author: LGAIDRY, J.

text:
    Brenda Gann and Robert GANN v. Tammie L. MATTHEWS, Terrance D. Matthews and Allstate Insurance Company.
    No. 2003 CA 0640.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 23, 2004.

      Joseph G. Possa, Baton Rouge, Counsel for Plaintiff/Appellee Brenda Gann and Robert Gann.
    Donald R. Smith, Craig J. Fontenot, Baton Rouge, Counsel for Defendant/Appel-lee Tammie Matthews.
    Joseph W. Mengis, Baton Rouge, Counsel for Defendant/Appellant Allstate Insurance Company.
    Melissa Richard, David D. Forrester, Baton Rouge, Counsel for Defendant/Appellant Terrance Matthews.
    Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.
   LGAIDRY, J.

In this case involving injuries sustained by a police officer while attempting to handcuff an arrestee, the trial court awarded damages to the plaintiffs for these injuries and defendants appealed. For the following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

On June 28, 1998, Officer Brenda Gann responded to a call regarding a disturbance at the home of Tammie Matthews. Tammie Matthews had previously obtained a restraining order against her estranged husband, Terrance Matthews, giving her temporary use of the family home and ordering Terrance to stay away from her. On the night of June 28, Tammie called the police after Terrance came to the family home and slashed the tires on Tammie’s car and broke windows on the house. Officer Gann arrived at the scene as Terrance was backing out of the driveway. Officer Gann blocked him in and turned on her lights and Terrance parked his car. Terrance then exited the car from the passenger side, holding a young child. Officer Gann had been out to the Matthews’ residence before, and was aware of other officers going out for similar domestic disturbances. She testified that Terrance was always drunk, and that was what usually caused the disturbance. Officer Gann testified that Terrance’s speech was very slurred, he was staggering, and when she got closer to him, she noticed a strong odor of alcohol. He told Officer Gann to back off because he might have a gun, and Officer Gann drew her own weapon. Mr. Matthews then reached behind his back and pulled out a box cutter. Officer Gann ordered him to drop the box cutter, and he cooperated by tossing the box cutter onto the back of Tammie’s car. Officer Gann then ordered him to let go of the child and to put his hands on the car. He did not comply right away, but |3Officer Gann could see that he didn’t have anything else in 'his hands, so she holstered her weapon and grabbed him by the back of the pants and pulled the child away from him. At this point, she attempted to handcuff him and was holding him by his right arm. She testified that Terrance was facing the car and was not resisting, but did not put his hands behind his back. She decided to try a distractionary technique called a common peroneal strike, which would momentarily stun Terrance so that she could handcuff him easily without fighting with him. To accomplish this surprise maneuver, she stood behind Terrance and stepped back with her left leg and then attempted to hit Terrance above the back of the knee with her left knee. She was not directly behind Terrance as she needed to be to properly perform this maneuver, but instead was slightly to one side. Right before she made contact, Terrance, who had been staggering and unable to stand still, moved slightly, causing Officer Gann to strike her knee on the bumper of the car. Officer Gann testified that Terrance was drunk and “off balance” and had no idea that she was attempting to strike him from behind. She also testified that she did not expect a drunk person to stand perfectly still. Terrance was not charged with resisting arrest.

Officer Gann initially thought she had bruised her knee, but after experiencing increasing pain, she sought medical attention and it was ultimately determined that she had a deep hairline fracture that irritated the fat pad.

Officer Gann and her husband filed suit against Terrance Matthews, Tammie Matthews, and Allstate, both as Tammie’s homeowners’ insurer and her automobile insurer. Tammie Matthews was voluntarily dismissed during trial. After a bench trial before the Honorable Janice Clark, judgment was rendered in favor of the Ganns and against Terrance Matthews and | ¿Allstate in the amount of $38,180.19. In oral reasons for judgment issued May 2, 2002, Judge Clark stated:

The Court is of the opinion that the plaintiff has preponderated in that she was owed a duty and the duty was breached. Plaintiff in this matter was a uniformed police officer who used reasonable force to subdue and handcuff defendant Terrance Matthews who had previously been armed with a box cutter. The defendant was required by Louisiana to peaceably submit to the arrest of an officer. While trying to handcuff him, she injured her knee severely causing substantial damage.

Terrance Matthews and Allstate both filed suspensive appeals, asserting the following trial court errors:

Terrance Matthews Assignment of Error No. 1:

The trial court erred in finding liability on the part of Terrance Matthews.

Terrance Matthews Assignment of Error No. 2:

The trial court erred in failing to find the Professional Rescuer’s Doctrine precluded plaintiffs recovery.

Terrance Matthews Assignment of Error No. 3:

The trial court erred in failing to assess plaintiff with comparative fault and reducing any damage award accordingly.

Terrance Matthews Assignment of Error No. 4:

The trial court erred in finding plaintiff was injured as a result of striking her knee on a car bumper and awarding' damages. Terrance Matthews Assignment of Error No. 5:

The trial court erred in allowing the introduction of medical expenses into evidence over objection, and in awarding medical expenses which were paid by plaintiffs worker’s compensation carrier.

| ¡¡Terrance Matthews Assignment of Error No. 6:

The trial court erred in allowing the introduction of lost wages into evidence, over objection, when plaintiff failed to plead that item of special damages and in awarding lost wages.

Terrance Matthews Assignment of Error No. 7:

The trial court erred in awarding $30,000.00 in general damages.

Allstate Assignment of Error No. 1:

The trial court’s judgment against Allstate was clearly wrong and manifestly erroneous, as the Allstate policies at issue do not provide coverage in conjunction with the allegations of fault against Terrance Matthews.

Allstate Assignment of Error No. 2:

The trial court’s determination that Terrance Matthews was solely responsible in conjunction with the plaintiff’s injuries was clearly wrong and manifestly erroneous in light of the plaintiffs testimony and the Professional Rescuer’s Doctrine.

Allstate Assignment of Error No. 3:

The trial court’s award of general and special damages to the plaintiff was clearly wrong and manifestly erroneous in light of the evidentiary issues and the duration of the plaintiffs treatment and symptoms.

Allstate Assignment of Error No. 4:

The trial court erred in admitting and relying upon a number of plaintiffs exhibits which were not properly admissible.

DISCUSSION

Professional Rescuer’s Doctrine

The trial court did not address the applicability of the Professional Rescuer’s Doctrine. The Professional Rescuer’s Doctrine is a jurisprudential |firule that essentially states that a professional rescuer, such as a fireman or a policeman, who is injured in the performance of his duties, “assumes the risk” of such an injury and is not entitled to damages. Mullins v. State Farm Fire and Casualty Co., 96-0629 p. 3 (La.App. 1 Cir. 6/27/97), 697 So.2d 750, 752. However, firemen, police officers, and others who, in their professions of protecting life and property, necessarily endanger their safety do not assume the risk of all injury without recourse against others. Id.

A professional rescuer may recover for an injury caused by a risk that is independent of the emergency or problem he has assumed the risk to remedy. A risk is independent of the task, and the assumption of the risk rationale does not bar recovery, if the risk-generating object could pose the risk to the rescuer in the absence of the emergency or specific problem undertaken. On the other hand, “dependent” risks arise from the very emergency that the professional rescuer was hired to remedy. The assumption rationale bars recovery from most dependent risks except when (1) the dependent risks encountered by the professional rescuer are so extraordinary that it cannot be said that the parties intended the rescuers to assume them, or (2) the conduct of the defendant may be so blameworthy that tort recovery should be imposed for the purposes of punishment or deterrence. Mullins, 96-0629 pp. 3-4, 697 So.2d at 752-53.

Police officers are hired to protect others from criminal activities, are expected to effect arrests as part of their duties, and could expect a criminal to resist arrest. Accordingly, the risk of being injured while carrying out an arrest is a dependent risk, arising out of the specific problem which the police officer was hired to remedy. Therefore, in order for a police officer to recover for injuries received while attempting to arrest a criminal who is resisting, the risk created by the arres-tee’s conduct must either be so 17extraordinary that it cannot be said that the parties intended the police officer to assume them, or the conduct of the arres-tee in resisting must be so blameworthy that tort recovery should be imposed for purposes of punishment or deterrence. Worley v. Winston, 550 So.2d 694 (La.App. 2 Cir.), writ denied, 551 So.2d 1342 (La.1989).

In Worley v. Winston, the plaintiff, a police officer, was injured when he and his partner attempted to arrest a “peeping tom.” Plaintiffs partner approached defendant and shouted, “Police. Freeze.” The defendant jumped up and ran away and climbed over a fence. Plaintiff joined the pursuit and eventually approached the defendant, identified himself as a police officer, and told him to stop twice. The defendant did not stop. Plaintiff began to struggle with defendant, and plaintiffs little finger and his watch were broken during the struggle. The court found that while the risk of being injured while effecting an arrest is a dependent risk, under the circumstances plaintiff should recover damages because defendant’s conduct in resisting arrest was not only highly blameworthy, but also criminal.

In the present case, Officer Gann testified that although Terrance was not fully cooperative, he was not resisting arrest. Terrance was not charged with resisting arrest. Furthermore, Officer Gann was aware that Terrance was drunk and did not expect him to stand perfectly still. Therefore, his act in swaying or staggering while she attempted to perform a surprise knee strike from behind cannot be said to create such an extraordinary risk that she cannot expect to have encountered it, nor is it so blameworthy that tort recovery should be allowed as a punishment or deterrence. Therefore, recovery for these injuries is barred by the Professional Rescuer’s Doctrine.

