author: | WOODARD, Judge.

text:
    MONUMENTAL LIFE INSURANCE COMPANY v. Michael LANDRY.
    No. 02-891.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 19, 2003.
    Tricia A. Martinez, Baldwin & Haspel, L.L.L., New Orleans, LA, for Plaintiff/Appellant, Monumental Life Insurance Co.

      Edward P. Landry, Landry & Watkins, New Iberia, LA, for Defendant/Appellee, Michael Landry.
    Jeffrey A. Rhoades, Swift & Rhoades, Lafayette, LA, for Defendant/Appellee, AmerUs Life Ins. Co.
    Court composed of NED E. DOUCET, JR., Chief Judge, JOHN D. SAUNDERS, and BILLIE COLOMBARO WOODARD, Judges.
   | WOODARD, Judge.

Monumental Life Insurance Company (Monumental) appeals the trial court’s grant of summary judgment in Mr. Michael Landry’s favor, which dismissed its claim against Mr. Landry for his alleged breach of the Agent’s Agreement he signed during his employment with them. Essentially, the trial court concluded that the non-solicitation clause in the agreement did not comply with geographical limitations imposed by statute. Thus, it was null and void and should be given no effect. We find that a genuine issue of material fact exists, regarding whether the geographical limitations in the agreement are sufficiently identifiable as the statute and its jurisprudential interpretation require. Therefore, we reverse the judgment.

sfc ‡ ifc

Mr. Landry worked as an insurance agent for Monumental for 14 years. During the course of his employment, he signed several Agent’s Agreements, the last one of which is the subject of this lawsuit. The agreement included a clause, prohibiting him from soliciting any customer who had held a Monumental policy within the last two years of his employment with them and who was in the area in which his district office serviced. He worked in the New Iberia district office the entire 14 years. Shortly after he left Monumental, he went to work for a competitor, AmerUs. He began soliciting some of the customers he had serviced for Monumental.

Monumental responded with a petition for damages and injunctive relief, based on different theories, one of which was breach of contract. Within the very terms of the contract, injunctive relief was provided as a remedy for any breach. Thus, the trial court granted the preliminary injunction.

Mr. Landry filed a summary judgment motion on, only, the breach of contract claim, which was initially denied. Subsequently, based on newly acquired evidence, he filed a motion for a rehearing on the summary judgment motion, which the court granted. Monumental filed for supervisory writs. This court denied the request because the judgment was an interlocutory order. Subsequently, the trial court certified it as a final judgment for the purpose of appeal.

We must decide whether the trial court erred, procedurally, in entertaining the motion a second time and, if not, whether there exists any genuine issue of material | ¡¿fact, regarding whether the geographic area described in the agreement can be identified.

SummaRY Judgment Procedure

Initially, Monumental asserts that summary judgment was inappropriate because it was not properly before the trial court at the time of its grant. Because there is no procedural vehicle, technically, entitled “Motion for Rehearing on Motion for Summary Judgment Based on Newly Acquired Evidence,” it argues that the court should not have considered the issue a second time. Moreover, it urges that Mr. Landry improperly circumvented the requirements for a new trial.

However, this court has held that after the trial court has denied a motion for summary judgment, the movant can re-urge the motion a second time. A trial court may deny a motion for summary judgment, initially, yet find that it becomes appropriate as the parties further augment the record during pre-trial discovery. Nonetheless, summary judgment can become appropriate at some later stage, only, if the movant has supplemented the record with meaningful additions which clearly establish that there is no longer any issue of material fact to be determined by a trial on the merits.

In the instant case, Mr. Landry supported his second motion for summary judgment with a greater number of depositions, but none were notably different in substance from the single deposition he offered to support the first motion; albeit, some of the additional deponents were, perhaps, more credible than the first, another former Monumental employee currently working for AmerUs. Nonetheless, a trial court must resist any inclination to allow credibility determinations to invade the realm of summary judgment. “While deposition testimony may be used to support |3or oppose a motion for summary judgment, it may not be weighed.” Thus, we review whether summary judgment was appropriate.

STANDARD OF REVIEW FOR SUMMARY JUDGMENT

We review summary judgments, de novo, under the same criteria which govern the trial court’s consideration of whether summary judgment is appropriate. Therefore, a motion for summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue regarding a material fact, and that the .mover is entitled to judgment, as a matter of law. Although summary judgment is favored, the moving party still has the burden of proving that it is appropriate by demonstrating that no material issues of fact remain.

Agent’s Agreement

The provision of the agreement in dispute is as follows:

7. COVENANT NOT TO COMPETE
a. For a period of two years from the date of the termination of my appointment as Agent, including my voluntary termination of employment, I shall not directly or indirectly do any of the following, or aid or assist others to do any of the following in any county or counties serviced by the district office or branch office in which I have ever been assigned [.]

(Emphasis added.) Afterwards, the agreement specifies certain prohibited activities, including soliciting or selling insurance to individuals who had policies with Monumental at the time of Mr. Landry’s termination or within two years prior to it.

|4To comply with La.R.S. 23:921, the agreement must specify the “parish or parishes, or municipality or municipalities, or parts thereof,” in which the former employee is to refrain from soliciting customers. This circuit has held that the failure to identify each parish by name does not automatically nullify the agreement; rather, its validity depends on whether the area is “identifiable.” IDENTIFIABILITY OF GEOGRAPHIC AREA

Mr. Landry offered the affidavits of four former Monumental employees, each of whom states that:

He knows for a fact that Monumental Life Insurance Company District Offices did not have any geographical restrictions or guidelines and did not service any specific county, counties, parish, parishes, and/or municipalities and furthermore ... he was instructed that his district had no set boundaries.

The fifth affidavit, that of Mr. Landry’s father, currently employed by Monumental, contains language very similar to that above.

Additionally, in the following deposition testimony, Monumental’s own witness, Mr. Guidry, admitted that there were no restrictions, concerning where the agents could sell:

Q. My question is, if your agent comes to you and he says, Man, I know we’re in the Houma district, Buddy, I’ve got me an account in New Orleans that is dying to write with me, and I mean, they are big.
A. Right.
Q. What you’re going to tell him?
A. I would tell him to go to New Orleans and write it.
|fiQ. Go get it, huh?
A. Yeah. The only thing I’d warn him about is that, if you’re going to write it, you’re going to have to service it.
Q. But it was serviced out of that office.
A. Right. But you know, I mean, people didn’t do that as a habit, because it became too expensive to service, if you had people spread out all over.
Q. Sure, sure. But there were no geographical guidelines that said you can’t sell here, you can’t sell there. The district would process a policy that was brought in by anybody from anywhere.
A. Right. There was no rule that said you couldn’t go outside of your area to write business.
A. If we have a policy in an area that’s outside the general realm of our district, it doesn’t expand our limits to include Shreveport, Bossier City and all that other stuff. Sure, if we have a piece of business over there, then that piece of business belongs to us.
Q. And would be serviced by this office.
A. And should be serviced by this office. But it don’t mean that whole area belongs to us.

(Emphasis added.)

We do not find the testimony on both sides of the argument to be irreconcilable. Common sense tells us that, of course, a company such as Monumental in the business of writing insurance policies, is not going to reject business which an agent brings in, because, technically, it is outside of his or her assigned area. Thus, we do not believe that this leads to the inevitable conclusion that there were no such designated areas for each district.

Furthermore, in his affidavit, Mr. Gui-dry, specifically, controverts the allegation that the geographic area is not identifiable, with his statement that “[d]uring Landry’s employment with Monumental, the parishes serviced by the New Liberia District were St. Mary, Iberia, St. Martin, Lafayette, St. Landry, Vermillion, Acadia, Jefferson Davis, Calcasieu, Cameron, Evangeline and Iberville.”

Notwithstanding, there appears to be contradictory evidence which, at least, blurs boundaries, rendering them not readily and undisputably identifiable. We find that this issue is a genuine issue of material fact, requiring further evidence to be adduced at a trial on the merits. Thus, its resolution is inappropriate for summary judgment.

Confusion in the Teial CouRt

Moreover, we find that support for our conclusion in a review of the transcript of the hearing on this motion. During the hearing, both attorneys, as well as the court, concede that there remains a question of fact regarding whether the geographic area can be identified:

MR. LANDRY [Defendant Landry’s attorney]:
She [Ms. Martinez, Monumental’s attorney] has to prove to the court right now that it can be identified, Your Hon- or. If she can’t that injunction needs to fall and this contract is not enforceable.
MS. MARTINEZ:
I think we have got a fact issue, and let’s get a trial date, if that’s where we need to go.
MR. LANDRY:
Let me say, Your Honor, and I don’t have — you know, I can understand that.
But, you know, the basis — whether you have got a trial date or not, there is a question of fact with regards to this, you know. Mr. Landry is going to live and die by it, one day, regardless.... There should not be an injunction imposed against this man.
THE COURT:
17Okay, after hearing arguments of counsel and reviewing the affidavits and other exhibits submitted in support of mover’s Motion for Summary Judgment, the court finds there is a genuine issue of material fact as to what were the geographical areas or specificity to the areas that the Iberia District Office did serve, and will grant the Motion for Summary Judgment.
MS. MARTINEZ:
Okay. I am confused. The reasons for judgment, that there is a genuine issue of material fact, and in my opinion, that would preclude the granting of Summary Judgment.
THE COURT:
The contract says that he can’t compete in the areas that the District Office services, correct?
MS. MARTINEZ:
That’s Correct.
THE COURT:
And it is unclear now. There was a reformation. The Third Circuit ruled we can modify if it is identifiable as to what areas that particular district, in this particular case—
MS. MARTINEZ:
-so you are ruling that the area is not identifiable. There is no genuine issue of material fact, as to whether it is identifiable?
THE COURT:
And because it is not, that is violative of Title 23, the Section in regards to these type [sic] of contracts, non-compete contracts. Correct?
MS. MARTINEZ:
Okay. So you are rilling there is no genuine issue.
THE COURT:
I am granting the Motion for Summary Judgment.

| «(Emphasis added.)

The issue was not whether the injunction should be lifted but, rather, whether there was an issue of material fact left to be decided, at trial, regarding the identifia-bility of the geographic area cited in the agent’s agreement. Clearly, this issue remains to be resolved. Therefore, we reverse the trial court’s grant of summary judgment.

CONCLUSION

For the foregoing reasons, we reverse the trial court’s grant of summary judgment and remand for a trial on the merits, where further evidence can be adduced to clarify the issue.

REVERSED AND REMANDED.

DOUCET, C.J., concurs.

