author: I,KUHN, J.

text:
    Syvonne EDMONDSON v. PCA INTERNATIONAL, AMERICAN STUDIOS and Reliance Insurance Company.
    No. 2002 CA 1989.
    Court of Appeal of Louisiana, First Circuit.
    July 2, 2003.

      Michael Forbes, Hammond, Counsel for Claimant/Appellant Syvonne Edmondson.
    Jeffrey Napolitano, Metairie, Counsel for Defendant/Appellee PCA International, American Studios.
    Before: KUHN, DOWNING, and GAIDRY, JJ.
   I,KUHN, J.

Claimant-appellant, Syvonne Edmondson, appeals a judgment rendered by the Office of Workers’ Compensation (OWC), which denied her request for supplemental earnings benefits (SEB) but awarded her a penalty of $2,000 and attorney fees in the amount of $1,500. Defendant-employer, PCA International/Ameri-ean Studios (PCA) answered the appeal. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In April 1998, Edmondson injured her neck when she was taking down overheard photography equipment while working as a photographer for PCA. She had surgery to her neck and was paid indemnity benefits for the nine months she was unable to work. In August 1999, Edmondson returned to work for PCA in a limited duty capacity until December 2000, when she was laid off by her employer. In February 2001, Edmondson filed this disputed claim, averring entitlement to indemnity benefits as a result of the April 1998 injury. On April 18, 2001, PCA filed an answer denying Edmondson’s claim. Edmondson amended her claim on April 26, 2001, and added Reliance Insurance Company (Reliance) as the workers’ compensation insurer of PCA. PCA filed a motion to stay the proceeding, averring that insurer Reliance had. been declared insolvent, placed into liquidation, and by an order of the Commonwealth of Pennsylvania, all lawsuits |swere stayed. And on October 22, 2001, the workers’ compensation judge (WCJ) signed an order staying Edmondson’s claim.

On June 17, 2002, a hearing on the merits was held. The WCJ dismissed Edmondson’s request for SEB, but determined that Edmondson was entitled to a penalty of $2,000 and attorney fees of $1,500. Only PCA was cast in judgment for the penalty and attorney fees.

Edmondson appealed the denial of her claim for SEB; and PCA answered the appeal, challenging the imposition of the penalty and attorney fees.

DENIAL OF THE CLAIM FOR SEB

In reasons transcribed into the record, the WCJ determined that Edmondson was not entitled to SEB because she failed her burden of proving she was unable to earn 90% of her pre-injury wages, noting:

Edmondson offered the records of her physician, Dr. Guidry; however these records do not place any restrictions on Edmondson which would limit her em-ployability.

Entitlement to SEB is governed by La. R.S. 23:1221(3). In order to recover |4SEB, a claimant must first prove by a preponderance of the evidence an inability to earn wages equal to 90 percent or more of the wages she earned before the accident. La. R.S. 23:1221(3)(a); Smith v. Louisiana Dep’t of Corrections, 93-1305, p. 4 (La.2/28/94), 633 So.2d 129, 132. And it is only after such a showing that the burden of proof shifts to the employer who, if he wishes to contend that claimant is earning less than he is able to earn so as to defeat or reduce SEB, bears the burden of proving that claimant is physically able to perform a certain job and that the job was offered to claimant or the job was available to claimant in her or the employer’s community or reasonable geographic region. Id., 93-1305 at p. 5, 633 So.2d at 132-33.

On appeal, Edmondson’s primary complaint is that after she was laid off, PCA had “a duty to at least try vocational rehabilitation services.” But before any duty to utilize rehabilitative services for job placement arises, Edmondson first had to prove that she was unable to earn 90 percent of her pre-accident wages as a result of her injury. And after reviewing the record, we find nothing to support a determination that Edmondson was in any way limited or restricted by her doctors from performing any work. Although the medical records of Dr. Guidry admitted into evidence show that on two occasions he prescribed physical therapy for Edmondson, that showing simply does not sustain her burden of proving an inability to earn 90 percent of her pre-accident wages due to the work-related injury as required under La. R.S. 23:1221(3)(a). Thus, the burden of proving a duty on the part of PCA to offer Edmondson vocational rehabilitative services never arose. Accordingly, lacking the requisite evidence to sustain a finding of | .¡inability to earn 90 percent of pre-injury wages due to an injury, the WCJ correctly denied Edmondson’s claim for SEB.