1 «Based on our finding that Officer Gann’s recovery is barred by the. Professional Rescuer’s Doctrine, we pretermit discussion of the remaining assignments of error.

CONCLUSION

For the above assigned reasons, the trial court judgment is reversed. Costs of this appeal are assessed to plaintiffs.

REVERSED.


source: Caselaw Access Project

author: _1¿foil, j.

license: Public Domain

text:
    CAPITOL CITY TOWING & RECOVERY INC.; Blackjack Towing, Inc.; Tow Power, Inc.; and Yvonne E. Reed v. STATE of Louisiana, through the DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, Office of State Police-Towing and Recovery Unit; Office of State Police-Troop A; and Sgt. R. Wayne Ryland.
    No. 2003 CA 0647.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 23, 2004.

      Yvonne Reed, Vincent DeSalvo, Jack Harris, Baton Rouge, for Appellee Plaintiff Capitol City Towing & Recovery, Inc., et al.
    Michael C. Barron, Baton Rouge, for Appellant Defendant La. Dept, of Public Safety & Corrections Office of the State Police.
    Paul Schnexnayder, Baton Rouge, for Appellant Defendant La. Dept, of Public Safety & Corrrections Office of State Police.
    David C. Kimmel, Baton Rouge, for Appellant Defendant La. Dept, of Public Safety & Corrections Office of State Police.
    Panel composed of Judges FRANK FOIL, BRADY M. FITZSIMMONS and EDWARD J. GAIDRY.
   _1¿foil, j.

This appeal challenges a trial court’s determination that numerous Louisiana statutes regulating the towing/storage industry, as well as regulations promulgated pursuant to those statutes, are preempted by federal law. We reverse that ruling, finding that all of the challenged provisions are exempt from preemption by the exceptions provided for in the federal statute.

BACKGROUND

In 1996, Yvonne Reed and one or more of the towing companies she owned, were cited by the State of Louisiana, Office of State Police, for alleged infractions of Louisiana’s Towing and Storage Act and regulations applicable to towing businesses. Administrative hearings ensued, and on June 14, 1996, Reed, along with Capitol City Towing & Recovery, Inc., Blackjack Towing, Inc., and Tow Power, Inc. (collectively, Capitol City Towing) filed this lawsuit against the State of Louisiana, seeking to enjoin the State Police from enforcing the towing laws against them. Specifically, Capitol City Towing alleged it had been subjected to a pattern of harassment by the State Police, causing it to lose business and revenues. Capitol City Towing also maintained that the regulations were invalid, the State Police lacked authority to issue various orders and citations, and the citations and orders were issued in violation of Capitol City Towing’s due process rights.

In a supplemental and amending petition, as well as a motion for summary judgment, Capitol City Towing sought a declaration that various sections of the Louisiana Towing and Storage Act, La. R.S. 32:1711 et seq., and administrative provisions adopted in accordance with those statutes, are preempted by federal law. Louisiana’s Towing and Storage Act was enacted in 1989 to regulate those persons engaged in the business of towing and storing vehicles. The Act vested the Department of Public Safety, Office of State Police, with regulatory authority to administer the Act, and to promulgate rules and regulations to carry out the provisions of the statute. | ¡¡Pursuant to this authority, regulations directed toward the towing business were promulgated in Title 55 of the Louisiana Administrative Code.

49 U.S.C. § 14501(c) expressly preempts state regulation of certain aspects of the motor carrier industry, but also preserves the authority of the states to regulate motor carriers with respect to matters related to safety and financial responsibility. Neither party disputes the applicability of the federal legislation to intrastate businesses involved in the towing and storage of vehicles.

Specifically, Capitol City Towing alleged that federal law preempted the following statutes, rules and regulations: (1) La. R.S. 32:1714(2), which allows the State Police to adopt rules and regulations to ensure that no person shall operate a towing business when they arrive at the scene of a vehicle accident without being called by the police or by the owner of the vehicle or his representative and Section 1933 of Title 55, which implements the prohibition of solicitation of towing business, (2) Section 1917A of Title 55, mandating that towing operators wear clothing sufficient to identify the towing company and the driver; (3) Section 1917C of Title 55, requiring towing operators to develop an itemized statement, bill or invoice of the towing and storage charges incurred for each vehicle towed or serviced; (4) Sections 1917E and 1933C of Title 55, prohibiting a towing service from receiving calls on any police radio communication system or by the use of CB radios unless authorized by a law enforcement agency and banning police monitoring devices in tow trucks; (5) Section 1939A, B, D & E of Title 55, setting forth requirements for storage facility business practices, including those pertaining to storage areas, storage yard practices, hours of operation, billing statement requirements, internal filing of invoices, internal déeor and maintenance of headquarters facility, and inspection procedures; (6) La. R.S. 32:1723, requiring the business owner to maintain adequate records on the storage of all vehicles, which shall remain open to inspection by any peace officer at any time the business is open; (7) Section 1941 of Title 55, 14relating to the procedures for handling stored vehicles, including a requirement that the vehicles be handled and returned in substantially the same condition they existed before being towed and requiring licensees to employ reasonable safeguards and procedures to ensure all personal belongings and contents in the vehicle are intact and returned to the vehicle owner upon release of the vehicle; (8) La. R.S. 32:1718C and Section 1943 of Title 55, subsections A, B, C, D, H, I, J and K, requiring the facility to provide reasonable security barriers to prevent free entry into the facility to assure security to the property contained therein, including fencing and adequate lighting, prohibiting the shared storage of a facility by two or more towing companies, and setting forth record keeping requirements; (9) La. R.S. 32:1714(6) and Section 1945A and B of Title 55, setting forth maximum fees for storage of vehicles and prohibiting additional charges for services not required for the towing or moving of the vehicle during regular business hours; (10) La. R.S. 32:1720 and Section 1949 of Title 55, requiring that the storage facility provide the vehicle owner with information including the location and name of the storage facility and other information relating to the vehicle and setting forth maximum charges that can be charged by owners as administrative costs associated with the owner’s notification obligations; (11) La. R.S. 32:1733, providing that in parishes with a population of 400,000 or more, where a vehicle has been parked on private property and a towing company is asked to remove it and store it by the owner or lessee of the property, the fee charged by the towing company shall not exceed the towing fee a local governing authority would have charged had the vehicle been towed for a violation while parked on public property; and (12) Section 1921A of Title 55, requiring all tow trucks to carry the equivalent of a five-gallon can of oil-absorbant material such as sand or clean dirt in a weatherproof container.

With the exception of La. R.S. 32:1733, the trial court declared the above cited provisions to be unconstitutional and preempted by federal law, 1 ¡¿rejecting the State’s argument that the statutes, rules and regulations fell under the statutory-exemptions from preemption. The judge also denied the State’s request to deem all emergency tows from private property as nonconsensual tows not falling under the scope of the preemption provision. The court enjoined the State Police from enforcing any of the enumerated rules, statutes and regulations.

A direct appeal was taken to the Louisiana Supreme Court, which determined that the trial court’s decision was rooted in the issue of federal preemption, a matter of statutory construction, which did not constitute determination of the constitutionality of a state law. Accordingly, the court transferred the case to this court for consideration on the merits. Capitol City Towing & Recovery, Inc. v. State, Department of Public Safety & Corrections, 03-0075 (La.3/21/03), 842 So.2d 321.

PREEMPTION

Under the Supremacy Clause of the United States Constitution, “the Laws of the United States... shall be the supreme Law of the Land... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. Art. VI, cl. 2. Federal law preempts state law under this clause whenever Congress expressly preempted state action, Congress has installed a comprehensive regulatory scheme in the area, thus removing the entire field from the state realm, or the state action directly conflicts with the force or purpose of federal law. Cardinal Towing & Auto Repair, Inc., v. City of Bedford, Texas, 180 F.3d 686, 690 (5th Cir.1999).

In the Federal Aviation Authorization Act of 1994, Congress moved to deregulate the motor carrier industry by preempting state regulation of the prices, routes and services of motor carriers, and providing for exemptions from the statutes’ preemptive effect. That provision later became codified in the Interstate Commerce Commission Termination Act at 49 U.S.C. § 14501(c). 49 U.S.C. § 14501(c) expressly preempts state laws “related to a price, route, or service of any motor carrier. . .with respect to the |fitransportation of property.” However, Congress provided four statutory exemptions from preemption in Section 14501(c)(2)(A). The first exempts the “safety regulatory authority of a State with respect to motor vehicles.” Also exempted from preemption are the State’s authority to impose highway route controls or limitations under certain conditions, the State’s authority to regulate motor carriers with regard to minimum amounts of financial responsibility relating to insurance requirements, and the authority of a State to regulate prices for “non-consensual” tow truck services.

