author: J^PETTIGREW, J.

text:
    STATE of Louisiana v. Cameron L. EMANUEL-DUNN.
    No. 2003 KA 0550.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 7, 2003.

      Doug Moreau, District Attorney, Steven B. Danielson, Kory J. Tauzin, Assistant District Attorneys, Baton Rouge, for State of Louisiana.
    Frederick Kroenke, Baton Rouge, for Defendanb-Appellant Cameron L. Emanuel-Dunn.
    Before: PETTIGREW, DOWNING, and McClendon, jj.
   J^PETTIGREW, J.

The defendant, Cameron L. Emanuel-Dunn, was charged by grand jury indictment with one count of second degree murder, a violation of La. R.S. 14:30.1, and pled not guilty. Following a jury trial, he was found guilty as charged by unanimous verdict. The defendant moved for post-verdict judgment of acquittal and/or new trial, but the motion was denied. He was sentenced to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. The defendant moved for reconsideration of sentence, but the motion was denied, appeals, designating three assignments of error. For the reasons that follow, we affirm the defendant’s conviction and sentence. He now

FACTS

On May 6, 2001, the victim, Paul Brous-sard, Jr., was shot to death outside of Church’s Chicken on Main Street in Baker, Louisiana. He suffered gunshot wounds to the front of his right armpit, to the right of his chest, and to his mouth. The victim had no contusions or scratches on any other part of his body. Prior to approaching the defendant, the victim had been sleeping in an eighteen-wheeler parked at Church’s. Four .38 caliber bullet casings were discovered at the crime scene, but no weapons were recovered from the crime scene. The .38 caliber weapon used to kill the victim was retrieved from the defendant’s uncle. The victim was approximately 6' 1" tall and weighed approximately 260 lbs. No ethyl alcohol was detected in the victim’s blood. However, his urine was determined to contain a metabolite of marijuana. The defendant was approximately 5' 10" tall and weighed approximately 245 lbs. at the time of the incident.

The State presented testimony at trial from the occupants of a vehicle that was waiting in line behind the defendant’s vehicle at the time of the incident. John Lor-cart was the passenger in the vehicle. He saw the victim walk over to the defendant’s vehicle and begin talking to the defendant. Lorcart thought the victim and the defendant knew each other because the defendant rolled down his window to talk to the victim, the defendant and the victim spoke to one another, and the victim “steady had a smile on his face.” Thereafter, the victim moved back from the car, and the defendant exited the Lorcart turned away to look for change to pay for his food, but looked back at the men after Loreart’s wife alerted him to the fact that the defendant had a gun. After seeing the defendant retrieve a pistol from under his shirt, Lorcart told his wife, who was driving, to quickly get out of the line. Lorcart then heard gunfire and took cover, but saw the victim turn “around like he was trying to get away from there to run.” The defendant fired at the victim again and was “steady shooting” the victim. Lorcart saw or heard approximately five or six shots. Lorcart never saw the victim pull a gun on the defendant or hit the defendant. _J¿yehiele.

Donna Heil was the driver of the vehicle behind the defendant’s vehicle at the time of the incident. Heil testified she saw the victim walk to the defendant’s vehicle from an eighteen-wheeler parked at Church’s and talk to the defendant after the defendant rolled down his window. Heil was positive the victim did not approach the defendant in an aggressive or mad manner and indicated the victim and the defendant spoke “like they knew each other.” After the men spoke for a short time, the defendant exited his car. The men spoke some more, and Heil saw the victim pull on the defendant’s shirt. Heil noticed the defendant had a black pistol on his side. Heil saw the defendant shoot the victim when the men were very close to each other. Following the first shot, the victim moved back, but the defendant continued shooting the victim. When asked if she had seen the victim move like he had a gun, Heil indicated the victim did not have a gun. Heil stated she did not see the victim punch or hit the defendant. Moreover, from what she observed, Heil indicated that it did not appear the defendant was acting in .self-defense when he shot the victim.

The State also presented testimony at trial from Shirley McDaniel. McDaniel was taking orders from the drive-through line at Church’s at the time of the incident. While taking a young man’s order, she heard, “You heard me m — f—,” followed by gunfire. The cursing was not directed at McDaniel. McDaniel conceded she could not tell if the person who cursed was the same person who was placing the order or whether the person who cursed was the same person who opened fire.

|/Fhe defendant testified at trial. He gave the following account of the incident. While he was a passenger in a vehicle driven by Davis waiting in the drive-through line at Church’s, the victim tapped on the passenger side window. The defendant rolled down his window, and the victim leaned on the window stating, “You stealing from me? You stealing from me?” The defendant asked the victim what he was talking about and told the victim he (the defendant) did not even know the victim. The defendant then exited the vehicle holding his hamburger in one hand and was immediately grabbed by both shoulders by the victim. The defendant got away from the victim briefly, but was then grabbed from behind by the victim and pinned against the car. The victim told the defendant, “Any move you make, I got you. Anything you do, I got you.” The victim then “reached” on the defendant. The defendant drew his weapon, and the victim grabbed the weapon. In the ensuing struggle for the weapon, the weapon discharged. The defendant claimed the victim hit him in the mouth during the struggle and tore his T-shirt. The defendant conceded he carried a gun, he always wore a bandanna, and he had tattoos on his body stating, “Graveyard Soldier,” “RIP,” and “HGC,” which meant “hustling to get cream.”

Davis also testified at trial for the defense. Davis conceded he was the defendant’s close friend and considered him a cousin. Davis gave the following account of the incident. Davis pulled up to the speaker at Church’s on the night of the incident and placed his order. The victim knocked on the passenger window, and the defendant rolled down the window. The victim accused the defendant of stealing from the victim. The defendant told the victim the defendant did not know the victim and did not know what the victim was talking about. The victim again accused the defendant of stealing, and the defendant exited the vehicle. The victim “brazen[ed] up” on the defendant and continued to accuse him of stealing. The defendant continued to deny stealing, and, while going into his (the victim’s) pocket, the victim grabbed the defendant on his shoulder, telling the defendant, “I got you.” A scuffle ensued and the defendant broke free from the victim. Davis closed the defendant’s door and was about to open his own door when gunfire erupted. Davis drove off because he did not know who was shooting. He saw the victim | ^running, and he did not see the defendant. Thereafter, Davis saw the defendant running and stopped to give him a ride. Davis claimed the entire incident lasted only a couple of seconds, and the victim was attacking the defendant during the incident.

SUFFICIENCY OF THE EVIDENCE

In assignment of error number two, the defendant contends the evidence was insufficient to prove the crime of second degree murder but rather proved self-defense.

The standard of review for sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the State proved the essential elements of the crime and the defendant’s identity as the perpetrator of that crime beyond a reasonable doubt. In conducting this review, we also must be expressly mindful of Louisiana’s circumstantial evidence test, which states in part, “assuming every fact to be proved that the evidence tends to prove, in order to convict,” every reasonable hypothesis of innocence is excluded. La. R.S. 15:438; State v. Wright, 98-0601, p. 2 (La.App. 1 Cir. 2/19/99), 730 So.2d 485, 486, writs denied, 99-0802 (La.10/29/99), 748 So.2d 1157, and 2000-0895 (La.11/17/00), 773 So.2d 732.

