author: | gPARRO, J.

text:
    The SHAW GROUP, INC. v. John N. KENNEDY, Secretary, Department of Revenue and Taxation, State of Louisiana.
    No. 2002 CA 0655.
    Court of Appeal of Louisiana, First Circuit.
    July 2, 2003.

      David R. Cassidy, David R. Kelly, Jeanne C. Comeaux, Breazeale, Sachse & Wilson, L.L.P., Baton Rouge, for Plaintiff-Appellee The Shaw Group, Inc.
    Geneva Landrum, Baton Rouge, for De-fendanb-Appellant Secretary, Louisiana Department of Revenue.
    Before: PARRO, McDONALD, and CLAIBORNE, JJ.

      . Judge Ian W. Claiborne, retired from the Eighteenth Judicial District Court, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   | gPARRO, J.

The Department of Revenue, State of Louisiana (Department), appeals from a trial court judgment, which granted a summary judgment in favor of a taxpayer and abated the Department’s tax assessment relative to computer software services. For the following reasons, the judgment is affirmed.

Facts and Procedural History

The Department conducted a sales and use tax audit of The Shaw Group, Inc. (Shaw) for the period of January 1994 through December 1996. During the period covered by the audit, Shaw had entered into contracts with computer programmers for services in connection with Shaw’s existing computer software. As a result of the audit, the Department assessed additional taxes in connection with the computer software services, as well as the purchase of two airplanes, which Shaw paid under protest. Shaw then filed suit to recover the amount paid under protest. Following a hearing on a motion for summary judgment filed by Shaw, the trial court rendered a summary judgment in Shaw’s favor relative to the computer software services and the airplane purchases, ordering the Department to refund the amount paid under protest. The Department appealed from the trial court’s grant of the summary judgment. Shaw Group, Inc. v. Kennedy, 99-1871 (La.App. 1st Cir.9/22/00), 767 So.2d 937.

Finding that the airplanes were purchased outside of the state and used primarily for interstate transport, this court affirmed the trial court’s granting of summary judgment on this issue based on the exclusion from taxation found in LSA-R.S. 47:305(E). Shaw Group, Inc. v. Kennedy, 767 So.2d at 940. Relative to the issue of the taxability of the computer software services under LSA-R.S. 47:302(A) as tangible personal property, this court noted that Shaw had submitted two affidavits in support of its motion for summary judgment, attesting that the services were not repairs and that the software was operable before the services were provided. Furthermore, the affidavits stated that the services enhanced the existing software to make it more efficient. However, in paragraph 5 of Shaw’s petition, the services were described as “repairs and modifications” of software. The invoices provided by Shaw prior to the |,shearing contained vague descriptions such as “project management” and “programming.” Based on these observations and the Department’s complaint that there had been no opportunity to propound discovery, this court reversed the trial court’s granting of the summary judgment on this issue for the purpose of allowing more discovery concerning the specific nature of the computer software services provided to Shaw. Shaw Group, Inc. v. Kennedy, 767 So.2d at 940-941.

Shaw’s petition was amended to state that the Department was attempting to tax the invoiced value of certain enhancements to software owned, developed, and used by Shaw. After further discovery, the parties filed cross motions for summary judgment, seeking a determination concerning the tax assessment on Shaw’s modifications to the computer software. Shaw maintained that it owned, developed, and used a computerized fabrication management system in the running of its business. Shaw contracted with QZO, Inc. and Roger Freibert to provide services for the enhancement of the existing software to increase its efficiency. According to Shaw, the computer-related services merely enhanced its existing software to make it more efficient. The software was operable before the services were provided, and Shaw did not purchase any new software or equipment. On the other hand, the Department submitted that the programming resulted in such a significant enhancement and modification of Shaw’s computer software that the charges for the programming services performed were taxable as a purchase or use of new software.

The issue presented by the cross motions for summary judgment was whether the computer programming services provided by QZO, Inc. and Mr. Freibert, which resulted in modifications and enhancements to existing Shaw software, constituted the purchase of new software, so as to make it taxable as a purchase or use of tangible personal property. After recognizing that the resolution of this issue was relatively close, the trial court granted Shaw’s motion for summary judgment, abating the assessment against Shaw and ordering the Department to refund the amount paid 1 ¿under protest on account of these services. The judgment further denied the Department’s motion. The Department appealed from this judgment, contending the trial court erred in finding that the computer software services constituted a non-taxable event, despite its classification of the underlying transaction as a “purchase of software.”

Discussion

Louisiana Revised Statute 47:302(A) provides for a tax on the sale at retail or the use in this state of tangible personal property. Although some other states differ, in Louisiana, computer software constitutes tangible personal property, and thus is subject to taxation. South Central Bell Tel. Co. v. Barthelemy, 94-0499 (La.10/17/94), 643 So.2d 1240, 1250; United Companies Life Ins. Co. v. City of Baton Rouge, 577 So.2d 195 (La.App. 1st Cir.1991).

Shaw contends that the issue before this court has been resolved by the Louisiana Supreme Court in South Central Bell, referring to its finding that certain types of maintenance services relative to computer software did not fall under the rubric of repair services and were not taxable. South Central Bell, 643 So.2d at 1250. However, based on the wording of the minute entry in this case, the Department urges that after considering the evidence in the record, the trial court found that the actions undertaken by Shaw constituted a purchase of software. Accordingly, the Department argues that the resulting services provided by QZO, Inc. and Mr. Freibert are subject to taxation under LSA-R.S. 47:302(A).

The minute entry relied on by the Department does more than simply Rnote that a purchase of software had occurred. It further reflects that the referenced “purchase of software” resulted in an “upgrade,” rendering it non-taxable. The Department argues that the trial court erred in finding the upgrade to be non-taxable, because the code modification and capability enhancement produced an updated program and should be taxable as new software. It urges that the updated program itself constitutes tangible personal property, as it made additional functions possible, took up space on disks, and could be perceived by the senses. See LSA-R.S. 47:301(16)(a). According to the Department, the modification of software codes and the enhancement of its capabilities are nothing more than newer models of the software originally sold.

Although the South Central Bell case did not address the precise issue involved in the matter before us, we believe the analysis of the supreme court in that case is highly instructive. In South Central Bell, the primary issue before the court was whether certain computer software constituted “tangible personal property” taxable under the sales and use tax imposed by the City of New Orleans. After an exhaustive discussion of the characteristics of computer software and classification thereof as tangible or intangible under Louisiana law, the court held the computer software at issue constituted tangible personal property, which was taxable under the city ordinance. The court then considered the secondary issue of whether the maintenance services South Central Bell acquired in relation to the software were taxable. Those services consisted of technical support, updating, enhancing, and reformatting of the software, as well as advising the taxpayer with respect to certain usages of the software. The City argued such services were taxable under its ordinance as repairs to tangible personal property, but the court determined the services acquired by South Central Bell did not fall under the rubric of “repair services” and were not taxable. In so doing, the court specifically noted that the services were “to enhance already operable software and make it perform as efficiently as possible.” South Central Bell, 643 So.2d at 1250. The court could have easily found that the enhancement to the software, under the facts of that case, constituted new software and was thus taxable. The fact that the I «supreme court did not address that issue lends support to Shaw’s argument that the enhancement to its software is not taxable.

Further support for Shaw’s position can be found in the current version of LSA-R.S. 47:301(16), which provides for exclusions from the term “tangible personal property.” See LSA-R.S. 47:301(16)(a). Of importance to this case is the wording of LSA-R.S. 47:301(16)(e), which states:

The term “tangible personal property” shall not include work products which are written on paper, stored on magnetic or optical media, or transmitted by electronic device, when such work products are created in the normal course of business by any person licensed or regulated by the provisions of Title 37 of the Louisiana Revised Statutes of 1950, unless such work products are duplicated without modification for sale to multiple purchasers. This exclusion shall not apply to work products which consist of the creation, modification, updating, or licensing of computer software.

Clearly, the work product provision does not preclude the modification and updating of computer software from being classified as tangible personal property. The last sentence of LSA-R.S. 47:301(16)(e) dictates just the opposite. Therefore, after the enactment of this work product provision, such work products as the modification and updating of computer software as was done in this case would be taxable as tangible personal property.

However, the work product exclusion was not added by the legislature until 1998. See 1998 La. Acts, No. 46, § 1. By this amendment to LSA-R.S. 47:301(16), the legislature must have intended to change the status of certain work products from taxable to non-taxable — and also to change the status of certain other work products from non-taxable to taxable. If work products such as updates and modifications to computer software had been taxable before the work product provision was enacted, there would have been no need for the last sentence of the provision. However, based on the South Central Bell case, the updates and modifications done to Shaw’s existing, operable software were not taxable before the enactment of this provision. Therefore, 17it was necessary to add the last sentence for such services to be taxable as tangible personal property after 1998.