      . Romero v. Charter Behavioral Health Sys. Of Lake Charles, 00-1108 (La.App. 3 Cir. 1/31/01); 780 So.2d 530.

      . Young v. Dupre Transport Co., 97-591 (La.App. 4 Cir. 10/1/97); 700 So.2d 1156.

      . Mouton v. Sears Roebuck, 99-669, (La.App. 3 Cir. 11/3/99); 748 So.2d 61.

      . Id. at 67.

      . Seaman v. Howard, 98-1492 (La.App. 3 Cir. 6/2/99); 743 So.2d 694.

      . La.Code Civ.P. art. 966(C).

      . Daigrepont v. AAA Transportation Co., 98-1329 (La.App. 3 Cir. 3/3/99); 736 So.2d 923.

      . See La.R.S. 23:921(C).

      . Petroleum Helicopters, Inc. v. Untereker, 98-1816 (La.App. 3 Cir. 3/31/99); 731 So.2d 965, writ denied, 99-1739 (La.8/5/99, 747 So.2d 40); Allied Bruce Terminix Co. v. Guillory, 94—319 (La.App. 3 Cir. 11/2/94); 649 So.2d 652, writ denied, 94-2929 (La. 1/27/95); 650 So.2d 244.


source: Caselaw Access Project

author: JjT’HIBODEAUX, Judge.

license: Public Domain

text:
    Thomas Joseph CARRIER, Jr. v. LOUISIANA PIGMENT COMPANY, LP, et al.
    No. 02-829.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 19, 2003.

      Clayton Arthur Larsh Davis, Lundy & Davis, Lake Charles, LA, for Louisiana Pigment Company, LP.
    Ralph Shelton Hubbard III, Joseph Pierre Guichet, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, New Orleans, LA, for Travelers Indemnity Company, Louisiana Pigment Company, LP.
    Robert Irwin Siegel, Hoffman, Siegel, Seydel, Bienvenu, Centola & Cordes (APLC), New Orleans, LA, for National Union Fire Ins. Co.
    Randall Kurt Theunissen, Allen & Gooch, Lafayette, LA, for Miller Environmental Services, Inc.
    Robert E. Landry, Scofield, Bergstedt, Lake Charles, LA, for Louisiana Pigment Company, LP.
    Henry Harvey LeBas, Robert Mark Martina, Lafayette, LA, for Colonial Casualty Ins. Co.
    Billy Edward Loftin, Jr., Gregory Paul Allen Marceaux, Marceaux & Loftin, Lake Charles, LA, for Thomas Joseph Carrier, Jr.
    Court composed of ULYSSES GENE THIBODEAUS, MICHAEL G. SULLIVAN and BILLY H. EZELL, Judges.
   JjT’HIBODEAUX, Judge.

In this suit involving the interpretation of an indemnity agreement, National Union Insurance Company (“National Union”) and Miller Environmental Services, Inc. (“Miller”) appeal the trial court’s partial final judgment, which granted Louisiana Pigment Company, L.P. (“Louisiana Pigment”) and Travelers Indemnity Company’s (“Travelers”) motions for summary judgment on their third-party demands against Miller and National Union. Louisiana Pigment and Travelers appeal the trial court’s denial of summary judgment on the issue whether Thomas Carrier’s injuries were caused by the sole negligence or sole fault of Louisiana Pigment.

We affirm. Summary judgments are reviewed de novo. “In this case, there are no factual matters in dispute. Rather, the case involves the interpretation of an insurance policy, a question of law, and we have authority to construe the provisions of the policy in order to resolve questions of coverage.” Thompson v. McKnight, 01-0190, p. 2 (La.App. 3 Cir. 6/6/01); 787 So.2d 620, 621, writ denied, 01-2882 (La.1/25/02); 807 So.2d 249. We find that the trial court properly interpreted the provisions of the insurance policies and indemnity agreements.

I.

ISSUES

Issues of National Union and Miller, as Third-Party Defendants-Appellants

We have determined that the following issues encompass both third-party defendants-appellants’ assignments of error on appeal:

(1) whether the trial court erred in determining that Louisiana Pigment and Travelers can recover indemnity from National Union, though the Reservation of Rights Agreement does not specifieally apportion each defendant’s liability in the settlement?
| ¡,(2) whether the trial court erred in finding that National Union’s coverage applies before Travelers?
(3) whether the trial court erred in determining that the “sickness, illness, or disease” exception was inapplicable?
(4) whether the trial court erred in determining that the Louisiana Pig-menVMiller contract caps National Union’s liability at $3 million?
(5) whether the trial court erred in determining that Louisiana Pigment can recover attorney fees and costs from Miller and National Union?

Issues of Travelers, as Third-Party Defendant Cross-Appellant, and Louisiana Pigment, as Third Party Plaintiff-Appellee/Cross-Appellant

Louisiana Pigment and its insurer, Travelers, present the following assignments of error for review:

(1) whether a company identified as an additional insured on an insurance policy is negated of its status as an additional insured if the trier of fact finds that the services contract’s indemnity provision is inapplicable?
(2) whether the trial court erred in finding that reasonable minds could differ on the issue of whether Carrier’s injuries resulted from the sole negligence or fault of Louisiana Pigment?
(3) whether an insurer is entitled to all costs and attorney fees when its insured is entitled to all costs and attorney fees based on legal and contractual subrogation?

Jill.

FACTS

Thomas Carrier, an employee of Miller, filed suit for bodily injury sustained while performing work on behalf of Miller at Louisiana Pigment in Westlake, Louisiana. Using a high pressure water hose to clean piping, Mr. Carrier came in contact with residual titanium tetrachloride. The water in combination with the titanium tetrachloride produced toxic fumes that burned Mr. Carrier’s skin and eyes and caused him to suffer a lung injury.

In April 1998, Miller and Louisiana Pigment negotiated a contract whereby Miller’s employees would perform certain work at Louisiana Pigment. The following provisions of the Master Contract for Services entered into by and between Miller and Louisiana Pigment are provided below. Many of the issues raised by both appellants and appellee rest on the interpretation and application of these provisions.

7. PERSONAL INJURIES AND PROPERTY LOSS
Contractor [Miller] agrees to indemnify, defend and hold harmless Louisiana Pigment, ... from and against all claims, causes of action, losses, damages, suits and liability of every kind, including all expenses of litigation, court costs, and attorney’s fees for damage to any property or for injuries, sickness or death of any person (including but not limited to employees of Contractor or its subcontractors) caused by, arising out of or related, directly or indirectly, to any work or operations performed by Contractor or any of its subcontractors of any tier (or any other person or entity performing services for Contractor) under or by reason of this Contract....
Contractor’s obligation to defend, hold harmless and indemnify an Indemnitee shall apply regardless of whether or not any such damage, injury, sickness or death is contributed to by the negligence or fault of an Indemnitee. Under the provisions of this indemnity Contractor is agreeing to indemnify each Indemni-tee from the 14Indemnitee’s joint or contributory negligence or fault, but this indemnity shall not apply to any such damage, injury, sickness or death which was caused by the sole negligence or sole fault of an Indemnitee and which was not caused in part by the negligence or fault of Contractor or any of its subcontractors of any tier (or any other person or entity performing services for Contractor hereunder) or any of their employees. Furthermore, this indemnity does not include indemnification against claims for sickness, illness, or disease cause or alleged to have been caused by Contractor’s or its subcontractor’s employees exposure to any substance or process utilized by any Indem-nitee at or near the site of Contractor’s work.
Contractor will obtain and continue in force, during the term of this Agreement, all insurance specified below.... 8. INSURANCE REQUIREMENTS The insurance to be obtained and continued in force by Contractor is the following: ...
D. Comprehensive General Liability (CGL) insurance with Bodily Injury limits of $1,000,000 each occurrence, and Property damage limits of $1,000,000 each occurrence ...
Excess Liability insurance over and above that specified in.... (D) above in amounts of coverage requested by Louisiana Pigment is to be provided in amount of $3,000,000.
To the extent of Contractor’s indemnity obligation under this Article X, the policies required under ... (D) above shall be endorsed to name as additional insured Louisiana Pigment, .... and shall be endorsed to provide that the coverages provided in said policies shall be primarily and non-contributory to any other insurance carried by Louisiana Pigment, named as additional insured except in their sole negligence.
All policies shall contain a waiver of subrogation in favor of the Louisiana Pigment and its insurers. Louisiana Pigment is waived, except in their sole negligence.

|sIn compliance with provision 7(D), Miller obtained CGL insurance in the amount of $1 million and excess liability coverage in the amount of $5 million. Its excess liability coverage exceeded what was required under the agreement.

After Mr. Carrier filed suit, Louisiana Pigment demanded defense and indemnity from Miller and its CGL insurer, United Capitol Insurance (“United Capitol”). United Capitol accepted Louisiana Pigment’s defense; however, it reserved its rights to pursue claims against Louisiana Pigment based on the sole negligence exception in the Louisiana Pigment/Miller contract. Additionally, Louisiana Pigment filed a third-party demand against Miller’s commercial umbrella insurer, National Union; however, it asserted no claims against Miller at that time. According to Louisiana Pigment, National Union failed to follow the example of United Capitol by providing defense and indemnity in Carrier’s lawsuit. In its third-party demand, Louisiana Pigment sought indemnification from National Union based on the Louisiana PigmenVMiller contract, covering claims brought by Miller’s employees against Louisiana Pigment and to name Louisiana Pigment as an additional insured under Miller’s policies of insurance. Also, Louisiana Pigment asserted that Miller’s insurance was to apply before Louisiana Pigment’s insurance pursuant to the Master Contract for Services.

In January 2001, all parties to the litigation participated in a mediation. Defendants agreed to pay $4,500,000 to Mr. Carrier for his injuries. Each defendant paid the following amount in the settlement:

United Capitol $ 1 million
National Union $ 1,750,000
Travelers $ 1,500,000
La. Pigment $ 250,000
Total $4,500,000

| As part of the settlement agreement, the defendants entered into a Reservation of Rights Agreement, which permitted Louisiana Pigment, its insurer, Travelers, National Union, which had issued a commercial umbrella policy to Miller for $5 million, and United Capitol to seek all rights and claims reserved against each other.

After settlement, Louisiana Pigment also filed a third-party demand against Miller based on the same allegations made against National Union. According to Louisiana Pigment, Miller did not name Louisiana Pigment as an additional insured pursuant to the contract. As a result, Miller’s insurance was to apply before Louisiana Pigment’s insurance. Since National Union refused to pay first, Louisiana Pigment asserted that this was a breach of the indemnity obligation.