When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. Wright, 98-0601 at 3, 730 So.2d at 487.

The crime of second degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1(A)(1). Specific criminal intent is that “state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1). Though intent is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances of the transaction. Specific | ^intent may be proven by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant’s actions or facts depicting the circumstances. Specific intent is an ultimate legal conclusion to be resolved by the fact finder. Specific intent to kill may be inferred from a defendant’s act of pointing a gun and firing at a person. State v. Lucas, 99-1524, p. 3 (La. App. 1 Cir. 5/12/00), 762 So.2d 717, 720.

When a defendant charged with a homicide claims self-defense, the State has the burden of establishing beyond a reasonable doubt that he did not act in self-defense. State v. Rosiere, 488 So.2d 965, 968 (La.1986).

Pursuant to La. R.S. 14:20, a homicide is justifiable “[w]hen committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.” However, La. R.S. 14:21 provides that “A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.”

The relevant inquiry on appeal is whether, after viewing the evidence in the light most favorable to the prosecution, a rational fact finder could have found beyond a reasonable doubt that the defendant did not act in self-defense. Rosiere, 488 So.2d at 968-969; see also State v. Wilson, 613 So.2d 234, 238 (La.App. 1 Cir.1992), writ denied, 93-0533 (La.3/25/94), 635 So.2d 238.

After a thorough review of the record, we are convinced the evidence presented herein, viewed in the light most favorable to the State, proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of second degree murder and the defendant’s identity as the perpetrator of that offense. The account of the incident given by the defendant and Davis was contradicted by the testimony of Lorcart and Heil. The verdict rendered against the defendant indicates the jury rejected the defendant’s and Davis’s accounts of the incident and accepted the accounts given by Lorcart and Heil. As the trier of fact, the jury was free to |7accept or reject, in whole or in part, the testimony of any witness. State v. Johnson, 99-0385, p. 9 (La.App. 1 Cir. 11/5/99), 745 So.2d 217, 223, writ denied, 2000-0829 (La.11/13/00), 774 So.2d 971. On appeal, this court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder’s determination of guilt. State v. Glynn, 94-0332, p. 32 (La.App. 1 Cir. 4/7/95), 653 So.2d 1288, 1310, writ denied, 95-1153 (La.10/6/95), 661 So.2d 464.

Additionally, a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could find that the evidence presented by the State established that the defendant was the aggressor in the conflict and, thus, was not entitled to claim self-defense. Further, even if it could be found that the defendant was not the aggressor, any rational trier of fact could find, beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant did not act in self-defense. The defendant repeatedly shot the victim at close range and fled the scene. The defendant’s flight from the scene after the incident was inconsistent with a theory of justifiable homicide. See State v. Wallace, 612 So.2d 183, 191 (La.App. 1 Cir.1992), writ denied, 614 So.2d 1253 (La.1993).

Moreover, when a case involves circumstantial evidence, and the jury reasonably rejects the hypothesis of innocence presented by the defendant’s own testimony, that hypothesis falls; and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Henderson, 99-1945, p. 9 (La.App. 1 Cir. 6/23/00), 762 So.2d 747, 754, writ denied, 2000-2223 (La.6/15/01), 793 So.2d 1235. No such hypothesis exists in the instant case. This assignment of error is without merit.

JURY SHIELD LAW

In assignment of error number one, the defendant contends the trial court erred in not allowing the defense to call jurors to testify as to juror misconduct and in denying the motion for a new trial and a post-verdict judgment of acquittal on the basis of juror misconduct.

Louisiana Code of Evidence article 606(B) provides as follows:

|SB. Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict ... a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict ... or concerning his mental processes in connection therewith, except that a juror may testify on the question whether any outside influence was improperly brought to bear upon any juror, and, in criminal cases only, whether extraneous prejudicial information was improperly brought to the jury’s attention. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

This article clarifies the previous jury shield law but does not change the requirements for overcoming the prohibition against juror testimony. The prohibition contained in Article 606(B), and previously set forth in La. R.S. 15:470, is intended to preserve the finality of jury verdicts and the confidentiality of discussions among jurors. However, the jurisprudence has established that the prohibition against juror testimony is not absolute and must yield to a substantial showing that the defendant was deprived of his constitutional rights. Well-pleaded allegations of prejudicial juror misconduct violating a defendant’s constitutional rights will require an evidentiary hearing at which jurors shall testify. Unless such pleadings are made with particularity, jury members are not competent to testify. State v. Richardson, 91-2339, pp. 3-4 (La.App. 1 Cir. 5/20/94), 637 So.2d 709, 712.

Prior to sentencing, the defendant moved for post-verdict judgment of acquittal and/or new trial, in pertinent part, contending:

3.
After the conclusion of the trial it was revealed to the news media that one of the jurors went to the crime scene a short time after the shooting while the police officers were still present at the crime scene.
4.
In addition, this same juror stated to the news media that he heard a number of jurors say the defendant was guilty before they began deliberations.

Thereafter, the State filed a motion to enforce the jury shield law.

19At the hearing on the motions, the defense requested it be permitted to present testimony from juror Alexander. The court refused the defense request and denied the motion for post-verdict judgment of acquittal and/or new trial, holding the purpose of the jury shield law was precisely to prevent going back over a jury verdict.

We have conducted an exhaustive review of the voir dire examination pertinent to juror Alexander as well as the jury questionnaire completed by him. During voir dire, the prospective jurors were asked if they remembered any of the media coverage of the case. However, no response was given by any of the potential jurors. Juror Alexander was never asked if he had any personal knowledge of the facts of the casé. Moreover, he was never asked if he had visited the crime scene or even knew where the crime scene was. According to an article reported in the Baton Rouge Advocate shortly after the verdict in this case, juror Alexander “happened along [the crime scene] right after [the shooting] happened.” There is nothing in the record to suggest that juror Alexander visited the crime scene during the trial of this matter or during jury deliberations. Although the allegation that a juror may have visited the crime scene in question is not to be taken lightly, based on the unique facts and circumstances of the instant case, we find no showing of proof that juror Alexander breached his duty as a juror.

In the instant case, the pleadings filed by the defendant did not meet the requirements of specificity. None of the complaints set forth by the defendant allege juror misconduct in the nature of constitutional violations with sufficient particularity to require or allow members of the jury to testify. The defendant alleged no fact suggesting that the jury based its verdict on prohibited factors such as coercion by a party, or inadmissible evidence of other crimes obtained from an out-of-court source. Moreover, communications among jurors, even when violative of the trial court’s instructions, do not amount to “outside influences” or “extraneous prejudicial information.” State v. Quiambao, 36,587, p. 11 (La.App. 2 Cir. 12/11/02), 833 So.2d 1103, 1110, writ denied, 2003-0477 (La.5/16/03), 843 So.2d 1130; State v. Horne, 28,327, p. 6 (La.App. 2 Cir. 8/21/96), 679 So.2d 953, 958, writ denied, 96-2345 (La.2/21/97), 688 So.2d 521. This assignment of error is without merit.