IMPOSITION OF PENALTY AND ATTORNEY FEES

The WCJ awarded Edmondson a penalty of $2,000 and attorney fees of $1,500. The judgment casts only PCA with liability for these awards. And in its answer to the appeal, without challenging the quantum awarded, PCA suggests that it was legal error for the WCJ to impute to it the actions or inactions of Reliance and/or LIGA in failing to timely pay Edmondson’s medical claims. The WCJ’s transcribed reasons state:

PCA’s Workers’ Compensation carrier Reliance Insurance Company was declared insolvent [on] October 3rd, 2001. LIGA thereafter became involved and Vince Listi, the adjuster, was subpoenaed to appear for trial by Edmonson’s attorney to testify and produce the claim file. Listi failed to appear.
-!' * *
Edmondson testified she submitted various doctors’ bills and prescription invoices to the carrier/employer. She further testified these charges were directly related to her medical treatment in connection with her April 6, 1998, injury and that the invoices have yet to be paid. The adjuster could have presented himself to defend not paying these invoices but he did not. Therefore, the bills accepted into evidence are the responsibility of the Defendant.

Generally, when a party fails to produce a witness who is available to him and gives no reasonable explanation, the presumption arises that the witness’s testimony would have been unfavorable. Moran v. Harris, 93-2226, p. 8 (La.App. 1st Cir.11/10/94), 645 So.2d 1244, 1248, writ denied, 94-3046 (La.2/17/95), 650 So.2d 253. The WCJ must consider all the facts and circumstances 1 fiin the case in deciding whether the presumption will apply. See Moran, 93-2226 at p. 8, 645 So.2d at 1248.

Thus, based on the reasons set forth above, it is clear that the WCJ applied an adverse presumption against PCA for the failure of adjuster Listi to testify.

Louisiana Revised Statute 23:1201 sets forth the provisions for the imposition of a penalty and attorney fees in this case, providing in relevant portion:

E. Medical benefits payable under this Chapter shall be paid within sixty days after the employer or insurer receives written notice thereof.
F. Failure to provide payment in accordance with this Section shall result in the assessment of a penalty in an amount equal to twelve percent of any unpaid compensation or medical benefits or fifty dollars per calendar day, whichever is greater, for each day in which any and all compensation or medical benefits remain unpaid, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. Penalties shall be assessed in the following manner:
(1) Such penalty and attorney fees shall be assessed against either the employer or the insurer, depending upon fault. No workers’ compensation insurance policy shall provide that these sums shall be paid by the insurer if the workers’ compensation judge determines that the penalty and attorney fees are to be paid by the employer rather than the insurer.
(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.
(3) Except as provided in Paragraph (4)of this Subsection, any additional compensation paid by the employer or insurer pursuant to this Section shall be paid directly to the employee.

The only witness called to testify in this matter was Edmondson. She explained that prior to the January 1999 surgery, her doctor prescribed two [7medicines. And her paid receipts for prescriptions for two medicines, dated January 1999, were among the items admitted into evidence. Stating that she has yet to be reimbursed for the prescriptions, Edmondson testified that “they” refused to fill these prescriptions. She did not specifically distinguish between PCA or insurer Reliance. On cross-examination, PCA did not choose to elicit testimony from Edmondson to clarify the record and more clearly establish whether Edmondson was saying that it was the employer or the insurer who refused to fill the prescriptions. And Edmondson’s testimony does not explain why the refusal was made.

At the close of Edmondson’s case, PCA rested without offering any evidence whatsoever. Thus, the record is devoid of any evidence suggesting an explanation for the failure of adjuster Listi to testify.

Awards of penalties and attorney fees in workers’ compensation are essentially penal in nature, being imposed to discourage indifference and undesirable conduct by employers and insurers. Williams v. Rush Masonry, Inc., 98-2271, p. 9 (La.6/29/99), 737 So.2d 41, 46. Although the Workers’ Compensation Act is to be liberally construed in regard to benefits, penal statutes are to be strictly construed. Id.