At issue in this case is whether the statutes, rules and regulations attacked by Capitol City Towing are preempted by 49 U.S.C. § 14501(c), or whether those provisions fall under Louisiana’s safety regulatory authority and are thus saved from preemption. Where, as here, a federal statute expressly preempts state or local laws, in determining the scope of that preemption, a court must begin with the assumption that Congress did not intend to supersede the historic police powers of the states unless that was the clear and manifest purpose of Congress. City of Columbus v. Ours Garage and Wrecker Service, Inc., 536 U.S. 424, 432, 122 S.Ct. 2226, 2232, 153 L.Ed.2d 430 (2002). Thus, Congress’ purpose in enacting the law is the ultimate touchstone of preemption analysis. Ace Auto Body & Towing, Ltd. v. City of New York, 171 F.3d 765, 771 (2nd Cir.1999), cert. denied, 528 U.S. 868, 120 S.Ct. 166, 145 L.Ed.2d 140 (1999).

According to judicial decisions surveying the history of 49 U.S.C. § 14501(c), Congress observed that state economic regulations of motor carrier operations presented a huge problem for national and regional carriers attempting to conduct a standard way of doing business. The purpose behind the legislation was to put the motor carrier industry on the same playing field as the air carrier industry, which had already been deregulated by Congress. In so doing, Congress hoped to eliminate the competitive advantages air carriers, such as Federal Express, had over motor carriers, such as the United Parcel Service. Congressional reports ^clarified that the preemption exemptions simply reflect the fact that State authority to regulate safety, financial fitness and insurance of motor carriers is not affected since regulation in those areas is not a price, route or service. See Cole v. City of Dallas, 314 F.3d 730, 734 (5th Cir.2002); Ace Auto Body & Towing, Ltd. v. City of New York, 171 F.3d at 772. In light of these objectives, the Supreme Court in Ours Garage concluded that Congress’ clear purpose was to preempt the State’s economic authority over motor carriers of property, not restrict the preexisting and traditional state police power over safety.

In determining whether state regulations pertaining to the towing industry are preempted by federal law, federal courts have taken the position that regulations reasonably related to the safety aspects of towing disabled vehicles, with only an incidental economic burden imposed thereby, will fall under the safety exception. Cole v. City of Dallas, 314 F.3d at 734; Ace Auto Body & Towing, Ltd. v. City of New York, 171 F.3d at 774. Applying this test, the court in Ace Auto Body upheld a city’s rotational towing requirements, as well as regulations pertaining to licensing requirements, display of information, reporting, recordkeeping, criminal history, insurance, posting of bonds, and maintenance of storage and repair facilities. See also Tow Operators Working to Protect Their Right to Operate on the Streets of Kansas City v. City of Kansas City, Missouri, 338 F.3d 873 (8th Cir.2003) (upholding rotational towing requirement designed to prevent “wreck chasing”), Cole v. City of Dallas, 314 F.3d 730 (holding a regulation making certain persons ineligible to receive permit to operate tow truck saved from preemption under safety exception).

With this test in mind, we turn to the specific provisions of Louisiana’s Towing and Storage Act and administrative regulations declared to be preempted by the trial court. Capitol City Towing argues that the provisions are nothing more than economic regulations aimed at the towing industry Land are the type of regulations Congress intended to preempt. The State, on the other hand, urges that the subject statutes and regulations found to be preempted by the trial court come within the safety exemption of 49 U.S.C. § 14501(c). We agree with the State’s position.

The first group of challenged provisions institute a ban on solicitation of towing business by tow truck operators (La. R.S. 32:1714(2) and Section 1933 of Title 55). The State submitted the affidavit of Captain Wayne Ryland of the Louisiana State Police, who attested that in order to obtain business, tow trucks barge through intersections, down highways and even through accident scenes to be the first tow truck at the scene. Captain Ryland attested that tow truck operators fought over tows, interfered with medical care of victims, and solicited to take victims to doctors and lawyers to gain towing business. This type of regulation, aimed at preventing “wreck chasing,” has previously been upheld by federal courts in the Ace Auto Body and Cole cases as falling within the state’s safety regulatory authority. Likewise, we find the ban on solicitation to be designed to protect the public from the safety hazards associated with wreck-chasing, and any economic effects on intrastate towing are incidental, thus bringing the ban on solicitation within the safety exemption. Additionally, as the limitations on the use of CB radios and police communications, found in Sections 1917E and 1933C of Title 55, also further the State’s goal of eliminating “wreck-chasing” by the towing industry, they too fall within the safety exemption.

Section 1917A of Title 55, requiring that tow operators wear clothing sufficient to identify the towing company and driver, was challenged by Capitol City Towing as imposing an unreasonable economic burden on towing companies that is unrelated to safety concerns. We find, however, that the provision is clearly related to the efficient administration of accident scenes and is designed to make the towing and removal of vehicles safer by insuring that only professionals, who can be easily identified, tow vehicles. Therefore, this provision falls under the safety exemption to preemption.

| flThe next set of regulations declared preempted by the trial court deal with storage facility requirements, and can be found in Title 55 at Sections 1917C, 1939A, B, D & E; 1941; 1943 A,B,C, D, H, I, J and K; 1945 A and B and 1949, as well as La. R.S. 32:1714(6), 1718C, 1720 and 1723. These regulations set forth requirements for storage facility business practices including hours of operation, itemized statement of charges, maintenance of records, requirements for handling stored vehicles, notification of owners, and pricing of storage services. The regulations also require a storage facility to provide a reasonable security barrier to prevent free entry to the facility. These provisions are largely aimed at protecting the owners of stored vehicles and the stored property and cannot be viewed as a “guise for economic regulation.” Instead, as the court in Ace Auto Body observed in upholding similar regulations, the challenged provisions reasonably related to safety of towing disabled vehicles or financial responsibility of the towing operator and impose so peripheral and incidental an economic burden on interstate commerce that no detailed analysis is necessary to conclude that they fall within the Section 14501(c)(2)(A) exemptions. Ace Auto Body & Towing Ltd. v. City of New York, 171 F.3d at 776-77.

The last provision struck down by the trial court requires towing companies to carry “oil-absorbent materials” and weatherproof containers to store the materials in. Capitol City Towing acknowledges that carrying oil absorbent materials is related to safety, but complains that it is too economically burdensome for the State to require it to place the materials in weatherproof containers. We find that requiring oil-absorbant materials, such as sand or oil, to be protected from the elements, is clearly related to vehicle safety and thus is saved from preemption under the safety exemption.

^CONCLUSION

For the foregoing reasons, we find that all of the challenged provisions of Louisiana’s Towing and Storage Act and regulations found in Title 55 fall -within the safety exemption and are not preempted by 49 U.S.C. § 14501(c). Accordingly, we reverse the judgment of the trial court decreeing the enumerated rules, statutes and regulations to be preempted by federal law. This case is remanded to the trial court to conduct proceedings consistent with this opinion. Costs of this appeal are assessed to appellees.

REVERSED AND REMANDED.

      . In remaining assignments of error, the State argues that the trial court erred in refusing to recognize the State’s authority to regulate all emergency tows as "non-consensual tows” falling under one of the express exemptions to preemption. Because we find the statutes and regulations at issue fall under the safety exemption, we pretermit discussion of the State's remaining assignments of error.


author: bGAIDRY, J.

text:
    James BLACKBURN v. James G. GENGELBACH and Louisiana Health Service & Indemnity Company d/b/a Blue Cross/Blue Shield of Louisiana.
    No. 2003 CA 0739.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 23, 2004.
    Writ Denied May 7, 2004.

      Patrick J. Hanna, Lafayette, Counsel for Plaintiff/Appellant James Blackburn.
    Keely Y. Scott, Baton Rouge, Counsel for Defendant/Appellee Charles Chester, Health Associates of America and Scottsdale Insurance Company.
    Charles A. O’Brien, Baton Rouge, Counsel for Defendant/ Appellee James Gengel-bach and Louisiana Health Services & Indemnity Company d/b/a Blue Cross/Blue Shield.
    Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.
   bGAIDRY, J.

In this suit for damages arising from an alleged conspiracy and defamation, the trial court granted summary judgment in favor of defendants, and plaintiff appealed. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

In 1991, Health Associates and Blue Cross/Blue Shield entered into a contractual agreement whereby Health Associates agreed to provide services to Blue Cross/ Blue Shield, including the performance of utilization review and pre-certification of patients who sought to obtain mental health benefits from Blue Cross/Blue Shield. Health Associates reviewed the files of all patients who sought benefits from Blue Cross/Blue Shield due to mental/psychiatric problems and provided a recommendation as to whether the claim for benefits should be approved or disapproved by Blue Cross/Blue Shield.

In 1999, Health Associates entered into separate consulting agreements with Drs. Charles Chester and Henry Olivier, wherein the doctors agreed to provide psychiatric consultation services for Health Associates. Specifically, Drs. Chester and Olivier were to review patients’ need for psychiatric services and make recommendations regarding same.

Plaintiff, Dr. James Blackburn, was a psychiatrist and medical director at Charter Cypress Hospital in Lafayette, Louisiana. Blue Cross/Blue Shield and Charter had a contract wherein Charter Cypress would provide services to patients insured by Blue Cross/Blue Shield, to be paid for by Blue Cross/Blue Shield at agreed-upon rates. C.L. was a patient at Charter Cypress from September 18, 1999 to October 1, 1999 and from October 7, 1999 to October 10, 1999 under the care of Dr. Blackburn. Dr. Blackburn | ^concluded that inpatient services were necessary for treatment of C.L.’s depression and suicidal thoughts.

