriminatory, random process. State v. Bourque, 622 So.2d 198 (La.1993).

PRO SE SUPPLEMENTAL ASSIGNMENT OF ERROR NO. 6:

Defendant contends he was prejudiced by the introduction of other crimes evidence when Inspector Paulis testified concerning how he obtained defendant’s photograph. As discussed in assignment of error number two, although regrettable, the allusion to a previous criminal history is insufficient to warrant reversal on that basis.

I gPRO SE SUPPLEMENTAL ASSIGNMENT OF ERROR NO. 7:

As in assignment of error number two, defendant contends he was denied a fair trial through the introduction of other crimes evidence. Defendant references the following testimony of Inspector Paulis:

In 1999 as a federal agent I was investigating mail theft wherein they were taking mail, deleting the account numbers off the mail, creating counterfeit checks with it. Some of the counterfeit checks were cashed using counterfeit driver’s licenses. Many of the checks were cashed, the counterfeit checks, at the Bermuda Supermarket in Algiers. When I found this out, I went down to the Bermuda Supermarket in Algiers to retrieve the original counterfeit checks that got returned from the bank to the Bermuda Supermarket.

The record does not reflect that defendant objected to the foregoing testimony; accordingly the issue has not been preserved for appeal.

Defendant further contends that the states reference in its opening statement to the nature of Inspector Paulis’s investigation was an impermissible reference to other crimes. The prosecutor stated, “The postal inspector, Mike Paulis, was doing an investigation into mail theft, fraud, forgery, counterfeits.” Because defendant did not object to the foregoing, the issue has not been preserved for appeal. C.CrJP. art. 841.

Defendant contends further that he was prejudiced by the introduction of what defendant refers to as a “mug shot-rap-sheet.” The record reflects that the state sought to introduce the photograph of defendant, which Inspector Paulis had obtained. Apparently the photograph also presented some gratuitous information which referenced a prior arrest or arrest history. Defense counsel brought this concern to the court’s attention. It appears that the state had covered over the | moffending portion and the court requested that the part be cut off. No further objection is mentioned. If it were the case that the photograph was not altered as the court requested, it was incumbent on counsel to object at the time the photograph was utilized or at the time it was introduced, which was not the case. The assignment of error lacks merit.

PRO SE SUPPLEMENTAL ASSIGNMENT OF ERROR NO. 8:

Defendant contends the trial court erred in qualifying Officer Chana Pichón as an expert in handwriting analysis. Defendant argued that handwriting analysis failed to meet the criteria of set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

The general rule for the admissibility of expert testimony is stated in La.Code of Evidence art. 702 which provides:

Art. 702. Testimony by experts
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

This codal article is based on Federal Rules of Evidence 702. In Daubert, the Court discussed the procedure a trial judge must use in determining whether an expert may testify to scientific knowledge that would assist the trier of fact to understand or determine a fact in issue. The Court noted: “This [determination] entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Daubert, 509 U.S. at 592-593, 113 S.Ct. at 2796. The Court stated that the inquiry envisioned by Rule 702 is flexible, lnbut “the overarching (sic) subject is the scientific validity — and thus the evidentia-ry relevance and reliability — of the principles that underlie a proposed submission.” Id. at 595-596, 113 S.Ct. at 2797. The factors which the Court set forth making this determination included testing, peer review, error rates, and acceptability in the relevant scientific community.

In State v. Foret, 628 So.2d 1116 (La.1993) the Court, noting that La. C.E. art. 702 is virtually identical to its source provision in the Federal Rules of Evidence, F.R.E. 702, adopted the standard of admissibility for determining reliability of scientific evidence that was set forth in Dau-bert. In so doing the Court noted that subsumed in the requirements of Rule 702 is the premise that expert testimony must be reliable to be admissible. Additionally, in Foret the Court noted that the standard for determining whether scientific testimony was admissible requires the trial court to act in a “gatekeeping” function to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Foret, 628 So.2d at 1122.