Thus, we conclude that the work product in this case, which consisted of modifications and updating of computer software, was not taxable under LSA-R.S. 47:302(A) as tangible personal property.

Decree

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal, in the amount of $897.17, are assessed to the Department.

AFFIRMED.

      . Shaw and the Department concede that there are no genuine issues of material fact to preclude summary judgment in this case.

      . A minute entry reflects that the trial court determined that "the purchase of the software was an upgrade and not a taxable event.”

      .Unless otherwise noted, references to applicable provisions of the law in this opinion are to the versions in effect during the taxing period at issue in this case.

      . Additionally, LSA-R.S. 47:302(C) provides for a tax on sales of services, as defined by law. Louisiana Revised Statute 47:301(14)(g)(i) defines sales of services to include the furnishing of repairs to tangible personal property. However, in its brief, the Department acknowledges that this case does not involve an attempt to tax repairs. The factual situation presented in this case clearly does not fall within any of the other activities included as sales of services, and therefore, LSA-R.S. 47:302(C) is not applicable.

      . LSA-R.S. 47:301(16)(a) states that tangible personal property means and includes personal property which may be seen, weighed, measured, felt, or touched, or is in any other manner perceptible to the senses.


source: Caselaw Access Project

author: I ¡.MCDONALD, J.

license: Public Domain

text:
    Jack and Paula SMITH, et al. v. TERREBONNE PARISH CONSOLIDATED GOVERNMENT, et al.
    No. 2002 CA 1423.
    Court of Appeal of Louisiana, First Circuit.
    July 2, 2003.

      Scott E. Oliphant, New Orleans, Counsel for Plaintiffs/Appellants Jack and Paula Smith, et al.
    Thomas S. Morse, New Orleans, Counsel for Defendant/Appellee Progressive Security Insurance Company.
    E. James Gaidry, Jr., Houma, Counsel for Defendant/Appellee Terrebonne Parish Consolidated Government.
    Michael G. Gee, Thibodaux, Counsel for DefendantyAppellee Allstate Ins Co./Keith Cunningham.
    Before: PARRO, MCDONALD, and CLAIBORNE, JJ.

      . Judge Ian W. Claiborne, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   I ¡.MCDONALD, J.

Plaintiffs appeal the trial court’s judgment finding that uninsured/underinsured motorist coverage had been validly rejected and granting summary judgment in favor of their automobile insurer. We affirm.

FACTS AND PROCEDURAL HISTORY

In September 1999, Paula Smith contracted with Progressive Security Insurance Company (Progressive) to provide insurance coverage on two family automobiles, with herself, her husband, Jack, and their adult son, Michael listed as drivers. The policy contained an “Uninsured/Un-derinsured Motorist Bodily Injury Coverage Form” signed by Paula Smith rejecting UMBI coverage. On May 3, 2000, an automobile in which Michael Smith was a passenger was involved in a one-car accident. Michael sustained massive injuries and died the next day. Jack and Paula Smith filed suit, individually, and as representatives of their deceased son, against the operator of the vehicle and his insurer, the parish government that maintained the road, and the Smiths’ insurer, Progressive.

Progressive filed a motion for summary judgment in October 2001, alleging that Paula Smith had rejected uninsured/under-insured motorist (UM) coverage when she applied for automobile insurance and that the automobile liability insurance policy written by Progressive covering the Smiths’ vehicles did not provide for such coverage. Therefore, Progressive was entitled to summary judgment dismissing the Smiths’ claims. The Smiths opposed the motion for summary judgment claiming that Paula Smith was not the “named insured” on the policy, and therefore could not legally reject UM coverage on behalf of her adult son. It was also maintained that the insurance company representative had told Paula Smith that since Michael lived with them he must be covered under “her husband’s” insurance policy even though Michael owned his vehicle.

Judgment and written reasons for judgment were rendered by the trial court finding in favor of Progressive, dismissing with prejudice all claims based on UM | .-¡coverage, and designating the judgment a final judgment within the meaning of La. C.C.P. art. 1915(B)(1). Thereafter this de-volutive appeal was perfected.

LAW AND ANALYSIS

Appellate courts review a summary judgment de novo under the same criteria used by the district court which determined that summary judgment was appropriate. Baker v. Maclay Properties Co., 94-1529 (La.1/17/95), 648 So.2d 888, 893. The trial court’s written reasons for judgment were thorough and well reasoned, and we adopt them as our own:

Louisiana Code of Civil Procedure article 966 declares that summary judgment procedure is favored in Louisiana and shall be construed to accomplish the just, speedy, and inexpensive determination of judicial proceedings. The party requesting summary judgment is entitled to the same as a matter of law if the pleadings, depositions, answers to interrogatories, admissions, and affidavits furnished by the parties show that there is no genuine issue as to material fact. Ordinarily, the burden of proof to make such a showing is on the movant. However, if the movant will not bear the burden of proof at trial, the movant’s burden on the motion for summary judgment is merely to show an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense.
In this case, the movant, Progressive, will not bear the burden of proof at trial. The plaintiffs, Mr. and Mrs. Smith, will bear the burden of proving all the elements of their case by a preponderance of the evidence. In order to prevail on its motion for summary judgment, Progressive must show an absence of factual support for one or more of the elements essential to the plaintiffs’ claims against Progressive under the uninsured or underinsured motorist coverage in the policy at issue. To that end, Progressive has asserted and bears the burden of proving that no uninsured or underinsured motorist coverage existed under its policy. A summary judgment may be rendered on the issue of insurance coverage alone, although there is a genuine issue as to liability or the amount of damages. Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Gaylord Chemical Corporation v. ProPump, Inc., 753 So.2d 349 (La.App. 1st Cir.2000).
The court has thoroughly reviewed all of the pleadings, evidence, and memo-randa offered by the parties, and has thoroughly considered the arguments of counsel. As explained herein below, the court finds that the movant, Progressive, has proved the requisite lack of genuine issue of material fact, the consequence of which compels this court to grant Progressive’s motion for summary judgment. Specifically, the court finds that uninsured and underinsured motorist coverage under the policy at issue was validly rejected.
|4The evidence reveals that Progressive issued an automobile insurance policy numbered 31282912-0 to the named insured, Jack Smith, with coverage effective September 21, 1999, to September 21, 2000. Coverage was provided with regard to two vehicles and the listed drivers were the plaintiffs, Mr. and Mrs. Smith, and the deceased, Michael H. Smith. The declarations page of the policy reflects that uninsured and under-insured motorist coverage was rejected and no premium was charged for such coverage.
By way of a document entitled “Uninsured/Underinsured Motorist Bodily Injury Coverage Form” dated September 20, 1999, the plaintiff, Paula Smith, rejected such coverage under the policy at issue by placing her initials in a blank space next to a statement declaring, “I do not want UMBI Coverage,” and signing the form below a declaration confirming her decision to reject such coverage. In pertinent part the declaration reads as follows: “The choice I made by my initials on this form will apply to all persons insured under my policy.”
According to Mrs. Smith’s deposition testimony of August 7, 2001, she historically handled insurance matters for her family and she placed the automobile liability insurance coverage for the family with Progressive through a local insurance agency. The matter of uninsured and underinsured motorist coverage was specifically discussed with a representative of the agency and Mrs. Smith understood the coverage would not be included in the policy. Mrs. Smith confirmed that she initialed and signed the rejection form. Mrs. Smith did explain, however, that she did not understand uninsured or underinsured motorist coverage and that no one at the insurance agency explained it to her.
The only reasonable interpretation of the policy at issue, based on the documents submitted, is that uninsured and underinsured motorist bodily injury coverage was rejected. There appears to be no doubt that Mrs. Smith rejected such coverage, and it is of no consequence that she lacked an understanding of the effect of her decision. A person who signs a written document is presumed to have knowledge and understanding of that which he signs. Because the rejection form signed by Mrs. Smith in this case is easily understood and self-explanatory, and is neither confusing or misleading, she is bound by the effect of the document even if she in fact did not understand the effect of signing the same. Onde (sic) v. The Aetna Casualty and Surety Company, 417 So.2d 471 (La.App. 1st Cir.1982).
However, the issue presented by way of the motion for summary judgment filed by Progressive questions the validity of the rejection of uninsured and un-derinsured motorist bodily injury coverage by Mrs. Smith to the extent her rejection of coverage constitutes a rejection of such coverage by or on behalf of her son, Michael H. Smith. Progressive argues that the rejection of coverage by Mrs. Smith operates as a rejection of coverage by all persons insured under the policy, including Michael H. Smith. The plaintiffs argue that Michael H. Smith did not reject such coverage personally and that his mother’s rejection of such coverage was without effect as to him.
The statutory provisions which dispose of the issue raised by the parties in this case are La. R.S. 22:1406(D)(l)(a)(i) and (ii), which provide in pertinent part as follows:
“D. The following provisions shall govern the issuance of uninsured motorist coverage in this state:
|fi(l)(a)(i)... however, the coverage provided under this Subsection is not applicable when any insured named in the policy.. .rejects coverage ... in the manner provided in Item D (l)(a)(ii) of this Subsection ...
(ii) .. .The prescribed form shall be provided by the insurer and signed by the named insured or his legal representative...
The above-quoted statutes clearly provide that uninsured and underinsured motorist coverage is not applicable when any insured named in the policy rejects coverage...

