author: h DAVID S. GORBATY, Judge.

text:
    Patricia C. ICE v. DRY KLEAN CARPET MAINTENANCE COMPANY, State Farm Mutual Automobile Insurance Company, and Paul Faciane. Kiva Dennis v. Dry Klean Carpet Maintenance Company, Inc., State Farm Mutual Automobile Insurance Company, and Paul Faciane.
    Nos. 2003-CA-0525, 2003-CA-0663.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 3, 2003.
    Rehearing Denied Feb. 3, 2004.

      Maurice J. LeGardeur, Jr., LeGardeur, Ltd., Covington, LA, for Plaintiff/Appellant.
    John E. McAuliffe, Jr., Gerald J. Talbot, Frederick A. Miller & Associates, Metair-ie, LA, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge DAVID S. GORBATY).
   h DAVID S. GORBATY, Judge.

Patricia Ice and Kiva Dennis appeal a judgment wherein they were awarded $30,000 and $15,700, respectively, arguing that the jury failed to compensate them for past and future medicals related to an aggravation of their pre-existing injuries. Plaintiffs’ further argue that the trial court erred in not assessing all costs to the defendants. For the following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY:

Patricia Ice was the driver of a vehicle that was rear-ended by a vehicle owned by Dry Klean Carpet Maintenance, Inc., and driven by Paul Faciane. Kiva Dennis was a passenger in Ms. Ice’s vehicle. Ms. Ice and Ms. Dennis filed individual lawsuits against Paul Faciane, Dry Klean Carpet Maintenance, Inc., and State Farm Mutual Automobile Insurance Company. The cases were consolidated for trial.

During the course of the trial, the plaintiffs agreed to dismiss Dry Klean Carpet Maintenance, Inc., from the lawsuit. The jury returned a verdict finding Paul Fa-ciane to be totally at fault for the accident. It awarded Patricia Ice $30,000 | ¡.and Kiva Dennis $15,700. The trial court made the jury verdict the judgment of the court. After the trial court signed the judgment on November 12, 2002, the parties noted that the judgment inadvertently cast Dry Klean Carpet Maintenance, Inc., in judgment, despite the prior dismissal from the suit.

On November 22, 2002, plaintiffs filed a Motion for JNOV and to have the trial court reassess court costs. Plaintiffs argued that the general damages awarded by the jury were too low, that the jury failed to award all medical expenses incurred, and that the trial court erred in not assessing all costs of court to the defendants. Plaintiffs also noted that the judgment of November 12 incorrectly named Dry Klean Carpet Maintenance, Inc., in the judgment instead of Paul Fa-ciane.

After a hearing, the trial court signed a Judgment on January 22, 2003, denying plaintiffs’ Motion for JNOV, and amending the November 22, 2002, judgment to cast Paul Faciane in judgment in place of Dry Klean Carpet Maintenance, Inc. The court also signed an Amended Judgment that same day recognizing the change in the party’s cast in judgment, and otherwise adopting the November 22, 2002, judgment in its entirety.

Plaintiffs’ appeal the Amended Judgment.

DISCUSSION:

This ease contains a procedural issue that must be addressed before proceeding to the merits. On February 4, 2003, plaintiffs filed a Motion for Devolutive Appeal, which was signed by the trial court the same date. | s Additionally, plaintiffs filed a Designation of Contents of Record indicating that it wished only the following items be included in the record on appeal: 1) medical depositions, 2) medical bills, 3) medical records, 4) the motion for JNOV, 5) the Judgment of January 22, 2003 (denying plaintiffs’ motion for JNOV), 6) the Amended Judgment of January 22, 2003, 7) the motion and order for appeal, and, 8) the designation. On February 5, 2003, defendants also filed a designation of record requesting that the entire record, not just the portions designated by plaintiffs, be included in the appeal record. On March 5, 2003, plaintiffs filed a First Supplemental Motion for Devolutive Appeal, which was signed by the trial court the same date.

In the first motion for appeal, plaintiffs designated as issues for appeal: 1) the failure of the jury to award plaintiffs’ full damages for past and future medical expenses, and 2) the failure of the trial court to cast defendants in judgment for all court costs. In their supplemental motion for devolutive appeal, plaintiffs stated that they also wished to appeal the trial court’s inadequate general damage award.

Defendants argue that because plaintiffs designated only certain portions of the trial court record for this court to review, and made specific assignments of error in their motion for devolutive appeal, which defendants argue is tantamount to a La.Code Civ. Proc. art. 2129 statement, plaintiffs cannot enlarge the issues to be reviewed by this court in a supplemental motion for appeal. Defendants further argue that the trial court no longer had jurisdiction when it signed the supplemental motion for appeal. We agree.

14Louisiana Code of Civil Procedure art. 2088 provides that the trial court’s jurisdiction is divested, and that of the appeal court attaches, on the granting of the order of appeal. Once the order of appeal is signed, the trial court has jurisdiction only over limited matters listed in the article. The trial court does not have jurisdiction to sign a “supplemental” motion for appeal. Plaintiffs’ argument that because they filed their supplemental motion within the sixty day period for filing a motion for devolutive appeal has no merit.

Plaintiffs’ further argument that this court can “second the motion” of the trial court is likewise without merit. Under certain circumstances, an appellant can request, by way of a motion filed in the appellate court, that the record on appeal be supplemented. However, those circumstances do not exist in this case. By their own admission, plaintiffs designated only a portion of the record on appeal as a way of saving money. After the defendants requested that the entire record.be lodged, plaintiffs attempted to appeal the general damage award by filing a supplemental motion for appeal. As stated herein, this is procedurally improper because 1) the trial court did not have jurisdiction to sign a “supplemental” motion for appeal; and, 2) plaintiffs’ had already designated the issues they wished addressed by this court on appeal.

| sAs such, the only issues to be addressed by this court are 1) whether the trial court erred in its award for past and future medical expenses; and, 2) whether the trial court erred in ordering each party to pay its own court costs.

Plaintiffs argue that the jury erred in not awarding the full amount of medical expenses resulting from Paul Faciane’s acts of negligence. This argument is premised on the jury’s affirmative answer to the following interrogatory:

Did you find the KIVA DENNIS/PATRICIA ICE suffered any injury or aggravation of a pre-existing injury as a result of the accident of August 20, 1999?

What plaintiffs fail to recognize is that the question asked of the jury is two-fold, that is, the word “or” placed between “any injury” and “aggravation of a pre-existing injury” is disjunctive. Thus, the jury was free to conclude that the accident in question caused new injuries and aggravation of pre-existing injuries, or new injuries, or only aggravation of pre-existing injuries. Based on the damages awarded, it is apparent that the jury found plaintiffs incurred only new injuries. Consequently, the jury awarded special damages relative only to the new injuries.

A. Kiva Dennis

Dr. Warren R. Bourgeois, a board certified orthopedic surgeon, testified that he was already treating Ms. Dennis for injuries sustained in an April 1998 accident, when he began treating her additionally for the subject August 1999 accident. It was his opinion that she suffered an aggravation of the injuries sustained in the | ^earlier accident, as well as new injuries. His opinion was based on the fact that the prior accident caused lower back problems, and, following the subject accident, Ms. Dennis complained of pain near her right scapula and neck. Dr. Bourgeois did state that Ms. Dennis had complained prior to the subject accident that her. low back problems were aggravated by certain physical activities and emotional stress. Dr. Bourgeois was aware that Ms. Dennis’ husband died two days before the subject accident and that she was experiencing severe emotional stress.

Dr. Bourgeois testified that he diagnosed a new injury to Ms. Dennis’ shoulders and neck as a result of the subject accident. Although Dr. Bourgeois opined that the subject accident may have aggravated the pre-existing injury, he also stated that the psychological effects of Ms. Dennis’ husband’s illness and death, and her own illness (complications from hepatitis C) contributed to the perpetuation of her prior injuries.

On cross-examination, Dr. Bourgeois admitted that he would have continued treating Ms. Dennis in exactly the same manner, regardless of the August 20, 1999, accident.

Dr. Stewart Altman, a board certified general surgeon who testified that he has not performed surgery in the 12 or 13 years prior to the deposition, testified that he initially treated Ms. Dennis following an April 1998 accident. He treated her again following the August 20, 1999, accident. She complained of headaches, neck, back and shoulder pain. X-rays revealed degenerative changes of the cervical spine, which the doctor stated were not related to the August 1999 accident. The lumbar spine x-ray was normal. Following the subject accident, Dr. Altman noted Ms. Dennis’s significant history of injury to her neck and back from 17the earlier accident. Ms. Dennis told Dr. Altman that prior to the subject accident, her neck and shoulders were asymptomatic, but that she was being actively treated for continued low back problems. She claimed that the subject accident caused a return of the shoulder pain and headaches. He diagnosed a newly incurred cervical and trapezious sprain and an aggravation of the resolving lumbosacral sprain.

B. Patricia Ice

Dr. Charles R. Billings, a board certified orthopedic surgeon, first saw Ms. Ice in May of 1998. She related that she had had prior surgery for scoliosis, and had developed increased lower back pain during the two years prior to the visit. She did not relate any pain in the cervical region. Several months into her treatment she began to complain of neck pain, which she related to job stress. Following the subject accident, Ms. Ice returned to see Dr. Billings for an unscheduled visit. She related that she had been involved in an automobile accident and was now experiencing neck and back pain. Dr. Billing’s opined that Ms. Ice’s strain of her neck and back were new injuries, unrelated to her previous disorder.