Clearly, by the date of the hearing, PCA was aware of the January 1999 actions of its insurer and the status of its former employee. Mindful of the adverse presumption against Listi, that PCA offered no evidence attempting to controvert Edmondson’s testimony that her request for medicine in conjunction with her January 1999 neck surgery was not paid, and that the conclusions of the WCJ regarding the appropriateness of imposing penalties and attorney fees is a question |sof fact subject to the manifest error rule, see Authement v. Shappert Engineering, 2002-1631, p. 12 (La.2/25/03), 840 So.2d 1181, 1188-89, because the imposition of a penalty and attorney fees was reasonably based on the evidence and fair inferences from that evidence, we affirm the judgment.

DECREE

For these reasons, the OWC judgment is affirmed. Appeal costs are assessed against claimant-appellant, Syvonne Edmondson.

AFFIRMED.

      . Claimant alternatively pleaded entitlement to indemnity benefits based on permanent total and temporary total disability, which was denied by the workers' compensation judge. That portion of the judgment has not been appealed.

      . Although the file stamp date has the year "02” handwritten on it, the signed pleading is dated "4/23/01” by claimant’s attorney. And the OWC minutes indicate that the amended pleading was filed on April, 26, 2001.

      . The relevant version of La. R.S. 23:1221(3) states, in part, that compensation shall be paid in accordance with the following schedule of payments including:
      (3) Supplemental earnings benefits.
      (a) For injury resulting in the employee’s inability to earn wages equal to ninety percent or more of wages at time of injury, supplemental earnings benefits equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee at the time of the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis....

      . LIGA has not filed a pleading or otherwise made an appearance in this lawsuit, and nothing in this record establishes that LIGA has ever admitted it is liable for the claims of Reliance. See generally La. R.S. 22:1382.


source: Caselaw Access Project

author: J^CIACCIO, J.

license: Public Domain

text:
    Carolyn MITCHELL v. INDUSTRIAL FILL MATERIALS, INC. and Louisiana Workers’ Compensation Company. Josie Warner v. Industrial Fill Materials, Inc. and Louisiana Workers’ Compensation Company. Joycelyn Phillips v. Industrial Fill Materials, Inc. and Louisiana Workers’ Compensation Company.
    Nos. 2002 CA 2021, 2002 CA 2022, 2002 CA 2023.
    Court of Appeal of Louisiana, First Circuit.
    July 2, 2003.

      Mike Dupree and James R. Clary, Jr., Baton Rouge, Counsel for Plaintiffs/Appellants Carolyn Mitchell, Josie Warner and Joyeelyn Philips.
    Debra Talbot Parker, Baton Rouge, Counsel for Defendant/Appellee Industrial Fill Materials, Inc. and Louisiana Workers’ Compensation Corporation.
    Denise A. Vinet, Baton Rouge, Counsel for Appellee Ronnie Vallery.
    Before: CARTER, C.J., WHIPPLE and CIACCIO, JJ.

      . The Honorable Philip C. Ciaccio, Judge (retired), Fourth Circuit Court of Appeal, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   J^CIACCIO, J.

Plaintiffs appeal a directed verdict dismissing their workers compensation claim with prejudice.

FACTS

Truck driver William Georgetown died when the bed of his dump truck fell and crushed him. There were no witnesses to the accident but Georgetown had just reported to Ronnie Vallery that the bed was not working properly.

The mothers of Georgetown’s three children, Josie Warner, Carolyn Mitchell, and Jocelyn Phillips, filed a disputed claim for Compensation against Terry Vallery Trucking (TVT), Ronnie Vallery Trucking (RVT), and Industrial Fill Materials, Inc. (IFM) and its insurer, Louisiana Workers Compensation Corporation. Plaintiffs alleged that TVT, RVT, and IFM were actually all one company and that Georgetown was killed during the course and scope of his employment with them.

After a hearing, the Office of Workers Compensation (“OWC”) granted a directed verdict holding that: 1) Georgetown was an employee of TVT; 2) plaintiffs failed to prove that Georgetown was an employee of either RVT or IFM; and 3) Georgetown was not within the course and scope of his employment with TVT when the accident occurred. OWC then dismissed plaintiffs’ suit with prejudice.

Plaintiffs now appeal, arguing that the trial court erred: 1) in finding that Georgetown was not acting in the course and scope of his employment when he was killed; and 2) in finding that Georgetown was not employed by RVT and/or IFM at the time of his death.