Appellant asserts that the court erred by liberally interpreting the ambiguity contained in La. R.S. 22:1406(D)(l)(a)(i) and (ii) in favor of a waiver and against UM coverage. Appellant argues that such a judgment is contrary to proper methods of statutory construction and disregards the strong public policy that mandates that ambiguities regarding UM coverage are always resolved in favor of coverage and not in favor of the insurer. Further, it is maintained, that the “law imposes UM coverage in this state notwithstanding the language of the policy, the intentions of the parties, or the presence or absence of a premium charge or payment,” citing Giroir v. Theriot, 513 So.2d 1166, 1168 (La.1987), and Roger v. Estate of Moulton, 513 So.2d 1126, 1131-32 (La.1987). It is important to note, however, that while the law does provide for and/or favor the inclusion of UM coverage, it does not infringe on the right to contract, nor make it unlawful to reject UM coverage. See La. C.C. art.1971. It is not the province of the courts to relieve a party of a bad bargain, no matter how harsh. Sunrise Construction and Development Corporation v. Coast Waterworks, Inc., 2000-0300 (La.App 1st Cir. 6/22/01), 806 So.2d 1, 5.

UM coverage may be declined when “any insured named in the policy either rejects coverage, selects lower limits, or selects economic-only coverage, in the manner provided in Item D (l)(a)(ii).” La. R.S. 22:1406(D)(l)(a)(i). Item (D)(l)(a)(ii) provides in pertinent part: “[A]fter September 1, 1987, such rejection, selection of lower limits, or selection of economic-only coverage shall be |fimade only on a form prescribed by the commissioner of insurance. The prescribed form shall be provided by the insurer and signed by the named insured or his legal representative.” Many of the cases relied on in plaintiffs brief predate to the statutory requirement for a specified form and turned on the decision that the evidence offered by the insurer for the rejection of UM coverage by the insured did not conform to the “clear and unmistakable” waiver of coverage legally required or failed in some other respect, e.g., by not providing consideration of all available options.

Further, we find no ambiguity in the statute. The First Circuit has addressed the issue of a possible conflict in the provisions of subsection (D)(l)(a)(i) and (ii) and concluded that reading the provisions together results in a clear, unambiguous understanding of how UM coverage is validly waived. Bel v. State Farm Mutual Automobile Insurance Company, 2002-0360 (La.App. 1st Cir.2/14/03), 845 So.2d 459. The law allows any insured named in the policy to reject UM coverage if it is done in writing on the prescribed form. The contract of insurance covering the Smiths’ vehicles did not provide UM coverage because it was waived by Paula Smith, validly, in conformity with La. R.S. 22:1406(D)(l)(a)(ii). The terms of the automobile insurance policy issued by Progressive pursuant to the application and purchase of the policy by Paula Smith applied to all listed drivers. As an insured named in the policy, she had the authority to reject UM coverage for them all, and she did so. In fact, altering the policy to provide different terms regarding the inclusion/exclusion of UM coverage on Michael only, would probably have required a separate policy. The fact that Michael may have chosen to purchase a different policy is not material to a decision on this matter.

Therefore, the judgment of the trial court is affirmed. Costs of this appeal are assessed against the Smiths.

AFFIRMED.

PARRO, J., concurs.


author: | .KUHN, J.

text:
    ROWAN COMPANIES, INC. v. James Ronald POWELL, Jr. James Powell v. Rowan Companies.
    Nos. 2002 CA 1894, 2002 CA 1895.
    Court of Appeal of Louisiana, First Circuit.
    July 2, 2003.
    Writ Denied Nov. 14, 2003.

      M. Blake Monrose, Lafayette, Counsel for Defendant/Appellee Rowan Companies, Inc.
    Michael L. Hebert, Baton Rouge, Counsel for Claimant/Appellant James Powell.
    Before: KUHN, DOWNING, and GAIDRY, JJ.
   | .KUHN, J.

Claimant-appellant, James Powell, appeals a judgment that concludes he willfully made a false statement or representation for the purpose of obtaining workers’ compensation benefits and, therefore, has forfeited any right to compensation benefits. In addition, the judgment awards to defendant-appellee, Rowan Companies, Inc. (Rowan), restitution of all benefits in the total amount of $52,816.62 and a $5,000.00 civil penalty. The judgment expressly denies claimant’s request for indemnity benefits, attorney’s fees, and a penalty against Rowan. We affirm.

FACTUAL AND PROCEDURAL HISTORY

In April 1999, claimant, a driller working for Rowan on Rig 14, advised the rig superintendent that he had injured his back. Rowan commenced payment of indemnity benefits and paid claimant’s medical expenses. Rowan discontinued payment of benefits, and on August 18, 2000, filed a disputed claim with the Office of Workers’ Compensation (OWC), averring claimant had willfully made a false statement or representation for the purpose of obtaining workers’ compensation benefits and requesting restitution as well as an assessment of a civil penalty for the misrepresentation. Claimant filed his own disputed claim (1008 form), alleging as the basis of his dispute that indemnity and medical benefits had been terminated. Responsive pleadings were filed by the parties.

I ¡¡After consolidation of the lawsuits, discovery, and numerous continuances, on April 11, 2002, the matter proceeded to a hearing on the merits. On June 10, 2002, the workers’ compensation judge (WCJ) issued a judgment dismissing claimant’s request for benefits, attorney’s fees, and a penalty. The judgment also concluded that claimant had forfeited any right to compensation benefits and ordered him to pay restitution and a civil penalty to Rowan. This appeal by claimant followed.

On appeal, claimant challenges the WCJ’s conclusions that: (1) Rowan was entitled to place into the record evidence of claimant’s alleged misrepresentations; (2) claimant made a false statement and/or representation for the purpose of obtaining benefits; and (8) claimant was not entitled to both indemnity and medical benefits.

Louisiana Revised Statute 23:1208

Louisiana Revised Statute 23:1208 provides in pertinent part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
* * *
D. In addition to the criminal penalties provided for in Subsection C of this Section, any person violating the provisions of this Section may be assessed civil penalties by the workers’ compensation judge of not less than five hundred dollars nor more than five thousand dollars, and may be ordered to make restitution. Restitution may only be ordered for benefits claimed or payments obtained through fraud and only up to the time the employer became aware of the fraudulent conduct.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

|4The only requirements for forfeiture of benefits under La. R.S. 23:1208 are that (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment. Resweber v. Haroil Const. Co., 94-2708, p. 7 (La.9/5/95), 660 So.2d 7, 12.

The legislature has determined workers’ compensation fraud is a severe and growing problem and has continually amended La. R.S. 23:1208 to make it easier to enforce and to make the penalties stiffer. It is clear from the history of the statute that the legislature intended that any false statements or representations willfully made for the purpose of obtaining benefits would result in forfeiture of those benefits, and this legislative intent cannot be ignored. Resweber, 94-2708 at p. 8, 660 So.2d at 12-13.

Admission of Evidence of Alleged La. R.S. 23:1208 Violation

Claimant’s first complaint on appeal challenges the WCJ’s ruling on his motion in limine, which sought to exclude any evidence tending to prove he violated La. R.S. 23:1208. Claimant asserts that by averring he violated La. R.S. 23:1208, Rowan has in actuality alleged that he has committed a fraud. Because fraud must be pleaded with specificity, see La. C.C.P. arts. 856 and 1005, and Rowan’s allegations do not set forth in particularity the underlying factual basis, claimant urges that no evidence on the issue of whether he willfully made a false statement or representation for the purpose of obtaining workers’ compensation benefits should have been admitted. Thus, he maintains, the WCJ’s ruling on the motion in limine was erroneous.

Louisiana Code of Civil Procedure article 926 provides in relevant part:

A. The objections which may be raised through the dilatory exception include but are not limited to the following:
^ ^
(5) Vagueness or ambiguity of the petition.
B. All objections which may be raised through the dilatory exception are waived unless pleaded therein.