Dr. Stewart Altman also treated Ms. Ice following the August 1999 accident. He first saw her in November of 1999. She gave a history of having been involved in an automobile accident in August of that year, and reported that Dr. Billings had seen her twice following the accident. Ms. Ice also gave Dr. Altman the history of her scoliosis and subsequent surgery. She admitted that she had back pains prior to the accident, but reported that her pains were increased due to the accident. Dr. Altman testified that he related Ms. Ice’s symptoms to the August 1999 accident based on the history given.

|sOn cross-examination, Dr. Altman admitted that he did not know Ms. Ice was complaining to Dr. Billings about neck pain prior to the subject accident.

Dr. Warren R. Bourgeois testified that Ms. Ice gave a history of having undergone surgery in 1984 to correct scoliosis. She did not give a history of any prior automobile accidents. He did not begin to treat Ms. Ice until over a year after the subject accident.

The physical examination revealed negative neurological findings, but Ms. Ice did have tenderness between her ribs and over the lower spine. His review of x-rays taken previously revealed the solid spinal fusion and significant degenerative changes in the lumbar spine region. He also reviewed a CT scan taken earlier, and noted no spinal stenosis or herniation. He recommended either facet blocks or nerve blocks; Ms. Ice chose to have facet blocks. These seemed to help relieve some of her pain in the lower back. However, Ms. Ice continued to complain of pain in her buttock and thigh. Dr. Bourgeois testified that, based on Ms. Ice’s history, the subject accident aggravated her prior back problems. At some later point in her treatment, Ms. Ice told Dr. Bourgeois that she had been diagnosed with hepatitis C, and could no longer take the anti-inflammatory drugs previously prescribed. She also continued to complain of pain in her hip, which Dr. Bourgeois did not relate to the automobile accident. At the time of the deposition, Ms. Ice was scheduled to have more facet blocks.

On cross-examination, Dr. Bourgeois stated that he did not know how Ms. Ice was referred to him, nor was he aware of Ms. Ice being treated by Dr. Billings prior to the August 1999 accident. He did not consult with Dr. Billings or review his medical records. Dr. Bourgeois reviewed some of Dr. Billings’ records during his deposition, and agreed that Ms. Ice was apparently being treated for low back |nand neck problems prior to the August 20, 1999 accident. Dr. Billings’ records indicated that Ms. Ice was filling prescriptions for Vicodin, Celebrex and Butalbital, a narcotic headache medication, and that she had already received some sort of injections, with a recommendation for additional injections. Dr. Bourgeois could not objectively quantify the level of aggravation Ms. Ice may have experienced because of the subject accident. He admitted that she was apparently having pain, possibly from a degenerative condition, prior to the accident. He could only rely on her personal assessment of how much the pain had increased after the accident. Dr. Bourgeois also admitted that he was not aware that Ms. Ice had been hit as a pedestrian by a car in March of 2000.

Dr. John F. Nitsche, an arthritis and immunology specialist to whom Dr. Bourgeois referred Ms. Ice, opined that her “diffuse musculoskeletal pain” was a side effect of Ms. Ice’s hepatitis C infection. He did not relate her pain to the automobile accident of August 20,1999.

After reading the medical records and doctors’ reports, we conclude that the jury’s finding that no causal relationship existed between the August 20, 1999, accident and the claimed aggravation of preexisting injuries is a reasonable one. Therefore, we find no manifest error in awarding past and future medicals based on newly incurred injuries only.

Plaintiffs also argue that the trial court erred in not assessing all costs of court to defendants. As stated recently by this court, “[generally, the party cast in judgment is taxed with the costs of the proceedings. However, the trial court may assess costs in any equitable manner, and its assessment will not be reversed on appeal in the absence of an abuse of discretion.” Tadlock v. Taylor, 2002-0712, p. 12 (La.App. 4 Cir. 9/24/03), 857 So.2d 20, 30, citing La.Code Civ. Proc. art. 1920; Adams v. Canal Indemnity Co., 99-1190, p. 13 (La.App. 3 Cir. 5/10/00), 760 So.2d 1197, 1205. Considering the trial court’s vast discretion in assessing court costs, and the fact that plaintiffs have provided no evidence to prove that the trial court abused that discretion, we find no error in the distribution of court costs in the court below.

For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.

      . Although plaintiffs designated the motion for JNOV and supporting memoranda to be included in the record on appeal, they did not designate as an issue for appeal the denial of the motion by the trial court. Thus, we will not review this issue.


source: Caselaw Access Project

author: hMOON LANDRIEU, Judge Pro Tempore. | t CANNIZZARO, J.,

license: Public Domain

text:
    Ernest J. BUTLER v. NEW ORLEANS PADDLEWHEELS.
    No. 2003-CA-0609.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 2003.

      John B. Fox, Robert W. “Doc” Booksh, Jr., Citizens Law Center, L.L.C., New Orleans, LA, for Intervenors/Appellees.
    Ronna M. Steele, Gretna, LA, for Plaintiff/Appellee.
    Maria A. Finley, Baton Rouge, LA, for Defendants/Appellants.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge LEON A. CANNIZZARO, JR., and MOON LANDRIEU, Judge Pro Tempore).
   hMOON LANDRIEU, Judge Pro Tempore.

In this workers’ compensation case, the defendants, New Orleans Paddlewheels and the Louisiana Workers’ Compensation Corporation (collectively “Paddlewheels”), appeal the judgment in favor of the claimant, Ernest Butler, entitling him to benefits and medical treatment, as well as an award for penalties and attorney’s fees. We affirm.

Procedural History

Ernest Butler asserts that he injured his back on or about July 1, 2001, when he lifted heavy luggage for a French tour group, Cosmos, at the Royal St. Charles Hotel where Mr. Butler was employed as a bellhop for Paddlewheels.

Mr. Butler filed a compensation claim on November 14, 2001, against his employer, and complained that Paddlewheels failed to pay wage benefits or to authorize medical treatment. At the trial on October 21, 2002, the parties stipulated that Mr. Butler was earning $5.90 per hour, and he was Paddlewheels’ employee at the time of the alleged incident.

The November 18, 2002 judgment held that Ernest Butler sustained a compensa-ble work-related accident. The claimant was entitled to temporary total ^disability benefits in the amount of $200.49 weekly from July 1, 2001 to continue to such time as modification is appropriate. The judgment stated that the claimant is entitled to reasonable and necessary medical treatment. Further, the judgment awarded the claimant penalties in the amount of $2,000 and attorney’s fees in the amount of $5,000 under La. R.S. 23:1201(F).

On appeal, Paddlewheels contends that the trial court erred in finding that the claimant: (1) proved that a compensable work-related accident occurred; (2) was entitled to temporary total disability benefits; (3) was entitled to reasonable and necessary medical treatment; and (4) was entitled to an award of penalties and attorney’s fees. The Citizens Law Center and two attorneys filed a brief as intervenors. Burden of Proof and Standard of Review

La. R.S. 23:1031 A provides compensation if an employee sustains personal injury as the result of an accident arising out of and in the course of employment. Daspit v. Southern Eagle Sales & Services, Inc., 98-1685 (La.App. 4 Cir. 1/20/99), 726 So.2d 1079. Claimants in a workers’ compensation proceeding have the initial burden of proof as to causation. Dean v. K-Mart Corp., 97-2850 (La.App. 4 Cir. 7/29/98), 720 So.2d 349, writ denied 98-2314 (La.11/13/98), 731 So.2d 265. The workers’ compensation claimant must prove by a preponderance of the evidence that an employment accident had a causal relationship to the disability; if the testimony leaves the probabilities evenly balanced, the claimant has failed to carry the burden of persuasion. Harvey v. Bogalusa Concrete, Inc., 97-2945, p. 3 (La.App. 1 Cir. 9/25/98), 719 So.2d 1130, 1131. Causation is a question of fact. Dean v. K-Mart Corp., supra. The appellate court’s review of the findings of fact is governed by the manifest error or clearly wrong standard in a workers’ ^compensation case. Freeman v. Poulan/Weed Eater, 93-1530, pp. 4-5 (La.1/14/94), 630 So.2d 733, 737. Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Virgil v. American Guarantee & Liability Ins. Co., 507 So.2d 825 (La.1987).

Claim of Insufficient Evidence

Paddlewheels contends that the claimant failed to show that he sustained an injury on July 1, 2001, while in the course and scope of his employment. Paddlewheels asserts that the only evidence that the accident occurred was the claimant’s own testimony. The claimant could not remember the exact date of the accident, and he stated that there were no witnesses to the accident. The claimant worked for about two and a half months after the alleged accident without seeking medical attention. Mr. Butler did not provide any witnesses that he allegedly told about any injuries sustained on the job or told that he was working in pain for that period of time. When Mr. Butler took sick leave between July 26 and August 16, 2001, he did not seek medical attention. The defendants did not fill out the first report of injury until January 9, 2002, when the defendants claim that they first had knowledge of an alleged accident. Paddlewheels maintains that the claimant did not present evidence of an event happening suddenly or violently that caused the alleged accident or injuries. Paddlewheels asserts that Mr. Butler first saw Dr. Norman Ott, an internist, on April 11, 2002, almost a year after the accident when Dr. Ott related the claimant’s back pain to his duties as a bellman for Paddlewheels.