J^EXCESSIVE SENTENCE

In assignment of error number three, the defendant contends the trial court erred in imposing a sentence herein that was unconstitutionally excessive. He argues the lack of evidence of his violent nature and the evidence and manner of occurrence of the incident required a deviation from the mandated life sentence for the offense.

In State v. Dorthey, 623 So.2d 1276, 1280-1281 (La.1993), the Louisiana Supreme Court recognized that if a trial judge determines that the punishment mandated by the Habitual Offender Law makes no “measurable contribution to acceptable goals of punishment” or that the sentence amounts to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime,” he is duty bound to reduce the sentence to one that would not be constitutionally excessive. However, the holding in Dorthey was made only after, and in light of, express recognition by the court that, “the determination and definition of acts which are punishable as crimes is purely a legislative function.” Dorthey, 623 So.2d at 1278. The court continued, noting as follows: “It is the Legislature’s prerogative to determine the length of the sentence imposed for crimes classified as felonies.... Moreover, courts are charged with applying these punishments unless they are found to be unconstitutional.” Id.

In State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, the Louisiana Supreme Court reexamined the issue of when Dor-they permits a downward departure from the mandatory minimum sentences in the Habitual Offender Law. Citing State v. Young, 94-1636, pp. 5-6 (La.App. 4 Cir. 10/26/95), 663 So.2d 525, 528, writ denied, 95-3010 (La.3/22/96), 669 So.2d 1223, the court noted as follows:

[T]o rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that:
|n[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.

Johnson, 97-1906 at 8, 709 So.2d at 676.

Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. La. R.S. 14:30.1(B). In the instant case, the defendant was sentenced to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. At sentencing, defense counsel moved the trial court to exercise its discretion to impose less than the mandated sentence because the defendant had no prior convictions and because of the manner in which the offense occurred. The State pointed out that the defendant had taken a man’s life.

Additionally, in denying the defendant’s motion to reconsider sentence, the court stated:

At the time of sentencing, the Court considered all relevant mitigating and aggravating circumstances surrounding the charge. The sentence imposed by this Court falls within the statutory guidelines recommended for this charge. The defendant makes no allegation of fact which would warrant alteration of the sentence in any way. Accordingly, the Court sees no reason to modify the defendant’s sentence at this time.

A thorough review of the record indicates there was no reason for .the trial court to deviate from the mandatory sentence provided for the instant offense by La. R.S. 14:30.1(B). The defendant failed to clearly and convincingly show that because of unusual circumstances, he was a victim of the legislature’s failure to assign sentences that were meaningfully tailored to his culpability, the gravity of the offense, and the circumstances of the ease. The defendant shot the victim to death and endangered the lives of numerous people present at the crime scene, including at least one child present in the vehicle behind the defendant’s vehicle during the shooting. This assignment of error is without merit.

_JjgDECREE

For the above and foregoing reasons, the defendant’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

      . The State pointed out that the newspaper article referenced in the defense motion did not indicate juror Alexander was at the crime scene while police were still present.

      . The sentencing review principles espoused in Dorthey were not restricted in application to the mandatory minimum penalties provided by La. R.S. 15:529.1. See State v. Fobbs, 99-1024 (La.9/24/99), 744 So.2d 1274, 1275 (per curiam); State v. Davis, 94-2332, pp. 11-12 (La.App. 1 Cir. 12/15/95), 666 So.2d 400, 407-08, writ denied, 96-0127 (La.4/19/96), 671 So.2d 925.


source: Caselaw Access Project

author: loGAIDRY, J.

license: Public Domain

text:
    Ann WHEAT v. Sidney WHEAT and National General Insurance Company. Sidney E. Wheat v. National General Insurance Company.
    No. 2003 CA 0173.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 7, 2003.

      Albert A. Bensabat, III, Hammond, Counsel for Plaintiff/Appellee Martha A. Temples.
    Louis H. Schultz, Covington, Counsel for Defendant/Appellant Sidney Wheat.
    Keith L. Richardson, Baton Rouge, Counsel for Defendant/Appellee National General Insurance Co.
    Austen M. Adams, Baton Rouge, Counsel for Defendant/Appellee National General Insurance Co.
    Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.
   loGAIDRY, J.

In this suit involving an insurance coverage dispute, Sidney Wheat appeals a trial court judgment granting summary judgment in favor of National General Insurance Company, Wheat’s uninsured motorist carrier. We reverse.

FACTS AND PROCEDURAL HISTORY

On May 19, 1998, at approximately 1:00 a.m., Sidney Wheat was driving on Louisiana Highway 22 in Tangipahoa Parish with his ex-wife, Ann Wheat, in the passenger seat and his sister, Martha Temples, in the back seat. Wheat’s vehicle struck something in the roadway, causing him to lose control and leave the roadway, ultimately traveling down a steep incline and striking several trees. All three occupants of the vehicle were injured.

Sidney Wheat, Ann Wheat, and Martha Temples all testified that they did not see anything in the roadway before the-impact, and Sidney Wheat testified that he initially thought he had been hit from behind by another vehicle. However, when Trooper Clay Smith arrived on the scene to investigate the accident, he discovered that Sidney Wheat’s vehicle had struck a vehicle transmission that had been left in the roadway. Trooper Smith determined that the transmission that caused the accident was not the transmission from the Wheat vehicle.

Sidney Wheat filed a claim with National General Life Insurance Company (National), his automobile liability insurer, under the uninsured motorist coverage. National denied the claim, and this suit followed. National filed a motion for summary judgment, alleging that Sidney Wheat was not entitled to coverage under the terms of the policy, and the trial court granted the motion. Sidney Wheat appealed, alleging that the trial court | misinterpreted the law in finding that he was not entitled to coverage under the policy and therefore erred in granting summary judgment.

DISCUSSION

An appellate court’s review of a summary judgment is a de novo review based upon the evidence presented at the trial court and using the same criteria used by the trial court in deciding whether a summary judgment should be granted. Simmons v. Berry, 98-0660, p. 4 (LaApp. 1 Cir. 12/22/00), 779 So.2d 910, 913-914.

It is well settled that summary judgment should only be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue of fact and that the mover is entitled to judgment as a matter of law. Summary judgment is a favored procedure and is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966; Lorraine v. Nolty J. Theriot, Inc., 98-0479, p. 5 (La.App. 1 Cir. 4/1/99), 729 So.2d 1160, 1162, writ denied, 99-1251 (La.6/18/99), 745 So.2d 30.

If the moving party proves that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense, then the nonmoving party must produce factual support sufficient to satisfy his evidentiary burden at trial. La. C.C.P. art. 966(C)(2). If the nonmoving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. La. C.C.P. arts. 966 and 967.

In 1991, the legislature amended La. R.S. 22:1406(D)(l)(f) to mandate “miss and run” coverage under limited circumstances. Prior to that time, the legislature did not require insurance companies who sold uninsured motorist policies to include coverage for “miss and run” accidents. Thibodeaux v. Doe, 602 So.2d 1076, 1079 (La.App. 1 Cir.), writ denied, 605 So.2d 1377 (La.1992).

However, the injured party bears the burden of proving that this “miss and run” accident occurred. Eudy v. State Farm Mutual Automobile Insurance Company, 620 So.2d 405, 408 (La.App. 1 Cir.), unit denied, 625 So.2d 1041 (La.1993).