Drs. Chester and Olivier received C.L.’s medical records pursuant to their contracts with Health Associates for the purpose of reviewing them and determining whether C.L. was entitled to Blue Cross/ Blue Shield benefits for inpatient care as recommended by Dr. Blackburn. They concluded that C.L.’s primary problem was substance abuse/dependency and not depression, and thus recommended that she be denied benefits for inpatient psychiatric care.

These recommendations were forwarded to Blue Cross/Blue Shield, and Blue Cross/ Blue Shield subsequently denied C.L.’s benefits. Dr. Blackburn made a first request for an appeal to Health Associates and then made a second request for an appeal to Blue Cross/Blue Shield. Blue Cross/Blue Shield’s appeals committee ultimately approved the benefits, because although they agreed with Health Associates’ recommendation that benefits should be denied because C.L.’s primary problem was one of substance abuse rather than depression, they felt that C.L. did appear to need inpatient care.

In December 1999, Dr. James Gengel-bach, the Medical Director of Blue Cross/ Blue Shield, sent a letter to Lisa Whaley, Regional Managed Care Director of Charter Cypress Hospital, addressing concerns with Dr. Blackburn’s treatment of C.L. Lisa Whaley forwarded this letter to several people at Charter in an attempt to resolve the situation.

Dr. Blackburn filed suit against Dr. Gengelbach and Louisiana Health Service and Indemnity Company, d/b/a Blue Cross/Blue Shield of Louisiana, alleging conspiracy and defamation in connection with Dr. Gengelbach’s letter. Specifically, Dr. Blackburn alleges that Dr. Gengel-bach, while in the 14course and scope of his employment with Blue Cross/Blue Shield, issued a defamatory letter to Lisa Whaley, wherein he stated that Dr. Blackburn had rendered inappropriate medical treatment to C.L. and that Dr. Blackburn had not adequately ascertained the significance of C.L.’s medical history. Dr. Blackburn’s conspiracy claim arises from an assertion that Health Associates and Drs. Chester and Olivier conspired to fabricate the information relayed to Dr. Gengelbach and contained in the letter to Lisa Whaley as part of a scheme to force Dr. Blackburn to change his behavior and to save Blue Cross/Blue Shield money.

A motion for summary judgment was filed by the defendants, and the trial court granted the summary judgment on grounds that Dr. Blackburn failed to meet his burden of proof on the defamation and conspiracy claims. This appeal followed, in which Dr. Blackburn asserted the following assignments of error:

1. The trial court erred, as a matter of law, in finding that the statements were not defamatory as a matter of law.
2. The trial court erred when it implicitly found the defendants met their burden of proof and established the absence of any genuine issue of material facts.
3. The trial court erred when it found that the plaintiff did not meet his burden of proof to. establish the elements necessary to maintain a cause of action in defamation beyond- summary judgment.
4. The trial court erred in its application of existing law for defenses to the claim of defamation rather than applying existing law to determine if the elements of the tort of [fidefamation had been established, thereby imposing upon the plaintiff an erroneous burden of proof.
5. After having ruled that the plaintiff failed to establish the elements necessary to maintain a claim in defamation, the trial court erred in finding that there was no conspiracy, as a matter of law, among the defendants.

DISCUSSION

An appellate court’s review of a summary judgment is a de novo review based upon the evidence presented at the trial court level and using the same criteria used by the trial court in determining whether a similar judgment should be granted. J. Ray McDermott, Inc. v. Morrison, 96-2337 p. 9 (La.App. 1 Cir. 11/7/97), 705 So.2d 195, 202, writs denied, 97-3055, 97-3062 (La.2/13/98), 709 So.2d 753, 754. A motion for summary judgment may be granted only if the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966. The burden of showing that there is no genuine issue of material fact is on the mover.

However, because the threat of un-meritorious litigation may have a chilling effect on the constitutionally protected right of free speech, the courts employ a different standard for summary judgment in defamation cases. Wisner v. Harvey, 96-0195 pp. 3-4 (La.App. 1 Cir. 11/8/96), 694 So.2d 348, 349-50. Summary adjudication is a useful procedural tool and an effective screening device for avoiding the unnecessary harassment of defendants in unmeritorious actions which threaten the right of free speech.

For these reasons, the defamation plaintiff who opposes summary judgment bears a more onerous burden of proof than plaintiffs in other | fiactions and must show that he can produce sufficient evidence at trial to prove the elements of the case with convincing clarity. Wright v. Dollar General Corp., 602 So.2d 772, 774-75 (La.App. 2 Cir.), writ denied, 606 So.2d 538 (La.1992). If the plaintiff fails to meet his burden of proof as to any contested element, there is no genuine issue of material fact, and summary disposition of the claim is proper. Sassone v. Elder, 626 So.2d 345, 351 (La.1993).

The five elements of a defamation claim are: (1) defamatory words; (2) publication; (3) falsity; (4) malice, actual or implied; and (5) resulting injury. Ruffin v. Walmart Stores, Inc., 01-0613, p. 2 (La.App. 1 Cir. 5/10/02), 818 So.2d 965, 967, writ denied, 02-1636 (La.9/30/02), 825 So.2d 1200.

“Defamatory words” are those that tend to harm the reputation of another so as to lower the person in the estimation of the community, to deter others from associating or dealing with the person, or otherwise exposes a person to contempt or ridicule. Fitzgerald v. Tucker, 98-2313, p. 11 (La.6/29/99), 737 So.2d 706, 716. Whether a particular statement is objectively capable of having a defamatory meaning is a legal issue to be decided by the court, considering the statement as a whole, the context in which it was made, and the effect it is reasonably intended to produce in the mind of the average listener. Bell v. Rogers, 29,757, p. 5 (La.App. 2 Cir. 8/20/97), 698 So.2d 749 at 754. Thus, in order to determine whether the letter at issue in this case contained defamatory words, we must first look at the context in which the statements were made.

The allegedly defamatory letter was directed to Lisa Whaley, Executive Director of Managed Care Services at Charter Cypress. In her position as Executive Director of Managed Care Services, Mrs. Whaley was|7in charge of all of Charter’s national managed care contracts and accounts, both from the contracting side and the account management side. The contract between Blue Cross/Blue Shield and Charter was negotiated by managed care representatives at the hospital, including Mrs. Whaley. In 1999, Mrs. Wha-ley was in the process of renegotiating the hospital’s contract with Blue Cross/Blue Shield. Mrs. Whaley testified that Charter Corporate had sent her to Lafayette to look into some problems and attempt to fix them.

Mrs. Whaley attended a meeting in 1999 with Blue Cross/Blue Shield and hospital staff in an attempt to resolve problems that had been ongoing for several years concerning high denial rates for psychiatric services. One issue discussed at the meeting was an audit performed by Blue Cross/Blue Shield of patients who had been admitted as psychiatric patients and who Blue Cross/Blue Shield or Health Associates thought should have been admitted as chemical dependency patients. At some point during this discussion of psychiatric versus chemical dependency admissions, things became heated, and Dr. Blackburn left the meeting. Mrs. Whaley testified that the meeting continued and after the meeting was over she expected that if there were future problems with the hospital that Dr. Gengelbach or someone else would contact her about it.

In December of 1999, Dr. Gengelbach contacted Mrs. Whaley concerning a problem with two recent psychiatric admissions of C.L. by Dr. Blackburn. Benefits for these services were denied as not being medically necessary. The letter stated that Drs. Chester and Olivier, as well as a third consultant, Dr. Davis, all independently reviewed C.L.’s chart and felt that her chemical dependency issues were not properly addressed since she had a prominent substance abuse history and a substance abuse evaluation was not | Rperformed until ten days after her admission and only then after repeated requests by the utilization review agency. Pharmacy records indicated that C.L. had been obtaining refills of prescription drugs frequently, even though her surgeries were years ago and her medical conditions seemed to have stabilized. Drs. Chester, Olivier, and Davis noted that there was no Axis II diagnosis noted upon C.L.’s admission, but all agreed that her primary issue was abuse of prescription drugs. They noted that these prescription drugs were continued throughout her inpatient stay and felt that they interfered with the treatment of her depression. Based upon their review of Dr. Blackburn’s treatment of C.L., Drs. Gengelbach, Chester, Olivier, and Davis felt that Dr. Blackburn had failed to ascertain the significance of C.L.’s prescription drug abuse and its relationship to her current problems.

Dr. Gengelbach next pointed out that Blue Cross/Blue Shield’s audit concerning psychiatric admissions that Blue Cross/ Blue Shield felt should have been chemical dependency admissions revealed other cases of this problem with Dr. Blackburn. The record evidence reveals that at least two of the admissions listed in the audit were patients of Dr. Blackburn.

Considering the statement taken as a whole, the context in which it was made, and the effect it is reasonably intended to produce, this court finds that the letter from Dr. Gengelbach to Lisa Whaley was not defamatory. The letter was sent as part of an attempt to resolve an ongoing problem with patients being admitted at Charter as psychiatric patients and then Blue Cross/Blue Shield denying benefits because they believed that the patients should have been admitted as chemical dependency patients. Due to our finding that the statement contained in the letter is not defamatory, there is no genuine issue of material fact as to an essential element of the defamation claim, and therefore summary judgment is appropriate on this |flclaim. The assignments of error relating to the defamation claim are without merit.