Paddlewheels states that Mr. Butler was released from his employment on September 19, 2001, due to a decline in the tourism business in New Orleans as a ^result of the September 11, 2001 tragedies in New York and Washington, D.C. Paddle-wheels notes that Mr. Butler wrote to senior management and Paddlewheels’ owner at least twice after he was released from his job, but he did not mention the on-the-job accident or resulting injuries. During the trial, Mr. Butler expressed his disbelief that Paddlewheels would lay him off from his job when he had been employed by Paddlewheels for five and a half years. Paddlewheels states in its brief that: “Mr. Butler also expressed several times his frustration at not being promoted into management with NOPW [Paddle-wheels] as allegedly promised to him by Mr. Gerald Boulmay,” the claimant’s supervisor.

To recover workers’ compensation benefits, an employee must show that he received a personal injury by an accident arising out of and in the course and scope of his employment, and that his injury necessitated medical treatment or rendered the employee disabled, or both. Haws v. Professional Sewer Rehabilitation, Inc., 98-2846 (La.App. 1 Cir. 2/18/00), 763 So.2d 683. A workers’ compensation claimant’s disability is presumed to have resulted from an accident if before the accident, the claimant was in good health and commencing with the accident, the symptoms of the disabling condition appear and continuously manifest themselves afterwards, provided that there is sufficient medical evidence to show that there is a reasonable possibility of a causal connection between the accident and the disabling condition. Woodrum v. Olive Garden Restaurant, 99-130 (La.App. 5 Cir. 5/19/99), 735 So.2d 911.

In the present case, the claimant testified that he reported his injury to Mr. Boulmay within a few days. The claimant pointed out that the employer’s handbook did not require a written report and did not require that a worker must | Bfile out a written First Report of Injury. Only one verbal report to the supervisor was all that the handbook required of the worker.

Mr. Butler thought the back pain would eventually resolve, and he continued to work in pain. He testified that he asked Mr. Boulmay to move him into a more sedentary, management job because of the back problem. Mr. Butler said that Mr. Boulmay indicated that he would promote him shortly so the claimant continued to work in pain until he was laid off in mid-September 2001.

The work-related accident requirement is interpreted liberally under Louisiana jurisprudence. Bruno v. Harbert International, Inc., 593 So.2d 357, 360 (La.1992). An accident exists when “heavy lifting or other strenuous efforts, although usual and customary, cause or contribute to a physical breakdown or accelerate its occurrence because of a pre-existing condition.” Id., citing Cutno v. Neeb Kearney & Co., 237 La. 828, 112 So.2d 628, 631 (1959).

It is improper for the court to impose a higher standard of proof on a worker simply because he was the only witness to the events giving rise to his compensation claim; to do so would in effect place a duty upon the worker to prove his case greater than that required by jurisprudence. Bruno v. Harbert International, Inc., supra at 364. The worker’s testimony alone may be sufficient to discharge the burden of proving by a preponderance of the evidence that he sustained a work-related injury, provided that two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident, and (2) the claimant’s testimony is corroborated by the circumstances following the alleged incident. Id. at 361. The inability to provide a specific date does not necessarily render the claimant’s account of the accident insufficient for purposes of La. R.S. 23:1021(1). Watkins v. Asphalt Associates, Inc., 96-249 (La.App. 3 Cir. 12/4/96), 685 So.2d 393; Aymond v. R.J. Jones & Sons, 96-443, p. 6 (La.App. 3 Cir. 11/20/96), 690 So.2d 769, 773. An employee should not be barred from recovery because he did not realize or diagnose the full extent of his injury immediately after it happened. Middleton v. International Maintenance, 95-0238, p. 6-7 (La.App. 1 Cir. 10/6/95), 671 So.2d 420, 424, wit denied, 95-2682 (La.1/12/96), 667 So.2d 523.

Paddlewheels refers to Smith v. UNR Home Products, 607 So.2d 898 (La.App. 2 Cir.1992), reversed on other grounds, 614 So.2d 54 (La.1993), in which Smith alleged that while lifting sinks on a Friday, he felt a sharp sudden pain in his back. He momentarily stopped working and then finished his shift. He did not make an accident report. On Monday Smith called to tell his supervisor about the pain. The Second Circuit found that the hearing officer’s decision was manifestly erroneous because the claimant failed to prove that he suffered an accident where he did not show an identifiable precipitous event as required under La. R.S. 23:1021(1). However, the Louisiana Supreme Court remanded the case because the appeal was not taken from an appealable final judgment. The claimant in Smith was impeached by his deposition wherein he stated that he did not have a sharp or sudden pain but had sore muscles, which he experienced since the beginning of his work as a press operator. Mr. Butler notes that the Second Circuit emphasized that Smith offered no medical corroboration.

In the present case, although the claimant could not give the exact date, he gave specific testimony that he was injured when he lifted heavy luggage for a French tour group, Cosmos, at the Royal St. Charles Hotel. The evidence that he waited to report the accident for a few days was explained because he thought his back pain would subside in time. Mr. Butler related that he continued to work to 17keep his job. The fact that he took sick leave for three weeks from July 26 — August 16, 2001, supports Mr. Butler’s claim that his back continued to hurt. With the possibility of a transfer to a sedentary job, Mr. Butler continued to work. Mr. Butler testified that he did not seek medical help until the pain became unbearable. On October 30, 2001, Mr. Butler was treated for his back pain at Charity Hospital and was placed in rehabilitation. In the following months, Mr. Butler attempted to continue with rehabilitation without improvement. He retained counsel, who sent him to Dr. Norman Ott, an internist at the Metropolitan Clinic, on April 11, 2002. Dr. Ott opined that the claimant may have a herniated disc, recommended that the patient should undergo an MRI, and made a referral to an orthopedic specialist. Paddle-wheels did not approve of the testing or payment for Mr. Butler’s treatment by an orthopedic specialist.

In determining whether an accident arises out of employment, the workers’ compensation judge must focus on the character or source of the risk which gives rise to injury and on the relationship of the risk to the nature of the claimant’s employment. Lyons v. Bechtel Corp., 2000-00364, p. 10 (La.App. 3 Cir. 12/27/00), 788 So.2d 34, 41, writ denied 787 So.2d 996 (La.3/23/01).

Paddlewheels maintains in its brief that: “The trial court ruled in the Plaintiffs favor because the Defendants did not call Mr. Gerald Boulmay to testify to contradict the Plaintiffs testimony that an accident happened while on the job.... It was not the Defendants burden to disprove Plaintiffs allegations by calling Mr. Boul-may as a witness” because “it was the Plaintiffs burden to prove an accident happened by a preponderance of the evidence by calling Mr. Boulmay as a witness to corroborate his story.”

[sMr. Butler provided testimony of his back pain that he incurred when he picked up the heavy luggage for the specific French tour group, Cosmos. The nature of the claimant’s employment as a bellhop provides a basis that the source of the risk gave rise to an injury. There was no evidence of an intervening accident. Mr. Butler stated that he did not participate in sports or other strenuous activities other than work. There was sufficient evidence in the record upon which the trial court could determine that Mr. Butler carried his initial burden of proving a causal connection between the accident and his condition.

Once the injured employee carries his initial burden of proving a causal connection between the accident and his disabling condition, the burden shifts to the employer to produce evidence that it is more probable than not that the injury was not caused by a work related accident. Burrell v. Evans Industries, 99-1194 (La. App. 5 Cir. 4/25/00), 761 So.2d 618, 623, writ denied 2000-1493 (La.6/30/00), 766 So.2d 545. “The employer assumes both the burden of producing evidence and the burden of persuasion on the issue. This presumption is not rebutted by the mere introduction of contrary testimony; it requires more.” Id.; Hurst v. St. Anthony Nursing Home, 94-664 (LaApp. 5 Cir. 1/18/95), 650 So.2d 774.

In the present case, the workers’ compensation judge was not clearly wrong in finding that although Mr. Butler could not pinpoint an exact date of injury, his testimony concerning the accident remained uncontradicted where Mr. Boul-may was not called to testify. The burden of proof shifted to Paddlewheels to produce evidence that it was more probable than not that the injury was not caused by a work related accident. If there were any presumption created by the fact that Mr. Boulmay was not called to testify, it would be a presumption that Mr. Boul-may’s testimony would be adverse to Pad-dlewheels.

|flIn determining whether a worker has shown by a preponderance of the evidence that an injury-causing accident occurred in the course and scope of employment, the trier of fact is expected to focus on the issue of credibility because, absent contradictory circumstances and evidence, a claimant’s testimony is accorded great weight. Jackson v. Quikrete, 2001-1181 (La.App. 4 Cir. 4/17/02), 816 So.2d 338; Parfait v. Gulf Island Fabrication, Inc., 97-2104 (La.App. 1 Cir. 1/6/99), 733 So.2d 11. When the fact finder’s decision in the workers’ compensation action is based on the conclusion to credit the testimony of one or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. LaPrarie v. Pony Exp. Courier, 628 So.2d 192 (La.App. 2 Cir.1993), writs denied 94-0014, 94-0024 (La.2/25/94), 632 So.2d 765.