Claimant could have filed an exception objecting to the vagueness of the petition, see Clark v. Diamond B. Const., 2000-2146, p. 5 (La.App. 1st Cir.12/28/01), 803 So.2d 1113, 1117, but chose not to do so. Thus, under La. C.C.P. art. 926 B, his objection to the vagueness of Rowan’s claim was waived. Moreover, the record establishes ample time for discovery. Although the allegations of a La. R.S. 23:1208 violation set forth in Rowan’s separately-filed claim as well as those stated in the affirmative defense in Rowan’s responsive pleading to claimant’s disputed claim are conclusory, claimant could have readily utilized the available discovery mechanisms to ascertain the underlying facts. See Clark, 2000-2146 at p. 5, 803 So.2d at 1117. Cf. Abadie v. Metropolitan Life Ins. Co., 00-344 (La.App. 5th Cir.3/28/01), 784 So.2d 46, writs denied, 2001-1533, 2001-1534, 2001-1543, 2001-1544, 2001-1629, 2001-1853, 2001-1931 (La.12/14/01), 804 So.2d 642, 643, 644 (allegations that members of a trade association committed a fraud, conspiring among themselves and with other asbestos manufacturers, distributors, and trade organizations to cause injury to plaintiffs were sufficient to place one of numerous defendants, who had been added to lawsuit by supplemental and amending petition, on notice of the fraud ^allegations); see also Young v. State Farm Fire & Cas. Ins. Co., 426 So.2d 636, 640-11 (La.App. 1st Cir.1982), unit denied, 433 So.2d 148 (La.l983)(although affirmative defense alleging fraud must be pled with particularity and pleadings were rather conclusory, the evidence concerning the affirmative defense was properly considered since plaintiff had been fairly apprised of the nature of the affirmative defense before trial by both the allegation in defendant’s answer and from answers to interrogatories).

We find no error in the WCJ’s ruling allowing evidence that claimant violated La. R.S. 28:1208. See La. C.E. art. 103; Brumfield v. Guilmino, 93-0366, p. 13 (La.App. 1st Cir.3/11/94), 633 So.2d 903, 911, writ denied, 94-0806 (La.5/6/94), 637 So.2d 1056.

Propriety of WCJ’s Conclusion of La. R.S. 23:1208 Violation

Claimant contends the WCJ issued a judgment finding that he violated La. R.S. 23:1208 but failed to specify the basis of that conclusion.

The determination of whether there is a false statement or representation willfully made for the purpose of obtaining any benefit or payment involves inherently factual determinations and, thus, this court’s review of those findings by the WCJ is governed by the manifest error standard. Town of Clinton v. Loyell, 2001-1608, p. 3 (La.App. 1st Cir.6/21/02), 822 So.2d 171, 172, unit denied, 2002-2051 (La.11/1/02), 828 So.2d 573. Under that standard of review, this court may only reverse the WCJ’s decision if we find (1) there is no reasonable factual basis for the finding in the record and (2) the finding is clearly wrong or manifestly erroneous. Town of Clinton, 2001-1608 at p. 3, 822 So.2d at 172 7(citing Stobart v. State, Through Dep’t of Dev. and Transp., 617 So.2d 880, 882 (La.1993)).

Counsel for claimant states that because an express basis for the WCJ’s conclusion was not given, he “believes it would be a waste of time to speculate on what facts will be argued” as a violation of La. R.S. 23:1208 and urges that this court “understand [his] predicament....”

We initially note that Section 6303(2) of the OWC Rules states:

Written reasons shall only be rendered if requested in written form by any party to the claim within ten days of the signing of the judgment. The written reasons shall be issued by the judge not later than thirty days following the request.

See also La. C.C.P. art.1917. Thus, having failed to request written reasons for the WCJ's judgment, counsel for claimant has placed himself in this predicament. This court may consider as abandoned any specification or assignment of error which has not be briefed. See Uniform Rules-Courts of Appeal, Rule 2-12.4. Thus, by failing to address implicit factual findings contained in this record which support the WCJ’s conclusion that claimant violated La. R.S. 23:1208, claimant has abandoned this assignment of error.

There is ample evidence to support the WCJ’s conclusion claimant willfully made false statements and representations for the purpose of obtaining workers’ compensation benefits and payments. Without detailed elaboration and referencing but one example of the numerous implicit findings which support the WCJ’s conclusion, our review of the record shows that the WCJ could have concluded claimant’s first false statement or representation. was when he reported to his employer that he had injured himself in a work-related accident. Although ^claimant recalled having three incidents that he believed ultimately culminated in the back injury of which he complains, the three co-employees that he identified as witnesses to one or two of the events each testified that he did not remember the incident. And each of these witnesses very confidently testified that had the incident occurred as described by claimant, he would have recalled being present. Mindful of the entirety of the record, we find no manifest error in the WCJ’s determination that claimant violated La. R.S. 2B-.1208. The WCJ correctly ordered that claimant forfeited any right to compensation benefits. As such, claimant is not entitled to either indemnity or medical benefits and the WCJ did not err in so concluding.

DECREE

The OWC judgment is affirmed. Appeal costs are assessed against claimant-appellant, James Powell.

AFFIRMED.

      . The disputed claim form is dated "8-15-00,” in longhand. The file stamp indicates the form was received on August 25, 2000, which is the date that the OWC official minutes state that the form was received. Above the file stamp is the date, August 18, 2000, the date Rowan’s claim was filed.

      . See La. C.C.P. arts. 1420-1475.

      . Although claimant has lodged no complaints directed at the amount of either the restitution ordered or the civil fine imposed, because under La. R.S. 23:1208 restitution may only be ordered for benefits claimed or payments obtained through fraud and only up to the time the employer became aware of the fraudulent conduct, we note that the record supports findings that the fraud commenced as early as claimant’s report of injury to his back because of a work-related accident and that Rowan became aware of the fraudulent conduct by the time of claimant's March 24, 2000 deposition. And while Rowan submitted evidence showing the total amounts it incurred through August 2000 when it terminated benefits, the WCJ limited the amount of restitution for amounts incurred through March 24, 2000.


author: h CANNIZZARO, JR., J. | ARMSTRONG, J., |T McKAY, J. ItLOVE, J., | TOBIAS, J.,

text:
    Cindi ADAMS v. VOYAGER INDEMNITY INSURANCE COMPANY, Crescent Shippers of La., Inc., and Andy Leon.
    No. 2002-CA-1333.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 1, 2003.
    Rehearing Denied Nov. 14, 2003.

      Christopher J. Bruno, Bruno & Bruno, New Orleans, Counsel for PlaintifPApp el-lee.
    Scott G. Jones, Hulse & Wanek, New Orleans, Counsel for Defendant/Appellant.
    Court Composed of Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., and Judge LEON A. CANNIZZARO, JR.
   h CANNIZZARO, JR., J.

At issue in this appeal is whether the trial court properly applied the law regarding a judgment notwithstanding the verdict (JNOV) in reversing a jury verdict and rendering separate judgments in favor of the plaintiff on the issues of liability and damages.

FACTS

This case arises from a vehicular accident that occurred on August 4, 1998, at the intersection of Veterans Highway and Clearview Parkway in Jefferson Parish. At the intersection, westbound Veterans Highway consists of five travel lanes. The two lanes closest to the median are utilized to make a left turn onto Clearview Parkway. Todd Guidry, who was driving a Nissan Pathfinder in the inside left turn lane, and Andy Leon, who was driving a tractor trailer in the outside left turn lane, collided when each attempted to make a left turn from Veterans Highway onto southbound Clearview Parkway. At the time, the plaintiff, |PCindi Adams , was a front seat passenger in the Nissan Pathfinder and sustained injuries in the accident.