Louisiana Revised Statute 22:1406(D)(l)(f) provides:

Uninsured motorist-coverage shall include coverage for bodily injury arising out of a motor vehicle accident caused by an automobile which has no physical contact with the injured party or with a vehicle which the injured party is occupying at the time of the accident, provided that the injured party bears the burden of proving, by an independent and disinterested witness, that the injury was the result of the actions of the driver of another vehicle whose identity is unknown or who is uninsured or un-derinsured.

The language of National’s policy regarding uninsured motorist coverage follows closely the language of La. R.S. 22:1406(D)(l)(f):

If there is no physical contact with the hit-and-run vehicle, the “insured” must show, by an independent and disinterested witness, that the “bodily injury” was the result of the actions of an unidentified motorist.

National’s motion for summary judgment alleged that there was no physical contact with a hit-and-run vehicle and Sidney Wheat could not prove by an independent and disinterested witness that his injuries were the result of the actions of an unidentified motorist.

In opposition to National’s motion for summary judgment, Sidney Wheat offered the affidavit of Trooper Clay Smith, in which Smith stated that his investigation revealed that the cause of the accident was a transmission left in the roadway by another vehicle. Trooper Smith pointed out that the transmission did not come from Wheat’s vehicle.

|fiIn granting National’s motion for summary judgment, the trial court found that Pinkney v. Progressive Specialty Insurance Company, 597 So.2d 1168 (La.App. 1 Cir.1992), was controlling, and interpreted Pinkney as requiring that an independent and disinterested witness actually see what caused the accident, as opposed to coming onto the scene later and determining the cause of the accident. The court held that because Trooper Smith did not actually see Wheat’s vehicle strike the transmission, the requirements of La. R.S. 22:1406(D)(l)(f) and the policy were not satisfied.

In Pinkney, an insured brought an action against his uninsured motorist carrier, seeking to recover for injuries he received when he swerved his motorcycle to avoid a log that had apparently fallen from an unknown vehicle onto the roadway. At trial, Pinkney presented the testimony of the driver of a vehicle traveling two cars behind him at the time of the accident. That driver testified that the first thing he saw at the time of the accident was Pink-ney’s airborne motorcycle. After swerving to avoid hitting Pinkney or anything else, the driver saw the log, which was still rolling, in the roadway. The driver testified that he remembered seeing a truck several hundred yards ahead of Pinkney carrying some trash, but he did not see the log come off of that truck. The trial court found that it was more probable than not that the log came from a vehicle because that portion of the interstate was elevated, with no overhanging trees, and the only method of pedestrian access to that area would be for someone to walk up an exit ramp approximately one-half mile away. On appeal, the first circuit held that the trial court’s factual finding that the log came from a vehicle, combined with the independent, disinterested testimony of the driver of the vehicle traveling behind Pinkney |7that he saw the motorcycle in the air and then the log rolling on the roadway, satisfied the requirements for the uninsured motorist coverage. Id.

The Pinkney court did not hold that La. R.S. 22:1406(D)(l)(f) requires an independent, disinterested witness who actually saw the accident and its cause. The witness in Pinkney did not see Pinkney’s motorcycle strike the log; he saw Pink-ney’s motorcycle in the air and then saw the log rolling in the roadway. The witness drew the conclusion from these facts, as did the court, that Pinkney’s motorcycle had struck the log, causing it to become airborne. The trial court erred in finding that the Pinkney holding required that Trooper Smith actually see Wheat’s vehicle strike the transmission.

Furthermore, there is nothing in the language of La. R.S. 22:1406(D)(l)(f) requiring that the witness actually see the accident occur. The statute only requires that the claimant prove, by an independent and disinterested witness, that the injury was the result of the actions of the driver of another vehicle.

Although La. R.S. 22:1406(D)(1)(f) does not define “independent and disinterested witness,” the phrase has been interpreted by the courts. In Jackson v. State Farm Mutual Automobile Insurance Company, 27,611 (La.App. 2 Cir. 12/6/95), 665 So.2d 661, the court held that an “independent and disinterested witness” must not be influenced or controlled by others in matters of opinion and conduct and must be unbiased by personal interest or advantage. In Jackson, there were no witnesses to the accident, but the plaintiff went home afterwards and called her insurance company and several friends and described what had happened. The court found that there |swas no independent and disinterested witness because the people plaintiff telephoned did not witness anything for themselves and got all of their information from the plaintiff.

In Snowden v. Voyager Indemnity Insurance Company, 01-0359 (La.App. 1 Cir. 5/24/02), 825 So.2d 1223, writ denied, 02-1710 (La.10/04/02), 826 So.2d 1127, this court held that the plaintiffs expert witness, an accident reconstructionist who testified that the accident was the result of an attempt by the plaintiff to avoid a collision with an unknown vehicle, was not an independent and disinterested witness. Specifically, the court found that the plaintiffs expert witness was not independent because he obtained key information about the accident from the plaintiff and was not disinterested because he was hired by the plaintiff. The court in Snowden noted, however, that not all expert witnesses automatically fail to qualify as independent and disinterested; rather, under the particular facts of that case, plaintiffs own paid accident reconstructionist failed to qualify. See also Stracener v. Millers Casualty Insurance Company of Texas, 96-138 (La.App. 3 Cir. 11/6/96), 682 So.2d 940 (Plaintiffs daughter, who was a guest passenger in the vehicle and also made a claim for uninsured motorist benefits, was not an “independent and disinterested witness” who could testify that a phantom driver caused the accident, where the daughter stood to benefit from proof of a phantom driver and lived with and was financially dependent upon her mother.), and Cox v. Masun, 98-1857 (La.App. 4 Cir. 2/10/99), 729 So.2d 671, writ denied, 99-0682 (La.4/30/99), 741 So.2d 15 (Driver of vehicle, who was also made a defendant in the action filed by his guest passenger, was not an independent and disinterested witness because he stood to benefit from proof of a phantom driver.).

IsTrooper Clay Smith was an independent and disinterested witness. Trooper Smith stated in his affidavit that his investigation revealed that the transmission left in the roadway caused the accident involving the Wheat vehicle. Trooper Smith did not get this information from Sidney Wheat; in fact, Wheat testified that he thought he had been struck from behind by another vehicle until Trooper Smith told him that he had struck a transmission left on the road. Additionally, Trooper Smith does not stand to benefit from proof that the accident was caused by another vehicle dropping a transmission in the roadway. Finally, like the witness in the Pinkney case, although Trooper Smith did not see the vehicle strike the transmission, he did view the accident scene soon thereafter and was able to conclude that the Wheat vehicle had struck the transmission.

It is clear that the transmission found in the roadway in this case was left there by another vehicle. Trooper Smith testified that the transmission was not from the Wheat vehicle, and a transmission is much too heavy for a pedestrian to have carried onto the roadway. The only reasonable explanation is that the transmission was dropped on the road by another vehicle. Adding to the likelihood of this theory is the fact that there is a junkyard located a short distance away from the spot where the transmission was found. Thus, Trooper Smith is an independent and disinterested witness whose testimony that the accident was caused by Wheat’s vehicle striking a transmission left in the road connects Wheat’s injuries to the driver of another vehicle whose identity is unknown. This satisfies the requirements of both La. R.S. 22:1406(D)(l)(f) and the insurance policy, and therefore the trial court erred in granting National’s motion for summary judgment.

|inDECREE

The trial court judgment granting National’s motion for summary judgment is reversed. Costs of this appeal are assessed to defendant, National General Insurance Company.