Disability Benefits and Medical Treatment

La. R.S. 23:1221(l)(c) provides that:

... compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment....

It is the workers’ compensation court’s function to determine the weight to be accorded medical and lay testimony in a workers’ compensation claim for an award of disability benefits, and its factual determination should not be disturbed on appellate review unless it is clearly wrong and the trial court has committed manifest error. Starkman v. Munholland United Methodist Church, 97-661 (La.App. 5 Cir. 1/14/98), 707 So.2d 1277, writ denied 98-0400 (La.3/27/98), 716 So.2d 891. Whether the workers’ compensation claimant is entitled to temporary total disability benefits is a question of fact that may not be disturbed on appeal, absent manifest error. Sears v. Berg, Inc., 99-457, p. 8 (La.App. 5 Cir. 9/28/99), 742 So.2d 760, 766. The issue to be resolved by a reviewing court in a workers’ compensation case is not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a- reasonable one. Jones v. Blue Cross/Blue Shield of Louisiana, 98-0962, p. 3 (La.App. 1 Cir. 5/14/99), 740 So.2d 163, 165, writ denied 99-1728 (La.9/24/99), 747 So.2d 1127.

In the present case, the workers’ compensation judgment stated that the claimant is entitled to temporary total disability benefits in the amount of $200.49 weekly from July 2, 2001 and continuing until such time as modification is appropriate, and that the claimant is entitled to reasonable and necessary medical treatment. Considering that the trial court found that Mr. Butler’s condition was caused by the lifting of heavy luggage on the job, and that Dr. Ott recommended that Mr. Butler should undergo further medical testing and treatment by a specialist, the trial court was not clearly wrong in awarding benefits and medical treatment. The workers’ compensation court’s conclusions were reasonable.

Penalties and Attorney’s Fees

Paddlewheels also argues that the trial court erred in awarding penalties and attorney’s fees.

Prior to the 2003 amendment, La. R.S. 23:1121 provided in pertinent part:

B. The employee shall have the right to select one treating physician in any field or specialty. The employee shall have a right to the type of summary proceeding provided for in R.S. 23:1124(B), when denied his right to an initial physician of choice....
C. If the employer or insurer has not consented to the employee’s request to select a treating physician or change physicians when such consent is required by this Section, and it is determined by a court having jurisdiction that the withholding of such consent was arbitrary and capricious, or without probable cause, the employer or the insurer shall be liable to the employee for reasonable attorney fees related to this dispute and for In any medical expense so incurred by him for an aggravation of the employee’s condition resulting or withholding of such physician’s services.

Prior to the 2003 amendment, La. R.S. 23:1201 F stated in pertinent part:

F. Failure to provide payment in accordance with this Section shall result in the assessment of a penalty in an amount equal to twelve percent of any unpaid compensation or medical benefits • or fifty dollars per calendar day, whichever is greater, for each day in which any and all compensation or medical benefits remain unpaid, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim....

La. R.S. 23:1201 F(2) provides:

(2) This subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.

When an employer refuses to authorize medical treatment that is reasonable and necessary for an injured worker, attorney’s fees are warranted. Thibodeaux v. Sunland Const., 2000-1472, p. 8 (La.App. 3 Cir. 4/4/01), 782 So.2d 1203, 1209. An employee has the burden of proving entitlement to statutory penalties and attorney’s fees for the employer’s failure to timely pay workers’ compensation benefits. Parfait v. Gulf Island Fabrication, Inc., supra, p. 16 & p. 24. La. R.S. 23:1201 F(2) provides for penalties and attorney’s fees unless the claim is “reasonably controverted.” Brown v. Texas-LA Cartage, Inc., 98-1063, p. 1 (La.12/1/98), 721 So.2d 885, 886. The determination of whether an employer/insurer should be cast with penalties and attorney’s fees in a workers’ compensation proceeding is a question of fact, and the workers’ compensation judge’s findings shall not be disturbed on appeal absent manifest error. Lyons, supra, p. 7, 788 So.2d at 40.

h/rhe termination of workers’ compensation benefits may be considered arbitrary when it appears that further medical information was required to make an exact determination of the claimant’s condition. Porter v. Gaylord Chemical Corp., 98-0222, pp. 9-20 (La.App. 1 Cir. 9/25/98), 721 So.2d 27, 32, unit denied, 98-2712 (La.12/18/98), 734 So.2d 638. An employer’s refusal to authorize reasonable and necessary medical treatment for a workers’ compensation claimant warrants an award of penalties and attorney’s fees. Gross v. Maison Blanche, 98-2341, p. 8 (La.App. 4 Cir. 4/21/99), 732 So.2d 147, 151. In Tillmon v. Thrasher Waterproofing, 2000-0395, p. 7 (La.App. 4 Cir. 3/28/01), 786 So.2d 131, 136, the claimant was entitled to penalties and attorney’s fees where the employer denied benefits and failed to fulfill an ongoing duty to ascertain the claimant’s precise medical condition.

In the present case, the claimant’s entitlement to penalties and attorney’s fees was not controverted by the employer and insurer pursuant to La. R.S. 23:1201. Further medical information was required to make an exact determination of the claimant’s condition. We cannot say that the trial court was clearly wrong in finding that the employer and insurer acted arbitrarily and capriciously in refusing to pay benefits to the claimant, and in refusing to allow the claimant to undergo additional testing and to be examined by a specialist. The compensation court was not manifestly erroneous in awarding penalties in the amount of $2,000 and attorney’s fees in the amount of $5,000.

Accordingly, the workers’ compensation judgment is affirmed.

AFFIRMED.

CANNIZZARO, J., concurs in part and dissents in part with reasons.

| t CANNIZZARO, J.,

concurs in part and dissents in part with reasons.

I concur in the result reached by the majority with respect to the issues of liability, disability benefits, and medical treatment, because I do not think that the decision of the workers’ compensation judge on these issues was clearly wrong or manifestly erroneous. I must dissent from the majority on the award of attorneys’ fees and penalties, however, because I think that the workers’ compensation judge’s decision relating to this award was manifestly erroneous and clearly wrong.

La. R.S. 23:1201(F)(1) provides, in relevant part, that the statutory provision for penalties and attorneys’ fees “shall not apply if the claim is reasonably controverted.” In this case there were no witnesses to Mr. Butler’s injury, and the only testimony regarding the injury was given by Mr. Butler, who could not even recall the exact date that he was injured. Although Mr. Butler took sick leave from his job approximately three weeks after the injury, he did not seek medical treatment for the injury. Instead, he waited until more than nine months after the injury to visit a physician regarding his back pain, which he claims resulted from the injury. Further, Mr. Butler did not report his injury to his employer until well after it occurred.

| ¡¿Based on the facts of this case, I believe that it was imminently reasonable for the employer in this case to controvert Mr. Butler’s claims. To award penalties and attorneys’ fees where an employer presents a number of credible arguments that a worker is not entitled to workers’ compensation benefits has a chilling effect on employers who wish to assert their rights in workers’ compensation court. Even though an employer may legitimately believe that an employee’s claim of work related injury is completely invalid, the employer will be reluctant to contest the employee’s claim, because if the employee prevails in the workers’ compensation court, the employer risks becoming liable for penalties and attorneys’ fees. The employer in this case “reasonably controverted” Mr. Butler’s claim and should not be liable for attorneys’ fees and penalties.

      . The name is spelled “Paddlewheels” or “Paddlewheel” in the record.


author: I JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    Michelle LETULLE v. NEW ORLEANS POLICE DEPARTMENT.
    No. 2003-CA-0617.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 2003.

      Eric J. Hessler, Frank G. Desalvo, A.P.L.C., New Orleans, LA, for Plaintiff/Appellant.
    Joseph V. Dirosa, Jr., Deputy City Attorney, Franz L. Zibilich, Chief Deputy City Attorney, Sherry S. Landry, Acting City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge TERRI F. LOVE and Judge DAVID S. GORBATY).
   I JOAN BERNARD ARMSTRONG, Chief Judge.

This is an appeal by New Orleans Police Department (NOPD) Officer Michelle Le-tulle from a decision of the Civil Service Commission of the City of New Orleans (Commission) affirming the termination of her employment for violation of the City’s Domicile Ordinance.

STATEMENT OF THE CASE

The Commission found that Officer Le-tulle was an NOPD Police Officer I with permanent status, first hired by the City on May 18, 1997, and appointed as Police Officer I effective April 12, 1998. At her termination hearing, it was established that Officer Letulle was reared at her mother’s house located in Harvey, Louisiana, in Jefferson Parish. When she was hired by NOPD, Officer Letulle claimed on a City declaration of domicile form that she was domiciled at 318 Belleville Street in Orleans Parish. On the form, she initialed that she usually slept there; kept most of her clothing, household appliances and other personal property there; received most of her non-City mail addressed to her there; and might enter the premises without notice or permission from others. She did not initial that she was registered to vote in Orleans Parish; had a telephone in her or |gher spouse’s name that is not on call-forward to another residence; or that a spouse and minor children, if any, reside with her at the Orleans address. When asked on the form if she had other residences or mailing addresses other than 318 Belleville Street, she replied in the negative.