After the accident, Adams filed a petition for damages, naming as defendants, Leon, his employer, and the owner of the tractor trailer, Crescent Shippers of Louisiana, Inc., and its insurer, Voyager Indemnity Insurance Company. Following a trial, the jury returned a verdict finding Leon was not negligent in causing the accident. In accordance with the jury’s verdict, the trial court rendered a judgment dismissing the case. The plaintiff subsequently filed a motion for judgment notwithstanding the verdict (“JNOV”) or, alternatively, for a new trial. On January 10, 2001, the trial court rendered a JNOV in favor of the plaintiff, reversed the jury’s verdict, and allocated fault at thirty-five percent (35%) to Guidry and sixty-five (65%) percent to Leon. The defendants timely filed a devolutive appeal from that judgment. Meanwhile, on March 7, 2001, the trial judge rendered another JNOV, on the issue of damages, awarding the plaintiff $450,000.00 for general damages, $125,994.38 for medical expenses, $50,000.00 for past wages and $400,000.00 for future wages, in addition to interest from the date of judicial demand. The defendants also appealed from that judgment. The plaintiff has answered the appeals, arguing the trial court erred in allocating fault to Guidry.

| .¡APPLICABLE LAW

La.Code of Civ. Proc. art. 1811 authorizes a trial court to grant a JNOV on either the issue of liability or damages or both. Robinson v. Fontenot, 2002-0704, 2002-0733 (La.2/7/03), 837 So.2d 1280. Although article 1811 does not specify the grounds on which a trial judge may grant a JNOV, the Louisiana Supreme Court in Joseph v. Broussard Mill, 2000-0628, p. 1 (La.10/30/00), 772 So.2d 94, reiterated the criteria it set forth in Scott v. Hospital Serv. Dist. No. 1, 496 So.2d 270 (La.1986), in determining when a JNOV is proper. As enunciated in Scott, a JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of the evidence for the mover. The motion should be denied if the evidence opposed to the motion is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions. Scott, 496 So.2d at 274. In making this determination, the trial court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. Anderson v. New Orleans Pub. Serv. Inc., 583 So.2d 829, 832 (La.1991). This rigorous standard is based upon the principle that “[w]hen there is a jury, the jury is the trier of fact.” Scott, 496 So.2d at 273; Joseph, 2000-0628, pp. 4-5, 772 So.2d at 99.

|4In reviewing a JNOV, the appellate court must first determine if the trial judge erred in granting the JNOV. This is done by using the criteria set forth in Scott just as the trial judge does in deciding whether to grant the motion or not, i.e. do the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict? If the answer to that question is in the affirmative, then the trial judge was correct in granting the motion. If, however, reasonable persons in the exercise of impartial judgment might reach a different conclusion, then it was error to grant the motion and the jury verdict should be reinstated. Anderson, 583 So.2d at 832; Joseph, 2000-0628, p. 5, 772 So.2d at 99.

TRIAL TESTIMONY REGARDING THE ACCIDENT

Leon testified at trial that at the time of the accident he was operating his tractor trailer without a load. As he approached the intersection of Veterans Highway and Clearview Parkway, the traffic signal facing him was red. Because several cars ahead of him were stopped for the light, he had to stop a substantial distance from the intersection. Leon activated his left turn signal and waited through two or three cycles of the traffic fight before he reached the area of the intersection where he could make his turn. His left turn signal remained on the entire time. After slowly moving forward and reaching the area to make the left turn, Leon waited for the cars ahead of him to clear out on Clear-view Parkway before he commenced his turn; he estimated that it took twenty to thirty seconds to do so. Before beginning to turn, he checked his mirrors and saw a car to his rear in | Rthe left turn lane adjacent to his lane (the inside left turn lane). The car flashed its headlights on and off, which Leon interpreted as an indication that it was safe to turn. He slowly moved forward, angling the tractor trailer toward the curb ahead of him. As Leon proceeded to turn, he again checked his mirrors and immediately felt a “bump.” The mid section of the left side of the trailer, which crossed over into the inside left turn lane, struck the front passenger corner of the Nissan Pathfinder. Leon estimated that he was moving about five miles per hour when he made the turn. He explained that he did not accelerate in making the turn, but rather released his clutch to allow his tractor cab to roll forward into the turn. Leon also testified that he had made that same turn on other occasions and was well aware that his trailer would cross into the inside left turn lane while making the turn. On cross examination, he acknowledged that he had crossed over into Gui-dry’s lane.

Guidry, on the other hand, testified that when he entered the inside left turn lane on Veterans Highway, the fight had just turned green. He pulled up alongside Leon’s tractor trailer, which was in the adjacent outside left turn lane. As Guidry was making his left turn, Leon was turning left onto Clearview Parkway at the same time. Moments after making the turn, Guidry noticed that the tractor trailer was coming into his lane. He slammed on the brake, blew the horn, and “was hit all in a matter of less than two seconds.” However, on cross examination, when defense counsel questioned Guidry about the acei-dent, using a diagram of the intersection of Veterans Highway and Clearview Park-view, he testified as follows:

Q. Which lane were you in as you approached that intersection of Veterans and Clearview?
IrA. Here, inside left-hand turn lane.
Q. All right. Left-hand turn lane. All right. And, when you got to that area, in fact, right where you see this box, were there any vehicles next to you?
A. Tractor-trailer.
Q. What part of the tractor-trailer was next to you?
A. The trailer.
Q. So, the tractor was already pulled out further and the trailer was sticking out by you?
A. Yes, because the light had turned green.
Q. And, the tractor-trailer had [its] turn signal on, right?
A. Yes.
Q. And, you knew he was turning, right?
A. Yes.
Q And, you knew that the trailer could have dragged into this lane, right?
A. Yes.
Q. Okay. And, by knowing that, you turned with the tractor-trailer; is that right?
A. Well, yes. I was making the turn.
Q. You, didn’t sit here and wait for him to go ahead and straightened out, you went ahead and turned along beside him, knowing that his trailer was going to cross into your lane; is that right?
A. I didn’t know that his trailer was going to come into my lane.
|7Q. You said that you were familiar with the fact that trailers drag into the lane next to it. Is there a lane over here—
MR. BRUNO: Objection, Your honor— add that one word “sometimes.” That’s not what he asked him—
THE COURT: I’m going to sustain the objection. You need to add the word “sometimes.”
FURTHER EXAMINATION BY MR. JONES:
Q. Was there a lane over here that the trailer could drag into?
A. No, there wasn’t.
Q. There was a lane here that the trailer could drag into, right?
A. Yes, there was.,
Q. That was the lane you were in, right?
A. I was. Yes, I was in that lane. I did make that turn.
Q. And, the whole time, or at least on the onset, when you began to make the turn and the truck did have his turn signal on?
A. From my knowledge, yes.
Q. Would you agree that if you had sat here and waited for the truck to straighten out in this lane, the accident would never have happened?
A. Sure.

The plaintiff, too, testified that Leon’s tractor trailer was farther ahead of the Nissan Pathfinder in the adjacent lane when Guidry entered his left turn lane and commenced his turn. She corroborated both Leon’s and Guidry’s testimony that Leon’s trailer had crossed into Guidry’s lane while making the left turn and struck lathe front passenger corner of the Nissan Pathfinder. However, the plaintiff admitted on cross examination that after the impact she noticed that a portion of the tractor’s cab was in Guidry’s lane. When asked by defense counsel whether the tractor cab had crossed into Guidry’s lane prior to the impact, she equivocated, testifying as follows:

Q. Okay. You noticed the cab but do you know whether the cab was actually in the lane before impact?
A. Before impact, no.
Q. Okay. Do you recall telling me earlier that if your husband had tried to speed up and go around the truck he would have hit the cab?
A. Yes.
Q. Well, if that’s the case then the cab had to be in the lane before the impact?
MR. BRUNO: Your Honor, objection, argumentative.
THE COURT: I’m going to allow it.
BY MR. JONES:
Q. Right? Do you understand what I’m saying?
A. Yes, I understand what your saying?
Q. Doesn’t that make sense?
A. Yes, it does.

I «DISCUSSION

In granting the JNOV, the trial judge stated in her reasons for judgment that, “[t]he defendant driver admitted to crossing into another lane of traffic and more importantly admitted not watching the rear of the truck in his mirrors as he made his turn. He was clearly at fault.” After reviewing the evidence in the record and applying the criteria set forth in Scott, supra, we find the trial court erred in granting the JNOV. Clearly, reasonable persons could certainly differ on the question of whether Leon’s actions were negligent under the circumstances.

Negligence is defined in Black’s Law Dictionary 1032 (6th ed.1991) as:

The omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do.
Negligence is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances; it is the doing of some act which a person of ordinary prudence would not have done under similar circumstances or failure to do what a person of ordinary prudence would have done under similar circumstances.

Although the trial judge found that Leon failed to watch the rear of his truck in his mirrors as he turned, Leon’s testimony that he checked his mirrors twice, immediately before proceeding to turn and again as he released his clutch to roll forward into the turn, was never controverted. Considering the fact that the accident happened immediately upon the drivers commencing their turns — Guidry and Leon both testified that it occurred almost instantaneously — the evidence, when viewed in its entirety, does not support the trial court’s conclusion that Leon |infailed to watch the rear of his truck in making the turn. Whereas the jury was free to determine the credibility of the witnesses, the trial court deciding a JNOV was not. Thus, the jury could have believed Leon’s testimony and concluded that he exercised reasonable care under the circumstances in executing his turn. Leon activated his left turn signal well in advance of the turn. He had been in the left turn lane for a few minutes, waiting through several cycles of the traffic light and for Clearview Parkway traffic to clear in order to safely turn. Leon checked his mirrors and saw the vehicle behind him flash its headlights, which indicated to him that it was safe to turn. Also, he never accelerated while making the turn.