We next turn to Dr. Blackburn’s conspiracy claim. La. C.C. art. 2324 provides that one who conspires with another to commit an intentional act is solidarily liable with that person for damages resulting from that intentional act. The actionable element under this code article is not the conspiracy itself, but the underlying intentional tort, which in this case would be defamation. It is unnecessary for us to determine whether a conspiracy actually existed in this ease; since we find that there was no defamatory statement in this case, there can be no recovery for any alleged conspiracy to defame Dr. Blackburn. Thus summary judgment on the conspiracy claim is appropriate in this case.

CONCLUSION

For the reasons stated above, we affirm the judgment of the trial court granting summary judgment and dismissing Dr. Blackburn’s defamation and conspiracy claims with prejudice. All costs of this appeal are assessed to Dr. James Blackburn.

AFFIRMED.

FITZSIMMONS, J., concurs in the result.


author: i .McClendon, j.

text:
    Dave P. FOLSE, Jr. v. GULF TRAN, INC.
    No. 2003 CA 0758.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 23, 2004.

      Steven M. Speigel, Leo M. Prange, III, New Orleans, Counsel for PlaintifiyAppel-lee Dave P. Folse, Jr.
    Fred E. Salley, Covington, Counsel for Defendant/Appellant Gulf Tran, Inc.
    Before: PETTIGREW, DOWNING, and McClendon, jj.
   i .McClendon, j.

In this action brought pursuant to the Jones Act, 46 U.S.CApp. § 688 et seq., and general maritime law, issues of liability and attorney’s fees are raised on appeal. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

David P. Folse, Jr. was employed by Seahorse Marine as a captain aboard the MW Mr. Walter. In 1997, Seahorse Marine sold the M/V Mr. Walter and several other boats to Gulf Tran, Inc. Some crew members of those vessels, including Folse, became employees of Gulf Tran at that time. Subsequently, in November of 1997, Gulf Tran assigned Folse to the MW Mr. Walter.

In December of 1997, Folse advised Gulf Tran that he was injured while working on the MW Mr. Walter and was suffering from an infected “blister” on his right foot as a result of those injuries. Gulf Tran began paying Folse maintenance and cure at that time. On January 26, 1998, after further investigation, Gulf Tran discontinued those benefits.

On November 15, 2000, Folse filed the instant action, seeking recovery under the Jones Act and general maritime law. Therein, he alleged that in November of 1997, another employee, Captain Teodro Huerta, stepped on his foot, causing a diabetic ulcer to develop. Folse also alleged that, subsequently, Captain William Gant, while intoxicated, forced Folse to get off the MW Mr. Walter at an abandoned dock after nightfall. At the dock and while walking to a nearby road, Folse was exposed to muddy waters that allegedly caused the diabetic ulcer to become extremely infected. Folse asserted that this injury caused him to suffer serious and debilitating personal injuries, including physical pain and suffering, loss of enjoyment of I.Jife, mental and emotional distress, and loss of wages. Folse sought to recover damages, maintenance and cure, and attorney’s fees.

After hearing the matter, the trial court rendered judgment in favor of Folse and against Gulf Tran, awarding Folse maintenance and cure in the sum of $14,900.67. The court further found that Gulf Tran was negligent and awarded Folse $15,000.00 in damages, but reduced that sum by 50% upon a finding that Folse was 50% at fault in causing his injuries. Gulf Tran appeals that judgment, contending the trial court erred in finding it liable for Folse’s injuries. Folse answered the appeal, asserting the trial court erred in failing to award him attorney’s fees under general maritime law.

STANDARD OF REVIEW

Admiralty claims may be brought in federal court pursuant to its admiralty jurisdiction or in state court under the savings to suitors clause; in either case, federal substantive maritime law applies. Antill v. Pub. Grain Elevator of New Orleans, Inc., 577 So.2d 1039, 1040 (La.App. 4 Cir.), writ denied, 581 So.2d 684 (La.1991). However, factual findings made by the trial court in general maritime or Jones Act cases are reviewed under the manifestly wrong or clearly wrong standard of review used by the Louisiana appellate courts in reviewing factual findings of lower courts. Milstead v. Diamond M Offshore, Inc., 95-2446, p. 11 (La.7/1/96), 676 So.2d 89, 96.

Under the manifest error standard of review enunciated in Stobart v. State of Louisiana, Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993), in order to reverse a factual determination, an appellate court must find (1) a reasonable factual basis does not exist in the record for the finding |4and (2) the record establishes that the finding is clearly wrong or manifestly erroneous. The issue to be resolved by a reviewing court is not whether the factfinder’s conclusion is right or wrong, but whether the conclusion is a reasonable one. Nevertheless, although it must give great deference to the trier of fact, a reviewing court has a constitutional duty to review facts and reverse trial court judgments that are clearly wrong based on the evidence, or are clearly without eviden-tiary support. Ambrose v. New Orleans Police Dep’t Ambulance Serv., 93-3099, p. 8 (La.7/5/94), 639 So.2d 216, 221. If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the appellate court may not reverse it even though it is convinced that if it had been sitting as the trier of fact, it would have weighed the evidence differently. Wood v. SubSea Int’l, Inc., 99-1320, p. 7 (La.App. 4 Cir. 3/29/00), 766 So.2d 563, 568, writ denied, 2000-1237 (La.6/16/00), 765 So.2d 336. 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. Am. Guarantee & Liab. Ins. Co., 507 So.2d 825, 826 (La.1987).

FORFEITURE OF MAINTENANCE AND CURE

Maintenance and cure is an obligation imposed upon a shipowner to provide the cost of medical treatment and basic living expenses to a seaman who becomes ill or injured during his service to the ship. Silmon v. Can Do II, Inc., 89 F.3d 240, 242 (5th Cir.1996). The obligation to pay maintenance and cure is not predicated on the fault or negligence of the shipowner. Aguilar v. Standard Oil of N.J., 318 U.S. 724, 730, 63 S.Ct. 930, 934, 87 L.Ed. 1107 (1943). Furthermore, a seaman’s right to maintenance and cure is subject to very few well-defined and very narrow exceptions. A seaman who intentionally misrepresents or conceals medical [¿facts from an employer while applying for work will forfeit his right to seek maintenance and cure if the misrepresented or undisclosed facts are material to the employer’s decision to hire him and if there is a causal connection between the withheld information and the injury which is eventually sustained. McCorpen v. Cent. Gulf S.S. Corp., 396 F.2d 547, 549 (5th Cir. 1968), cert. denied, 393 U.S. 894, 89 S.Ct. 223, 21 L.Ed.2d 175 (1968).

On appeal, Gulf Tran asserts that the trial court erred in failing to conclude that Folse forfeited his claim for maintenance and cure because he failed to disclose to his employer that he suffered from Type II Diabetes. Given the circumstances of this case, we disagree.

On September 18,1997, Folse completed an application for employment with Gulf Tran, wherein the employer asked few questions concerning Folse’s health. In his application for employment, Folse indicated, by choosing a pre-printed reply to a query, that he could perform the tasks of a captain “without accommodation.” Additionally, the following question appeared on the application for employment: “The Rehabilitation Act of 1973 provides that all applicants and employees be offered the opportunity to identify themselves as handicapped. Do you consider yourself handicapped?” To that question, Folse replied, “No.” The employer made no further inquiries on the application concerning Folse’s health and did not inquire as to any preexisting medical conditions. However, in the application, Folse agreed to have any medical examinations desired by the employer and gave Gulf Tran access to his medical records. Gulf Tran did not require that Folse submit to examination by a physician before or after he began working for Gulf Tran and did not examine Folse’s medical records.

[ fiFolse testified at trial that he believed his diabetic condition would not prevent or hinder him from performing his tasks as captain, that he needed no accommodation for his condition while performing his duties, and that he did not consider himself to be handicapped “due to his diabetes.” Additionally, Folse had worked as a captain for his prior employer after he was diagnosed with Type II Diabetes and with the knowledge of that employer. Although Folse suffered from a diabetic lesion during that employment, there is no evidence in the record that his diabetes adversely impacted his prior employer or was of concern to his prior employer.

Considering this evidence, the record supports the factual conclusion that Folse did not intentionally misrepresent or conceal his diabetes. Therefore, we find no manifest error on behalf of the trial court’s determination that Folse did not forfeit his right to maintenance and cure. This assignment of error lacks merit.

CAUSATION

With respect to the liability of Gulf Tran, the trial court made the following findings of fact as expressed in its written reasons for judgment:

This Court finds that plaintiff, Dave Folse, Jr., was a “Jones Act seaman” as set forth in 46 U.S.C.App. § 688, at the time he was employed by defendant, Gulf Tran, Inc. on board the vessel MTV Mr. Walter. As previously noted, plaintiff suffered from a preexisting condition, namely Type II Diabetes. This Court finds that plaintiff did in fact have a diabetic lesion on his foot, however, based on the testimony of plaintiff as well as the testimony of Captain Huerta, the Court cannot find that this initial injury was caused as a result of any accident on board either the M/V Mr. Walter, or at any other time during his employ. This Court would note this preexisting condition became aggravated when, in November 1997, Captain William Gant, while in an intoxicated state, ordered plaintiff off of the boat at night placing him on [an] abandoned area of the dock of Port Fouchon. This dock was not the designated crew change point for the seaman assigned to the vessel. When plaintiff disembarked the vessel, he immediately found himself abandoned in a dock area that was secured by a fence. This forced him to traverse a muddy, marshy area in order to find an |7area of the fence that he could climb in order to gain access to a public roadway....
Plaintiffs foot became infected partly as a result of exposing the lesion in his foot to the muddy waters located in the area of the dock where he was abandoned which in part necessitated medical treatment. This Court would also note that according to the medical testimony of Dr. Steven [Morris] and Dr. Melvin Parnell, Mr. Folse was a less that compliant patient, indicating that due [to] his own shortcomings in his treatment of his Type II Diabetes, the infection became more serious.