Daubert left open the issue of whether its standards would apply to experts who are not scientists but rather who have technical skills which could aid the jury. In Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), the Court held that the “gatek-eeping” function of Daubert also applies in cases involving expert testimony concerning technical knowledge. The Court stated:

We conclude that Daubert’s general holding — setting forth the trial judge’s general “gatekeeping” obligation — applies not only to testimony based on “scientific” knowledge, but also to testimony based on “technical” and “other specialized” knowledge. See Fed. Rule Evid. 702. We also conclude that a trial court may consider one or more of the more specific factors that Daubert mentioned when doing so will help determine that testimony’s reliability. But, as the Court stated in Daubert, the test of reliability is “flexible,” and Daubert’s list of specific factors neither necessarily nor exclusively |i;>applies to all experts or in every case. Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination. See General Electric Co. v. Joiner, 522 U.S. 136, 143, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (courts of appeals are to apply “abuse of discretion” standard when reviewing district court’s reliability determination). (Emphasis supplied)

Id. at 141-142, 119 S.Ct. at 1171. The Court noted that the list of factors in Daubert “was made to be helpful, not definitive. Indeed, those factors do not all necessarily apply even in every instance in which the reliability of scientific testimony is challenged.” Id. at 149, 119 S.Ct. at 1175. The Court further held that while a trial court must have “considerable leeway” in deciding in each case the method it must use to determine the reliability of expert testimony, it should use the Daubert factors “where they are reasonable measures of the reliability of expert testimony.” Id. at 151, 119 S.Ct. at 1176. The Court held that the appellate court must use an “abuse of discretion” standard in reviewing a trial court’s decision of how to determine reliability as well as its ultimate determination of reliability or unreliability. “Thus, whether Daubert’s specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine.” Id. at 151, 119 S.Ct. at 1176.

In denying the motion the trial court stated

I do recognize, based on my experience as a lawyer — practicing lawyer— and as a judge, that there are people who receive training, knowledge, and certain experience in the filed of an analysis of handwriting.
I also understand through readings that each person has a different handwriting, a different style whereby he or she makes letters and/or numbers. And that style is peculiar or typical to the individual involved who is the author of a particular document.
11sIt’s not general knowledge. In fact, it requires someone with some special training to get up and explain to a jury how the formation of the letters and/or numbers is peculiar to individuals and their style of writing.

In U.S. v. Velasquez, 64 F.3d 844 (3d Cir.1995), the court found that the field of handwriting analysis consists of “ ‘scientific, technical or other specialized knowledge’ properly the subject of expert testimony” under the Daubert criteria. Id. at 850. The trial court did not abuse its discretion in allowing the handwriting analysis testimony.

PRO SE SUPPLEMENTAL ASSIGNMENT OF ERROR NO. 9:

Defendant contends the state illegally procured his handwriting specimen. Although conceding that the issue was not raised prior to trial, defendant nonetheless contends that this issue has been preserved for review, because it was raised at the hearing on the motion for new trial. The argument has no merit. An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. C.Cr.P. art. 841. See also State v. Moody, 2000-0886 (La.App. 1 Cir. 12/22/00), 779 So.2d 4.

PRO SE SUPPLEMENTAL ASSIGNMENT OF ERROR NO. 10:

Defendant contends he was denied the right of compulsory process when his witness was arrested while waiting to testify. It appears that defendant’s witness, Lloyd Thomas, was arrested on an outstanding warrant while waiting in the hall on the day of trial. The trial court was informed of the occurrence, and Thomas was returned to court shortly after arriving at central lockup. However, at the conclusion of the state’s case the defense rested without calling the witness. Apparently, after being returned to court, Thomas spoke to defendant’s trial counsel, who on the basis of their discussion, declined to put Thomas on the stand.

luThomas’s testimony at the motion for new trial was that he was aware of a subject known as “Tapp” who closely resembled the defendant in physical appearance and that this subject let it be known in the neighborhood that he could obtain driver’s licenses and state I.D.’s for those who needed them. Thomas related that he had not informed defendant’s trial counsel, Joseph Meyer, of this fact. Thomas explained that he was shaken up from being arrested. However, responding to questions by the trial court, Thomas related that he had been arrested six or seven times on prior occasions.

Thomas also testified that he was with the defendant on the day question. He related that the two went to a concert that night and that Lawrence had been at his house for the entire day. Thomas’s mother is the defendant’s girlfriend.

Mr. Meyer testified that although Thomas had informed him that he was with the defendant on the day in question he could not provide him with information from which he could gather a reasonable belief that he could remember that specific date after some seventeen months had passed.

The trial court denied the motion for new trial on the basis of Thomas’ testimony, saying that he found his testimony “incredible, not worthy of belief’ and that “quite frankly, [he did not] believe his testimony.” The court also expressed the opinion that he felt the witnesses’ testimony concerning being upset by being arrested was “contrived by him.”