On June 7, 1997, she executed a declaration of domicile claiming domicile at 3201 Rue Parc Fontaine # 2507. She initialed all the supporting facts with the exception of voter registration in Orleans Parish and again denied having other residences or mailing addresses. Officer Letulle provided Entergy utility bills addressed to her at that address for November and December 1997, January, February, March, April and May 1998, and a final bill through June 1998.

On June 29, 1998, she executed a declaration of domicile claiming domicile at 4738-D Cleveland Avenue, with the same supporting facts. Officer Letulle provided Entergy utility bills addressed to her at that address for July, August, September and October 1998, and a final bill through November 1998.

On December 1, 1998, she executed a declaration of domicile claiming domicile at 603 Bartholomew Street. On that form, she did not claim voter registration in Orleans Parish and did not claim to receive most of her non-city mail addressed to her here. She listed P.O. Box 3020, New Orleans, LA 70177 as an additional mailing address. Officer Letulle offered Entergy utility bills addressed to David Harold Dotson at 603 Bartholomew Street for electricity only for March 1999.

On August 15,1999, after Officer Letulle had spent a period of recuperation from an equestrian accident at the Harvey house, NOPD asked her to execute a fourth declaration of domicile form, and she did so, certifying her domicile to be 320 Belleville. Of the seven factual bases for domicile listed on that form, she |3claimed only that she usually slept there and might enter the premises without notice or permission from others. She listed P.O. Box 13153, New Orleans, LA 70185-3153 as an additional mailing address. She testified that she returned to the Belleville house, a cousin’s home, in 1999 to take care of her cousin’s child after the death of her cousin’s wife.

Officer Letulle submitted Entergy utility bills addressed to her at 121 Cypress Grove Court in New Orleans from August, September and October 2001 and Sewerage and Water Board utility bills for September, October, November and December 2001.

The testimony is uncontroverted that prior to June 2001, Officer Letulle did not change her voter registration from her mother’s address in Harvey, and voted in March and November 2000 in Jefferson Parish. As recently as June 30, 2000, when Officer Letulle obtained a new driver’s license, she gave the Harvey address as her own. Had she changed her domicile to Orleans Parish by then, her declaration on the license would have violated state law. Officer Letulle testified that she owns two vehicles, a 2000 Honda Rebel and a 1996 Toyota Camry, both of which are registered to her at the Harvey address.

NOPD Sergeant Kenneth Harris, Commander of the Downtown Development District in 2000, testified that he discussed with Officer Letulle her problem reporting late for duty. She explained that she had suffered power outages at her home in Harvey. She told Sergeant Harris that she had been given special permission by NOPD to live outside Orleans Parish. The parties stipulated that there was no written evidence of this permission.

The hearing examiner and Commission concluded that although Officer Letulle changed her residence several times, she did not take the steps necessary to | ¿evidence a change of domicile. Officer Letulle failed to offer proof of intent to change her domicile, in the face of evidence that she did not change her Jefferson Parish voter registration, the Jefferson Parish address on her old or new driver’s licenses, or the Jefferson Parish address shown on the registrations of her two vehicles.

Officer Letulle contends that her termination was unreasonable and not for legal cause. NOPD waived the domicile requirement when it hired her, knowing that she was domiciled in Jefferson Parish. At the time of her hiring by NOPD, Officer Letulle claims she established her domicile in Orleans Parish. She also claims that NOPD failed to notify her that her voter registration exemption was withdrawn. Upon being notified of NOPD’s intention to terminate her, she immediately established voter registration in Orleans Parish. For these reasons, she alleges that the Commission’s decision affirming the NOPD’s action is arbitrary, capricious and manifestly erroneous.

For reasons that follow, we affirm the Commission’s decision.

ANALYSIS

An employee like Officer Letulle who has gained permanent status in the classified city civil service cannot be subjected to employer disciplinary action except for cause expressed in writing. LSA-Const. Art. X § 8(A); Walters v. Dept. of Police of City of New Orleans, 454 So.2d 106 (La.1984). Such action may be and, in this case, was appealed to the Commission, where the burden of proof as to the factual basis for the discipline was on the NOPD, the appointing authority. Goins v. Dept. of Police, 570 So.2d 93 (La.App. 4 Cir. 1990). NOPD also had the burden of proving legal cause, which exists if Officer Letulle’s conduct impaired |sthe efficiency of the NOPD. Cittadino v. Dept. of Police, 558 So.2d 1311 (La.App. 4th Cir.1990). These facts must be clearly established, but need not be proven beyond a reasonable doubt. Id.

It is uncontroverted that the proscriptions of the City’s Domicile Ordinance, New Orleans Code, Article X, §§ 2-971, et seq. are in effect and apply to NOPD employees in Officer Letulle’s position. That ordinance provides that where a covered employee such as Officer Letulle has multiple residences, the residence considered her actual domicile is the one that meets the following criteria more than any other residence:

1. She usually sleeps there.

2. She keeps most clothing, toiletries, household appliances and similar personal property of daily utility there.

3. She is registered to vote there.

4. She or her spouse has a telephone there in her name that is not usually on call-forward to another residence.

5. She directly receives and opens most non-City mail addressed to her there.

6. She is free to enter the premises without notice to or permission from others.

The ordinance provides for a presumption that for purposes of Article X, voters registered in another parish or county do not have their actual domicile in Orleans Parish. The burden is on Officer Letulle to rebut that presumption.

In none of Officer Letulle’s declaration of domicile forms does she state that she has multiple residences. Each form lists a single address, although the last two Ififorms also list a post-office mailing address. Significantly, at the time of the NOPD investigation into Officer Letulle’s domicile, the operative declaration indicated residence at her cousin’s home on Belle-ville Street, and indicated that only two of the six conditions set out in the ordinance were satisfied, and, significantly, the presumption of Jefferson Parish domicile created by her voter registration in that parish was not rebutted.

Although Officer Letulle argued that NOPD granted her an exemption of the voter registration requirement at the time she was hired, she offered no objective evidence and stipulated there was no written evidence of the exemption.

A reviewing court should not reverse a Commission conclusion unless it is shown to be arbitrary and capricious, meaning that there is no rational basis for the action taken. Bannister v. Department of Streets, 95-0404 (La.1/16/96), 666 So.2d 641. We are to apply the manifest error to the Commission’s factual findings.Walters, supra, 454 So.2d at 113.

We find that the facts clearly support the reasonableness of the Commission’s finding that Officer Letulle’s domicile of origin in Harvey remained her domicile, and that she failed to establish an Orleans Parish domicile for purposes of the Domicile Ordinance.

The cases cited by Officer Letulle do not require us to reverse the Commission’s decision. In Wilson v. Shea, 565 So.2d 1105 (La.App. 4th Cir.1990), we considered the effect of dual residences on domicile. There, Judge Shea lived in Orleans Parish until his home was destroyed by fire. After the fire, he rented an apartment, remarried and established a second residence at his wife’s home in Jefferson Parish. The plaintiff failed to prove that Judge Shea had demonstrated an intention to change his domicile from his Orleans Parish |7apartment to the Jefferson Parish house. Significantly, this Court noted the presumption against a change of domicile, referring to Messer v. London, 438 So.2d 546 (La.1983). In the instant case, there is insufficient proof that Officer Letulle evidenced an intention to change her original domicile to any of the consecutive, temporary residences she listed on her declarations of domicile.

In re Kennedy, 357 So.2d 905 (La.App. 2nd Cir.1978) was an adoption case where the dispositive issue was whether the plaintiff established that the child’s father was a non-resident of Louisiana, in which case his consent to the adoption would not be required. The father was born and grew up in Louisiana, where his parents continue to reside. When the father and mother were divorced, they were living in Louisiana and he remained there until his work began taking him out of state. He lived in various places in Texas for several years, up to the time of trial, returning to Louisiana several times each month between jobs in Texas. He paid utility bills and maintained a bank account in Louisiana, whose checks disclose a Louisiana business address. At the time of trial, he had recently replaced his Louisiana driver’s license with a Texas license. This did not of itself preclude a finding of Louisiana domicile. The court referred to LSA-C.C. art. 38, which defines domicile as the parish wherein a person has his principal establishment; that is, where he makes his habitual residence. If he resides alternately in several places, and nearly as much in one as in another, and has not declared his intention in the prescribed manner, any one of the residences may be considered his principal establishment, at the option of the persons whose interests are thereby affected. A change of domicile from one parish to another is produced by the act|sof residing in another parish, combined with the intention of making one’s principal establishment there. LSA-C.C. art. 41. The court noted that a person maintains his domicile of origin until he acquires another domicile, citing, inter alia, Baham v. Sutherland, 197 So.2d 345 (La.App. 4th Cir.1967). The court noted that the expressed intent of the party may be at variance with the intent as evidenced by conduct, that each case is unique and that the courts attempt to arrive at the true intent whether express or implied. The court reviewed cases in which courts have disregarded expressed intent, such as that evidenced by Officer Letulle when she executed her declaration of domicile, when unaccompanied by conduct consistent with that expressed intent. An exemplary case is Caldas v. Caldas, 224 So.2d 831 (La.App. 4th Cir.1969), where a husband no longer retained assets in Louisiana, had taken a six months’ lease on an apartment in foreign country, had indicated a city in that country as his place of residence on his passport prior to departure from United States, and had no intention of returning to Louisiana. There, this Court found he had effectively changed his domicile.