REVERSED.

      . Although the court in Pinkney found that the amendment to La. R.S. 22:1406(D)(1)(f) was not retroactive,- and thus was not applicable to the case, the amendment rejecting the physical contact requirement in uninsured motorist cases did represent public policy expressed by the legislature and thus could be considered by the court in deciding the case. Furthermore, the Pinkney court noted that although the plaintiff must prove that the injury is the result of the actions of the unknown driver, the legislature did not adopt the jurisprudential rule requiring an unbroken chain of events "occurring in a continuous sequence." Pinkney at 1172.


author: J^MCCLENDON, J. DOWNING J.,

text:
    Tony CHAMBLEE v. Richard STALDER, Secretary, Louisiana Department of Public Safety and Corrections and Warden Kelly Ward.
    No. 2003 CA 0061.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 7, 2003.

      Tony Chamblee, D.W.C.C., Homer, Counsel for Plaintiff/Appellee Tony Cham-blee.
    William Kline, Robert B. Barbor, Baton Rouge, Counsel for Defendants/Appellants Richard Stalder, et al.
    Before: PETTIGREW, DOWNING, McClendon, jj.
   J^MCCLENDON, J.

The sole issue raised on appeal in this inmate suit is whether LSA-R.S. 15:571.4 B(l) includes escapes from a work-release facility by an inmate in the custody of the Department of Public Safety and Corrections (DPSC). Finding it does not, we affirm the judgment of the district court.

On July 26, 2001, Tony Chamblee, an inmate in the custody of the DPSC, was housed at City of Faith, a DPSC work-release facility. At 6:30 p.m. that day, Chamblee signed out of City of Faith, stating that he was going to work for Mr. Roberts at an off-site job. Chamblee telephoned a former employer or person who resides with a former employer, Ms. Block, to pick him up and take him to the Roberts job-site. At 7:05 p.m. and 7:20 p.m., an employee of City of Faith conducted job-verifications on Chamblee by calling Mr. Roberts, who confirmed each time that Chamblee was working and could not come to the phone. At approximately 7:35 p.m., Chamblee telephoned City of Faith and reported that he was at Ms. Block’s residence and not at the Roberts job-site. City of Faith did not authorize Chamblee to secure transportation by Ms. Block or to go to Ms. Block’s residence, nor did City of Faith know of Chamblee’s whereabouts until he contacted them at 7:35 p.m. Shortly thereafter, City of Faith contacted Hunt Correctional Center and reported Cham-blee as an escapee. Chamblee was returned to Hunt Correctional Center.

At a disciplinary hearing held on August 8, 2001, the disciplinary board found Chamblee guilty of escape, a violation of Rule 8 of the Disciplinary Rules and Procedures for Adult Inmates. The disciplinary board assessed a forfeiture of 180 days of earned good time at that hearing and referred Chamblee to a Special Forfeiture Court in accordance with | aLSA-R.S. 15:571.4 and Department Regulation B-04-005. The Special Forfeiture Court imposed an additional penalty of forfeiture of all additional good time earned prior to the escape.

Chamblee filed a petition for judicial review of the loss of all good time earned prior to the escape. After hearing the matter, the Commissioner for the Nineteenth Judicial District Court recommended that the verdict of guilty be upheld, but that the loss of good time in excess of 180 days be reversed. This recommendation was based on a determination that there was no evidence in the administrative record to support a finding that the City of Faith, a work-release facility, was a correctional facility or that Chamblee escaped from the custody of a law enforcement officer or correctional officer. The district court rendered judgment in accordance with the recommendation of the Commissioner, affirming the loss of 180 days of good time pursuant to Rule 8 of the Disciplinary Rules and Procedure and reversing the imposition of the loss of good time in excess of 180 days pursuant to LSA-R.S. 15:571.4 B(l).

From this judgment, DPSC appeals, asserting that the intent of the legislature in promulgating LSA-R.S. 15:571.4 B(l) dictates a broader reading than the actual terms of the statute. We reject this analysis as it does not comport with the rules of strict construction.

Louisiana Revised Statutes 15:571.4 B(l) provides, in pertinent part, as follows:

An inmate who is sentenced to the custody of the Department of Public Safety and Corrections and who commits a simple or aggravated escape from any correctional facility or from the lawful custody of any law enforcement officer or officer of the department may forfeit all good time earned on that portion of his sentence served prior to his escape.

14It is well-settled that the meaning of a law must first be sought in the language employed. If that is plain, it is the duty of the courts to enforce the law as written. David v. Our Lady of the Lake Hosp., Inc., 02-2675, p. 11 (La.7/2/03), 849 So.2d 38, 46. Thus, interpretation of any statute begins with the language of the statute itself. SWAT 24 Shreveport Bossier, Inc. v. Bond, 2000-1695, p. 12 (La.6/29/01), 808 So.2d 294, 302. When the wording of a revised statutes is clear and unambiguous, “the letter of it shall not be disregarded under the pretext of pursuing its spirit.” LSA-R.S. 1:4. Rather, the law must be applied as written, and no further interpretation can be made in search of the intent of the legislature. Elevating Boats, Inc. v. St. Bernard Parish, 2000-3518, p. 18 (La.9/5/01), 795 So.2d 1153, 1166.

In the instant case, LSA-R.S. 15:571.4 B(l) is clear and unambiguous; therefore, it must be applied as written. On its face, that statutory provision provides for the forfeiture of all good time earned on that portion of the sentence served prior to an escape from “any correctional facility or from the lawful custody of any law enforcement officer or officer of the department.” It is undisputed that Chamblee was at a work-release facility at the time of his escape and not at a correctional facility or in the custody of a law enforcement officer or officer of DPSC. Therefore, LSA-R.S. 15:571.4 B(l) does not provide for the loss of good time by Chamblee, and DPSC erred in applying this provision to Chamblee.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs in the sum of $250.90 are assessed to the Department of Public Safety and Corrections.

AFFIRMED.

DOWNING, J., concurs and assigns reasons.

DOWNING J.,

Concurs and Assigns Reasons.

Courts should not legislate in the guise of interpretation. The legislature should amend the statute not the court.

      . Chamblee testified, in part, that Ms. Block did not take him to directly to the job-site because she had to stop at her home to check on her children.

      . Clearly, Rule 8 of the Disciplinary Rules and Procedures for Adult Inmates provides a method of disciplining an inmate who escapes from a work-release facility. The trial court affirmed the loss of 180 days of good time by Chamblee under that provision. Therefore, Chamblee is not going unpunished for his act of escape.


author: I .DOWNING, J.

text:
    Leisa S. TRESCH, Sidney Tresch, and James W. Shepard v. Dana Drago KILGORE, Kathleen T. Lavigne, and Gary Lavigne d/b/a Home Spec.
    No. 2003 CA 0035.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 7, 2003.