LAW AND ANALYSIS

Standard of Review

An appellate court’s review of OWC’s factual findings is governed by the manifest error standard. An appellate court may set aside OWC’s factual findings only if it determines that the record does not provide a reasonable factual basis for OWC’s conclusion or if, after reviewing the record in its entirety, it concludes that OWC’s finding was clearly wrong. But reasonable credibility evaluations and | ¡/factual inferences should not be disturbed on review even if the appellate court feels that its own evaluations and inferences are more reasonable. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong.

Course and Scope of Employment

A personal injury is compensable under the Workers’ Compensation Act only if it results from an accident “arising out of and in the course of employment.” Plaintiffs allege that OWC erred in concluding that Georgetown was not acting within the course and scope of his employment when he died.

To evaluate the “course of employment” requirement, the court must focus on whether the employee sustained an injury while actively engaged in the performance of his duties during working hours, either on the employer’s premises or at a place contemplated by employment activities. This inquiry focuses upon the time and place relationship between the injury and the employment. When considering the “arising out of employment” requirement, the court must inquire into the character or origin of the risk suffered by the employee and determine whether this risk was incidental to the employment. An injury arose out of employment if the risk for that injury was greater for the employee than for a person not engaged in the employment.

In its oral reasons for judgment, OWC stated that a “major point” of influence in its decision was that Georgetown was not being paid at the time of his accident. But plaintiffs contend that Georgetown was being paid. Plaintiffs point to Terry Val-lery’s testimony that Georgetown did not punch a clock but was paid “30 percent of whatever the truck made.” Ronnie Val-lery, owner of RVT and Terry’s father, acknowledged that if an employee’s truck weren’t working, that employee would not make any money during that time.

Plaintiffs allege that Georgetown therefore worked on a “commission” basis.

1¿Ronnie testified that shortly before the accident, Georgetown asked him to look at the dump truck bed because it had not been working well. Ronnie testified that he told Georgetown that Terry would change the hose. When Georgetown asked whether the truck would be ready the next morning, Ronnie told him yes. But according to Ronnie, Georgetown asked again, “you’re sure?”

Plaintiffs maintain in brief that this testimony shows that Georgetown “intended to facilitate or hasten repairs that were in furtherance of his employment duties.” Georgetown’s duties as a dump truck driver involved hauling the truck’s contents to a designated site for delivery. Georgetown knew that if the truck was still broken the next day and he could not dump the contents of the truck’s bed, he would not get paid. The risk of being injured or killed by a malfunctioning dump truck bed is certainly greater for the truck’s operator than for people not engaged in this activity. The OWC was clearly wrong in declaring that the sole function of Georgetown was to drive the truck as he failed to recognize that it was necessary for the driver to dump the contents of the truck at the delivery site. The operation of the dump truck bed was an integral part of Georgetown’s duties.

Georgetown had not been ordered to stay away from the truck or to refrain from checking its operation, an activity in furtherance of his employer’s business. There is no evidence as to what Georgetown was doing before he was killed by the falling dump truck bed. He may have been negligent in volunteering to attempt to either inspect or repair the malfunctioning hose, but negligence is not a bar to recovery under workers’ compensation law.

At the time of the accident, Georgetown had returned to the trucking company lot. Terry testified that he usually told Georgetown at the end of the day about the next day’s assignment. Terry acknowledged that Georgetown might have been waiting for him to return to the lot for further instructions.

Georgetown died on his employer’s premises. Even if Georgetown was not responsible for the truck’s maintenance, if the truck was not working the following day, he could not perform his duties as a dump truck driver and therefore would not Gbe paid. The record shows that: 1) Georgetown was a dump truck driver who was killed when the dump truck bed fell while he was either inspecting or attempting to repair it; and 2) this was the truck that Georgetown drove as part of his employment. After reviewing the testimony, we find that OWC was clearly wrong in finding that Georgetown was not acting within the course and scope of his employment as a dump truck driver when this accident occurred. This assignment of error has merit.

Employer Status

Plaintiffs further contend on appeal that OWC erred in failing to recognize the existence of an employment relationship between Georgetown and RVT and IFM. Plaintiffs argue that TVT, Georgetown’s admitted employer, and RVT and IFM actually operated as a single business enterprise, thereby making all Georgetown’s employer for the purposes of workers’ compensation law.