Gulf Tran contends that the trial court erred in holding it liable for Folse’s injuries. Specifically, Gulf Tran asserts that the trial court erred in concluding that an injury related to Folse’s employment with Gulf Tran, rather than a preexisting diabetic condition, caused the diabetic ulcer to become infected. Gulf Tran further contends that the record is void of any medical evidence in support of a causal connection between Folse’s allegations and the initiation or aggravation of infectious lesions precipitated by diabetes.

The evidence reflects that Folse worked on the M/V Mr. Walter as an employee of Gulf Tran from November 19, 1997 through November 29, 1997. During that period, he held the position of second captain and worked with two other employees of Gulf Tran, Captain William Gant and a deck hand. It is undisputed that Gant, while in an intoxicated state, ordered Folse off the vessel at an abandoned dock in Port Fouchon on the evening of November 29, 1997.

Folse testified that, after disembarking, he saw no telephone or any other means to call for assistance. No transportation was available to transport him from the dock. Therefore, Folse walked through calf-deep muddy water for approximately two hours before reaching a nearby road. Eventually, a passing truck transported Folse to his home. The next morning |sFolse telephoned Ross D. Bruce, the president and general manager of Gulf Tran, and informed him that Gant had forced him off the vessel.

It is undisputed that Folse had a diabetic lesion on the bottom and outside of his right foot at the time he was forced off the MTV Mr. Walter. However, his employer was unaware that Folse suffered from Type II Diabetes, a condition diagnosed prior to Folse’s employment with Gulf Tran, and was unaware of the fact that Folse had a diabetic ulcer on his right foot. When Folse reported the incident to Bruce on November 30, 1997, Folse did not tell Bruce that he suffered from diabetes, that he had a diabetic lesion on his right foot, or that the water had irritated the lesion.

Folse testified that he took proper care of the wound, yet it did not heal. On December 16, 1997, Folse went to the emergency room at St. Anne General Hospital for treatment of the lesion and was admitted to the hospital. Two days later, he was released. Folse continued treatment with Dr. Stephen B. Morris for several weeks after his release from the hospital. On December 30, 1997, Folse filed an accident report with his employer. Therein, he stated that at the end of November his “foot got stepped on and made a blister that got infected.”

In January of 1998, Gulf Tran requested that Dr. Melvin Parnell, Jr., an infectious disease and orthopedic specialist, examine Folse. On January 26, 1998, Dr. Parnell examined Folse and immediately admitted him into East Jefferson General Hospital for treatment of the infection associated with the diabetic ulcer. Ultimately, the wound healed. On March 12, 1998, upon a finding that Folse had reached maximum medical improvement, Dr. Parnell released Folse to return to work.

The medical evidence reflects that the wound contained three types of bacteria. Dr. Parnell testified that each type of bacteria was very common |fland could be found “anywhere,” including muddy water. He stated that it was reasonable to conclude that the muddy water caused the infection.

Dr. Morris also testified that all three types of bacteria are commonly found in muddy water. He opined that Folse could have picked up the various bacteria in the muddy water; however, the diabetes was the major factor in causing Folse’s condition. Dr. Morris stated that Folse could return to work as a captain on a vessel once his foot healed.

The trial court made the factual determination that the preexisting lesion was aggravated by muddy water on November 29, 1997, because Gant forced Folse off the vessel. This conclusion is clearly supported by the testimony of the plaintiff, Dr. Morris and Dr. Parnell. Therefore, the factual determination that the muddy water resulted in the aggravation of the preexisting lesion is not manifestly erroneous. Stobart, 617 So.2d at 882.

ATTORNEY’S FEES

In his answer to the appeal, Folse contends that the trial court erred in denying his request for attorney’s fees as Gulf Tran’s refusal to pay maintenance and cure from January 26,1998 through March 12, 1998 was arbitrary and capricious. We disagree.

An award of attorney’s fees for the failure to pay maintenance and cure is appropriate only in the most egregious circumstances. A shipowner who acted reasonably in refusing to pay maintenance and cure is liable only for the amount of maintenance and cure he failed to pay. If the shipowner refused to pay without a reasonable defense, he is liable for the maintenance and cure he failed to pay and compensatory damages. If the owner lacks a reasonable defense and has exhibited callousness and indifference to the seaman’s plight, he is liable for attorney’s fees as well. Thus, applying this escalating scale of liability, an award of attorney’s fees is proper only if the linemployer has been found to have acted in a fashion that is callous and recalcitrant, arbitrary and capricious, or willful, callous, and persistent in refusing to pay maintenance and cure. Morales v. Garijak, Inc., 829 F.2d 1355, 1358 (5th Cir.1987).

In the instant case, Folse submitted his accident report to Gulf Tran more that one month after the alleged injuries occurred and complained only of an infected “blister.” In the accident report, the description of the events allegedly resulting in Folse’s injuries is very limited and unclear. At no time did Folse advise his employer that he suffered from a diabetic lesion, although the record reflects that he had been treated for the same condition in the past. It was not until Folse was examined by Dr. Parnell that Folse’s preexisting condition was revealed to Gulf Tran. It is undisputed that diabetic lesions with the same bacterial infections as those present in Folse’s wound are common and can result from many, very common causes or situations. Furthermore, Drs. Morris and Parnell testified that careful, meticulous care of a diabetic lesion is essential to recovery. Yet, the trial court found that Folse was a “less than compliant patient.”

Under these circumstances, there clearly existed some question as to the cause of the infection when Gulf Tran stopped paying maintenance and cure to Folse. Therefore, we cannot say that the defendant’s refusal to pay maintenance and cure was unreasonable or arbitrary and capricious. For these reasons, the trial court did not err in refusing to award attorney’s fees to Folse.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court. Costs are assessed equally to Gulf Tran, Inc. and Dave P. Folse, Jr.

AFFIRMED.

      . In his answer to the appeal, Folse alleged additional errors on behalf of the trial court. However, these additional assignments of error were not briefed and are considered abandoned. See Uniform Rules, Courts of Appeal, Rule 2-12.4; Canizaro v. Tangipahoa Parish Sch. Sys., 02-1913, p. 4 (La.App. 1 Cir. 8/20/03), 853 So.2d 741, 744 n. 2.


author: _[¿FOIL, J. 11 FITZSIMMONS,

text:
    METER READING SPECIALISTS, INC. v. CITY OF DENHAM SPRINGS.
    No. 2003 CA 0703.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 23, 2004.
    Writ Denied May 7, 2004.

      D. Blayne Honeycutt, Denham Springs, for Appellee Plaintiff Meter Reading Specialists, Inc.
    Jay J. Harris, Denham Springs, for Appellant Defendant City of Denham Springs.
    Panel composed of Judges FRANK FOIL, BRADY M. FITZSIMMONS and EDWARD J. GAIDRY.
   _[¿FOIL, J.

This is an appeal from a judgment in favor of a meter reading contractor against the City of Denham Springs, finding a breach of contract and awarding damages. On review, while we agree with the trial court on the issue of liability, we reverse its judgment awarding damages.

FACTS AND PROCEDURAL BACKGROUND

Meter Reading Specialists, Inc. (MRS), is an independent contractor whose employees read utility meters for different providers. MRS held the meter reading contract with the City of Denham Springs from 1977 until 1998. In 1992, the City drew up a more formal written contract than had been utilized previously. The new contract provided for a renewable two-year term. The City Council unanimously renewed the contract with MRS in 1994 and 1996, but decided to bid out the contract in 1998. Another company, Trey Enterprises, Inc., submitted the lowest bid, and the contract was awarded to Trey for the 1998-2000 contract period.

MRS filed suit in January 2001 based upon the 1998 contract awarded to Trey. The suit alleged a breach of contract based upon an alleged automatic renewal clause in the policy. Under the clause, the contract was automatically renewed every two years unless each party gave sixty days written notice to the other that the contract would not be renewed. MRS contended that the City did not provide the requisite written notice that it was exercising its option not to renew the contract.

The City contended it published in the local newspaper the Council minutes wherein it was announced that it would bid out the meter reading services. According to the City, MRS was aware that it was bidding out the contract as evidenced by the fact that it subsequently submitted a bid. The City argued that MRS cannot complain of not receiving proper notice when it participated in the bid process.

laFollowing a trial of the matter, the court ruled that MRS did not receive proper notice and awarded damages in the amount of $40,000. This appeal by the City followed.

DISCUSSION

In its first assignment of error, the City urges that the trial court erred in finding that MRS did not receive adequate notice or, alternatively, in finding that the contract automatically renewed if no notice was given. In its third assignment, it argues the trial court’s decision puts at risk thousands of other agreements that require notice.

Here, following a trial, the court found that plaintiff did not receive the notice required by the contract. A court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). We find no such error in this case. Rather, we agree with the trial court on the issue of breach of contract.