Furthermore, based on the evidence, the jury could have determined that Guidry, rather than Leon, was negligent in causing the accident. Unlike Leon, who waited in the turn lane through several cycles of the traffic light before commencing his left turn, Guidry entered the turn lane while the traffic fight was green and immediately proceeded to turn. The jury could have concluded that Guidry, an experienced truck driver, acted hastily under the circumstances, considering his own testimony that he was fully aware that Leon’s tractor trailer could travel into his turn lane while making the turn, yet he chose to turn beside Leon, simultaneously, knowing that if he had waited and allowed Leon to complete his turn the accident would not have occurred.

Finally, from the testimony regarding the proximity of the vehicles to each other in the adjacent turn lanes and the plaintiffs admission that a portion of the tractor’s cab was in Guidry’s turn lane at impact, the jury could have concluded luthat Leon had commenced turning before Guidry and that Guidry should have seen the tractor cab crossing into his lane and stopped to allow Leon to complete the turn before commencing his own left turn.

In view of the evidence in the record, we cannot say that the facts and inferences point so strongly in favor of the plaintiff that reasonable persons could not reach any conclusion other than that Leon was negligent in the accident of August 4,1998. Certainly, the jury reasonably could have concluded that Guidry could have avoided the accident had he exercised reasonable care under the circumstances.

CONCLUSION

Accordingly, for the reasons stated herein, the judgments of the trial court granting the judgments notwithstanding the verdict on the issues of liability and damages are reversed. The jury’s verdict as to liability is reinstated.

REVERSED; JURY VERDICT REINSTATED

ARMSTRONG, J., dissents with reasons.

| ARMSTRONG, J.,

dissents with reasons.

I respectfully dissent. It is the duty of a driver not to leave his lane until he “has first ascertained that such movement can be made with safety”. La. R.S. 32:79(1). A motorist entering another lane is required to determine that traffic in that lane will not be endangered. Daigle v. Mumphrey, 96-1891 (La.App. 4 Cir. 08/12/97), 691 So.2d 260, 268. Moreover, when a motorist has changed lanes just prior to an accident, that motorist bears the burden of proving that he determined that the movement could be made safely prior to attempting the move. Id. See also Barrociere v. Batiste, 99-1800 (La.App. 4 Cir. 02/02/00), 752 So.2d 324, 327. Averna v. Industrial Fabrication and Marine Service, Inc., 562 So.2d 1157, 1161 (La.App. 4th Cir.1990); Kennedy v. Mitchell Engineering, 518 So.2d 1128, 1132 (La.App. 4th Cir.1987), writ denied, 523 So.2d 231, 232 (La.1988).

In the present case, it is undisputed that Leon’s truck crossed into Guidry’s lane and that the collision occurred in Guidry’s lane. Leon admits that, prior to making the turn, he knew that his truck would enter Guidry’s lane. Thus, it was incumbent upon Leon to avoid vehicles in Gui-dry’s lane or, alternatively, not to make the left turn at the intersection where the collision occurred and, instead, to use some other route. In any case, because Leon knew he would enter Guidry’s |¡>lane, and he did not avoid the collision, he is liable for the collision as per the authorities cited above.

Accordingly, I would affirm the judgment of the trial court.

McKAY, J. Dissents with Reasons.

|T McKAY, J.

Dissents with Reasons.

I respectfully dissent from the majority’s decision to reverse the trial court’s judgment and reinstate the jury’s verdict.

Louisiana Code of Civil Procedure Article 1811 provides that a motion for a judgment notwithstanding the verdict (“JNOV”) may be granted on the issue of liability or on the issue of damages or on both issues. A JNOV is appropriately granted “when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable men should not arrive at a contradictory verdict.” Scott v. Hospital Service District No. 1, 496 So.2d 270, 274 (La.1986). The Louisiana Supreme Court has determined that the standard of review for a JNOV on appeal is a two part inquiry; the appellate court must first determine if the trial court erred in granting the JNOV. In order to make this determination, the appellate court applies the same standard of review used by the trial court to determine whether to grant the JNOV. Once the appellate court has determined that the trial court “correctly applied its standard of review as to the jury verdict, the appellate court reviews the JNOV using the manifest error standard of review.” Davis v. Wal-Mart Stores, Inc., 2000-0445 (La.11/28/00), 774 So.2d 84, 89. The use of the manifest error standard of review is appropriate, because once the jury verdict is set aside on a motion for JNOV, the trial court 1¡>,becomes the trier of fact. Anderson v. New Orleans Public Service, 583 So.2d 829, 834 (La.1991).

In the instant case, the trial court, after hearing the same evidence as the jury, was “surprised” by the jury’s verdict. As the trial court pointed out it is “not often surprised by jury verdicts,” but in this particular case it was. This is the type of situation a JNOV is designed for. It is only to be used in those limited situations. After reviewing the record before this Court, I must agree with the trial court that the jury got it wrong. Furthermore, I find no error in the judgment rendered by the trial court. Accordingly, I would affirm its judgment.

LOVE, J., Concurs with Reasons.

ItLOVE, J.,

Concurs with Reasons.

As the majority states, “When there is a jury, the jury is the trier of fact.” Scott v. Hospital Serv. Dist. No. 1, 496 So.2d 270, 273 (La.1986). This concept is the predicate of the rigorous standard for JNOV.

The Supreme Court in Davis v. Wal-Mart Stores, Inc., 00-0445, pp. 4-5 (La.11/28/00), 774 So.2d 84, 89, sets out the standard for granting and reviewing a JNOV as follows:

A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable jurors could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. If there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. In making this determination, the court should not evaluate the credibility of the witnesses and all reasonable inferences or factual questions should be resolved in favor of the non-moving party.
The standard of review for a JNOV on appeal is a two-part inquiry. In reviewing a JNOV, the appellate court must first determine if the trial court erred in granting the JNOV. This is done by using the aforementioned criteria just as the trial judge does in deciding whether or not to grant the motion. After determining that the trial court correctly applied its standard of review as to the jury verdict, the appellate court reviews the JNOV using the manifest error standard of review.
(Internal citations omitted).

| ¡.The trial court did not meet this rigorous standard when it granted the plaintiffs motion for JNOV.

The trial court stated in its reasons for judgment in part:

I am often not surprised by jury verdicts, but I certainly was in this instance. The defendant driver admitted to crossing into another lane of traffic and more importantly admitted not watching the rear of the [sic] his truck in his mirrors as he made his turn. He was clearly at fault. However, Mr. Gui-dry was also at fault for not stopping as he realized the truck was turning into his lane.

Clearly, the trial court is weighing evidence, which is not permitted when considering a motion for JNOV. The trial court substituted its own judgment for that of the jury, which is strictly prohibited by the law.

There was ample evidence presented at trial that would allow a reasonable jury to find that the defendant, Andy Leon, was not at fault for the accident in the instant case. Andy Leon, driver of the tractor-trailer, testified that he followed all the proper procedures for making turns in a tractor-trailer, including turning on his turn signal one hundred feet before reaching the intersection, waiting for several cycles of the traffic light before attempting the turn, and checking his mirrors for other cars. Todd Guidry, the driver of the Nissan Pathfinder, admitted not only that he drove a truck for a living, but that he was aware that tractor-trailers may cross into the adjacent lane when making turns. He also admitted that he observed the turn signal on Andy Leon’s trailer before making the turn and that the tractor-trailer was pulled out ahead of him in the intersection. From his testimony, a reasonable jury could have found that he had notice that the tractor-trailer was about to turn, but despite his knowledge that turning tractor-trailers sometimes cross over into the adjacent lane, decided to make his turn anyway, risking collision. Cindy Adam’s testimony reiterated that the tractor-trailer was pulled out ahead of the Nissan Pathfinder in the intersection, before the turn was attempted, because she observed the tractor-trailer outside her passenger window. Given this Land other evidence presented at trial, the jury could have reasonably found that Todd Guidry was completely at fault for the accident in question. The standard for JNOV was not met because the evidence was not overwhelmingly favorable to the moving party such that a reasonable jury could not have found otherwise.

TOBIAS, J., concurs.

| TOBIAS, J.,

Concurs.

I respectfully concur. I agree with the majority opinion and the concurring opinion of Judge Love. I note the following.