When determining whether a corporation is an alter ego, agent, tool or instrumentality of another corporation, the court must examine the substance of the corporate structure rather than its form. When determining whether a group of entities constitutes a “single business enterprise,” relevant considerations include:

1) identity or substantial identity of ownership (i.e., ownership of enough stock to give actual working control);
2) common directors or officers;
3) unified administrative control of corporations whose business functions are similar or supplementary;
4) whether directors and officers of one corporation act independently in the interest of that corporation;
5) whether one corporation finances the other corporation;
6) inadequate capitalization (“thin incorporation”);
7) whether one corporation caused the incorporation of another affiliated corporation;
8) corporation paying the salaries and other expenses or losses of another corporation;
9) receiving no business other than that given to it by its affiliated corporations;
| filO) corporation using the property of another corporation as its own;
11) noncompliance with corporate formalities;
12) common employees;
13) services rendered by the employees of one corporation on behalf of another corporation;
14) common offices;
(15) centralized accounting;
(16) undocumented transfers of funds between corporations;
(17) unclear allocation of profits and losses between corporations; and
(18) excessive fragmentation of a single enterprise into separate corporations.

These considerations are merely illustrative and are not intended as an exhaustive list of relevant factors. And no one factor is dispositive on the issue of “single business enterprise.”

Whether an affiliated group of entities constitutes a “single business enterprise” is a question of fact to be decided by the trial court. Thus, as an appellate court, in order to reverse OWC’s determination on the issue, we must find that the record shows no reasonable factual basis for OWC’s finding and that the record establishes that the finding is clearly wrong. Considering the above-outlined factors and the scope of our review on appeal, we conclude that OWC was manifestly erroneous when it failed to recognize that TVT, RVT, and IFM were, in fact, a single business enterprise.

Ronnie testified that neither RVT nor TVT was incorporated or registered with the Secretary of State. Ronnie testified that TVT parked its trucks on the lot owned by RVT and shared phone lines and office space in Ronnie Vallery’s home. When asked about whether and how employees were advised about trucking maintenance, Ronnie responded, “we got a swing in the yard and we would gather around and tell them.” We apparently referred to RVT and TVT.

17Ronnie testified that he bought the first truck for TVT and made insurance payments on Terry’s behalf. The liability policy on TVT trucks was even in Ronnie Vallery’s name. Terry paid Ronnie back by having IFM deduct insurance premiums and payments for the truck from IFM’s payments to TVT. These amounts were then transferred to RVT’s payments from IFM. And Terry testified that the truck involved in the accident was registered in his father’s name.

Ronnie testified that IFM dispatched all of his trucks out. Neither RVT nor TVT did business with any corporation other than IFM. Ronnie testified that IFM carried workers’ compensation insurance on all of his trucks. Kathy Sehexnayder, bookkeeper at IFM, testified that she deducted the amounts for these premiums from IFM’s payments to RVT and TVT. Ms. Sehexnayder testified that she performed these accounting services at no charge.

After considering the testimony and the appropriate considerations, we find that the distinction between TVT, RVT, and IFM is minimal. The testimony shows: 1) unified administrative control between three businesses with similar functions (hauling sand and gravel); 2) that Ronnie actually financed TVT; 3) IFM paid workers’ compensation costs for RVT and TVT; 4) RVT paid most costs and expenses of TVT; 5) neither RVT nor TVT received any business other than that given to it by IFM; 6) TVT used RVT’s property as its own; 7) noncompliance with corporate formalities by RVT and TVT; 8) services rendered by an IMF employee (Sehexnay-der) on behalf of RVT and TVT; 9) common offices for RVT and TVT; and 10) centralized accounting. Thus, we find that RVT, TVT, and IFM operated as a single business enterprise for purposes of joint liability in workers’ compensation coverage. This assignment of error has merit.

CONCLUSION

For these reasons, we reverse the OWC judgment dismissing plaintiffs’ claim with prejudice. We hereby enter judgment in favor of plaintiffs and against Ronnie Val-lery Trucking, Terry Vallery Trucking, Industrial Fill Materials, Inc., and Louisiana | sWorker s’ Compensation Corporation. We remand to OWC for a judgment awarding damages. All costs of this appeal are assessed against appellees.

REVERSED; REMANDED.

CARTER, C.J., concurs.

      . Godeaux v. Lewis Chapman Const. Co., 2002-0025 (La.App. 1 Cir. 12/31/02), 836 So.2d 670, 676.

      . Id.

      . LSA-R.S. 23:1031.

      . Lewis v. Houma Industries, 2001-0641 (La.App. 1 Cir. 5/10/02), 818 So.2d 956, 958.