In the Kennedy case, the father lived outside of Louisiana most of the time since 1973, yet he was held to have maintained such a relation with the place or premises so selected as would entitle him at his will, and without making new arrangements upon each return, to occupy that place whenever his necessities or pleasure require, and this without having to ask the permission of someone else. That is precisely the situation in which the evidence in the instance case places Officer Letulle.

In light of the lack of evidence to rebut the presumption against Officer Letulle’s having changed her domicile from her domicile of origin in Harvey, or to rebut the presumption contained in the City’s Domicile Ordinance that voter ^registration determines domicile, we find the Commission’s conclusion that Officer Letulle violated the Domicile Ordinance is reasonable and not manifestly erroneous, clearly wrong, arbitrary or capricious.

There is no suggestion that this violation did not impair the efficiency of the NOPD. Officer Letulle does claim that her termination was not commensurate with the conduct in question, citing Walters v. Department of Police, supra. Officer Walters appealed a Commission decision that found he used poor judgment in what it believed was an avoidable accident that occurred during a carnival parade. The Supreme Court found manifest error in several respects, and found the officer’s actions to have been consistent with NOPD policy that he carry his weapon at all times and apprehend lawbreakers even when not on duty, and with the expectation that he would break up street altercations, engage in crowd control and wear his revolver in parade crowds. The court concluded that the facts did not support a finding that the officer’s actions constituted the offense of negligent injuring. The opinion contains in its “Legal Precepts” section the comment that where good or lawful cause for taking disciplinary action is found, the Commission has a duty to find whether the punishment imposed is commensurate with the dereliction. However, appropriateness of punishment ultimately was not at issue since the Supreme Court found there was no cause for Officer Walters’ dismissal.

In the instant case, the ordinance itself sets forth the penalty for violation. Quite simply, domicile in Orleans Parish is a condition precedent for a person to be hired or to continue to serve as an NOPD officer. The legislature has determined that the remedy for violation of the ordinance is removal from the service. We find |i0no evidence that the NOPD has discretion to depart from that legislative determination.

For the foregoing reasons, we affirm the decision of the Commission terminating Officer Letulle’s employment by the New Orleans Police Department.

AFFIRMED.

      . LSA-C.C. art. 42 provides that manner is by an express declaration of domicile before the recorders of the parishes from which and to which the person intends to remove. The declaration is made in writing, signed and registered by the recorder.

      . Continued service is allowed under the ordinance under circumstances that are not relevant to the instant case.


author: JjCHARLES R. JONES, Judge.

text:
    OCEAN ENERGY, INC. v. PLAQUEMINES PARISH GOVERNMENT.
    No. 2003-CA-0805.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 2003.

      Lawrence L. Lewis, III, Onebane Law Firm, Lafayette, LA, for Plaintiff/Appellant.
    Johnette L. Martin, Assistant Parish Attorney, Plaquemines Parish Government, Belle Chasse, LA, for Defendant/Appellee.
    Patrick M. Amedee, Delise, Amedee & Hall, Metairie, LA, Amicus Curiae, (La-fourche Parish School Board).
    Robert R. Rainer, Frederick Mulhearn, Jr., Rainer, Anding & McLindon, Baton Rouge, LA, Amicus Curiae, (Pointe Cou-pee Parish Police Jury and St. Mary Parish Council).
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS SR., and Judge LEON A. CANNIZZARO JR.).
   JjCHARLES R. JONES, Judge.

The appellant, Ocean Energy, Inc. (hereinafter “OEI”), seeks devolutive appeal of the judgment of the district court denying its motion for summary judgment and granting a cross-motion for summary judgment in favor of the appellee, Plaque-mines Parish Government (hereinafter “PPG”). This appeal arises out of an action by OEI for a refund of sales and use tax paid to PPG for the use of dyed diesel fuel. We affirm.

Procedural History

OEI initiated a claim against PPG for the refund of sales and use tax paid under protest. OEI subsequently filed a motion for summary judgment on the grounds that PPG was prohibited from levying a tax for diesel fuel against it under Article VII, § 4(C) of the Louisiana Constitution. In response to the motion for summary judgment filed by OEI, PPG filed a cross-motion for summary judgment alleging that it was not legally prohibited from collecting a tax on diesel fuel for the period at issue.

The district court denied OEI’s motion for summary judgment and granted the cross-motion for summary judgment filed by PPG. The district court stated that the tax imposed by PPG was not a tax on motor fuel for purposes of Article VII, |2§ 4(C) and, thus, not prohibited. OEI’s devolutive appeal of the judgment denying its motion for summary judgment and granting PPG’s cross-motion for summary judgment is the subject of the matter now before this Court.

Facts

PPG is a political subdivision of the State of Louisiana and the governing authority of Plaquemines Parish, Louisiana. As the collector of sales and use tax through its local Sales Tax Division, PPG conducted an audit of OEI for the taxable period of July 1, 1995 through June 30, 1998. The audit revealed that OEI was delinquent in the payment of sales and use tax for the consumption of dyed diesel fuel. The diesel fuel in question was primarily used by OEI to operate the combustion engines of marine vessels that were employed by the company in the transport of supplies and personnel to its offshore facilities.

Pursuant to a letter dated May 24, 2000, OEI was aggregately assessed unpaid sales and use tax, penalties, and interest by PPG, for the period of July 1, 1995 through June 30, 1998 in the amount of $268,275.51. On June 8, 2000, OEI remitted payment of the assessment under protest. OEI further informed PPG of its intent to seek recovery of the tax, penalties, and interest paid, along with interest accrued from the date of payment as provided by law.

Discussion

In accordance with Article 966(B) of the Louisiana Code of Civil Procedure, summary judgment is properly granted when there is no genuine issue of material fact. On appeal, courts must conduct a de novo review to determine whether the trial court committed error in granting summary judgment and “cannot consider the 13merits, make credibility determinations, evaluate testimony or weigh evidence” in determining whether an issue is genuine. See Berthelot v. Avondale Industries, Inc., 02-1779, p. 3 (La.App. 4 Cir. 2/26/03), 841 So.2d 91, 93.

OEI contends that the district court erred in finding that the sales and use tax imposed by PPG was not constitutionally prohibited. In its first assignment of error, OEI argues that the purchase or use of diesel fuel for the operation of its vessels is a tax on motor fuel within the meaning of Article VII, 4(C) of the 1974 Louisiana Constitution. According to this provision, “[a] political subdivision of the state shall not levy a severance tax, income tax, or tax on motor fuel.” La. Const, art. VII, § 4(C). Since there are no reported cases analyzing the constitutional prohibition on the taxation of motor fuel by political subdivisions, OEI points to several Louisiana Attorney General Opinions interpreting this provision during the period of 1976 through 1997. See La. Atty. Gen. Op. Nos. 76-1351 (10/11/76), 80-54 (1/17/80), 80-1199 (9/19/80), 80-1249 (9/24/80), 80-1296 (3/16/81), 81-509 (8/20/81), 82-397 (4/30/82), 84-195 (3/13/84), 86-382 (6/12/86), 86-578 (9/23/86), 92-749 (2/8/93), and 96-529 (1/29/97). Notwithstanding these opinions, the discussion therein of Article VII, 4(C), and its application to a sales and use tax on diesel fuel, this Court declines to follow the analysis set forth in the opinions of the Attorney General for reasons more fully articulated below.

Pursuant to La. R.S. 47:711, a tax is to be levied on all motor fuels sold, used, or consumed in the state of Louisiana for domestic consumption. However, the imposition of this tax by a political subdivision is prohibited in accordance with |4the state constitution. See La. Const, art. VII, 4(C). While OEI contends that the definition of “motor fuel” contained in La. R.S. 47:712 is limited to Part I of Chapter VII of Subtitle II of Title 47 of the Louisiana Revised Statutes, we find that this argument lacks merit.

In the City of New Orleans v. Scramuzza, 507 So.2d 215 (La.1987), the Louisiana Supreme Court examined whether an earnings tax imposed by the City of New Orleans was an impermissible local “income tax” within the meaning of Article VII, 4(C) of the state constitution. Although proponents and opponents of the tax relied on the legislative history to support their arguments, the Supreme Court stated that “[wjhere ... constitutional intent is evident and explicit language used, the court may not consider the history of a constitutional prohibition to arrive at a determination or construction which is in-consistant[sic] with the obvious purpose and meaning of the constitutional provision.” Id. at 218 (citing Barnett v. Develle, 289 So.2d 129 (La.1974)). In analyzing whether the tax imposed by the local ordinance violated the constitution in Scra- muzza, the Supreme Court determined whether the constitution itself provided definitional guidance, or if the relevant statutory material offered clarification of the term “income tax.” See id. at 219.

In the present case, there is no ambiguity as to the meaning of the term “motor fuel” employed by Article VII, 4(C). While the 1974 Constitution fails to provide definitional guidance as to the meaning of the term, a clear definition of motor fuel is supplemented by La. R.S. 47:712. Admittedly, in OEI’s own brief, it is stated that the diesel fuel in question has a flash point above 110 degrees F. |sThus, the diesel fuel used by OEI falls outside of the statutory definition of motor fuel.