On May 23, 2001, Louisiana Pigment and Travelers filed a motion for summary judgment on its third-party demand against National Union and Miller. On September 4, 2001, National Union filed an opposition to the motion for summary judgment. On April 8, 2002, the trial court entered a partial final judgment, granting Louisiana Pigment and Traveler’s motions for summary judgment on all issues except whether Louisiana Pigment was solely negligent for the injuries of Mr. Carrier. If Louisiana Pigment were not found solely negligent, then Miller would owe indemnity to Louisiana Pigment in the amount of $250,000 and to Travelers in the amount of $1,500,000. Also, National Union would be obligated to pay attorney fees and costs pursuant to the Master Contract for Services. However, if Louisiana Pigment were found solely negligent, then Miller and National Union would not be obligated to provide defense and indemnity to Louisiana Pigment, and Louisiana Pigment would not qualify as an additional insured. Additionally, the trial court found that National Union’s pollution exclusion clause was inapplicable and that National Union’s |7coverage applies prior to Travelers’ coverage. Further, Miller owed indemnity to Louisiana Pigment for attorney fees and costs paid in Mr. Carrier’s claim and that National Union owed $5 million in coverage pursuant to its insurance policy.

National Union and Miller appeal the trial court’s partial final judgment. Subsequently, Louisiana Pigment and Travelers filed a devolutive appeal as to the court’s denial of summary judgment on the issue of whether Mr. Carrier’s injuries were the sole fault of Louisiana Pigment.

III.

LAW AND DISCUSSION

A. National Union/Miller’s Appeal Apportionment of Liability and Right to Recovery

National Union asserts that Louisiana Pigment and Travelers cannot recover indemnity or contribution from Miller and National Union because the Reservation of Rights Agreement does not specifically apportion what part of the settlement is representative of the payments made on behalf of Miller/National Union. In addition, National Union asserts that the Reservation of Rights Agreement permits only a right to assert claims, not a right of recovery. We disagree.

The Reservation of Rights Agreement was established as part of the settlement in Mr. Carrier’s lawsuit. Each party to the settlement was entitled to reserve rights to assert claims against the other parties in spite of their participation in the settlement. Participation in the settlement was not an express admission of fault. The relevant provisions of the Reservation of Rights Agreement as to this issue are as follows (emphasis added):

|SD. Except as otherwise expressly provided herein, Louisiana Pigment and Travelers specifically reserve all rights and claims against [Miller] and its insurers, including but not limited to [National Union]. This reservation of rights and claims includes but is not limited to those in the third-party demand Louisiana Pigment against National Union. Except as otherwise expressly provided herein, National Union specifically reserves all rights and claims to dispute the claims asserted in the third-party demand, assert any and all defenses, and make claims against Louisiana Pigment and Travelers.
E. Nothing contained in this Agreement or in any document exchanged by the Parties in the negotiation or furtherance of this Agreement, including but not limited to the funding of the settlement, shall affect, and Louisiana Pigment and Travelers expressly retain and reserve, all rights and interest in and to the claims, causes of action and proceeds of any and all indemnity agreements that may apply to the costs and all sums paid or incurred by Louisiana Pigment and Travelers associated with this litigation and settlement, including without limitation all claims for indemnity, costs of defense, attorney’s fees, interest, bad faith claims, statutory penalties, costs and all sums paid in settlement of the claims of the plaintiffs. Nothing shall affect and [Miller] and National Union reserve any and all defenses to these claims.

After review of these provisions, we find that Louisiana Pigment and Travelers reserved more than their rights to assert claims, but additionally, their right to recovery. Clearly, their rights to “claims, causes of action and proceeds of any and all indemnity agreements that may apply” encompasses a right to recovery. We find that National Union fails to provide support for its argument, and that its position is without merit.

Additionally, National Union unpersuasively contends that the Reservation of Rights Agreement must apportion specifically what part of the settlement is representative of payments made on behalf of Miller/National Union by Louisiana Pigment/Travelers. National Union bases its argument on the factors presented in Elmwood Plantation, Inc. v. Ruud Water Heater Division, 815 F.2d 1016 (5th Cir.1987). We agree with the trial court that Elmwood is inapplicable in this case.

Elmwood does not involve a dispute between a contractual indemnitee and an in-demnitor; rather, it involves a dispute between a primary and an excess insurer. Additionally, each party in Elmwood in their consent order designated “the sum each insurer agreed to contribute” in the settlement. Id. at 1018. In this case, Louisiana Pigment and Travelers were not obligated to pay damages to Mr. Carrier pursuant to the indemnity agreement. Miller agreed to pay damages for injuries to its employees who performed work at Louisiana Pigment and later sued Louisiana Pigment as a result of a work-related injury. As a result, if Louisiana Pigment was not expected to pay damages based on the indemnity agreement, then there is no need to specify what amount Louisiana Pigment or Travelers paid for National Union, so that it might recover- those amounts pursuant to the indemnity agreement. Moreover, we find no merit in National Union’s claim that the Reservation of Rights Agreement requires specific apportionment of liability. We affirm the trial court’s judgment on this issue.

National Union’s Liability

National Union asserts that it was required to contribute to the Carrier settlement only after Travelers had exhausted its policy limits. We disagree.

As stated above, Miller agreed to pay damages for its employees injured while working at Louisiana Pigment who subsequently filed suit against Louisiana Pigment. Miller’s insurers are United Capitol and National Union. United Capitol accepted defense and indemnity once Mr. Carrier filed his suit against Louisiana Pigment; however, National Union refused to follow suit. Based on the indemnity 110agreement, Travelers, as insurer for Louisiana Pigment, cannot be required to pay damages prior to United Capitol nor National Union. National Union’s argument that Travelers’ coverage precedes its coverage is unfounded.

In Spell v. N.L. Industries, 618 So.2d 17 (La.App. 3 Cir.), writ denied, 624 So.2d 1224 (La.1993), contractors entered into reciprocal indemnity agreements requiring each contractor to provide insurance coverage for injuries to their employees. Additionally, Union Oil required that Two “R” Drilling’s insurance policies name Union Oil as an additional insured. As a result, “any obligation that Union contractually ha[d] to defend and/or indemnify Two “R” should be furnished by Two “R” ‘s insurance carrier.” Id. at 18. Union Oil argued that if Two “R” Drilling did not name Union Oil as an additional insured, Two “R” Drilling was in breach of contract. As a result, Two “R” Drilling was not entitled to defense and indemnity.

In Spell, the trial court found that the indemnity and insurance provisions were completely independent of each other. Thus, the indemnity provision required Union Oil to defend and indemnify Two “R” Drilling against actions brought by Union Oil’s employees. Thus, Union Oil could not compel Two “R” Drilling’s insurer to provide coverage prior to Union Oil’s insurer’s coverage.

We find that the facts in Spell are similar to the facts in our present case. National Union/Miller were obligated to defend and indemnify claims brought by Miller’s employees against Louisiana Pigment pursuant to the Master Contract for Services. As a result, National Union’s coverage must apply prior to Travelers.

In “Sickness, illness, or disease” exception

National Union asserts that the “sickness, illness, or disease” exception to Miller’s indemnity obligation is applicable to Mr. Carrier’s claim since his exposure to the toxic fumes resulted in an illness. We disagree.

In his petition, Mr. Carrier alleges that he suffered injuries and burns to his face, skin, and lungs as he performed work duties at Louisiana Pigment. The combination of titanium tetrachloride and water produced a toxic discharge, resulting in physical trauma and bodily injury as Mr. Carrier was exposed to the substance.

We find that Mr. Carrier was seeking damages for his work-related injuries. Even if his injuries could be defined as an “illness,” we do not find that the “sickness, illness, or disease” exception supplants the greater purpose of the provision, which is to indemnify Louisiana Pigment/Travelers for all claims that arise from an injury that occurred on site at Louisiana Pigment. Additionally, we find that this narrow exception does not apply in cases where the employee suffers trauma as a result of a work-related incident. Thus, the trial court properly granted the motion for summary judgment.

Liability Cap

National Union asserts that the Master Contract for Services caps its liability at $3 million. According to National Union, Paragraphs 7 and 8 of the Louisiana Pigment/Miller contract pertaining to personal injury and property loss and insurance should be read together. In linking the two paragraphs, the maximum amount of liability coverage for National Union is $8 million. We disagree.

Paragraph 7, which is cited above, concerns the indemnity provision requiring Miller to indemnify Louisiana Pigment for suits brought by Miller’s | ^employees against Louisiana Pigment. Paragraph 8 indicates that Miller will acquire CGL insurance for $1 million and excess coverage in the amount of $3 million. Paragraph 7 does not indicate a monetary limit to Miller’s indemnity obligation. In fact, it requires Miller to indemnify Louisiana Pigment for all losses or damages. Additionally, Paragraph 8 does not limit the scope of indemnity agreed to by Miller. Paragraph 8 indicates the least amount of coverage that Miller must provide under the terms of the Louisiana Pigment/Miller contract. In this case, Miller chose to provide $1 million in CGL insurance and $5 million in excess liability. Miller had every right to provide coverage in excess of what was required. National Union cannot now limit Miller’s coverage to a $3 million cap, when there was no cap imposed.

We find support for our reasoning in Myers v. Burger King Corp., 92-400 (La. App. 4 Cir. 5/26/94); 638 So.2d 369, in which the fourth circuit rejected a similar argument made by Parkway Construction Company in its agreement with the Burger King Corporation. Under the Burger King/Parkway contract, Parkway argued “that as the indemnity clause makes reference to the insurance clause, the indemnity clause must limit itself to the minimum insurance provided, or $1,000,000.” Id. at 381. The terms of the indemnification and insurance agreements in Myers are provided below:

INDEMNIFICATION: The contractor shall indemnify, defend and save and hold harmless the Owner from those claims set forth in the above paragraph captioned Insurance, including reasonable attorneys’ fees.
INSURANCE: The contractor shall maintain insurance to protect the Owner ... from claims which may arise from the Contractor’s operations, whether such operations be by himself, any subcontractor, anyone directly or indirectly employed by any of them, or by whose acts they may be liable. h/This insurance shall be written for not less than limits of liability required by law, or $1,000,000 aggregate ... whichever is greater.
Burger King Corporation ... shall be named as additional [insured] under this policy.

Id. at 380-81.