      . Id.

        . Grayson v. R.B. Ammon and Associates, Inc., 99-2597 (La.App. 1 Cir. 11/3/00), 778 So.2d 1, 15.

      .Id.

        .Id., at 15-16.


author: I .McDonald, j.

text:
    Deborah CARTER v. LAKE VIEW REGIONAL MEDICAL CENTER.
    No. 2002 CA 2038.
    Court of Appeal of Louisiana, First Circuit.
    July 2, 2003.

      William R. Mustian, III, Metairie, Counsel for Plaintiff/Appellant Deborah Carter.
    S. Daniel Meeks, Patrice W. Oppenheim, Metairie, Counsel for Defendant/Appellee Lakeview Regional Medical Center.
    Before: PARRO, MCDONALD, and CLAIBORNE, JJ.

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

   I .McDonald, j.

This is an appeal of a judgment in a workers’ compensation case. Deborah Carter began working as a housekeeper at the Lakeview Regional Medical Center on July 30, 2001. On Monday, September 10, 2001, Ms. Carter called her supervisor, Erica Watson, to report that she thought she had pulled something in her shoulder on the previous Friday, September 7, 2001. Ms. Carter was sent that day to Dr. Roy Saguiguit, an internist at Lakeview Regional Medical Center. Dr. Saguiguit released Ms. Carter to return to work with no restrictions on September 14, 2001.

Ms. Carter filed a disputed claim for compensation on November 14, 2001, asserting that she injured her left arm, neck and shoulder at work while pulling heavy linen carts on September 7, 2001, that no wage benefits had been paid, and that no medical treatment had been authorized. Lakeview Regional Medical Center answered the complaint, denying that Ms. Carter had sustained a work-related injury, contending she was not disabled from working, and denying that she was entitled to any workers’ compensation indemnity or medical benefits.

Following the trial, the Workers’ Compensation Judge (WCJ), Elizabeth Warren, rendered judgment, finding that Ms. Carter “failed to prove a compensable work-related accident under La. R.S. 23:1021(1).” Ms. Carter is appealing that judgment and makes the following assignment of error:

The trial court erred in concluding that claimant failed to prove a compensable work related accident.

THE STANDARD OF REVIEW

In a workers’ compensation case, the appellate court’s review of fact is governed by the manifest error or clearly wrong standard. Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733, 737. Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate |scourt may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

THE REASONS FOR JUDGMENT

The WCJ’s written reasons indicate in pertinent part:

Medical records admitted into evidence indicate Ms. Carter has a longstanding history of neck, shoulder, and back pain dating back to 1992. St. Tammany Parish Hospital records include the following visits and complaints:
May 20, 1992 — mid back and left shoulder complaints.
August 7, 1995 — neck and left shoulder complaints.
January 1,1998 — left shoulder pain.
October 17, 1998 — left shoulder pain.
June 20, 2000 — left sided chest pain, left neck and arm pain.
September 7, 2000 — left shoulder.
September 25, 2000 — pain in left side radiating to rib cage
October 11, 2000 — mid and upper chest pain with a tight feeling in neck.
Medical records from Dr. Paul Doty, an orthopedic surgeon, indicate that Ms. Carter received treatment from June 1996 through November 1997 for injuries sustained in a 1995 motor vehicle accident. During the course of this treatment, Dr. Doty performed a cervical MRI, which was completely normal.
After the alleged work accident, claimant underwent both a cervical and a lumber MRI recommended by her choice of orthopedic surgeon, Dr. John Logan. Both MRI’s were interpreted as normal. Dr. Doty testified that Ms. Carter’s complaints to him before the alleged work accident and the complaints to Dr. Logan after the alleged work accident were very similar.
Dr. Robert Steiner examined Ms. Carter on April 16, 2002 at LRMC’s request for a second opinion. Dr. Steiner testified by deposition that there were no objective findings to support Ms. Carter’s subjective complaints of pain. Dr. Steiner reviewed medical records and diagnostic tests performed prior to her alleged work accident and opined that her symptoms in 1996 and 1997 were remarkably similar to the complaints made after the alleged work accident.