In Davis v. Wal-Mart Stores, Inc., 2000-0445, pp. 4-5 (La.11/28/00), 774 So.2d 84, 89, the Louisiana Supreme Court stated:

La.Code of Civil Procedure art. 1811(F) is the authority for a JNOV. This article provides that a motion for judgment notwithstanding the verdict may be granted on the issue of liability or on the issue of damages or on both. The standard to be used in determining whether a JNOV has been properly granted has been set forth in our jurisprudence as follows:
A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable jurors could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. If there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. In making this determination, the court should not evaluate the credibility of the witnesses and all reasonable inferences or factual questions should be resolved in favor of the nomjmoving2 party. Smith v. Davill Petroleum Company, Inc. d/b/a/ Piggly Wiggly, 97-1596 (La.App. 1 Cir. 12/9/98), 744 So.2d 28. See also Powell v. RTA, 96-0715 (La.6/18/97), 695 So.2d 1326; Anderson v. New Orleans Public Service, [Inc.,] 583 So.2d 829 (La.1991); State of Louisiana, DOTD v. Scramuzza, 95-786 (La.App. 5 Cir. 4/3/96), 673 So.2d 1249; Seagers v. Pailet, 95-52 (La.App. 5 Cir. 5/10/95), 656 So.2d 700; Engolia v. Allain, 625 So.2d 723, 728 (La.App. 1 Cir.1993); Adams v. Security Ins. Co. Of Hartford, 543 So.2d 480, 486 (La.1989).
The standard of review for a JNOV on appeal is a two part [sic] inquiry. In reviewing a JNOV, the appellate court must first determine if the trial court erred in granting the JNOV. This is done by using the aforementioned criteria just as the trial judge does in deciding whether or not to grant the motion. After determining that the trial court correctly applied its standard of review as to the jury verdict, the appellate court reviews the JNOV using the manifest error standard of review. Anderson v. New Orleans Public Service, Inc., at p. 832. [Boldface emphasis added.]

The language that has not been highlighted in boldface in the quote above is consistent with the Louisiana Supreme Court’s decisions in Joseph v. Broussard, 2000-0628 (La.10/30/00), 772 So.2d 94, and Scott v. Hospital Serv. Dist. No. 1, 496 So.2d 270 (La.1986). However, the above boldface language contains an apparent ambiguity. That is, if an appellate court reviews the trial court’s granting of the JNOV using the same standard as the trial court, then that standard is that “[t]he motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. If there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. In making this determination, |3the court should not evaluate the credibility of the witnesses and all reasonable inferences or factual questions should be resolved in favor of the non-moving party.” This standard is a de novo standard, not a manifest error/ clearly wrong standard, as the last clause in the above-quoted language from Davis states.

It is apparent that the Supreme Court means that an appellate court reviews the trial court’s decision to grant a JNOV using a de novo standard of review. If the trial court has erred (in whole or in part) in granting the JNOV, then the appellate court reverses those erroneous parts and reviews the underlying jury verdict on those parts upon which the trial court incorrectly granted the JNOV using a manifest error/ clearly wrong standard. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993), citing Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). See, e.g., Anderson v. New Orleans Public Service, Inc., 583 So.2d 829 (La.1991); Ventress v. Union Pacific R. Co., 95-1240 (La.App. 4 Cir. 12/28/95), 666 So.2d 1210.

Although I may disagree in the case at bar with the jury, just as the trial court judge did, my review of the record satisfies me that the evidence which the jury heard was of such quality and weight that reasonable and fair-minded individuals in the exercise of impartial judgment could have reached a different result than I would. A reading of the record can fairly and reasonably support a conclusion that Todd Guidry, the driver of the vehicle in which Cindi Adams was riding as a guest passenger, was completely at fault for the accident, and that Andy Leon acted reasonably under the circumstances. We are bound to uphold the jury’s verdict in the case at bar.

      . Cindi Adams married Todd Guidry subsequent to the accident. The trial transcript and judgments refer to the plaintiff as Cindi Adams Guidry.

      . The trailer alone measured forty eight feet in length.

      . Guidry testified that he was employed as a milkman and drove a delivery truck for Barbe Dairy.


author: I,CANNIZZARO, JR., J. [1 ARMSTRONG, J., LBAGNERIS, J.,

text:
    Mamie JEFFERSON v. COOPER/T. SMITH CORPORATION, Owens-Corning Fiberglass, Inc., et al.
    No. 2002-CA-2136.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 1, 2003.
    Order Denying Rehearing Nov. 14, 2003.

      John F. Dillon, John F. Dillon, PLC, Donni E. Young, Scott Galante, Ness, Motley, PA, New Orleans, Counsel for Plaintiffs/Appellants.
    Joseph P. Tynan, Montgomery, Barnett, Brown, Read, Hammond & Mintz, L.L.P., New Orleans, Henry E. Yoes, III, Yoes Law Firm, Lake Charles, Francine Weaker, New Orleans, Counsel for Defendant/Appellee Board of Commissioners of the Port of New Orleans.
    Court Composed of Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA R. MURRAY, Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO, JR.
   I,CANNIZZARO, JR., J.

The plaintiffs appeal from a summary judgment rendered in favor of the defendant, the Board of Commissioners of the Port of New Orleans (“Dock Board”). For the following reasons, we reverse the trial court’s judgment and remand this case to the trial court for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

Mamie Jefferson filed a petition for damages on December 8, 2000, alleging that her husband Edward Jefferson was exposed to asbestos while working as a longshoreman along the Mississippi River in New Orleans from 1946 through 1976 and, as a result, contracted mesothelioma and died on February 22, 2000. The original petition named twelve defendants, including Mr. Jefferson’s long time employer, Cooper/T. Smith Stevedoring Company (“Cooper/T.Smith”), and various manufacturers, producers, and suppliers of asbestos-containing products. On September 4, 2001, Mrs. Jefferson filed a first supplemental and amending petition, naming as additional plaintiffs Patricia J. Guerin, Jackie Jackson, Barbara LBrister, Edward Jefferson, Jr., and Roslyn Jefferson, the children and granddaughter of the decedent. The amending petition also added the Dock Board as a defendant, specifically alleging:

At all times relevant hereto, [the Dock Board] was a premises owner where some of Decedent’s exposure occurred. The [Dock Board] had knowledge of the hazards of asbestos, knowledge of unsafe handling practices, knowledge of repacking of asbestos prdoucts (sic), notice of actual hazardous asbestos atmosphere and took no steps to warn, remedy or otherwise ascertain any safety for those on the premises.

The Dock Board subsequently filed a motion for summary judgment, seeking to be dismissed from the case. Following a hearing on the motion, the trial court rendered a written judgment on July 10, 2002, granting the motion for summary judgment and dismissing the plaintiffs’ claims against the Dock Board.

STANDARD OF REVIEW AND APPLICABLE LAW

In Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 and 99-2257, p. 7 (La.2/29/00), 755 So.2d 226, 230-31, the Louisiana Supreme Court discussed the standard of review of a summary judgment as follows:

Our review of a grant or denial of a motion for summary judgment is de novo. Schroeder v. Board of Sup’rs of Louisiana State University, 591 So.2d 342 (La.1991). A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). This article was amended in 1996 to provide that “summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action.... The procedure is favored and shall be construed to accomplish these ends.” La. C.C.P. art. 966(A)(2). In 1997, the article was further amended to specifically alter the burden of proof in summary judgment proceedings as follows: “The burden of proof remains with the mov-ant. Thereafter, if the adverse party fails to produce factual support sufficient to |3establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” La. C.C.P. art. 966(C)(2).

Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 and 99-2257 at p. 7, 755 So.2d at 230-31. See also Austin v. Abney Mills, Inc., 2001-1598 (La.9/04/02), 824 So.2d 1137; Randall v. Chalmette Medical Center, Inc., 2001-0871 (La.App. 4 Cir. 5/22/02), 819 So.2d 1129; Pierre-Ancar v. Browne-McHardy Clinic, 2000-2409 (La.App. 4 Cir. 1/16/02), 807 So.2d 344, writ denied, 2002-0509 (La.4/26/02), 814 So.2d 558.

In Knowles v. McCright’s Pharmacy, Inc., 34,559 (La.App. 2 Cir. 4/4/01), 785 So.2d 101, the Court stated:

Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 00-2507 (La.12/08/00), 775 So.2d 1049; Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.02/29/00), 755 So.2d 226. Furthermore, as noted by the Supreme Court in Independent Fire Insurance Co., supra, the trial court cannot make credibility determinations on a motion for summary judgment. It is not the function of the trial court on a motion for summary judgment to determine or even inquire into the merits of the issues raised. Additionally, the weighing of conflicting evidence has no place in summary judgment procedure.

Knowles v. McCright’s Pharmacy, Inc., 34,559 at p. 3, 785 So.2d at 103.

In Coto v. J. Ray McDermott, 99-1866 (La.App. 4 Cir. 10/25/00), 772 So.2d 828, this Court discussed the standard for reviewing an appeal of a motion for summary judgment. This Court stated that “[i]n determining whether an issue is genuine, courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence.” Id., 99-1866 at p. 4, 772 So.2d at 830.

A fact is material if it is essential to a plaintiffs cause of action under the applicable theory of recovery and without which the plaintiff could not prevail. 4Prado v. Sloman Neptun Schiffahrts, A.G., 611 So.2d 691, 699 (La.App. 4th Cir.1992), writ not considered 613 So.2d 986 (La.1993).