The fourth circuit found that the indemnity clause did “not limit itself to the minimum amount of insurance coverage provided in the insurance clause. It clearly state[d] that the indemnity [was] required for all of the claims that were previously listed in the insurance clause.” Id. at 381. Like National Union, Parkway provided more coverage than what was required in the insurance provision. Additionally, the $1 million insurance provision was the minimum insurance that could be provided. Similarly, we find that the trial court did not err in its finding that National Union’s coverage was not limited to a $8 million cap. In fact, Louisiana Pigment would be entitled to indemnity in the amount of $5 million under the excess liability insurance provided by National Union.

Costs and Attorney Fees

National Union argues that Louisiana Pigment may not recover costs and attorney fees it incurred in pursuing claims of coverage and indemnity against National Union. We disagree.

In the Louisiana Pigment/Miller contract, the indemnity provision states that Miller is obligated to indemnify Louisiana Pigment “from and against all ... losses, damages, suits and liability of every kind, including all expenses of litigation, court costs, and attorney’s fees for damage to any property or for injuries .... ” (Emphasis added).

|uWe find no merit in National Union’s assertion that the contract does not provide recovery of attorney fees and costs in the indemnity provision. Paragraph 7 clearly provides for costs and attorney fees incurred to pursue indemnity. We cannot ignore the plain language of the contract that forms the law between Miller and Louisiana Pigment. Accordingly, Louisiana Pigment is entitled to costs and attorney fees from Miller/National Union.

B. Travelers/Louisiana Pigment’s Appeal

Sole Negligence Exception/Additional Insured Status

Travelers asserts that the trial court erred in not finding that Louisiana Pigment was an additional insured under the National Union insurance policy. According to the trial court, if Louisiana Pigment were found to be solely negligent, then Miller and National Union would have no obligation to defend and indemnify Louisiana Pigment. Further, Louisiana Pigment would not be an additional insured. Since one issue is predicated on the outcome of the other, we will address these two assignments of error together.

Louisiana Pigment filed motions for summary judgment on several issues pertaining to liability and indemnity coverage. Specifically, Louisiana Pigment requested summary judgment on the issue of whether plaintiffs injuries were caused by the sole negligence or sole fault of Louisiana Pigment. The trial court failed to grant Louisiana Pigment’s motion for summary judgment on this issue, finding genuine issues of material fact existed whereby the mover was not entitled to judgment as a matter of law. “Only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law on the facts before the court is a summary judgment warranted.” Cormier v. Albear, 99-1206, p. 5 (La.App. 3 Cir. 2/2/00); 758 So.2d 250, 254 (quoting Reynolds v. Select Properties, Ltd., 93-1480, p. 2 (La.4/11/94); 634 So.2d 1180, 1183). On questions of law, we are not required to give deference to the trial court. However, we are guided by the same standard on motions for summary judgment as the trial court, and we find that the trial court did not err in denying summary judgment on the sole negligence issue.

National Union asserts that there is a material issue of fact as to the issue of sole negligence. National Union submitted excerpts of the deposition testimonies of Mr. Carrier and Jasper Talbert. In addition, National Union cited sixteen points in reference to the sole negligence issue. After a review of the evidence, we find supportive evidence that material issues of fact exist. As a result, Travelers did not meet its burden of proof concerning liability because there is a genuine issue of material fact as to whether Louisiana Pigment was solely at fault. Thus, if Louisiana Pigment is solely negligent, Louisiana Pigment is not an additional insured.

Subrogation to the Rights of Louisiana Pigment

Travelers asserts that the trial court correctly granted Louisiana Pigment attorney fees incurred to pursue indemnity. As its insurer, Travelers asserts that it is legally subrogated to the rights of Louisiana Pigment, and it is also entitled to recover such attorney fees. We agree.

In the Reservation of Rights Agreement, Paragraph F indicates that Travelers is legally subrogated to the rights of Louisiana Pigment:

In farther consideration of Travelers payment of a portion of this Settlement, Louisiana Pigment hereby assigns to Travelers, and/or subrogates Travelers, to the |1fiextent of any payment by Travelers in connection with this case, all of its rights and claims arising out [of] the injury of [Mr. Carrier] ... to resolve Mr. Carrier’s suit against Louisiana Pigment for his injuries, including without limitation all claims for indemnity, ... attorneys fees, which rights and claims can be prosecuted by Travelers in the name of Louisiana Pigment, at the sole option of Travelers.

Based on the above provision, we find that Travelers is legally subrogated to the rights of Louisiana Pigment, including recovery of attorney fees.

IV.

CONCLUSION

For the above reasons, the judgment of the trial court is affirmed. Costs of this appeal are to be divided equally between National Union Insurance Company, Miller Environmental Services, Inc., as third-party defendants-appellants and Louisiana Pigment Co., L.P. and Travelers Indemnity Company, as third-party plaintiff-appel-lee/cross-appellant and third-party defendant cross-appellant, respectively.

AFFIRMED.

      . Jasper Talbert, a former employee of Louisiana Pigment, was at the site of Mr. Carrier's accident. Talbert was given the off gas job on the night of the incident to oversee the cleaning of the hydroblasting of the piping.


author: | THIBODEAUX, Judge.

text:
    Murphy J. EWING and Gwendolyn T. Ewing, et al. v. ARMSTRONG WORLD INDUSTRIES, INC., et al.
    No. 02-918.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 19, 2003.

      Gerolyn P. Roussel, Perry J. Roussel, Jr., Jules K. Boudreaux, Roussel & Rous-sel, LaPlace, LA, for Gwendolyn T. Ewing, Wilson Ewing, Terry Paul Ewing, Rodney Ewing, and Christine Ewing Bodin.
    Gary P. Kraus, Onebane, Bernard, Tori-an, Diaz, McNamara & Abell, Lafayette, LA, for John Carroll Robicheaux.
    Gary A. Lee, Richard M. Berles, Johanna G. King, Lee, Futrell & Perles, L.L.P., New Orleans, LA, for Peter Territo, Steven Kennedy, and Albert Bossier, Jr.
    Samuel M. Rosamond III, Fleming & Rosamond, L.L.P., Metairie, LA, for Commercial Union Insurance Company.
    David Joseph Bourgeois, Metairie, LA, for Branton Insulations, Inc.
    William Lee Schuette, Jr., Jones, Walker, Waechter, Baton Rouge, LA, for Viacom, Inc.
    Gregory Michael Anding, Gary A. Bezet, Kean, Miller, Hawthorne, Baton Rouge, LA, for Exxon Corporation and Texaco, Inc.
    William Glenn Burns, Metairie, LA, for The Flintkote Company.
    James E. Diaz, Onebane, Bernard, Tori-an, Lafayette, LA, for Brown & Root, Inc.
    Stephen Nolan Elliott, Bernard, Cassisa, et al., Metairie, LA, for Reilly-Benton Company, Inc.
    Joseph Warren Gardner, Jr., Christo-vich & Kearney, New Orleans, LA, for Highlands Insurance Company.
    Lynn M. Luker, New Orleans, LA, for Foster-Wheeler Corporation.
    Janet Leslie MacDonell, Arthur Wendel Stout III, Deutsch, Kerrigan & Stiles, New Orleans, LA, for Rhone-Poulenc Ag Company.
    Susan B. Kohn, Simon, Peragine, Smith, New Orleans, LA, for The McCarty Corporation.
    Christopher Kelly Lightfoot, Metairie, LA, for Taylor-Seidenbach, Inc.
    Alison Speirer Borison, Lawrence Goode Pugh III, New Orleans, LA, for Eagle, Inc.
    Larry Gene Canada, New Orleans, LA, for Combustion Engineering, Inc.
    Kaye N. Courington, New Orleans, LA, for Hopeman Brothers, Inc.
    Robert Edgar Caraway III, Kenan Slade Rand, Jr., New Orleans, LA, for Peter Territo, American Motorists Insurance Co., Steven Kennedy, Albert Bossier.
    Valerie T. Schexnayder, Metairie, LA, for The Flintkote Company.
    Troy Nathan Bell, New Orleans, LA, for Garlock Inc.
    Claude Frederick Bosworth, Gordon Peter Wilson, Lugenbuhl, Burke, Wheaton, et al., New Orleans, LA, for Travelers Insurance Company.
    Charles V. Giordano, Metairie, LA, for Rapid-American.
    Walter Scott Brown, New Orleans, LA, for Uniroyal, Inc.
    James Francis d’Entremont, New Orleans, LA, for Babcock Borsig Power, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, MICHAEL G. SULLIVAN, and BILLY H. EZELL, Judges.
   | THIBODEAUX, Judge.

Plaintiffs, Gwendolyn T. Ewing, the wife of Murphy J. Ewing who contracted meso-thelioma as a result of his work-related exposure to asbestos, and his children from a previous marriage, Wilson Ewing, Terry Paul Ewing, Rodney Ewing and Christine Ewing Bodin, sometimes collectively referred to as “plaintiffs or Ewing survivors,” appeal the judgment of the trial court granting the defendants’, Peter Territo, Albert Bossier, Steven Kennedy, Commercial Union Insurance Company (Commercial Union), Highlands Insurance Company (Highlands), American Motorist’s Insurance Company (American), Travelers Insurance Company (Travelers), and John Carroll Robicheaux, sometimes collectively referred to as “defendants,” exception of no cause of action on the plaintiffs’ loss of consortium claim. After reviewing the record and the applicable law, we affirm the judgment of the trial court and hold that the plaintiffs’ alleged cause of action for loss of consortium is barred by the exclusive remedies provision of the Louisiana Workers’ Compensation Law.

I.

ISSUE

The significant issue in this case is whether the trial court erred in granting the defendants’ exception of no cause of action where the plaintiffs filed a loss of consortium claim against executive officers in a wrongful death case. The decedent’s death arose out of a long-latency occupational disease (mesothelioma) due to exposure to asbestos during the years 1964 through 1974. The decedent, Murphy J. Ewing, died on April 10, 1997. Until 1982, an action for loss of consortium did not exist, and since the 1976 amendment to La.R.S. 23:1032, the workers’ compensation law has provided the exclusive remedy for suits against executive officers.

JaP-

FACTS AND PROCEDURAL HISTORY

Murphy J. Ewing was employed with Brown & Root, Inc. from about 1964 through 1974 and with Avondale Industries, Inc. (formerly Avondale Shipyards, Inc.) from about 1971 through 1972. During his employment with these companies, he was exposed to asbestos. Ewing’s exposure to asbestos resulted in his contraction of mesothelioma that was diagnosed on or about July 9, 1996. On April 10, 1997, Ewing died as a result of the mesothelioma. Meanwhile, on July 23, 1996, the same month he was diagnosed with mesothelioma, Ewing and his wife Gwendolyn fled suit in district court for damages arising out of his mesothelio-ma diagnosis, including, but not limited to, a loss of consortium claim on behalf of Gwendolyn. In January 1998, the decedent’s children fled supplemental and amending petitions, asserting claims for loss of consortium and the wrongful death of their father against executive officers of his former employers that arose due to Ewing’s injury and subsequent death.