DISCUSSION

Ms. Carter argues that the fact that her injury developed over the period of one day at work rather than at a particular moment in time does not exclude this event from being defined as an accident and cites Perilloux v. Brown & Root, Inc., 96-321 (La.App. 5 Cir. 10/1/96), 692 So.2d 1100, and Barrilleaux v. Dryades Savings & Loan Association, 94-956 (La.App. 5 Cir. 3/28/95), 653 So.2d 690, writ denied, 95-1041 (La.6/2/95), 654 So.2d 1113, as support for her argument.

However, a thorough reading of the WCJ’s reasons for judgment reveals that Ms. Carter was not denied compensation merely because her symptoms developed over the course of the day. Rather, the WCJ found that Ms. Carter had the burden to prove that a compensable accident occurred, and she failed to meet that burden.

The plaintiff in a workers’ compensation action has the burden of establishing a work-related accident by a preponderance of the evidence. A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Bruno v. Harbert International, Inc., 593 So.2d 357, 361 (La.1992).

As pointed out by the WCJ, Ms. Carter failed to call any witnesses to corroborate her complaints of pain, and she had longstanding complaints of pain in her neck, shoulder and back. Further, there is no medical evidence to prove Ms. Carter was disabled or unable to work after she was released by Dr. Saguiguit on September 14, 2001. At the time of trial, Ms. Carter was working part-time, cleaning offices at night.

After a thorough review of the evidence, we cannot say that the WCJ manifestly erred in finding that Ms. Carter had failed to prove her entitlement to for workers’ compensation benefits. Costs of this appeal are assessed against Ms. Carter.

AFFIRMED.

PARRO, J., concurs.


author: 1 .DOWNING, J.

text:
    Deborah DALE v. AVONDALE INDUSTRIES, INC.
    No. 2002 CA 2210.
    Court of Appeal of Louisiana, First Circuit.
    July 2, 2003.

      Deborah Dale, Hammond, Pro Se Plaintiff/Appellant.
    Richard S. Vale, Metairie, Counsel for Defendant/Appellee Avondale Industries, Inc.
    Before: KUHN, DOWNING and GAIDRY, JJ.
   1 .DOWNING, J.

Deborah Dale, plaintiff/appellant appeals the judgment rendered by the Office of Workers’ Compensation (OWC) dismissing her claims for disability benefits. The workers’ compensation judge (WCJ) ruled that Ms. Dale failed to prove that her exposure to 2-Butanone methyl ketone (MEK) while working at Avondale Industries, Inc. (Avondale) caused her asthma disability. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Ms. Dale was hired as a robotic operations technician at Avondale on December 14, 1999 and was terminated in March 2001. Ms. Dale was still receiving unemployment benefits at the time she filed a disputed claim for compensation form alleging that her pulmonary problems arose from exposure to hazardous fumes while working at Avondale. Specifically, Ms. Dale alleged that she was exposed to MEK on December 21, 2000 when an employee brought the substance into her office on a napkin. Ms. Dale also alleged that her condition was exacerbated when subjected to the noxious paint fumes when a railing on her building was being painted outside her office. After an August 8, 2002 trial the WCJ ruled that Ms. Dale failed to prove a causal relationship between her pulmonary disability and the substances she allegedly inhaled while working at Avondale. Ms. Dale’s appeals that ruling.

STANDARD OF REVIEW

In a workers’ compensation case, as in other cases, the appellate court’s review of factual findings is governed by the manifest error standard. Freeman v. Poulan/Weed Eater, 93-1530, p. 4 (La.1/14/94), 630 So.2d 733, 737. The two-part test for the appellate review of a factual finding is: 1) whether there is a reasonable factual basis in the record for the finding of |3the trial court, and 2) whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987).

DISCUSSION

The Workers’ Compensation Act provides coverage to an employee for personal injury by an accident arising out of and in the course of his employment. La. R.S. 23:1031(A). In order to recover for this injury an employee must prove the chain of causation establishing that the accident was employment-related, the accident caused the injury, and that the injury caused the disability. DeGruy v. Pala, Inc., 525 So.2d 1124, 1130 (La.App. 1 Cir.1988).

Ms. Dale claimed her shortness of breath and tightness in her chest were the results of occupational asthma. Ms. Dale testified that she was exposed for ten to fifteen minutes to MEK and was taken to First Aid and given oxygen. Ms. Dale testified that the strong smelling solution, later identified as MEK, was being used to clean some equipment in her office. Ms. Dale testified that she stayed home for a few days but returned to work about a week later even though she was still feeling unwell.