      Robert A. Barnett, New Orleans, Counsel for Plaintiffs Leisa S. & Sidney Tresch & James Shepard.
    James B. Doyle, Lake Charles, Counsel for Defendants/Appellants Kathleen & Gary Lavigne d/b/a Home Spec.
    Dana M. Douglas, New Orleans, Counsel for Defendant/Appellee Dana Drago Kil-gore.
    Before: PETTIGREW, DOWNING and McClendon, jj.
   I .DOWNING, J.

A home inspection company appeals a judgment denying its dilatory exception of prematurity based on the homebuyers’ refusal to submit to arbitration before bringing this action. The issue on this appeal is whether a real estate agent’s signature on a home inspection contract bound the buyer, on agency principles, to the terms of the written home inspection agreement. The trial court found that it did not. For the following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On February 8, 2002, Leisa Shephard Tresch, her husband, Sidney Tresch, and her father, James Shephard (hereinafter, Plaintiffs), filed suit for damages and red-hibition against Dana Kilgore for failing to disclose certain defects in a home they purchased from Kilgore on February 27, 2001. Plaintiffs also sued the home inspection service owners, Gary and Kathleen Lavigne, d/b/a Home Spec (hereinafter, Home Spec), in both negligence and contract for failing to detect these defects. Home Spec filed a dilatory exception raising the objection of prematurity, alleging that Plaintiffs were bound to an arbitration clause as prescribed in an agreement signed on February 1, 2001, by Plaintiffs’ real estate agent, Janna Palmer. At a hearing on April 30, 2002, Palmer testified that Leisa Tresch gave her permission to sign her name to the Home Spec contract. Tresch denied she gave such authority. The trial court denied the exception, and on May 30, 2002, judgment was signed. Home Spec appealed, alleging that the trial court erred in failing to recognize its right to mandatory arbitration and in failing to stay the proceedings accordingly.

J^HOME inspection agreement

The document at issue, entitled Agreement for Home Inspection Service, provides in pertinent part the following:

Any dispute, controversy, interpretation or claim including claims for, but not limited to, breach of contract, any form of negligence, fraud or misrepresentation arising out of, from or related to this contract or arising out of the inspection and inspection report shall be submitted to final and binding arbitration under the Rules and Procedures of the Expedited Arbitration of Home Inspection disputes of Construction Arbitration Services, Inc. The decision of the Arbitrator appointed thereunder shall be final and binding and judgement on the Award may be entered in any Court of competent jurisdiction.

CAUSES OF ACTION

Plaintiffs’ petition provides, in pertinent part, that Home Spec is liable for all damages sought; that Plaintiffs retained the services of Home Spec to inspect the premises before the Act of Sale; that Home Spec inspected the premises on more than one occasion and should have seen the deficiencies; that Home Spec warranted the fitness and soundness of the premises; that Plaintiffs relied on these representations to their detriment; and, that but for the misleading statements and undisclosed problems, Plaintiffs would not have purchased the property.

DISCUSSION

Home Spec contends that Plaintiffs are not entitled to judicial relief because, by entering into the arbitration agreement, they bound themselves to submit any claim arising from deficiencies in the inspection, to arbitration. Home Spec contends it performed a visual inspection of the property on February 1, 2001. After the inspection an agreement specifying the terms of the contract was signed between Gary Lavigne, Home Spec’s owner and Janna Palmer, the Plaintiffs’ real estate agent. Home Spec argues that Palmer was working as Plaintiffs’ real estate agent and it believed she 14had authority to sign the home inspection agreement as Plaintiffs mandatary.

The defense of prematurity may be raised by the dilatory exception pleading the objection of prematurity. La. C.C.P. art. 926(1). The function of the exception is to permit a defendant to raise the issue that the judicial cause of action has not come into existence because some prerequisite condition has not been fulfilled. Ciaccio v. Cazayoux, 519 So.2d 799, 804 (La.App. 1 Cir.1987). When the issue of an arbitration clause is raised by the exception pleading the objection of prematurity, the defendant pleading the exception has the burden of showing the existence of a valid contract to arbitrate. Ciaccio, 519 So.2d at 804. Thus, before we can decide if Plaintiffs’ action is premature, we must first determine if Home Spec met its burden of proving that a valid written contract exists between Plaintiffs and Home Spec.

Generally, ordinary contract principles govern the question of who is bound by an arbitration agreement, and a party cannot be required to submit to arbitration any dispute that he has not agreed to submit. La. R.S. 9:4201-9:4217, 9:4230-9:4236 and Ciaccio, 519 So.2d at 804.

Home Spec argues that while Plaintiffs could have signed the contract themselves, they chose to direct their mandatary to do so instead. Home Spec’s argument is basically two fold. First, it argues that Plaintiffs gave their, real estate agent the express authority to sign the inspection agreement. Secondly, Home Spec also argues that if there was no express authority, Palmer, as Plaintiffs real estate agent, had apparent authority to sign the contract.

Home Spec uses Palmer’s own testimony in support uf the argument that Palmer had express authority to bind Plaintiffs. Palmer testified that she | sand Leisa Tresch were present at the time Lavigne was inspecting the house. Palmer testified that after the inspection was complete, Tresch had a coughing attack and went home before the contract was signed. Palmer testified that Tresch specifically instructed Palmer to sign on her behalf. Palmer testified that when Tresch gave her verbal permission to sign the document, she believed she had the right to do so since she was her real estate agent. There is no evidence that the inspector heard Tresch tell Palmer to sign the document. Thus, only Palmer and Tresch were privy to this alleged conversation.

Here, it is uncontested that Plaintiffs did not sign the agreement with Home Spec. Tresch testified that she did not give Palmer the authority to sign the contract. Tresch’s testimony directly disputes most of Palmer’s assertions. Tresch testified that she had never been given a copy of the contract or that she had ever seen the document until after the lawsuit was filed. This testimony was undisputed. Tresch did confirm that she was present during the entire inspection, and undisputedly authorized the work, but she contradicts Palmer’s statement that she became too ill to sign the contract. Tresch also pointed out that even if that scenario were true, she only lived a few houses down from the home being inspected and her signature could have easily been obtained. Tresch and Palmer both denied that a custom was established giving Palmer authority to sign on her behalf.

The trial court did not find Palmer’s testimony sufficiently persuasive and determined that Home Spec did not meet its burden of proving that Palmer was given express authority to sign the contract. The trial court, therefore, found Home Spec did not prove that Palmer had express authority to sign the home inspection agreement for Plaintiffs. The trial court concluded that since both sides agreed that Plaintiffs did not sign the |fidocument and both sides denied a custom had been established allowing the realtor to sign on their behalf, “its a tie” and defendant loses. In other words, Home Spec did not prove, more probably than not, that Tresch gave express authority to have Palmer sign on her behalf.

When the fact finders findings are reasonable in light of the entire record, an appellate court may not reverse a choice between two permissible views of the evidence. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). The record reflects that Home Spec did not set forth any facts to establish that Palmer had the express authority to sign for Plaintiffs. And the trial court’s determination was not in error.