OEI further argues that the legislative history behind Article VII, 4(C) points to an interpretation of the term motor fuel, which includes diesel fuel. This Court disagrees. Prior to the enactment of Article VII, 4(C) of the 1974 Constitution, Article XIV, Section 24.1 of the 1921 Constitution stated that “[n]o parish, municipality or other political subdivision, shall levy an excise, license or privilege tax upon gasoline, kerosene or other combustibles used in the generation of motive power ...” It is axiomatic that Article VII, 4(C) of the 1974 Constitution alters the language of the 1921 provision. However, the 1974 drafting committee indicated that this language was not intended to change the existing law under Article XIV, 21.4. The committee stated that, “the prohibition against political subdivisions taxing natural resources severed from soil or water and motor fuel represents no change in the present law.” Volume I, Official Journal of the Proceedings of the Constitutional Convention of 1973 of the State of Louisiana, (11th days proceedings), at 127 (July 6,1973).

The intent of the legislature to maintain the effects of the 1921 Constitution is further evidenced by the fact that the term motor fuel has held virtually the same meaning since the 1920’s. See 1928 La. Acts 6. In 1928, motor fuel was first defined as “all volatile gas-generating liquids having a flash point below 110 degrees F, commonly used to propel motor vehicles or motors.” Id. The language used to define motor fuel in 1928 was substantively reenacted in future acts and is consistent with the definition found in La. R.S. 47:712. Given that the fuel used by ROEI has a flash point above 110 degrees F, this Court finds that the statutory definition of motor fuel is inapplicable to diesel fuel. To find otherwise would allow an interpretation of Article VII, 4(C) that is inconsistent with the intended purpose of the constitutional provision.'

In its second assignment of error, OEI asserts that the district court erred in finding that Article VII, 4(C) does not prohibit local governments from imposing and collecting a tax on diesel fuel. Specifically, OEI argues that the constitutional prohibition is against the imposition of an indirect tax such as a sales and use tax, and not a direct tax, as argued by PPG. While this Court agrees with the assertion that a sales and use tax is an indirect tax, it fails to support the contention that PPG is prohibited from subjecting OEIs purchase and use of diesel fuel to its local sales and use tax.

In Roberts v. City of Baton Rouge, 236 La. 521, 108 So.2d 111 (1958), the Supreme Court analyzed the constitutionality of a local ordinances tax on occupational licenses measured by the sale of gasoline under Article XIV, 21.4 of the 1921 Constitution. The Supreme Court stated on rehearing that, “the ‘excise, license or privilege tax upon gasoline’ [sic] prohibited to local governments by the Constitutional enactment before us were intended to include taxes directly upon the sale or consumption of gasoline.” Roberts, 108 So.2d at 124. It further stated that the terms “excise, privilege, and license tax” may be used synonymously to the extent that they are all indirect taxes upon some activity or occupation. Id. at 121, 124.

In accordance with Roberts, a sales and use tax on motor fuel is an indirect tax that would be prohibited under the constitution. Although OEI points to a footnote in Roberts stating that, “kerosene or other combustibles used in the |7generation of motive power” should be included in instances where taxes on gasoline are referenced, the Supreme Court specified that the legislation was solely concerned with “an excise tax on gasoline and other motor fuels.” Id. at 121 n. 1, 124. This Court finds no indication that a reference to a “tax on gasoline” was intended to extend to diesel fuel.

Additionally, OEI argues that Article VII, 4(C) is not an exemption, but rather a prohibition on the power of local governments to impose a tax. Pursuant to state law, local governments possess only those powers that are specifically conferred by the state constitution or the legislature. Caddo-Shreveport Sales and Use Tax Comm’n v. Office of Motor Vehicles Through Dept. of Public Safety and Corrections of State, 97-2233 p. 5 (La.4/14/98), 710 So.2d 776, 779. Accordingly, an exemption from taxation must be clearly and expressly granted and should be strictly construed against the taxpayer. In re Succession of Smith, 589 So.2d 16, 18 (La. App. 1 Cir. 10/18/91), unit denied, 594 So.2d 891 (La.1992).

Although PPG claims that Article VII, 4(C) should be construed under the statutory rules governing exemptions, OEI further argues that it must first be determined whether the power to levy a tax on diesel fuel exists. Under Article VII, 1(A) of the Louisiana Constitution, the power of taxation remains with the legislature unless otherwise provided in the constitution. While Article VII, 4(C) sets forth what local governments are prohibited from taxing, PPG may not otherwise infer the right to impose a tax on diesel fuel. However, the right of PPG to levy a tax on diesel fuel exists under Article VI, 29. This provision provides:

[T]he governing authority of any local governmental subdivision may levy and collect a tax upon the sale at retail, the use, the lease or rental, the consumption, and the storage for use or consumption, of tangible personal property and on sales of services as defined |fiby law, if approved by a majority of the electors voting thereon in an election held for that purpose.

On November 16, 1977, PPG adopted Ordinance No. 174. Under Section 2.01 of this ordinance, a tax is imposed upon the “sale at retail, the use, the lease or rental, the consumption and the storage for use or consumption of tangible personal property within this Parish.” The ordinance further defines “tangible personal property” as “property which may be seen, weighed, measured, felt or touched or is in any other manner perceptible to the senses.” Ordinance 174, section 1.21. Arguably, the diesel fuel purchased by OEI falls within the category of tangible personal property and is not otherwise restricted by Article VII, 4(C).

The right of PPG to levy a tax pursuant to Article VI, 29 is also consistent with other constitutional provisions where diesel fuel is expressly mentioned. Article VII, 27(A) exempts the purchase of gasoline, diesel fuel, or special fuels, which are subject to excise tax under Chapter 7 of Subtitle II of Title 47 of the Louisiana Revised Statutes, from state sales tax and any tax by a political subdivision. Since the diesel fuel used by OEI is not a motor fuel, or a special fuel used in the operation of motor vehicles, it would not be taxed under Chapter 7, and thus, would not be exempted from tax by a political subdivision. See La. R.S. 47:712; 47:801. Alternatively, if PPG were already prohibited from taxing diesel fuel under Article VII, 4(C), the exemption set forth by Article VII, 27(A) would be unnecessary. Therefore, the right of PPG to levy a sales and use tax on diesel fuel exists pursuant to Article VI, 29 and local Ordinance No. 174.

In its third assignment of error, OEI argues that the district court erred in not granting its motion for summary judgment. However, for the aforementioned reasons, we find that PPG is not prohibited from levying a tax on diesel fuel under | sArticle VII, 4(C). Thus, the district court did not err in denying OEIs motion for summary judgment.

DECREE

We affirm the judgment of the district court denying Ocean Energy, Inc.’s motion for summary judgment and granting Plaquemines Parish Governments cross-motion for summary judgment for the reasons herein stated.

AFFIRMED.

      . U.S.C. 4803 defines taxable diesel fuel (for the purpose of federal excise taxation) to mean, "any liquid (other than gasoline) which is suitable for use as a fuel in a diesel powered highway vehicle or a diesel powered train.”

      . La. R.S. 47:712 defines motor fuel as "all volatile gas generating liquids having a flash point below 110 degrees F.”

      . It should be noted that the definition of motor fuel was revised slightly by Act 16 of the Extra Session of 1932. This revised language is reflected in the current definition provided by La. R.S. 47:712.


author: | MOAN BERNARD ARMSTRONG, Chief Judge.

text:
    Katherine T. ALPAUGH, Tutrix, on Behalf of her Minor Child, George Reade ALPAUGH v. The CONTINENTAL INSURANCE COMPANY and Liberty Mutual Insurance Company.
    No. 2003-CA-0710.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 2003.

      W.K. Christovich, Kevin R. Tully, Chris-tovich & Kearney, L.L.P., New Orleans, LA, for Defendant/Appellee.
    Scott G. Jones, Hulse & Wanek, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge TERRI F. LOVE and Judge DAVID S. GORBATY).
   | MOAN BERNARD ARMSTRONG, Chief Judge.

This is a coverage dispute between insurers arising out of an automobile accident personal injury suit. Chester T. Al-paugh, III, a Boy Scouts of America (Boy Scouts) volunteer, was driving his son, George Reade Alpaugh (Reade), and two others home to New Orleans from a scouts camping trip in Mississippi when he was involved in a very serious automobile accident. At the time of the accident, Mr. Alpaugh had liability coverage on his car through The Continental Insurance Company (Continental), Policy # US 202844307. He was provided insurance coverage as well through a policy of insurance issued to the Boy Scouts through Liberty Mutual Insurance Company (Liberty Mutual), Policy # TB1-191-409751-128.

As a result of the accident, Katherine T. Alpaugh, Reade’s mother and tutrix, filed suit against the two insurers in 1998. Continental and Liberty Mutual filed cross-motions for summary judgment to declare the order of insurance coverages as between their policies. On September 13, 2000, the trial court denied Continental’s motion and granted Liberty Mutual’s motion, holding that the [^Continental policy provides the first layer of insurance coverage and the Liberty Mutual policy provides a second layer of coverage that is excess to the full limits of the Continental policy.

The parties settled the case, with the exception of Continental’s claim that coverage under its policy is excluded by reason of the policy’s “family member” exclusion. That issue was tried to a jury and resolved in favor of coverage. The trial court by judgment of August 7, 2002, denied Continental’s claim and also designated as final and appealable the court’s previous judgment of September 13, 2000.