On July 26, 2002, the defendants fled peremptory exceptions of no cause of action "with respect to the plaintiffs’ loss of consortium claims. On July 1, 2002, the trial court rendered a judgment that maintained the defendants’ peremptory exception of no cause of action with respect to the plaintiffs’ loss of consortium claims. It is from the trial court’s judgment that the plaintiffs seek review in this court.

Jam-

LAW AND DISCUSSION

The plaintiffs argue that the petition states a cause of action for loss of consortium because: 1) their loss of consortium claims arose after September 10, 1982, the effective date of Act 202, which amended La.Civ.Code art. 2315 and allowed survivors to assert a claim for loss of consortium, 2) their claims are derivative of their decedent’s primary claim of injury, and 3) Act 989 of 1999, amended La.Civ.Code art. 2315 making it applicable to loss of consortium claims which existed prior to its effective date. The defendants, on the other hand, assert that at the time of the alleged negligent conduct giving rise to Ewing’s injuries — 1964 through 1974 and 1971 through 1972 — loss of consortium damages were not recoverable for injuries that did not result in death; that only since the 1982 amendment to La.Civ.Code art. 2315 have loss of consortium damages been recoverable. The defendants’ also argue that the exclusivity provisions of the Louisiana Workers’ Compensation Act, La.R.S. 23:1032, extends immunity for loss of consortium damages to claims against executive officers.

A court of appeal reviews de novo a trial court’s ruling sustaining a peremptory exception raising the objection of no cause of action because the exception raises a question of law and because the lower court’s decision is generally based only on the sufficiency of the petition. City of New Orleans v. Board of Dirs. of La. State Museum, 98-1170 (La.3/2/99); 739 So.2d 748. “The function of an exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading.” Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La.1993). The burden of showing that the plaintiff has failed to state a cause of action is on the exceptor. City of New Orleans, 739 So.2d at 748.

For the purposes of determining the issues raised by the exception, the court must presume that the well-pleaded facts in the petition are true. Strasner v. State, 99-1099 (La.App. 1 Cir. 6/23/00); 762 So.2d 1206, writ denied, 00-2195 (La.10/27/00); 772 So.2d 125. No evidence may be introduced to support or controvert the peremptory exception raising the objection of no cause of action. La.Code Civ.P. art. 931. Thus, the court must determine whether plaintiff is legally entitled to the relief sought based on the facts asserted in the petition. Strasner, 762 So.2d 1206.

Louisiana Civil Code Article 2315

The essence of the defendants’ argument with respect to La.Civ.Code art. 2315 centers around the fact that the derivative right to recover loss of consortium of a tort victim who had not died from his injuries was not legislatively enacted until 1982, through amendment to La.Civ.Code art. 2315. This new cause of action was deemed to be substantive and, therefore, not retroactive in its nature. Lee v. K-Mart Corp., 483 So.2d 609 (La.App. 1 Cir. 1985), writ denied, 484 So.2d 661 (La.1986). The defendants assert that Ewing’s injuries occurred during the years 1964 through | ¿1974, ten years prior to the amendment to La.Civ.Code art. 2315 allowing recovery for loss of consortium.

In a similar asbestos exposure case where the characteristics of a loss of consortium claim were analyzed, the Louisiana Fourth Circuit Court of Appeal stated that “a cause of action arises when negligent or tortious conduct causes injury.” Coates v. Owens-Corning Fiberglas Corp., 444 So.2d 788, 790 (La.App. 4 Cir.1984); see also McDuffie v. ACandS, Inc., 00-2745 (La.App. 4 Cir. 2/14/01); 781 So.2d 623. The defendants’ position is that the conduct causing Ewing injury occurred prior to the 1982 amendment to La.Civ. Code art. 2315 allowing recovery for loss of consortium; therefore, because it is to be applied only prospectively, the plaintiffs have no cause of action. In Coates, 444 So.2d at 790, the fourth circuit also stated:

Until an injured party’s condition deteriorates to such an extent that his family is actually deprived of his consortium, service or society, they have suffered no injury. A party’s separate cause of action for loss of consortium was thereby deemed to arise as of the time that the injured party begins to suffer the actual loss of consortium.

Thus, the time of the exposure or the onset of the injury causing asbestosis is not the event that determines the applicable law governing the separate loss of consortium claim, as defendants argue. Instead, it is the loss to the spouse or relative of those elements comprising consortium that is the decisive factor. The claim for loss of consortium and the impact of the 1982 amendment to La.Civ. Code art. 2315 should be deciphered independently from the determination of the date on which the cause of action accrued for the injured spouse. Thus, the survivors’ loss did not occur until 1996 when Ewing was diagnosed with mesothelioma, well after La.Civ.Code art. 2315 was amended to add a cause of action for loss of consortium.

fi Defendants assert, however, that the immunity granted to executive officers by the 1976 amendment to La.R.S. 23:1032 forecloses plaintiffs’ loss of consortium claim. We agree. Walls v. American Optical Corp., 98-455 (La.9/8/99); 740 So.2d 1262. The supreme court explained the amendment’s effect:

Prior to the 1976 amendment to the Louisiana Workers’ Compensation Act, La.R.S. 28:1032 provided that workers’ compensation benefits were the exclusive remedy of an employee, his personal representatives, dependents or relations, against an employer for injuries arising out of and in the course of his employment. Since the law did not expressly confer immunity from tort suits on any person other than the employer, this Court held in Canter v. Koehring Co., 283 So.2d 716 (La.1973), that an injured worker was allowed to seek recovery in tort from negligent executive officers and their liability insurers. Additionally, if the injured worker died from occupational injuries, his survivors could maintain both a survival action for the decedent’s damages as well as a wrongful death action for their own damages against executive officers. However, with Act No. 147, the 1976 legislature amended La.R.S. 23:1032 to extend the employer’s tort immunity to persons previously considered third parties under the Act.

Id. at 1265.

In Bazley v. Tortorich, 397 So.2d 475 (La.1981), the supreme court stated that the aim of the 1976 amendment to the Act was “to broaden the class of defendants to be granted immunity from suits by injured employees in tort or delict.” Id. at 479. As we noted, the date that an injury occurs is determinative of when a possible cause of action accrues. In Walls, the wrongful death cause of action occurred after 1976; therefore, the court concluded that the executive officers were granted immunity. It follows that since plaintiffs’ loss of consortium claims arose long after 1976, the year in which La.R.S. 23:1032 was amended, the exclusive provisions of the Workers’ Compensation Act grants the defendants immunity from loss of consortium claims. Thus, the plaintiffs do not have a cause of action for loss of consortium against the defendants.

17PIaintiffs further assert that Act 989 of 1999, amending and reenacting Article 2315 to exclude future medical monitoring as damages, somehow permits retroactive application of the 1982 amendment to La. Civ.Code art. 2315, allowing recovery for loss of consortium. Essentially, the plaintiffs argue that because the 1999 amendment reenacted La.Civ.Code art. 2315 and because Section 2 of the Act states: “The provisions of this Act are interpretative of Civil Code Article 2315 and are intended to explain its original intent, notwithstanding the contrary interpretation given in Bourgeois v. A.P. Green Indus., Inc., 97-3188 (La.7/8/98); 716 So.2d 355, and all cases consistent therewith!,]” it follows that it is inclusive of the loss of consortium cause of action added in 1982. For the following reasons, we disagree.

In 1998, the Louisiana Supreme Court ruled in Bourgeois v. A P. Green Industries, Inc., 97-3188 (La.7/8/98); 716 So.2d 355 (Bourgeois I), that asymptomatic plaintiffs who can prove a need for future medical monitoring by meeting seven specific criteria can recover the reasonable cost of that care as damages under La.Civ. Code art. 2315. The following year, the Louisiana Legislature amended Article 2315 to exclude future medical monitoring as damages. The language added by Louisiana Acts 989 of 1999 is as follows:

Damages do not include costs for future medical treatment, services, surveillance, or procedures of any kind unless such treatment, services, surveillance, or procedures are directly related to a manifest physical or mental injury or disease.

The language of Section 2 of the Act makes it clear that the legislature intended to give the amendment retroactive effect. There is nothing in the Act itself or its history that indicates that the legislature intended to give the entire Article, including the loss of consortium cause of action added in 1982, retroactive effect.

|sThe plaintiffs’ argument at this point turns on what it means to “reenact” an article or statutory provision. BlacK’s law DICTIONARY 1444 (4th ed.1968), defines reenact as “To enact again; to revive.” As an illustration of its definition, Black’s Law Dictionary cites the supreme court case Police Jury of Caddo Parish v. City of Shreveport, 137 La. 1032, 69 So. 828 (1915). Explaining Act 76 of 1884, amending and reenacting sections of Revised Statutes 1211 and 2778, the court stated:

The original sections did not lose their place or identity, and they were not obliterated by the act of the Legislature of 1884. There are no blank spaces in the Revised Statutes of the state where sections 1211 and 2778 once stood. Those sections, as amended, formed parts of the Revised Statutes since the original sections were amended and reenacted in 1884....
The intention was to keep them in place, as amended; and the intention was not to make vacant places in the Revised Statutes, or to strike out said two sections.
... When sections 1211 and 2778 were changed in phraseology and slightly in substance by the addition of cognate matter, they were still 1211 and 2778 of the Revised Statutes, and they continued to perform the former offices of those sections in their allotted relations to all the other sections of the groups of which they are integral parts.

Id. at 830-31.

Thus, when the legislature reenacted La.Civ.Code art. 2315 by Act 989 of 1999, it merely added the amendment language to La.Civ.Code art. 2315 as if it had always been there and did not change the number of the Article. Article 2315 was still in the Civil Code and not intended to be a blank space because of the amendment.