Home Spec next argues that Palmer, as Plaintiffs real estate agent, had the apparent authority to sign on their behalf. Home Spec argues that apparent authority exists as to a third party, such as Home Spec, when it is reasonable to believe the agent had the authority to do so and cites Tedesco v. Gentry Dev., Inc., 540 So.2d 960 (La.1989), in support of this proposition.

We recognize that a presumption of ar-bitrability exists and that any doubts should be resolved in favor of arbitration. Shroyer v. Foster, 01-0385, p. 6 (La.App. 1 Cir. 3/28/02), 814 So.2d 83, 87. However, an agency relationship is never presumed. Barrilleaux v. Franklin Foundation Hospital, 96-0343, p. 7 (La.App. 1 Cir. 11/8/96), 683 So.2d 348, 354. And the burden of proving putative mandate is on the party seeking to bind the principal. See Id.

|7In 1997, the legislature codified La. Civil Code article 3021 to specifically address putative mandate, as follows:

One who causes a third person to believe that another person is his man-datary is bound to the third person who in good faith, contracts with the putative mandatary.

The pre-1997 judicial understanding of the principles of apparent authority appears analogous. This court explained that apparent authority is a doctrine by which an agent is empowered to bind his principal in a transaction with a third person when the principal has made a manifestation to the third person that the agent is authorized to engage in the particular transaction, although the principal has not actually delegated this authority to the agent. Waffle House, Inc. v. Corporate Properties, Ltd., 99-2906, p. 5 (La.App. 1 Cir. 2/16/01), 780 So.2d 593, 597. The burden of proving apparent authority is on the party relying on the mandate. Id. The third party may not blindly rely upon the assertions of an agent, but has a duty to inquire into the nature and extent of the agent’s power. Id.

Home Spec cites no authority and we can find no provision of law in which putative mandate arises by operation of law. Rather, as stated above, an agency relationship is never presumed. Barrilleaux, 96-0343 at p. 7, 683 So.2d at 354. Tresch’s mere presence during the inspection but not the contract signing is not enough. In order for the third person to prove a putative mandatary relationship, there must be some manifestations from the principal (Tresch) for the third person (Home Spec) to be put on notice that the mandatary (Palmer) is acting on her behalf. See La. C.C. art. 3021, and Instant Print Centers, Inc. v. Crowley, 01-0336, p. 5 (La.App. 1 Cir. 3/28/02), 814 So.2d 69, 72.

| sHome Spec offers Palmer’s testimony as evidence in support of its claim that Palmer had k putative mandate to bind Plaintiffs in the inspection contract. Palmer testified that she believed she had authority because Tresch was present during the inspection process because Tresch followed the inspector around the house, continuously asking him questions.

Home Spec, however, did not point to any manifestations or statements by Tresch that would cause it to believe that Palmer was given a putative mandate. The only evidence offered was Palmer’s self-serving statement that since she was Tresch’s real estate agent, she had the authority to bind her. There is no dispute that Plaintiffs hired Home Spec to inspect their prospective purchase. Tresch admitted that she was present when the inspection was performed, but not when Palmer signed the contract. Plaintiffs do dispute, however, that they authorized Palmer to sign the Home Spec contract for them.

The burden of proving putative mandate is on the party seeking to bind the principal. See Barrilleaux, 96-0343 at p. 7, 683 So.2d at 354. And a trial court’s determination as to whether a putative mandate exists will not be reversed absent manifest error. Id. We find no error in the trial court’s determination that Home Spec did not prove that Palmer had the express authority or the putative mandate to sign its home inspection agreement.

We find no manifest error in trial court’s implicit findings that Home Spec failed to prove that Palmer had an express or putative mandate. Therefore, Home Spec failed to prove the existence of a valid written contract between Tresch and Home Spec. Accordingly, the trial court was not manifestly erroneous in denying the exception of prematurity.

^DECREE

For the foregoing reasons, we affirm the judgment of the trial court. The costs of this appeal are assessed to Home Spec.

AFFIRMED.

      . The record reflects that a sales agreement was signed on January 27, 2001, where the name Leisa Shepard was placed upon the document. Tresch testified that she did not sign this contract, but gave Palmer express authority to sign on her behalf after Palmer read the entire agreement line by line to her over the telephone. Palmer disputed this testimony.

      . We do not decide here whether Acts 1997, No. 261 amended or simply restated judicial interpretation of the principles of -apparent authority.

      . We do not address whether any relationship existed between Plaintiffs and Home Spec such that a cause of action against Home Spec would exist, given the finding that no written contract existed between the parties and no agency relationship existed between the purchasers and the real estate agent.


author: | .MCDONALD, J.

text:
    Derrin ERNEST v. PETROLEUM SERVICE CORPORATION and Carbis, Inc.
    No. 2002 CA 2482.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 19, 2003.
    Writ Denied Feb. 20, 2004.
    Yigal Bander, Baton Rouge, Counsel for Plaintiff/Appellant Derrin Ernest.
    Charles S. McCowan, Jr., L. Victor Gre-goire, Baton Rouge, Appeal Counsel for ExxonMobil Corporation Defendant/Appel-lee.
    John A. Jeansonne, Jr., Bradford H. Felder, Donovan J. O’Pry, Lafayette, Appeal Counsel for Carbis, Inc.
    Before: WHIPPLE, KUHN, and MCDONALD, JJ.
   | .MCDONALD, J.

The plaintiff, Derrin Ernest, an employee of Petroleum Service Corporation (PSC), was slightly injured on January 26, 2000 when a panel gave way in the loading platform he was working on at the Exxon Chemical facility in Baton Rouge. The platform was owned and maintained by the defendant, ExxonMobil Corporation (Exx-onMobil), and manufactured by another defendant, Carbis, Inc. (Carbis). On March 23, 2000, a panel in the platform Mr. Ernest was working on again gave way, this time causing Mr. Ernest to fall onto the tank trailer of the truck below. He suffered serious permanent injury. Mr. Ernest filed suit against PSC, Exxon-Mobil and Carbis.

PSC answered the suit, asserting that his sole remedy against PSC was the relief provided by the Louisiana Workers’ Compensation Act. Thereafter, PSC filed a motion for summary judgment. This motion was granted and PSC was dismissed from the suit.

ExxonMobil filed a motion for summary judgment, claiming it was immune from suit as Mr. Ernest’s statutory employer, and, alternatively, that it had no duty toward Mr. Ernest. Mr. Ernest filed a motion for partial summary judgment, asking that the trial court declare that ExxonMo-bil was not his statutory employer at the time of his March 23, 2000, accident, and therefore was not entitled to immunity from his suit, and second, asking that the court find ExxonMobil owed Mr. Ernest a duty of reasonable care with regard to the loading platform on which he was injured.

Thereafter, the trial court rendered judgment granting ExxonMobil’s motion for summary judgment and decreeing that Mr. Ernest was ExxonMobil’s statutory employer. Mr. Ernest’s motion for partial summary | ¡¿judgment was denied. Mr. Ernest appeals. He challenges the trial court’s determination that he was Exxon-Mobil’s statutory employee at the time of the accident.

THE STANDARD OF REVIEW

Summary judgments are reviewed on appeal de novo. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover-appellant is entitled to judgment as a matter of law. Smith v. Our Lady Of The Lake Hospital Inc., 93-2512, p. 26 (La.7/5/94), 639 So.2d 730, 750.