Continental appeals from that judgment. Because our de novo review convinces us that the Insurance Code and Louisiana jurisprudence require a finding that the Continental automobile policy is primary to the Liberty Mutual general liability excess policy, we affirm the judgment of the trial court.

STATEMENT OF FACTS

The insurers have each filed certified copies of their applicable policies, and there is no dispute as to their correctness.

The Continental policy has a single number, U.S. 202844307. The term “policy” appears solely in the singular throughout the document. On its declarations page, the policy provides in pertinent part:

COVERAGE OPTIONAL EXCESS LIABILITY

Following that disclosure, the declarations page lists:

| «MOTOR VEHICLE(S) 1 HOME LOCATION(S) 1 BOAT(S) 1
LIMIT $1,500,000.

The declarations page does not specify a limit for each of the covered items. Under the heading “PERSONAL LIABILITY”, with respect to automobile coverage, the declarations page lists:

MOTOR VEHICLE LIABILITY LIMIT
PERSONAL LIABILITY VEHICLE(S) 1 BODILY INJURY EACH PERSON $250,000
EACH ACCIDENT $500,000
PROPERTY DAMAGE EACH ACCIDENT $100,000
MEDICAL EXPENSE VEHICLE(S) 1 $ 5,000
MOTOR VEHICLE OPTIONAL COVERAGES LIMIT
250 COMPREHENSIVE COVERAGE VEHICLE(S) 1 COMPREHENSIVE DEDUCTIBLE
30 PER DAY EXTENDED TRANSPORTATION COVERAGE RENTAL REIMBURSEMENT
900 MAXIMUM VEHICLE(S) 1 0/J
100 PER DAY AUTOMOBILE TRIP INTERRUPTION COVERAGE
500 MAXIMUM VEHICLE(S) 1 'C/J
50 TOWING L/J
500 VEHICLES(S) 1 COLLISION DEDUCTIBLE

On the page summarizing premiums for motor vehicles, the total premium is divided as follows: Liability — $1,304; Excess liability — $138; Medical Expense — $50; Comprehensive — $350; and Collision— $326, for a total premium of $2,168.

However, on the Personal Automobile Application, by which Mr. Alpaugh applied for his insurance, below the coverages, limits of liability and premium information is a section entitled “Additional Coverages [illegible word] (Include limit, deductible, premium)”, the following is' printed:

|/‘$1,500,000 xs liability insurance.” Below that is typed in capital letters, “IS ALSO AFFORDED ON POLICY.” There is no separate premium listed here for the “$1,500,000 xs liability insurance,” although limit, deductible and premium seem to be required by the form.

The policy provides an eleven-page endorsement entitled, ‘Tour Optional Coverages OPTIONAL EXCESS LIABILITY COVERAGE ENDORSEMENT — LOUISIANA. The endorsement begins, “In consideration of an additional premium, we will provide the coverage described by the provisions of this endorsement.” The endorsement requires the insured to maintain underlying insurance (minimum retained limit) for bodily injury in the amount of $250,000 per person and $500,000 per accident, and for property damage in the amount of $100,000 per accident. The endorsement provides for a $1,000 deductible in lieu of the minimum retained limit against claims covered by the endorsement but not covered by underlying insurance under certain conditions.

The endorsement provides in pertinent part the following with respect to other insurance:

Only in regard to the coverage provided by this endorsement, the Other Insurance provision of the policy’s “GENERAL PROVISIONS” is deleted and replaced by the following:
Where there is other applicable insurance, we will provide coverage as follows:
* * *
b. During the first and subsequent years of this policy, when an amount of “Optional Excess Liability” is shown effective in the Coverage Summary, the coverage provided by this endorsement is excess over any other valid and collectible insurance except:
| B(l) When other insurance is written specifically as excess coverage over the minimum retained limit, we will pay only our share of the loss. Our share is the proportion that our limit of “Optional Excess Liability” bears to the total of all applicable limits.
(2) When other insurance is written specifically as excess coverage over the amount shown in the Coverage Summary for “Optional Excess Liability,” we will pay amounts due above:
(a) the minimum retained limit;
(b) the Deductible; or
(c) the $50,000 Excess Loss Assessment threshold;
up to our “Optional Excess Liability” limit.

Liberty Mutual’s policy, issued to the Boy Scouts, insures, inter alia, Boy Scout volunteer workers participating in an official Scouting activity and in the scope of their duties as such, and the loaners or owners of non-owned automobiles while being used in the scout activities of the Boy Scouts or any Unit.

Liberty Mutual agrees:

To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:
(A) Personal injury ...
(1) to which this insurance applies, caused by an occurrence and the Company shall have the right and duty to defend any suit against the Insured seeking damages on account of such personal injury, ...

The Liberty Mutual policy notes with respect to other insurance:

Other Insurance
This policy shall be excess of and shall not contribute or prorate with insurance, ... provided to the insureds as defined in “person or entities insured” (b), (c), (d), (e), (f) under any insurance policy ... available to such insured ... in the absence of such other insurance ... this policy shall apply as primary. Amounts payable on behalf of the Named Insured or an insured under such other insurance, ... shall reduce the limits of liability of this policy. [Emphasis added.]

| ^Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 7 (La.2/29/2000), 755 So.2d 226, 230.

Continental contends that the trial court erred in finding that Continental’s insurance policy consists of only one primary policy, thus requiring Continental to provide primary coverage limits to the extent of $1,750,000 for injuries or damages to Reade before any coverage is to be provided by Liberty Mutual pursuant to its policy of insurance issued to the Boy Scouts.

Under the facts of this case, we do not reach the question of whether the Continental policy and excess endorsement by their terms constitute a true primary policy and excess policy, as Continental suggests. The fact that the Continental policy and endorsement provide insurance specifically for the vehicle that was involved in the accident, while the Liberty Mutual excess policy insures Mr. Alpaugh in his personal capacity as a Boy Scouts volunteer is dispositive of the issue between these insurers.

The Continental policy describes Mr. Al-paugh’s Acura, the automobile involved in the accident, as a specifically insured vehicle. This description is uncontroverted evidence that the Continental policy and its endorsement provide | coverage to that particular automobile. Continental listed and covered Mr. Alpaugh’s Acura.

Under consistent Louisiana jurisprudence, the entire Continental policy provides primary insurance in this case. An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts found in the Louisiana Civil Code. Such interpretation ultimately is the determination of the common intent of the parties, giving the words used in the contract their generally prevailing meaning, and when those words are clear and explicit and lead to no absurd consequence, no further interpretation may be made. LSA-C.C. arts.2045-2047; Lewis v. Hamilton, 94-2204 (La.4/10/95), 652 So.2d 1327.

The Louisiana Motor Vehicle Safety Responsibility Law, found in LSA-R.S. 32:851-1043, provides a mandatory, comprehensive scheme designed to protect the public from damage caused by motor vehicles. This statutory scheme is intended to attach financial protection to the vehicle rather than to the operator, and is not designed to protect the owner against liability, but to provide compensation for persons injured by insured automobiles. Marcus v. Hanover Ins. Co., Inc., 98-2040, p. 3 (La.6/4/99), 740 So.2d 603, 606. Under that scheme, Continental’s policy, including its endorsements, attaches to Mr. Alpaugh’s Acura. The premium was calculated, invoiced and collected based on that automobile.

| sThis type of policy, providing coverage to a specifically identified automobile, is primary insurance, and other policies that do not specifically reference the Acura do not afford primary coverage. See, Dean v. State Farm, Mut. Auto. Ins. Co., 518 So.2d 1115 (La.App. 4 Cir.1987).

Similarly, where the contest is between owned automobile coverage (cf. Continental’s policy) and non-owned automobile coverage (cf. Liberty Mutual’s policy), the First Circuit Court of Appeal held that insurance provided for non-owned vehicles is ancillary to that provided for the owned vehicle, and the insurer OF THE VEHICLE is the primary insurer, and the insurer of the non-owned vehicle is a true excess insurer. Penton v. Hotho, 601 So.2d 762, 765, fn. 4 (La.App. 1st Cir.1992).

The Liberty Mutual policy protects Boy Scout volunteers like Mr. Alpaugh who might have inadequate insurance to cover losses sustained in the course and scope of their volunteer activities. It does not specifically insure Mr. Alpaugh’s Acura. As noted above, the policy provides that it is to be considered excess to “any insurance available” to Mr. Alpaugh. This provision is not limited to Mr. Alpaugh’s minimum retained limit or his underlying coverage of $250,000/$500,000. Liberty Mutual’s liability is in the nature of the non-owned auto insurance in the Penton and Lewis cases. The primary insurance is the policy, including endorsements, issued by Continental specifically covering the Acura that was involved in this accident.

|9For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.

      . There are facts that support and facts that do not support the conclusion that the endorsement is true excess insurance. While the endorsement requires underlying insurance and the policy notes a separate premium tor the endorsement, Mr. Alpaugh’s application does not show that he was charged an additional premium for the "excess” endorsement.

      . The same result obtains in the Uninsured/Underinsured Motorist context, where the Insurance Code was held to deem automobile insurance primary regardless of the policy’s terms where the coverage is on the vehicle occupied by the injured party. Comberrel v. Basford, 550 So.2d 1356 (1989).