The plaintiff in Naquin v. Titan Indemnity Co., 00-1585 (La.2/21/01); 779 So.2d 704, made an argument analogous to that made here by plaintiffs regarding |9the effect of reenacting a statute. In contrast to what the plaintiffs in this case seek— application of a prior amendment to La. Civ.Code art. 2315 allowing for a loss of consortium cause of action — in Naquin, the plaintiff sought application of a prior amendment to La.R.S. 13:5107(D) declared inapplicable to his situation due to a reenactment of that statute by Act 518 of 1998. The Naquin plaintiff argued that the phrase “to amend and reenact” contained in Act 518 allowed Act 518 to “go back in time and erase the provisions of Act 63 as if they never existed.” Id. at 709. The supreme court found the plaintiffs argument without merit and stated: “to ‘amend and reenact’ is standard drafting language where an existing statute is being changed in some way, and, despite plaintiffs assertions, does not in itself carry any special weight. See ‘Legislative Bill Drafting— Forms,’ p. XXXVI, preceding LSA-R.S. 1:1.” Id. The court went on to find that there was no evidence indicating the legislature intended Act 518 to replace Act 63 as though Act 63 never existed. Likewise, in the present case, there is no evidence that the legislature intended Act 989 to cause a retroactive application of the loss of consortium cause of action to the date of La.Civ.Code art. 2315’s inception.

IV.

CONCLUSION

The judgment of the trial court granting the defendants-appellees’ peremptory exception of no cause of action is affirmed. Costs of this appeal are assessed to plaintiffs-appellants.

AFFIRMED.

      . As amended in 1982, La.Civ.Code art. 2315 provides as follows:
      Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
      Damages may include loss of consortium, service, and society, and shall be recoverable by the same respective categories of persons who would have had a cause of action for wrongful death of an injured person.
      Article 2315 was again amended in 1999 to add language detailing certain items which are not recoverable as damages. The 1999 amendments were specifically declared to apply to all "claims existing or actions ... filed on its effective date,” July 9, 1999.

      . Section 3 of the Act makes it clear that the legislature intended the amendment to apply prospectively also.


author: I,WOODARD, Judge. hAMY, J.,

text:
    Jennifer REDMON v. BI-LO SUPERMARKET, A/K/A Bi-Lo Supermarket of Associated Grocers, Inc. and Robert Boudreaux, II and XYZ Insurance Company.
    No. 02-888.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 19, 2003.
    Thomas V. Alonzo, Lafayette, LA, for Plaintiff/Appellant, Jennifer Redmon.
    Dennis R. Stevens, New Iberia, LA, for Defendant/Appellant, Robert Boudreaux, II.
    L. Albert Forrest, New Iberia, LA, for Defendant/Appellee, State Farm Fire & Casualty Co.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, BILLIE COLOMBARO WOODARD, MARC T. AMY, and BILLY H. EZELL, Judges.
   I,WOODARD, Judge.

Ms. Jennifer Redmon, a former employee of Bi-Lo Supermarket, filed suit against Mr. Robert Boudreaux, II, for, allegedly, sexually harassing her. In her third supplemental and amending petition, she added State Farm Fire & Casualty Company (State Farm), Mr. Boudreaux’s homeowner’s insurer, as a Defendant. State Farm’s policy specifically and unequivocally excludes emotional distress or mental anguish unless accompanied by physical bodily injury. Consequently, State Farm moved for summary judgment, which the trial court granted. Both, Mr. Boudreaux and Ms. Redmon appeal. We reverse and remand for further proceedings.

* * *

From 1995 until September 26, 1999, Jennifer Redmon worked as a sales clerk at the Bi-Lo Supermarket. During the summer of 1999, Mr. Boudreaux, a co-owner, allegedly, started to sexually harass, batter, and stalk her. He complimented her on how good she looked and rubbed his pelvic area against hers.

On September 25, 1999, after a Fais-do-do, Ms. Redmon arrived home at 5:30 a.m. to find Mr. Boudreaux’s car in her driveway. He was asleep. After knocking on his window and awakening him, he asked her to get in so that they could talk about their relationship. Allegedly, he offered to leave his wife and take care of her child. When she tried to get out of the car, he grabbed her and locked her inside. She managed to get out. But, he followed and grabbed her again. Finally, she threatened to set off her house alarm or call her father to remove him from the property. Ultimately, he left. Nevertheless, she filed a police report. Deputy Bell visited Mr. Boudreaux and told him not to contact Ms. Redmon.

Notwithstanding, Ms. Redmon maintains that on September 26, 1999, Mr. Bou-dreaux’s wife, mother, and sister verbally attacked, threatened, and/or embarrassed and humiliated her, after which she left the store, never to return.

Ms. Redmon brought this claim against Mr. Boudreaux and, through a third supplemental and amending petition, against State Farm, his homeowner insurance carrier. She asserted that Mr. Boudreaux’s actions caused her to have severe mental and emotional distress, psychological damages, loss of self esteem, loss of freedom Lof movement and security, loss of wages and employment, and physical pain and suffering. (Emphasis added.)

State Farm moved for summary judgment, stating that the contract policy did not provide coverage for emotional distress or mental anguish unless it arises out of a physical bodily injury. Ultimately, the trial court found in its favor. Notwithstanding, both, Ms. Redmon and Mr. Boudreaux appeal, claiming that an issue of material fact remains in dispute, prohibiting summary judgment. We agree and reverse.

Standard of Review

We review summary judgments de novo under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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.Code Civ.P. art. 966 charges the moving party with the burden of proving that summary judgment is appropriate. In doing so, its supporting documentation must be sufficient to establish that no genuine issue of material fact remains to be decided. Once the mover makes a prima facie showing that there is no genuine issue involving a material fact and that summary judgment should be granted, the burden shifts to the nonmover. Furthermore, La.Code Civ.P. art. 967 provides, in pertinent part:

When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a | ¡¡genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

In summary, in reviewing a trial court’s summary judgment, the threshold question is whether a genuine issue of material fact remains. Thus, we must determine whether reasonable minds could conclude, based on the facts presented, that the mover is entitled to judgment.

Matekial Fact in Dispute/Burden of Proof

In the instant case, State Farm, who moved for summary judgment, bore the burden of providing documentation which sufficiently proved an absence of a genuine issue of material fact in dispute. It introduced Mr. Boudreaux’s policy, number 18-Cl-0411-6, which provides coverage for various bodily injuries. However, it denied coverage and, therefore, liability, on the contention that Ms. Redmon did not suffer any physical bodily injury. It based this on the following exclusionary clause:

1. bodily injury means physical injury, sickness, or disease to a person.
This includes required care, loss of services and death resulting therefrom.
Bodily injury does not include:
(c) emotional distress, mental anguish, humiliation, mental distress, mental injury, or any similar injury unless it arises out of actual physical injury to some person.

(Emphasis added.)

Nevertheless, in their briefs, both, Mr. Boudreaux and Ms. Redmon assert that a battery occurred when he grabbed her and sexually harassed her; that, accordingly, |4she suffered a physical injury, the extent of which is an issue of disputed fact precluding the propriety of summary judgment in State Farm’s favor.

Coverage, concerning the facts before us, turns on resolving the question of what is meant by an injury in the policy and more particularly, a physical injury. In other words, State Farm maintains that there is no coverage if there was no physical injury. To refute the claim of physical injury, it argues that Ms. Redmon admitted in her deposition that she suffered emotional, as opposed to physical, damages.

While this may appear to be dispositive, we must acknowledge that legal and a lay person’s definitions of injury may differ. State Farm’s policy does not define injury, per se. It simply equates bodily injury with physical injury. Thus, when trying to ascertain a contractual term’s meaning, our supreme court instructs us that:

An insurance policy is a contract between the parties and should be construed employing the general rules of interpretation of contracts set forth in the Louisiana Civil Code. Smith v. Matthews, 611 So.2d 1377, 1379 (La.1993). The parties’ intent, as reflected by the words of the policy, determine the extent of coverage. La.Civ.Code art.2045; Louisiana Ins. Guar. Ass’n v. Interstate Fire & Casualty Co., 93-0911 p. 5, (La.1/14/1994), 630 So.2d 759, [763]. Words and phrases used in a policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning. Interstate, 93-0911 p. 5, 630 So.2d at [763]; La.Civ.Code art.2047.[]

(Footnote omitted.) (Emphasis added.)

In effect, State Farm is now attempting to limit its scope of the definition of “injury” to that requiring, at least, physical “damage,” such as a broken bone, bruise, laceration, and the like, even though it failed to specify this definition in its policy. This thinking confuses injury with physical damage.

Furthermore, State Farm’s presently proposed definition does not necessarily comport with the well settled legal definition of injury. Black’s Law Dictionary defines injury as “any wrong or damage done to another, either in his person, rights, | ^reputation, or property.” In our society, a battery is a crime-a wrong. It is physical in nature, thus, at the very least, it is a wrong against one’s body, which logically may be characterized as a physical injury.

Additionally, one does not have to suffer great physical damage, as State Farm would like us to believe, in order to be considered to be injured or wronged. For example, it is hornbook law that spitting on another is "wrong and is an actionable battery even though there is no real physical damage.

Ms. Redmon alleges that Mr. Boudreaux intentionally grabbed her arm, forcing her to remain in his car, and that, at another time, he rubbed his pelvic area against hers, both acts against her will. If these facts are accurate, under our law, he committed a battery on her. Thus, she suffered a bodily injury/wrong, the extent of which is a factual question related to damages, not to coverage.

Some courts indicate that “mental distress; unaccompanied by bodily injury resulting from the application of some external force to an individual, is not generally regarded as physical or bodily injury.” However, our supreme court has noted that “[T]here is no bright-line distinction between ‘physical’ and ‘mental’ injuries, either in medicine or in law[.]” “We are unable to separate a person’s nerves and tensions from his body. It is common knowledge that worry and anxiety can and often do have a direct effect on other bodily functions.”

|fiFor example, in Levy, the fourth circuit found that the act of grabbing the plaintiff constituted physical abuse and the act of accusing her of shoplifting in front of witnesses constituted an external force as contemplated in the standard for determining whether there was bodily or physical injury. In addressing the shoplifting accusation, the court stated, “While such an emotional experience operates primarily on the mind of a victim such suffering cannot be isolated from the body. Some physical effects must flow from the experience even if only confined to increased perspiration or adrenaline in the system.” The court indicated that the plaintiffs tears and hysteria after the incident as well as her inability to work as efficiently after the incident were evidence of such physical effects.

Likewise, Ms. Redmon alleges that, inter alia, her school work was adversely affected after the incident. While we do not have evidence of outward physical manifestations, such as tears or hysteria, certainly, the distress causing her to struggle with Mr. Boudreaux to get out of his locked' car, to threaten to have him removed from her property, and to call the police could constitute evidence that she experienced some physical effects such as those contemplated in Levy. Additionally, considering that Mr. Boudreaux’s “touchings” were unwanted and were made by force, reasonable minds could conclude that they created, at the least, uncomfortable physical sensations. Moreover, Mr. Boudreaux’s alleged acts of grabbing her, locking her in his car, and, at another time, rubbing his pelvic area against hers subjected her to physical abuse. Thus, given all of these factors, under the law, reasonable minds could conclude that Ms. Red-mon suffered a physical injury from which her alleged emotional distress, etc., arose, affording Mr. Boudreaux coverage under his homeowner’s policy unless evidence is deduced concerning another exclusion not before us.