Based on the trial court’s review of the witness’s testimony, and the fact that the witness was available to testify, defendant cannot establish that his constitutional right to compulsory process was denied.

PRO SE SUPPLEMENTAL ASSIGNMENT OF ERROR NO. 11:

[ ^Defendant contends that he received ineffective assistance of counsel. Specifically, defendant contends his counsel was ineffective in the following respects;

1. Failing to challenge the legality of the handwriting exemplar.
2. Failing to implement the necessary motion to remedy the negative effects of the arrest of Lloyd Thomas.
3. Failing to thoroughly prepare Thomas and call him as a witness.

Generally, the issue of ineffective assistance of counsel is a matter more properly addressed in an application for post conviction relief, filed in the trial court where a full evidentiary hearing can be conducted. State v. Prudholm, 446 So.2d 729 (La.1984); State v. Reed, 483 So.2d 1278 (La.App. 4 Cir.1986). Only if the record discloses sufficient evidence to rule on the merits of the claim do the interests of judicial economy justify consideration of the issues on appeal. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Garland, 482 So.2d 133 (La.App. 4 Cir.1986).

A defendant’s claim of ineffective assistance of counsel is to be assessed by a two-part test: the defendant must show that counsel’s performance was deficient and that the deficiency prejudiced defendant. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Fuller, 454 So.2d 119 (La.1984). Counsel’s performance is ineffective when it can be shown that he made errors so serious that counsel was not functioning as the counsel guaranteed to the defendant by the Sixth Amendment. Strickland, 466 U.S. at 686, 104 S.Ct. at 2064. Counsel’s deficient performance will have prejudiced the defendant if he shows that the errors were so serious as to deprive him of a fair trial. To carry his burden, the defendant “must show that there is a reasonable probability that, but for counsel’s 1 ^unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 693, 104 S.Ct. at 2068. If an alleged error falls “within the ambit of trial strategy” it does not “establish ineffective assistance of counsel” State v. Bienemy, 483 So.2d 1105 (La.App. 4 Cir.1986).

Handwriting Exemplar:

The exact details of the circumstances surrounding the taking of defendant’s handwriting exemplar are somewhat unclear. Only the defendant’s version of the events was presented. The record reflects that the state’s motion and order to obtain handwriting specimen was signed by a magistrate judge on June 20, 2000. A bail order was signed the same day, and defendant did not appear at several hearing dates. No capias was issued, as it appears defendant was not served. At the motion for new trial defendant related that Detective Lauman appeared at his house and at gun point took him to the second district police station to complete the handwriting exemplar.

It has long been held that the compelled display of identifiable physical characteristics infringes no interests protected by the constitutional privilege against compulsory self-incrimination. In the case of Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the United States Supreme Court held that evidence of analysis of petitioner’s blood taken over his objection was not inadmissible on the ground that it violated defendant’s privilege against self-incrimination. There the Court stated:
“It is clear that the protection of the privilege reaches an accused’s communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one’s papers. On the other hand, both federal and state courts have usually held that it offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling ‘communications’ or 117‘testimony,’ but that compulsion which makes a suspect or accused the source of ‘real or physical evidence’ does not violate it.” 384 U.S. at 763-64, 86 S.Ct. at 1832. (citations omitted) (emphasis added)
This distinction between an act which communicates and an act which merely makes an accused’s physical characteristics the subject of evidence has been consistently applied in fifth amendment analysis. In Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), the United States Supreme Court held that the state’s taking of a handwriting exemplar did not violate the accused’s fifth amendment privilege. The Court stated that:
“One’s voice and handwriting are, of course, means of communication. It by no means follows, however, that every compulsion of an accused to use his voice or write compels a communication within the cover of the privilege. A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection.... No claim is made that the content of the exemplars was testimonial or communicative matter.” 388 U.S. at 266-67, 87 S.Ct. at 1953. (emphasis added)

State v. Tillett, 351 So.2d 1153, 1155-1156 (La.1977).

Although the circumstances under which defendant provided the handwriting exemplar are somewhat unusual, defendant does not suggest how his constitutional rights were violated. He presents no argument that his counsel could have pursued in seeking to suppress the exemplar.

Lloyd Thomas:

With regard to defendant’s second claim he does not suggest what motion counsel could have brought to “remedy the negative effects of the arrest of Lloyd Thomas.” Accordingly, there is no merit to this claim.