The City has filed a peremptory exception of no cause of action with this court. It asserts that the grounds for the exception appear on the record in that MRS knew or should have known that its legal remedy lay in an injunction. Instead, after participating in the bid process, MRS waited two years after the contract was executed to file suit for breach of contract. The City claims that any cause of action MRS might have had lay during the bidding process. In opposition to the exception, MRS argues that this case does not involve the situation where an unsuccessful bidder wishes to obtain relief because of rejection of its bid. It asserts the public bid law does not pertain to this case; rather, this case involves breach of contract based on lack of proper notice. We agree and deny the exception of no cause of action.

Finally, the City asserts that the trial court erred in awarding $40,000 in damages without any supporting documentation. It also argues that the court erred in not finding that MRS waived any right to claim damages by ^failing to timely seek injunctive relief when the City could have taken corrective action.

In awarding damages in this matter, the trial court noted that while the City actively contested the issue of liability, it did not contest the issue of damages. Therefore, the court accepted the plaintiffs evidence of damages. At trial, MRS’ owner, Joe Carpenter, testified that his net profit would have been $20,000 per year under the contract, but no documentation was submitted to support this assertion. We find that the trial court erred in allowing recovery in this case without any supporting documentation, and reverse its judgment awarding damages.

CONCLUSION

For the reasons stated above, we agree with the trial court’s finding of liability against the City of Denham Springs based upon its breach of contract due to inadequate written notice. However, finding legally insufficient evidence, we reverse the trial court’s judgment awarding damages in the amount of $40,000. Costs of this appeal are assessed to plaintiff, Meter Reading Specialists, Inc.

REVERSED.

FITZSIMMONS, J., concurs in the result and assigns additional reasons.

FITZSIMMONS, J., agrees and assigns additional reasons.

11 FITZSIMMONS,

Judge, agreeing, with additional reasons.

I agree that the contract automatically renewed when neither party properly, and in a timely manner, exercised the option of non-renewal. I also agree that the plaintiff failed to submit sufficient evidence of damages. Contract damages are “measured by the loss sustained by the obligee and the profit of which he has been deprived.” La. C.C. art.1995. While damages need only be proven within a reasonable certainty, they may not be based on speculation or conjecture. Pelts & Skins Export, Ltd. v. State, Department of Wildlife and Fisheries, 97-2300, p. 11 (La.App. 1 Cir. 4/1/99), 735 So.2d 116, 126, writs denied, 99-2036, 99-2042 (La.10/29/99), 748 So.2d 1167-68; Marcel v. Becnel, 96-1139, p. 9 (La.App. 1 Cir. 3/27/97), 691 So.2d 1344, 1349, writ denied, 97-1080 (La.6/13/97), 695 So.2d 984. Here, the only evidence of lost profits was speculative and pure conjecture. Therefore, we need not reach the issue of mitigation of damages pursuant to Louisiana Civil Code article 2002.


author: I «DOWNING, J. | ,PETTIGREW, J.,

text:
    J. CALDARERA AND COMPANY, INC. v. CITY OF BATON ROUGE and Parish of East Baton Rouge, on Behalf of the Metropolitan Airport.
    No. 2003 CA 0759.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 23, 2004.
    John W. Waters, Jr., New Orleans, Counsel for Plaintiff/Appellee J. Caldarera & Co., Inc.
    W. Michael Stemmans, Steven B. Loeb, Murphy J. Foster, Baton Rouge, Counsel for Defendant/Appellant City of Baton Rouge, et al.
    Daniel K. Rester, Baton Rouge, Counsel for Defendant/Appellee URS Corporation.

      S. Suzanne Mahoney, New Orleans, Counsel for DefendanVAppellee National Union Fire Ins. Co. of Pittsburgh.
    Before: PETTIGREW, DOWNING and McClendon, jj.
   I «DOWNING, J.

This matter before us is an appeal of a judgment denying damages for the wrongful issuance of a temporary restraining order (TRO). For the following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

A TRO was issued in the trial court enjoining the City of Baton Rouge, Parish of East Baton Rouge (City/Parish) from terminating a contract with J. Caldarera & Co., Inc. (Caldarera), involving a project at the Baton Rouge Metropolitan Airport. City/Parish took supervisory writs. On February 2, 2002, this court reversed the TRO and concluded that Caldarera failed to demonstrate irreparable harm and was thus not entitled to an injunction. City/Parish then terminated the Caldarera contract and filed a Motion for Damages to recover the damages it allegedly suffered as a result of the wrongful TRO. At a hearing on January 21, 2003, the district court denied City/Parish’s motion. City/Parish now appeals that decision, alleging that the trial court erred as a matter of law in ruling that damages for the wrongful issuance of a TRO are only proper when the requesting party failed to follow the correct procedure in obtaining the TRO.

DISCUSSION

Louisiana Code of Civil Procedure article 3608 provides that the court may allow damages for the wrongful issuance of a TRO and that attorney fees for the services rendered in connection with its dissolution may be included as an element of damages. (Emphasis added.)

I ¡¡The judgment at issue simply states that the Motion for Damages for the Wrongful Issuance of the Temporary Restraining Order is dismissed with prejudice. The court’s oral reasons, however, said the following:

I granted the TRO after due consideration, feeling that Caldarera was entitled to it at the time, based upon the information I had before me. The 1st Circuit disagreed and reversed it, but that was on an issue of law, not on any procedural things that Caldarera may have done or anything that was wrongly done; and I don’t believe that damages in this situation are due for the issuance of this TRO. All the proper procedures were performed; it was a matter of interpretation. I interpreted it in favor of Cal-darera; the Court of Appeal interpreted it differently. But I don’t believe there was anything done wrongfully by Calda-rera in this case. For that reason, I deny the Motion for Damages.

City/Parish argues that these statements indicate that the district court erred, as a matter of law, in denying the award for damages by focusing on whether the procedure utilized by Caldarera was wrongful. Citing Arco Oil & Gas Co., a Div. of Atlantic Richfield Co. v. DeShazer, 98-1487 (La.1/20/99), 728 So.2d 841, City/Parish correctly argues that the motivation of the party seeking the injunction is not at issue, but that damages are available, as a matter of law, when the court simply grants a TRO that is improper and infringes upon some right of the enjoined party. City/Parish contends that the last sentence of the oral reasons specifically shows that the trial court erred as a matter of law in making “bad faith” a requirement before awarding damages.

We disagree. While perhaps the trial court inartfully expressed its reasons for not awarding damages, there is no showing in the record to indicate that it thought damages were precluded absent a finding of bad faith. The trial court stated that it would not award damages, not that it could not award damages in this situation.

|4It is apparent that the trial court was aware that it was not limited by law to award damages only where bad faith is shown. Nothing in the record indicates otherwise.

In addition, City/Parish’s further reliance on Arco is misplaced. The Arco case involved whether article 3608 allowed mental anguish damages when a TRO was wrongfully issued, not whether damages must be awarded as a matter of law if the TRO was issued in error. In fact, the court in Arco specifically stated that although the code provides for damages for the wrongful issuance of a TRO, “it is clear from the legislature’s use of the word ‘may’ that the provision which authorizes assessment of damages is not mandatory in its application. Rather, a trial judge may use his discretion when determining whether to award damages.” Arco, 98-1487, p. 4, 728 So.2d at 844. Thus, to hold that the trial court should, as a matter of law, exercise its discretion in a particular way is to strip the trial court of the very discretion article 3608 confers upon the trial court. See Board of Commissioners of the Orleans Levee District v. Connick, 95-1456, p. 5 (La.App. 4 Cir. 3/14/96), 671 So.2d 1004, 1007. The article’s wording specifies that its application is not mandatory. The use of the word “may” affirms that the award of damages, including attorney fees, is left to the discretion of the trial court. Consultant Service Brokers, Inc. v. Housing Authority of the City of Alexandria, 428 So.2d 1336, 1337 (La.App. 3 Cir.1983). Also see Amacker v. Amacker, 146 So.2d 672, (La.App. 1 Cir.1962), and Telerent Leasing Corp. v. R. & P. Motels, Inc., 343 So.2d 267, 269 (La.App. 1 Cir. 1977).

Great weight is attached to the exercise of a trial court’s discretion, which will not be disturbed on review if reasonable people could differ as to the propriety of the trial court’s action. See In the Interest of I.D.H. v. Thomas, 34,962, p. 2 (La.App. 2 Cir. 5/9/01), 787 So.2d 526, 528. Accordingly, this assignment of error is without, merit.

DECREE

For the above reasons, the judgment of the trial court is affirmed. Costs of this appeal, in the amount of $3,250.46, are assessed against the appellant, City of Baton Rouge and Parish of East Baton Rouge Parish, on Behalf of the Baton Rouge Metropolitan Airport.

AFFIRMED.

PETTIGREW, J., concurs and assigns reasons.

| ,PETTIGREW, J.,

concurring.

I agree with the majority’s position in this case in affirming the trial court.

However, I do have problems with the last sentence of footnote one, which states “This objection was not challenged by appeal or answer to appeal and is therefore not properly before this court. LSA-C.C.P. arts. 2121 and 2133.” I am of the humble opinion that the majority is overlooking paragraph B of that same article. Paragraph B of Article 2133 specifically provides “A party who does not seek modification, revision, or reversal of a judgment in an appellate court, including the supreme court, may assert, in support of the judgment, any argument supported by the record, although he has not appealed, answered the appeal, or applied for supervisory writs.”