^Accordingly, we find that the trial court erred in granting the summary judgment in State Farm’s favor. We reverse and remand for further proceedings consistent with this opinion.

CONCLUSION

We find that the trial court erred in granting summary judgment in State Farm’s homeowner’s policy, concluding no coverage for Mr. Boudreaux’s alleged battery, sexual assault, and harassment. Thus, we reverse and remand for further proceedings. The cost of this appeal are cast on the Appellee, State Farm.

REVERSED AND REMANDED.

AMY, J., dissents and assigns written reasons.

EZELL, J., dissents for reasons assigned by Judge AMY.

hAMY, J.,

dissenting.

I respectfully disagree that a reversal is required. In my opinion, the trial court correctly granted the insurer’s motion for summary judgment. Like the majority, I consider the Louisiana Supreme Court’s discussion regarding mental injury constituting physical injury in Crabtree v. State Farm Ins. Co., 93-509 (La.2/28/94); 632 So.2d 736 important to resolution of this case. However, my appreciation of the supreme court’s discussion in that case indicates that an affirmation is warranted. While the definition of “bodily injury” in the policy presently at issue and the definition in the policy before the court in Crab-tree, appear to be similar, the instant case contains a specific exclusion of emotional distress and mental anguish. Crabtree provides no indication that the policy before the supreme court contained the same provision. Focusing on the definition of “bodily injury” in the policy before it, the supreme court explained that “if the definition was intended to cover only external, physical injuries, then ‘bodily injury’ easily could have been defined in a more restrictive fashion through the use of such words.” Id. at 744. In my opinion, the State Farm policy now at issue does just that. It sets forth the definition of bodily injury, specifically excluding mental damages arising without “actual” physical injury. As the record lacks evidence of an actual physical injury in the present case, I do not conclude that the policy covers the alleged act. It follows that an affirmation is warranted.

I respectfully dissent.

      . Schroeder v. Board of Sup’rs of La. State Univ., 591 So.2d 342 (La.1991).

      . La.Code Civ.P. art. 966(B).

      . Townley v. City of Iowa, 97-493 (La.App. 3 Cir. 10/29/97); 702 So.2d 323.

      . Id.

      . Kumpe v. State, 97-386 (La.App. 3 Cir. 10/8/97); 701 So.2d 498, writ denied, 98-50 (La.3/13/98); 712 So.2d 882.

      . Id.

      . Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94); 634 So.2d 1180, 1183.

      . Black's Law Dictionary 785 (6th ed.1990).

      . Levy v. Duclaux, 324 So.2d 1 (La.App. 4 Cir.1975), writ denied, 328 So.2d 887 (La.1976).

      . State v. Lachney, 621 So.2d 846 (La.App. 5 Cir.1993).

      . See La.R.S. 14:33.

      . Levy, 324 So.2d at 9, quoting Nickens v. McGehee, 184 So.2d 271 (La.App. 1 Cir.1966), writ refused, 249 La. 199, 186 So.2d 159 (La.).

      . Crabtree v. State Farm Ins. Co., 93-509 (La.2/28/94); 632 So.2d 736, 745, quoting Sparks v. Tulane Med. Ctr. Hosp. & Clinic, 546 So.2d 138 (La.1989).

      . Crabtree, 632 So.2d at 743, quoting Levy, 324 So.2d 1.

      . 324 So.2d 1 (La.App. 4 Cir.1979).

      . Crabtree, 632 So.2d at 743, quoting Levy, 324 So.2d 1.

      . Levy, 324 So.2d 1.

      . Id.


author: | ¡¡DOUCET, Judge.

text:
    Laurin M. KNOTT v. Jamie ANGELLE.
    No. 03-230.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 27, 2003.
    J. Jackson Burson, Jr., Eunice, LA, for Plaintiff-Appellant, Laurin M. Knott.
    Aaron Wayne Guidry, Porter, Denton, & Guidry, Lafayette, LA, for Defendant-Ap-pellee, Jamie Angelle.

      (Court composed of NED E. DOUCET, JR., OSWALD A. DECUIR, and GLENN B. GREMILLION, Judges).
   | ¡¡DOUCET, Judge.

The plaintiff, Laurin M. Knott, perfected this appeal from an adverse judgment of the trial court which dismissed her suit challenging the eligibility of the defendant, Jamie Angelle, as a candidate in the election for St. Martin Parish School Board Member for District No. 9. We affirm.

The plaintiff brought this suit pursuant to La.R.S. 18:492 objecting to the candidacy of the defendant. The ground of the objection was that the defendant was not qualified to be a candidate because he had not been actually domiciled in District 9 for a full year preceding the time for qualification as required by La.R.S. 17:52(E), which provides:

E. (1) Any person who at the time of qualification as a candidate for the school board has attained the age of eighteen, resided in the state for the preceding two years, and has been actually domiciled for the preceding year in the parish, ward, or district from which he seeks election is eligible for membership on the school board. However, at the next regular election for members of the school board following a reapportionment, an elector may qualify as a candidate from any district created in whole or in part from a district existing prior to reapportionment if he was domiciled in the prior district for at least one year immediately preceding his qualification and was a resident of the state for the two years preceding his qualification.
(2) The seat of any member who changes his domicile from the district he represents or, if elected after reapportionment, whose domicile is not within the district he represents at the time he is sworn into office shall be vacated thereby, any declaration of retention of domicile to the contrary notwithstanding.
(3) For purposes of this Section, “domicile” means a person’s principal or habitual place of residence.

| ¡¡The defendant filed qualifying papers giving his domicile as 1700-A Declouet Highway, Breaux Bridge, Louisiana, but the plaintiff contends that the defendant’s “actual domicile” is 1789 Declouet Highway, Breaux Bridge, Louisiana, which is in School Board District No. 7.

Following a trial on the merits, the trial court found that the defendant, Jamie An-gelle, had been domiciled at 1700-A De-clouet Highway for a full year preceding qualification as a candidate and rendered judgment in favor of the defendant, dismissing plaintiff’s suit. From this judgment, the plaintiff has timely perfected an appeal under La.R.S. 17:1409.

The only issue presented in this appeal is whether the trial court erred in determining that Mr. Angelle was domiciled at 1700-A Declouet Highway for the year preceding the election. The Supreme Court in Russell v. Goldsby, 2000-C-2595 (La.9/22/00) 780 So.2d 1048, stated as follows:

[1-3] In an election contest, the person objecting to the candidacy bears the burden of proving the candidate is disqualified. La. R.S. 18:492; Messer v. London, 438 So.2d 546 (La.1983). The laws governing the conduct of elections must be liberally interpreted so as to promote rather than defeat candidacy. Any doubt as to the qualifications of a candidate should be resolved in favor of permitting the candidate to run for public office. Dixon v. Hughes, 587 So.2d 679 (La.1991).
[4-7] Turning to the issue of domicile first, we note it is well settled that residence and domicile are not synonymous, and a person can have several residences, but only one domicile. La. Civ. Code art. 38; Messer, 438 So.2d at 547; Autin v. Terrebonne, 612 So.2d 107 (La. App. 1st Cir.1992). A person’s domicile is his principal establishment wherein he makes his habitual residence and essentially consists of two elements, namely residence and intent to remain. The question of domicile is one of intention as well as fact, and where it appears domicile has been acquired in another place, the party seeking to show it has been changed must overcome the legal presumption that it has not been changed by positive and satisfactory proof of establishment of a domicile as a matter of fact with the intention of remaining in the new place and of abandoning the former domicile. Pattan v. Fields, 95-1936 (La.App. 1st Cir.1995), 669 So.2d 1233. Absent declaration |4to change domicile, proof of this intention depends upon circumstances; there is a presumption against change of domicile. Messer, 438 So.2d at 547; Herpin v. Boudreaux, 98-306 (La.App. 3d Cir.3/5/98), 709 So.2d 269, writ denied, 98-0578 (La.3/11/98), 712 So.2d 859.

As this court stated in Herpin v. Boudreaux, 98-306 (La.App. 3 Cir. 3/5/98), 709 So.2d 269, writ denied, 98-0578 (La.3/11/98), 712 So.2d 859, “domicile is an issue of fact to be determined on a case-by-case inquiry. As in any case, the factual findings of the trial court will not be disturbed on appeal unless clearly wrong.” Citations omitted.

The standard by which we review lower court decisions demands great deference to the trier of fact’s findings, when, as in the present case, such findings are based on determinations regarding the credibility of witnesses. See Blackwell v. Kershenstine, 97-210 (La.App. 3 Cir. 2/27/97), 690 So.2d 247, writ denied, 97-0545 (La.3/14/97) 689 So.2d 1390. In the present case, the trial court in its well written reasons for judgment, made the following factual and credibility determinations:

Having the opportunity to judge the credibility of each witness, the Court finds the testimony of plaintiffs witness, Eldridge Menard inconsistent with other credible evidence regarding the defendant’s domicile. Menard testified that the day before the trial, February 20, 2003, the defendant and his mother told him that the defendant slept at the home of his parent’s, located at 1789 Declouet Hwy. five nights a week and with his sister two nights a week at another address. Mrs. Angelle, the mother, was equally available to both parties but was not called to testify. Additionally, Me-nard admitted to being convicted of false swearing and no other witness called by the plaintiff could substantiate the nature and accuracy of this conversation. It was also remarkable that this witness did not know other members of the An-gelle family that reside at 1789 Declouet Hwy. and offered no other testimony regarding his knowledge of or contact with the defendant relative to his domicile. Therefore, the court gives no weight to the testimony of Mr. Menard relative to the domicile of the defendant. Further, plaintiff nor incumbent School board member of District No. 9, Floyd Knott, could testify of defendants actual domicile or residence for the year preceding February 14, |s2003. Both witnesses testified that they did not know where the defendant lived and never had the occasion to visit him at home.
• • •
The inquiry into domicile essentially consist of two elements, residence and intent to remain. Absent a declaration to change domicile, proof of intention depends on circumstances, and there also exist a presumption against change of domicile. Additionally, laws governing the conduct of elections should be liberally construed so as to promote rather than defeat candidacy. See Slocum v. DeWitt, 374 So.2d 755 (La.App. 3 Cir.1979).
Circumstances to consider in deciding whether a party has established domicile includes the location where a party sleeps, eats, establishes his household and surrounds himself with family and the comfort of domestic life. LSA-C.C. Acts 38, The Court accepts the testimony of the defendant that for the last 1/6 years he has maintained his principal establishment at 1700-A Declouet Hwy. Breaux Bridge, La. The defendant testified that 80% of his time was spent at that residence. He further testified, he not only spends most of his nights there, he also lives with a relative and has necessary items needed to establish a household. This testimony was corroborated by Ms. Misty Guidry, who testified to a close romantic relationship with the defendant; and that she has spent up to 3 nights a week, with the defendant at the 1700-A Declouet Hwy. Although she has visited with the defendant at other locations, this is the only place she has spent the night with the defendant in St. Martin Parish. Ms. Guidry further testified she has the occasion to see the defendant “almost daily”; and they work together at Crawfish Town USA in Cecilia. Finally, the above mentioned contact between this witness and the defendant has existed over the last Vh years.
The defendant’s father Jules Angelle testified that, at most, the defendant spends 10-20% of his time at 1789 De-clouet Hwy. Even though the defendant’s father testified that his son s habitual residence at 1700-A Declouet Hwy. began, “about October or November of last year”, the Court finds more credible and complete the testimony of the defendant and Misty Guidry.
Considering the totality of the testimony and circumstances, the court finds evidence sufficient to support a showing of change of domicile for a person of this age, who is a single male; has no substantial financial ties | ^anywhere at this time in his life; and has sufficient quantity and quality with 1700-A Delcouet Hwy., Breaux Bridge, La. The court also finds evidence sufficient to support the defendant’s domicile at 1700-A Declouet Hwy. for the year preceding February 14, 2003.

We find that the trial court record supports the determination that Mr. Angelle lived the majority of his time at 1700-A Declouet Highway for the past year and a half, and that this residence became the principal establishment in which he made his habitual residence during this time. Therefore, we cannot say the court was clearly wrong in concluding that Mr. An-gelle had changed his domicile to 1700-A Declouet Highway and was domiciled at 1700-A Declouet Highway for the preceding year. Therefore, Mr. Angelle is qualified to seek the candidacy for St. Martin Parish School Board Member, District No. 9. For these reasons, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.


author: I «SULLIVAN, Judge:

text:
    Andre ROSAMOND v. James T.K. ALEXANDER, Sr., et al.
    No. CA 03-235.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 28, 2003.
    P. Charles Calahan, New Iberia, LA, for James T.K. Alexander, Sr.
    Russell J. Cremaldi, James B. Supple, Biggs, Supple, Cremaldi & Curet, LLP, Franklin, LA, for Andre Rosamond.
    Lynn A. Derouen, Derouen & Wattigny, New Iberia, LA, for Michael Thibodeaux.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULjuWAR and ELIZABETH A PICKETT, Judges.
   I «SULLIVAN, Judge:

The defendant, James “T.K.” Alexander, Sr., perfected this appeal from a judgment of the trial court which disqualified him as a candidate in the election for Mayor of Jeanerette. We affirm.

Plaintiff, Andre Rosamond, instituted suit, pursuant to La.R.S. 18:492, challenging the candidacy of defendant, James “T. K.” Alexander, Sr., for Mayor of Jeaner-ette based on La. Const, art. I, § 10(B)(2) and La.R.S. 18:451, which do not permit a person under an order of imprisonment for conviction of a felony to qualify as a candidate.

Defendant was convicted of public bribery on May 17, 2002 in the matter of State of Louisiana v. James T.K Alexander,

Sr., No. 00-507, of the Sixteenth Judicial District Court, Parish of Iberia. On October 10, 2002, defendant was sentenced to a term of imprisonment of three years at hard labor, with two years being suspended. The court further ordered defendant be placed on probation for three years upon his completion of the prison term. An appeal of defendant’s conviction is pending before this court. Defendant remains free pending the appeal as he posted a post conviction bond.

In announcing the general principles with respect to election laws, the court in Arnold v. Hughes, 621 So.2d 1139 (La.App. 1 Cir.1993) stated:

Generally, the laws governing the conduct of elections should be liberally construed so as to promote rather than defeat a candidacy, Slocum v. DeWitt, 374 So.2d 755 (La.App. 3d Cir.), writ denied, 375 So.2d 1182 (La.1979), and any doubt as to the qualifications of a candidate should be resolved in favor of permitting the candidate to run for public office. Dixon v. Hughes, 587 So.2d 679 (La.1991).

La. Const, art. I, §' 10 provides, in pertinent part:

(B) Disqualification. The following persons shall not be permitted to qualify as a candidate for elective public office or take public elective office or appointment of honor, trust, or profit in this state:
(2) A person actually under an order of imprisonment for conviction of a felony.

|4La.R.S. 18:451 of the Louisiana Election Code also prohibits a person who is under an order of imprisonment for conviction of a felony from becoming a candidate. La.R.S. 18:2(8) defines “under an order of imprisonment” as a “sentence of confinement, whether or not suspended, whether or not the subject of the order has been placed on probation, with or without supervision, and whether or not the subject of the order has been paroled.”

On appeal, defendant contends “actually under an order of imprisonment” in La. Const, art. I, § 10(B)(2) means actual imprisonment. However, defendant offers nothing to support said interpretation. Defendant places a great deal of emphasis on the word “actually” in La. Const, art. I, § 10(B)(2) and the absence of that word in La.R.S. 18:2 and 18:451. This court finds the presence of the word “actually” in La. Const, art. 1, § 10(B)(2) and its absence from La.R.S. 18:2 and 18:451 is insignificant. This court further rejects defendant’s argument that “actually under an order of imprisonment” means actual imprisonment.

Defendant also argues the definition of “under an order of imprisonment” in La. R.S. 18:2 cannot be used to define the phrase “actually under an order of imprisonment” in La. Const, art. I, § 10(B)(2) because interpreting the constitution is a function of the judiciary not the legislature. Notwithstanding defendant’s argument that the definition of “under an order of imprisonment” in La.R.S. 18:2(8) may not be used to define or interpret the similar phrase in La. Const, art. I, § 10(B)(2), this court finds the definition in La.R.S. 18:2(8) to be reasonable. Therefore, this court will utilize the definition in La.R.S. 18:2(8) to interpret the similar provision in the constitution.

Although La. Const, art. I, § 10(A) pertains to a person’s right to vote, said provision is relevant as it provides that a person’s right to vote may be suspended while a person is under an order of imprisonment for conviction of a felony. In addressing the suspension of a person’s right to vote, the attorney general, in La. Atty. Gen. Op. 94-555 stated, in pertinent part:

... Specifically, our office has opined [in 89-456]:
It is clear that the legislature in exercising the constitutional authority delegated by Art. I, § 10 has elected to limit disqualification from voting where a felony conviction is present to those cases where an fiorder of imprisonment is actually imposed, whether it be made executory or whether it be suspended or probated.
Therefore, the question with regard to sentencing under the Comprehensive Crime Control Act is whether a federal probationer or supervised releasee has actually received an order of imprisonment, regardless of whether such order has been made executory, suspended or probated. If the answer is yes, then it is our opinion that such individual loses his right to register and vote. As we opined in opinion number 89-456, if the two following essential requirements are met: (1) Conviction of a felony, (2) for which a sentence of incarceration is imposed, although suspended, probated or paroled, then the suspension of voting rights under the Constitution and the Election Code are satisfied. However, we have further opined that simple probation, where die imposition of sentence is suspended, and where there is no sentence at all, does not suffice to suspend voting rights. (Emphasis added.)

Summarising, defendant was convicted of a felony and a sentence of confinement was imposed upon defendant as a result of said conviction. Therefore, this court finds the defendant is “under an order of imprisonment” pursuant to La. Const, art. I, § 10(B)(2).

Defendant alsd argues the order of imprisonment is suspended during the pendency of his appeal sfiice he is free on a post conviction bond. La.Code Crim.P. art. 918(B) provides for the suspension of the execution of a sentence where the defendant is “... admitted to ppstconviction bail.” As noted by the trial judge in his reasons for judgment, article 913 speaks of suspension of the execution of the sentence not suspension of the imposition of the sentence. Defendant acknowledges that the imposition of the sentence is not suspended, but argues that if La. Const, art. I, § 10(B)(2) requires actual imprisonment, then the effect of the suspension of the execution of sentence is that the order of imprisonment is suspended. This court previously rejected defendant’s argument that actual imprisonment is required under La. Const, art. I, § 10(B)(2). This court finds suspension of the execution of defendant’s sentence pursuant to La.Code Crim.P. art. 913 does not mean the defendant is not “under an order of imprisonment.”

Accordingly, this court finds the trial court was correct in disqualifying the defendant on the basis of La. Const, art. I, § 10(B)(2). Therefore, the judgment of the hfrial court is affirmed at appellant’s cost.

AFFIRMED.


author: THIBODEAUX, Judge.

text:
    Terry and Ruth CLELAND v. CITY OF LAKE CHARLES, et al. Terry and Ruth Cleland v. City of Lake Charles, et al.
    Nos. 01-1463, 02-805.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2003.
    Rehearing Denied April 16, 2003.

      John Bradford, Todd Ammons, Stock-well, Sievert, Viccellio, Clements & Shad-dock, Lake Charles, LA, for City of Lake Charles and Gerard Jones.
    Christopher P. Ieyoub, Plauche, Smith & Nieset, Lake Charles, LA, for Calcasieu Parish School Board and Washington National Insurance Company.
    Thomas Lorenzi, David D. Palay, Jr., Lorenzi, Sanchez & Palay, L.L.P., Lake Charles, LA, for Terry E. Cleland and Ruth P. Cleland.
    Thomas Justin Miller, Waller & Associates, Mandeville, LA, for Automobile Insurance Company of Hartford, Connecticut.
    Earl G. Pitre, Pitre, Halley & Sikich, Lake Charles, LA, for Terry E. Cleland and Ruth P. Cleland.
    Court composed of ULYSSES GENE THIBODEAUX, MICHAEL G. SULLIVAN, and BILLY H. EZELL, Judges.
   THIBODEAUX, Judge.

For the reasons discussed in the consolidated case of Terry and Ruth Cleland v. City of Lake Charles, et al., 02-805 (La.App. 3 Cir. 3/5/03); 840 So.2d 686 the judgment of the trial court is affirmed in part, reversed in part, and remanded. Costs are assessed to the defendants, the City of Lake Charles, the Calcasieu Parish School Board, and Washington National Insurance Company in the amount of $11,180.50.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.