With regard to the claim that counsel failed to “thoroughly prepare” Lloyd Thomas, there is little in the record by which this court could properly assess the claim. As to the decision not to call Thomas, it appears that was clearly a case of trial strategy. Counsel met with Thomas, and from his discussion he did not believe that Thomas’s testimony would benefit defendant.

11sDefendant fails to satisfy the requirements of Strickland to establish an ineffective assistance claim.

PRO SE SUPPLEMENTAL ASSIGNMENT OF ERROR NO. 12:

In this assignment defendant reiterates the same issues and arguments brought in his assignment of error number four.

PRO SE SUPPLEMENTAL ASSIGNMENT OF ERROR NO. 13:

Defendant contends his sentence is invalid because it rests on an invalid indictment, verdict, and conviction. As discussed earlier, we vacated defendant’s sentence, so this assignment of error is moot.

PRO SE AMENDMENT TO ASSIGNMENT OF ERROR NO. 1:

Defendant contends that the B.O.F.I. photograph which Inspector Paulis used to compare to the “Regiscope photograph” was not properly authenticated as being a photograph of the defendant. Because defendant failed to object to the photograph prior to its introduction on this basis, the claim was not preserved. Furthermore, defendant contends that the state’s case rested on a comparison of the “Regiscope photograph” to the B.O.F.I. photograph. The argument is misplaced as the question for the jury was whether the “Regiscope photograph” was a picture of the defendant and he was present in court for the jury to draw their own conclusion.

CONCLUSION

In the present ease, we find that a rational trier of fact could have reasonably found the defendant guilty of issuing the forged check. Further, we find no merit to any of the defendants remaining assignments of error. Accordingly, for the 119foregoing reasons, we affirm the judgment of the trial court that the defendant was properly convicted of a single offense of forgery. We remand this matter to the trial court for sentencing on the false issuing conviction.

CONVICTION AFFIRMED; REMANDED FOR SENTENCING.

JONES, J., concurs in result.

      . Apparently, the state sought to introduce the photograph because defendant’s appearance was altered between his arrest and trial.

      . On September 10, 2001, defendant filed a pleading entitled "Pro Se Memorandum,” which is treated here as his assignment of error number eleven.


author: I .BROWN, C.J.

text:
    CLARENDON NATIONAL INSURANCE COMPANY, Plaintiff-Appellant, v. JEANSONNE & REMONDET, L.L.C., Defendant-Appellee.
    No. 37,765-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 23, 2003.
    Rehearing Denied Dec. 4, 2003.

      Crawford & Anzelmo by Brian E. Crawford, Monroe, Jefferson B. Joyce, Baton Rouge, for Appellant.
    Mayer, Smith & Roberts by David But-terfield, Shreveport, for Appellee, Jean-sonne & Remondet.
    Pettiette, Armand, Dunkleman, Wood-ley, Byrd & Cromwell by Donald James Armand, Jr., Shreveport, for Interve-nor/Appellee, Travelers Ins. Co.
    Before BROWN, WILLIAMS, and TRAYLOR (Pro Tempore), JJ.
   I .BROWN, C.J.

Clarendon National Insurance Company (“Clarendon”) sued the law firm of Jean-sonne & Remondet, L.L.C. (“Jeansonne & Remondet”) because the firm failed to timely file a third party demand against Travelers Indemnity Co. (“Travelers”). Both parties filed motions for summary judgment. The trial court granted Jean-sonne & Remondet’s motion limiting its liability to $10,000. Clarendon appeals. We find no error and affirm.

Facts and Procedural Background

On March 28, 1998, Victoria Ogle was driving a 1996 Corvette owned by Courtesy Chevrolet, Inc. (“Chevyland”), on Interstate 20 in Shreveport, Louisiana, when she rear-ended a vehicle driven by Dorothy Blackstone. Both drivers suffered serious injuries.

Ms. Ogle worked for Ark-La-Tex Auto Auction, Inc. (“AAAI”), which sells used vehicles at auction. Chevyland is a car dealership that sells new and used vehicles. Ms. Ogle had picked up the Corvette from Chevyland to drive to AAAI for sale at its auction. Clarendon insured AAAI, and Travelers insured Chevyland.