Based on the foregoing, this Court must conduct a de novo review to determine whether the trial court committed error in granting summary judgment in favor of the Dock Board. In conducting the review, this Court must construe any factual inferences drawn from the evidence in favor of the plaintiffs, who are opposing the motion for summary judgment. Also, at this juncture in the proceedings, this Court cannot make any determination on the merits of the plaintiffs’ claims, make any credibility determinations, or weigh the evidence.

DISCUSSION

To determine whether the trial court erred in granting the motion for summary judgment in favor of the Dock Board, this Court must determine whether any genuine issues of material fact exist.

In moving for summary judgment, the Dock Board argues that it had no direct relationship with Mr. Jefferson and therefore had no duty to protect him from the injuries he sustained as a result of his work as a longshoreman. In the absence of such a duty, the Board claims that it cannot be held liable to the plaintiffs for Mr. Jefferson’s injuries and death. The Dock Board emphasizes that it had no control over the business operations of Cooper/T. Smith or the other stevedore companies, which were at all times independent contractors. Furthermore, the Dock Board claims that Cooper/T. Smith, Mr. Jefferson’s employer and the lessor of the premises, was responsible for providing him with a safe work environment pursuant to La. R.S. 23:13. The Dock Board asserts that it |Bnever had care, custody or control of the asbestos or asbestos containing cargo in or on its premises.

In support of its motion, the Dock Board submitted the affidavit of J. Michael Or-lesh, Jr., who worked for the Dock Board in various management capacities from 1973 to 2000. Mr. Orlesh avers that the Dock Board does not mine, manufacture, sell, distribute, supply or maintain asbestos or asbestos containing products. He further avers that the board does not design, test, evaluate, manufacture, furnish, store, handle, transport, install, supply or sell asbestos or asbestos containing products at any of its riverfront wharves at any time. Mr. Orlesh states that the discharging of the cargo from ships to the wharves, the handling of the cargo on the wharves as well as the storage of the cargo in the warehouses are all the responsibility of the stevedore companies.

The plaintiffs, on the other hand, oppose the motion for summary judgment, arguing that the Dock Board, as owner of the premises, had a duty to maintain its property to the extent that it would not pose an unreasonable risk of harm to persons on the premises, including providing adequate ventilation in its warehouses. According to the plaintiffs, the Dock Board’s duty arises under theories of strict liability, La. Civ.Code art. 2317 , and negligence, La. Civ.Code art. 2322.

|fiIn support of their argument, the plaintiffs offer the deposition testimony of Learther Burkhalter, William D. Schulte, Douglas Faulkner, Sr., Ernest Williams, Sr., and Duralph Hayes, longshoremen who were employed by Cooper/T. Smith and other stevedore companies along the Mississippi River during the period of Mr. Jefferson’s employment as a longshoreman. Their deposition testimony indicates that the longshoremen were exposed to asbestos and asbestos containing products while working on and in the Dock Board’s premises. Attached to the plaintiffs’ memorandum in opposition to the Dock Board’s motion for summary judgment are various exhibits, including federal regulations, documents and internal port memoranda to indicate the Dock Board knew or should have known at that time Mr. Jefferson worked as a longshoreman that asbestos posed a danger to persons on its premises. The exhibits also indicate that the Dock Board, as the landlord of the port berths, terminals, and other facilities, had the authority to refuse to allow hazardous cargo into the port and onto its premises.

After conducting a de novo review, it is clear that the following facts are not in dispute. The Dock Board is the owner of the docks, wharves and warehouses fronting the Mississippi River, on and in which Mr. Jefferson worked as a longshoreman while employed by Cooper/T. Smith from 1946 to 1976. The Dock Board leased the warehouses to Cooper/T. Smith and numerous other stevedore companies for cargo storage. In connection with his employment, Mr. Jefferson loaded, unloaded, transported, and handled asbestos and asbestos containing cargo on the Dock Board’s premises. At all times, the care, custody, and control of all |7cargo, including any asbestos and asbestos containing products, stored on or in the Dock Board’s premises remained with the various stevedore companies.

Nevertheless, as the owner or operator of a facility, the Dock Board has a duty to exercise reasonable care for the safety of persons on its premises as well as a duty to not expose such persons to unreasonable risks of injury or harm. See St. Hill v. Tabor, 542 So.2d 499, 502 (La.1989); Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364, 1371 (La.1984); and Walker v. Union Oil Mill, Inc., 369 So.2d 1043, 1047 (La.1979). In view of the pleadings, answers, depositions, and affidavit, we conclude genuine issues of material fact exist as to whether the Dock Board knew or should have known of the dangers posed by asbestos at the time Mr. Jefferson was employed as a longshoreman, whether it knew or should have known that its facilities were inadequate for the handling and storage of asbestos on or in its premises, and whether it could have refused such hazardous cargo. The resolution of some or all of these unresolved issues is essential to the plaintiffs’ cause of action in negligence or strict liability.

Based on the foregoing, we conclude that the trial court erred in granting summary judgment in favor of the Dock Board. Therefore, we reverse the trial court’s judgment and remand the case for further proceedings.

REVERSED AND REMANDED

ARMSTRONG, J., dissents.

[1 ARMSTRONG, J.,

dissents.

I respectfully dissent. I would affirm the judgment of the trial court.

BAGNERIS, J., Dissents with Reasons.

LBAGNERIS, J.,

Dissents with Reasons.

I respectfully dissent from the majority’s opinion for the following reasons, in order for a plaintiff to prevail in a negligence action under La. C.C. art. 2315, a plaintiff must prove the following five elements: “(1) the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) the defendant failed to conform his conduct to the appropriate standard (the breach of duty element); (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) actual damages (the damages element).” Peterson v. Doe, 94-1013 (La.App. 4 Cir.1994), 647 So.2d 1288.

It is my opinion that the defendants met their burden of proof in showing there was no genuine issue of material fact. Therefore, the burden of proof shifted to the plaintiff to show there was a genuine issue of material fact. It is my opinion that the plaintiff failed to sustain her burden of proof. Thus, it is my opinion that the trial court did not err in granting the motion for summary judgment.

Further, it is my opinion that the plaintiffs case would fall because the breach of duty was not a cause in fact of the harm sustained by the plaintiff. This hprong of the duty-risk analysis, sometimes called “legal causation,” has been explained as follows:

The essence of the ... inquiry is whether the risk and harm encountered by the plaintiff fall within the scope of protection of the [duty]. It is a hazard problem. Specifically, it involves a determination of whether the ... duty ... [was] designed, at least in part, to afford protection to the class of claimants of which the plaintiff is a member from the hazard [encountered]. Dixie Drive It Yourself System New Orleans Co. v. American Beverage Co., 242 La. 471, 488, 137 So.2d 298, 304 (1962). The finding of legal causation “requires a proximate relation between the actions of a defendant and the harm which occurs and such relation must be substantial in character.” Roberts v. Benoit, 605 So.2d 1032, 1051 (La.1991), citing Sinitiere v. Lavergne, 391 So.2d 821, 825 (La.1980).

For these reasons I would affirm the trial court’s ruling granting the motion for summary judgment.

11 APPLICATION FOR REHEARING DENIED. reh. den. (La.App. 4 Cir. 9/9/03), which involved identical legal issues and identical facts. In Faulkner, supra, we affirmed the trial court’s dismissal of Mr. Faulkner’s suit against the Dock Board after a full trial on the merits because Mr. Faulkner failed to prove that the Dock Board had a duty to protect him from the damages he sustained as a result of working with asbestos and/or asbestos containing products. Unlike Faulkner, the trial court in this case dismissed the plaintiffs’ suit against the Dock Board on a motion for summary judgment. We reiterate that our de novo review of the record in this case revealed that genuine issues of material fact exist as to whether the Dock Board knew or should have known of the dangers posed by asbestos at the time Mr. Jefferson was employed as a longshoreman, whether it knew or should have known that its facilities were inadequate for the storage and handling of asbestos on or in its premises, and whether it could have refused such cargo. Thus, the application for rehearing is denied.

The defendant, the Board of Commissioners of the Port of New Orleans, has filed an application for rehearing arguing that our decision in this case is contrary to our earlier decision in Faulkner, et al. v. The McCarty Corporation, et al., 2002-1337 (La.App. 4 Cir. 6/11/03), 853 So.2d 24,

ARMSTRONG, J., would grant the application for rehearing.

      . La. C.C. art. 2317 provides:
      We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.

      . La. Civ.Code. Art. 2322 provides, in part:
      The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice or defect in its original construction. However, he is answerable for damages only upon a showing that he knew or, in the exercise or reasonable care, should have known of the vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.