THE APPLICABLE LAW

Louisiana Revised Statute 23:1061 provides:

A. (1) Subject to the provisions of Paragraphs (2) and (3) of this Subsection, when any “principal” as defined in R.S. 23:1032(A)(2), undertakes to execute any work, which is a part of his trade, business, or occupation and contracts with any person, in this Section referred to as the “contractor”, for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal, as a statutory employer, shall be granted the exclusive remedy protections of R.S. 23:1082 and shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed. For purposes of this Section, work shall be considered part of the principal’s trade, business, or occupation if it is an integral part of or | ¿essential to the ability of the principal to generate that individual principal’s goods, products, or services.
(2) A statutory employer relationship shall exist whenever the services or work provided by the immediate employer is contemplated by or included in a contract between the principal and any person or entity other than the employee’s immediate employer.
(3) Except in those instances covered by Paragraph (2) of this .Subsection, a statutory employer relationship shall not exist between the principal and the contractor’s employees, whether they are direct employees or statutory employees, unless there is a written contract between the principal and a contractor which is the employee’s immediate employer or his statutory employer, which recognizes the principal as a statutory employer. When the contract recognizes a statutory employer relationship, there shall be a rebuttable presumption of a statutory employer relationship between the principal and the contractor’s employees, whether direct or statutory employees. This presumption may be overcome only by showing that the work is not an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.
B. When the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this Section would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor.

ANALYSIS

Under the Workers’ Compensation Act, the employer is liable for compensation benefits to an employee who is injured as a result of an accident arising out of and in the course of employment. La. R.S. 23:1031. The rights and remedies under Chapter 10 of the Act, La. R.S. 23:1021-1415, provide the employee’s exclusive remedy against the employer for such injury or disease. La. R.S. 23:1032. When the employer seeks to avail itself of tort immunity under Section 1032, the employer bears the burden of proving entitlement to the immunity. Weber v. State, 93-0062, p. 5 (La.4/11/94), 635 So.2d 188, 191. Immunity statutes must be strictly construed Ragainst the party claiming the immunity. Weber, 93-0062 at p. 8, 635 So.2d at 193.

The contract that was in effect between ExxonMobil and PSC at the time of Mr. Ernest’s March 23, 2000 accident did not provide an express provision stating that ExxonMobil was the statutory employer of PSC’s employees. On April 20, 2000, ExxonMobil and PSC attempted to remedy this by amending the contract to provide, among other things, that Exxon-Mobil was the statutory employer of PSC’s employees. This amendment was made effective retroactive to the date of the original contract, November 24, 1997. However, at the time of Mr. Ernest’s accident nothing in the contract provided that ExxonMobil was the statutory employer of PSC’s employees. Thus, having failed to demonstrate the existence of a written contract providing for the statutory relationship | ^between it and PSC at the time of the accident, ExxonMobil is not Mr. Ernest’s statutory employer. Cf. Griffin v. Wickes Lumber Company, 2002-0294 (La.App. 1st Cir.12/20/02), 840 So.2d 591 (requirement of written contractual provision for existence of statutory relationship between principal and employee’s immediate employee for tort immunity in favor of principal does not apply for principal to be immune from claims of borrowed employees.) The trial court erred in concluding to the contrary, and the grant of summary judgment decreeing Mr. Ernest is Exxon-Mobil’s statutory employer is reversed.

CONCLUSION

For the foregoing reasons, the trial court judgment decreeing that ExxonMo-bil was Mr. Ernest’s statutory employer at the time of his accident and granting summary judgment in favor of ExxonMobil is reversed. Judgment is hereby rendered granting Mr. Ernest’s motion for partial summary judgment and recognizing that ExxonMobil was not Mr. Ernest’s statutory employer. This case is remanded for further proceedings consistent with this opinion. Costs are assessed against Exx-onMobil.

REVERSED AND RENDERED; REMANDED.

WHIPPLE, J., concurs.

      . Although Mr. Ernest urges that the trial court erred in implicitly concluding Exxon-Mobil did not owe him a duty of reasonable care on the basis of the independent contractor status of PSC, review of the record shows that the issue was not raised at the hearing of this matter. Moreover, the record demonstrates that genuine issues of material fact exist precluding an analysis of the legal issue of whether a duty of reasonable care was owed. See Webb v. SEP, Inc., 31,946, pp. 8-9 (La.App.2d Cir.5/5/99), 752 So.2d 881, 886; see also La.C.C.P. art. 966 B & C. As such, we find that the issue is not ripe for appellate review at this juncture.

      . According to La. C.C. art. 9, when a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written. No further interpretation may be made in search of the intent of the legislature. See also La. R.S. 1:4 (when the wording of a Section is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit). The appropriate starting point for statute-ry interpretation then is the language of the statute itself. In re Louisiana Health Service and Indent. Co., 98-3034, p. 10 (La.10/19/99), 749 So.2d 610, 615; A.K. Dumin Chrysler-Plymouth, Inc. v. Jones, 2001-0810, p. 4 (La.App. 1st Cir.5/10/02), 818 So.2d 867, 870. And when a statute is clear, unambiguous, and its application does not lead to absurd consequences, there is no justification for considering comments to the enactment as persuasive sources or interpretive aids. Ramirez v. Fair Grounds Corp., 575 So.2d 811, 813 (La.1991). It is only when the language of a statute is subject to more than one reasonable interpretation that the determination of the legislature’s intent in enacting the provision becomes necessary. Louisiana Mun. Ass’n v. State, 2000-0374, p. 6 (La.10/6/00), 773 So.2d 663, 667.
      We find it noteworthy that the 1997 amendment to La. R.S. 23:1061 had its genesis in Senate Bill No. 922 that was enacted as Acts 1997, No. 315. The original bill was intended to clarify the judicially established standard for determining statutory employer/employee status by legislatively establishing guidelines for this determination.
      The intent of Senate Bill No. 922 was to do three things: 1) expand the concept of statutory employee to include work that was an integral part of, or essential to the ability of the principal to generate its goods, products, and services; 2) clarify the two-party contract situation so that the statutory employer relationship would exist when the principal contracts with a contractor who contracts with a subcontractor; and 3) provide for a presumption of the statutory employer relationship if a written contract existed between the principal and the employee’s immediate employer. The bill that was originally filed accomplished these objectives. However; as amended, the plain language of La. R.S. 23:1061 seems to have accomplished a different result.
      Subsection A, Paragraph (1) was amended to provide that it is subject to the provisions of Paragraphs (2) and (3). Paragraph (3) clearly provides that the statutory employee relationship shall not exist unless there is a written contract. Because Paragraph (3) does not apply to Paragraph (2), a written contract is neither necessary nor required for the statutory employee relationship to exist in a two-contract situation. However, since Paragraph (1) is subject to the provisions of Paragraph (3), a written contract must exist for the statutory employee relationship to exist. Thus, the legislation actually enacted expanded the concept of statutory employee and added a contract requirement of a specific designation of employees as statutory employees but, interestingly, failed to include the broad presumption of statutory employer status intended by Bill No. 922.