It is obvious that J. Caldarera & Co., Inc. is not trying to modify, revise, or reverse the trial court’s judgment denying appellant’s damages. However, I do not feel this precludes Caldarera from responding to appellant’s appeal and asserting “any argument supported by the record.” Certainly, the use of summary procedure in violation of La.Code Civ. P. art. 3608 by the trial court in lieu of ordinary procedure for the damages is factually supported by the record before us. Caldarera objected at the trial court level to the use of summary procedure. However, because we agree that it is discretionary with the trial court whether damages should be denied, it is not necessary to address the issue of the improper use of summary procedure, and, therefore, the issue is pretermitted. Nonetheless, if the majority had decided that the trial court should have awarded damages, this court would have then been required to address | ?the issue of the improper use of summary procedure. Caldarera did not waive this issue, but rather properly preserved same for review by this court.

For these reasons, I respectfully concur with the majority.

      . La. C.C.P. art 3608 provides that a court may allow damages for the wrongful issuance of a TRO on a motion to dissolve or on reconventional demand. This matter was pled in a Motion for Damages. This is an improper use of summary procedure. However, over the objection of Caldarera, the trial court heard the matter. This objection was not challenged by appeal or answer to appeal and is therefore not properly before this court. LSA-C.C.P. arts. 2121 and 2133.


author: JACHARLES R. JONES, Judge.

text:
    Elena DAVILLIER v. PHYSICIANS ASSOCIATION OF LOUISIANA, INC.
    No. 2003-CA-1353.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 2004.
    Rehearing Denied June 15, 2004.

      Cedric L. Richmond, New Orleans, LA, for Plaintiff/Appellee.
    Trevor G. Bryan, Bryan & Jupiter, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge MAX N. TOBIAS, JR., and Judge Pro Tempore MOON LANDRIEU).
   JACHARLES R. JONES, Judge.

The instant suit arises out of an action for breach of an employment contract allegedly entered into between Appellee, Elena Davillier (hereinafter “Ms. Davillier”) and Appellant, Physicians Association of Louisiana, Inc. (hereinafter “PAL”). PAL suspensively appeals the judgment of the district court ordering arbitration and finding that a valid enforceable contract existed between the parties.

Procedural History

Ms. Davillier instituted this suit in September of 1999, seeking to enforce a 1998 employment contract entered into with PAL. Subsequently, PAL filed a motion for summary judgment, which was denied by the district court.

On October 25, 2002, Ms. Davillier filed a motion to refer the matter to arbitration pursuant to the 1998 employment contract. The motion for arbitration was denied by the district court and the matter was later set for trial. The district court rendered judgment in favor of Ms. Davillier, finding that the 1998 contract was valid and enforceable, and that arbitration was proper pursuant to the contract. The suspensive appeal of the judgment in favor of Ms. Davillier is the subject of the matter now before this Court

| j>Facts

Ms. Davillier was an employee of PAL since 1994. In 1994, she began to act as an independent contractor serving as a consultant who provided public, media, community, employer, and provider relation services. Under the original contract, Ms. Davillier earned $2,500 per month and was provided with parking and benefits under PAL’s HMO plan.

In 1995, the contract between PAL and Ms. Davillier was amended to increase her earnings to $3,500 per month. This contractual relationship was again amended in 1996 when Ms. Davillier’s earnings were increased to $5,000 per month and she received additional duties and responsibilities.

In 1998, Ms. Davillier alleged that her status as an independent contractor changed to a full-time employee and that she was promoted to Chief Executive Officer pursuant to a newly executed contract. The contract provided that Ms. Davillier was to receive a salary of $100,000 per year for a period of five years, and contained further provisions on how the contract should be terminated, as well as an arbitration agreement. However, Ms. Da-villier stated that she did not possess a copy of the 1998 agreement that contains the signature of PAL.

On May 12, 1999, PAL sent Ms. Davillier a notice terminating her alleged at-will relationship with the company as Chief Executive Officer.

Discussion

A court of appeal may not set aside a finding of fact made on behalf of the district court absent a showing of manifest error. Rosell v. ESCO, 549 So.2d 840 (La.1989). In determining the existence of a contract, a finding of fact may not be disturbed on appeal unless it is clearly wrong. PDT, Inc. v. Bell, 27,930 (La.App.2 Cir. 1/24/96), 666 So.2d 1282, writ denied, 96-0774 (La.5/3/96), 672 So.2d 688. Furthermore, when findings of fact are based on determinations of the credibility of a witness, great deference is given to the determinations of the district court. West v. Williams, 30,842 (La.App.2 Cir. 8/19/98), 717 So.2d 1224.

PAL maintains that the purported 1998 employment contract was not binding on PAL. PAL first argues that the district court was manifestly erroneous in concluding that PAL is bound by the typed document submitted to its Board of Directors by Ms. Davillier since the Board refused to sign the document until reviewed by legal counsel. We agree.

Pursuant to La. C.C. art. 1927, there is no requirement that there be conformity between the manner in which the offer is made and the manner in which the acceptance is made. When in the absence of a legal requirement, the parties have contemplated a certain form, it is presumed that the parties did not intend to be bound until the contract is executed in that form. La. C.C. art. 1947. However, in Baldwin v. Bass, 28,984 (La.App.2 Cir. 12/11/96), 685 So.2d 436, 440, the court stated, “the party who seeks to enforce a written contract, where signatures were not the contemplated form, has the burden of proving that the other party who has not signed agreed to be bound by the terms of the written contract.”

In the instant case, it does not appear from the record that Ms. Davillier’s change in title was made pursuant to the 1998 written employment contract. On Ms. Davillier’s cross examination during trial, she testified:

Q: Can you describe a little bit more— How did that come up, that you became to be the chief executive officer?
A: Well, it wasn’t in 1998. It was probably in 1997.
Q: Okay.
|4A:Yeah.
Q: Tell me how that came about.
A: I was at the point of earning my MBA. And I was getting more and more involved with discussions of contracts and meeting with CEOs of hospitals and other health care organizations, HMO’s. And it had come time for me to change my title and my position with them as far my standing with the company. And—
Q: You said it had become time. Was that at your suggestion?
A: I think it was like a mutual thing, because Dr. Barnes had talked to me about it on a couple of occasions. I don’t remember what the exact conversations were, and you know, exactly how it was said and everything. But that’s how I recall it.

The record indicates that Ms. Davillier’s title did in fact change to Chief Executive Officer. However, while her salary increased in accordance with the change in her official title, Ms. Davillier’s testimony reveals that her employment duties virtually remained the same. Furthermore, beyond the discussion of title and salary, there is no testimony that specific terms, such as cause for termination or the inclusion of an arbitration agreement, were ever mentioned in her discussion with Dr. Barnes. Additional testimony by Ms. Da-villier also establishes the fact that she was unable to recall whether or not her title and salary changed prior to the time that she submitted the contract to the PAL.

The evidence before this Court fails to clearly indicate that PAL intended to be bound by the 1998 written agreement. In the brief filed on behalf of PAL, it states that Dr. Barnes’ testimony specifies that the Board’s approval of the contract would be subject to review by legal counsel. Ms. Davillier admitted that the 1998 contract submitted to the PAL Board was copied from a contract for the former CEO, stipulating that she would receive $100,000 per year for a period of five | 5years. Although Ms. Davillier indicated that she had previously copied contractual agreements as an independent contractor, it cannot be assumed that PAL intended for the specific terms of a prior written agreement to apply to the newly formed employer-employee relationship absent some evidence of PAL’s consent. In addition to the fact that the PAL Board did not approve the written contract, the letter notifying Ms. Davil-lier of her termination references a relationship of at-will employment. As the evidence before this Court does not clearly establish that PAL is bound by the written contract, we find that Ms. Davillier served as Chief Executive Officer pursuant to a verbal agreement with Dr. Barnes.

PAL next contends that the district court erred in concluding that PAL entered into oral contracts of definite duration and in determining that PAL agreed to arbitrate its employment disputes. This Court finds merit in this argument. In the reasons for judgment, the district court stated that, “The Court finds that the written contract simply memorialized the contract by which the parties did perform.” While the district court does not directly state that the verbal agreement designated specific terms, the reasons for judgment imply that the terms of the written contract simply codified the agreement that had already been reached by the parties. However, for the reasons previously discussed, it is not evidenced from the record that specific terms of the written contract were agreed upon beyond the fact that Ms. Davillier would have a change in title and an increase in salary. Thus, we do not find that PAL contracted as to the duration of Ms. Davillier’s employment nor specified that any employment disputes would be subject to arbitration.

PAL further argues that the district court erred in ordering arbitration of the dispute between the parties, well after Ms. Davillier elected to file suit on the | ^contract. Given that PAL is not bound by the 1998 written contract for the aforementioned reasons, we find that the arbitration clause is not valid and enforceable pursuant to this contract.

DECREE

For the reasons herein assigned, the judgment of the district court finding that a valid enforceable contract existed between Elena Davillier and Physicians Association of Louisiana is hereby reversed. Further, we reverse the district court’s order of arbitration.

REVERSED.

      . Dr. Shelton Barnes was the President of the PAL Board of Directors at the time of Ms. Davillier’s employment.