On January 20, 1999, Mrs. Blackstone and her husband filed suit against Ms. Ogle, AAAI, and Clarendon. They did not, however, file suit against Travelers. The law firm of Jeansonne & Remondet was hired to defend Clarendon and its insureds.

On September 16, 1999, Jeansonne & Remondet filed a motion for leave of court to file a third-party demand against Travelers. In a hearing held on September 20, 1999, the trial court denied the request because it was “certain to cause a delay.” Jeansonne & Remondet challenged the trial | ¡¡court’s ruling not to allow a third-party demand against Travelers via a writ application to this court, which was denied.

A bench trial was held on October 28, 1999. Judgment was entered on November 16, 1999, in favor of the Blackstones for the amount of $492,306.51. Clarendon did not appeal this judgment and paid this amount in full.

On June 26, 2000, Clarendon filed suit against Jeansonne & Remondet, alleging negligent defense in the Blackstone suit due to its failure to timely file a third-party demand against Travelers. On June 26, 2000, Clarendon also filed suit against Travelers in the First JDC for indemnity and/or contribution regarding the judgment rendered in favor of the Blackstones. Travelers subsequently removed this suit to federal court asserting a “late notice” defense. The federal court granted summary judgment in favor of Travelers and dismissed Clarendon’s suit. Clarendon did not appeal this ruling.

The parties stipulated that Travelers’ liability coverage for this accident was primary, ie., Travelers’ policy limits should have been exhausted before Clarendon would be held liable.

On May 9, 2002, Clarendon filed a motion for partial summary judgment against Jeansonne & Remondet, claiming that no genuine issue of material fact existed concerning Travelers’ primary liability or the limits thereof with regard to the Blackstone suit. Specifically, Clarendon urged that the Travelers policy provided primary coverage of $1 million. On August 9, 2002, Jeansonne & Remondet opposed Clarendon’s motion and 13moved for partial summary judgment to declare that the Travelers policy issued to Chevyland only provided coverage of $10,000; therefore, Jeansonne & Remondet argued that it was entitled to partial summary judgment limiting Clarendon’s damages to $10,000.

Both parties argued their cross motions for summary judgment. The trial court ruled in favor of Jeansonne & Remondet, finding that the Travelers policy provided only $10,000 in coverage. Pursuant to La. C.C.P. art.1915, said judgment was designated as a final partial judgment. Judgment was signed accordingly on February 18, 2003. Clarendon has appealed devolu-tively.

Discussion

The determinative issue as to the amount of coverage is contingent upon Ms. Ogle’s employment status. Clarendon contends that Ms. Ogle was Chevyland’s borrowed servant; Jeansonne & Remon-det asserts that she was not.

An insurance policy is a contract that constitutes the law between the parties. Marcus v. Hanover Ins. Co., Inc., 98-2040 (La.06/04/99), 740 So.2d 603; Pareti v. Sentry Indem. Co., 536 So.2d 417 (La.1988). If the wording of the policy is clear and expresses the intent of the policy, the policy must be enforced as written. Id.

Travelers issued a “garage business” policy to Chevyland. Travelers’ policy provided coverage of up to one million dollars to permissive users of Chevy-land automobiles unless those persons are in the “business of selling, servicing, repairing, parking or storing automobiles”. If that was |4the case, then Travelers’ policy would provide only the minimum limits required by the Louisiana Motor Vehicle Safety Responsibility Act ($10,000).

The Travelers policy defines an “insured” for a covered “auto” as

(2) Anyone else while using with your permission a covered “auto” you own, hire or borrow, except:
(c) Someone using a covered “auto” while he or she is working in a business of selling, servicing, repairing, parking or storing “autos” unless that business is your “garage operations.” However, such persons are “Insureds” up to the financial responsibility limits required by Louisiana Motor Vehicle Safety Responsibility law.

Clarendon contends that the Travelers policy covered Ms. Ogle because she was both driving a covered “auto” as defined in the policy and was performing work for Chevyland in its “garage operations.” It urges that the specific conduct she was engaged in was not selling, servicing, repairing, parking or storing the Corvette. Clarendon contends that she was “merely gratuitously transporting” the Corvette from Chevyland to her employer, AAAI, to help Chevyland sell cars.

Clarendon maintains that Ms. Ogle was a borrowed servant of Chevyland because the work she performed primarily bene-fitted Chevyland. While AAAI selected the employee to be sent to Chevyland, if Chevyland was not satisfied with the driver, it could prohibit that driver from operating one of its vehicles. Further, Chevyland could request a certain driver to operate its vehicles. Although admitting that AAAI “gained an advantage” because it could potentially obtain an auctioneer’s fee, Clarendon urges that Chevyland stood to benefit more than AAAI by having its cars transported |fito AAAI. It also contends that AAAI relinquished control of its employees to Chevyland in order to have cars delivered to it.

In deciding whether a borrowed employee relationship exists, the following factors are important to consider in making such a determination: (1) who has the right of control over the employee beyond the mere suggestion of details or cooperation; (2) who selected the employee; (3) who paid the employee’s wages; (4) who had the right to fire the employee; (5) who furnished the tools and the place to perform the work; (6) was the new employment over a considerable length of time; (7) whose work was being done at the time of the accident; (8) was there an agreement between the borrowing and lending employers; (9) did the employee acquiesce in the new work situation; and (10) did the original employer terminate his relationship with or relinquish his control over the employee. Pradia v. Southern Personnel of La., Inc., 00-0365 (La.App. 3rd Cir.10/11/00), 776 So.2d 474, writ denied, 00-3018 (La.01/05/01), 778 So.2d 599; Green v. Popeye’s Inc., 619 So.2d 69 (La.App. 3rd Cir.1993).

Applying these factors to the case sub judice, Ms. Ogle was not Chevyland’s borrowed servant. There is no evidence indicating that Chevyland had any control over Ms. Ogle. While Clarendon contends that AAAI relinquished control of its employees to Chevyland in order to have cars delivered to it, no evidence was proferred into the record to substantiate this claim. AAAI selected Ms. Ogle as its own employee, paid her wages, and retained the right to fire her. While it might be argued that Chevyland provided “tools” for her when it provided her with the keys to the Corvette, |fiChevyland relinquished control of the vehicle to AAAI and AAAI’s separate and distinct garage operation when it turned over the car keys to Ms. Ogle. Chevyland’s only expectation was that AAAI would present its vehicle for evaluation and bidding; Chevyland would thereafter either accept or reject the highest bid for its automobile.

Furthermore, the “new employment” i.e., the picking up the automobile and driving it to AAAI, was not for any considerable length of time. AAAI’s work was being performed at the time of the accident as its own employee was transporting the Corvette to its place of business in order to be auctioned. Clarendon admits there was no formal agreement between AAAI and Chevyland. The record is devoid of any signed or written agreement regarding Ms. Ogle picking up the car between AAAI and Chevyland; rather, it was apparently a courtesy provided by AAAI to its cohorts as part of its auction business. Finally, AAAI, as Ms. Ogle’s “original employer,” never terminated its relationship with or relinquish its control over her.

The record contains the deposition of Edward Blakey, the former CEO of AAAI. Mr. Blakey admitted that AAAI had an auto mechanic on staff located on site to perform regular service or repairs and technical work on the vehicles there. He also explained that a body shop was located at AAAI specifically to perform “paint and body work” for the cars about to be sold. Mr. Blakey further stated that AAAI offered auto storage for the vehicles. Finally, and perhaps most importantly, AAAI regularly sold cars.

|7We find that the Travelers’ exclusionary clause is applicable, based on the evidence that the pick up and delivery of vehicles to be sold at auction was a routine and significant portion of AAAI’s business. Therefore, the conclusion is inescapable that when an AAAI employee, whose sole duties consist of picking up and delivering automobiles to be sold at auction, is engaged in driving an automobile to her employer’s premises, she is engaged in the automobile garage business as such is defined in the Travelers’ policy.

The language of the Travelers policy is clear. AAAI is in the business of selling, servicing, repairing, parking and/or storing autos. Ms. Ogle was AAAI’s employee and was in the course and scope of her employment when she picked up the Corvette from Chevyland to drive it to her place of employment for sale at auction. AAAI was engaged in a garage operation separate and distinct from Chevyland’s business. Ms. Ogle did not become part of Chevyland’s business when she was transporting the ear to AAAI’s auction. The Corvette was owned by Chevyland and covered by Travelers but under its endorsement only to the minimum limits of $10,000.

Conclusion

For the foregoing reasons, we AFFIRM the judgment of the trial court in favor of Jeansonne & Remondet, L.L.C. Costs are assessed to Clarendon National Insurance Company.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, GASKINS, DREW, and TRAYLOR, JJ.

Rehearing denied.