Dr. Michael Dunn performed a pulmonary function test (PFT) revealing that Ms. Dale has asthma. He testified that he recommended she change her work environment. Dr. Glenn Gomes, a pulmonologist, examined Ms. Dale and determined that she had reactive airway disease. His chart indicates that Ms. Dale told him she was exposed to fumes from burned off paint, dust and other compounds. Dr. Gomes’ report also indicated that Ms. Dale “does not wish to take medicines for the treatment of reactive airway disease.”

To the contrary, however, the WCJ specifically concluded that Ms. Dale’s co-workers “overwhelmingly” contradicted her testimony, testifying 14that the office was only exposed to MEK for about two minutes. The WCJ also noted that Ms. Dale told her doctor that she was exposed to the substance for about one hour.

Dr. Douglas Swift performed an IME and reported in deposition that Ms. Dale did not have occupational asthma but had an underlying propensity for asthma that could not be linked to her brief exposure to MEK. Dr. Ewing Cook, another pulmonary specialist, also examined Ms. Dale and testified that her PFT indicated she had mild asthma. Dr. Cook also indicated that she did not take drugs for the malady because the medication did not agree with her. Dr. Cook testified that in his opinion, a single exposure to MEK would not cause Ms. Dale’s asthma. Dr. William George, Professor of Toxicology at Tulane University Medical School, examined Ms. Dale at her request. Dr. George reported that he could not establish a causal connection between an exposure to MEK and occupational asthma. Dr. Scott Pethke, Ms. Dale’s treating pulmonary physician, stated that he could not say whether one brief exposure to MEK could trigger her asthma.

In determining whether a worker has shown by a preponderance of the evidence that an injury-causing accident occurred in the course and scope of employment, the trier of fact is expected to focus on the issue of credibility because, absent contradictory circumstances and evidence, a claimant’s testimony is accorded great weight. Bruno v. Harbert International, Inc., 593 So.2d 357, 361 (La.1992).

In this case the OWC judge, who was in the best position to weigh and evaluate the evidence, heard the testimony of the parties and credited that opposing testimony of the co-workers. Accordingly, she determined that Ms. Dale did not prove that her asthma was caused by events while working for Avondale.

IsUpon a thorough review of the evidence presented and considering the credibility determinations obviously made by the WCJ, we conclude that the record reasonably supports that Ms. Dale failed to prove her entitlement to workers’ compensation benefits. We find no manifest error in the WCJ’s conclusion that Ms. Dale did not carry her burden of proving that her disability was caused by a work-related accident entitling her to workers’ compensation benefits.

DECREE

For the foregoing reasons, the decision of the WCJ is affirmed. Costs of this appeal are assessed to Deborah Dale.

AFFIRMED.


author: J^CLAIBORNE, J.

text:
    Sharon Gay HERNANDEZ v. MID AMERICA ASSURANCE COMPANY OF LOUISIANA.
    Nos. 2002 CA 2360, 2002 CA 2361, 2002 CA 2362, 2002 CA 2363.
    Court of Appeal of Louisiana, First Circuit.
    July 2, 2003.
    Joseph A. Perrault, Jr., Baton Rouge, Counsel for Plaintiff-Appellant Succession of Sharon G. Hernandez.
    Daniel D. Holliday, III, Michael A. Patterson Baton Rouge, Counsel for Defendant-Appellee State of Louisiana through the Commissioner of Insurance.
    Before: PARRO, MCDONALD, and CLAIBORNE, JJ.

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

   J^CLAIBORNE, J.

This is an appeal by the succession representative of the plaintiff, Sharon Gay Hernandez, from a judgment in favor of the defendant, the State of Louisiana through the Commissioner of Insurance (the State), finding, after submission of evidence by stipulation of the parties, that she has stated no cause of action against the State and dismissing her claims against the State with prejudice.

FACTUAL AND PROCEDURAL BACKGROUND

On November 7, 1985, Mid America Assurance Company of Louisiana (Mid America) issued a structured twenty-year annuity policy to Ms. Hernandez. The policy was a single premium annuity, meaning that it was purchased with a single premium of $80,969.54, and Ms. Hernandez began receiving her scheduled monthly payments of $809.70 the next month. She continued to receive her monthly payments for about two and a half years. Then Mid America was put into liquidation, and all payments under the annuity ceased.

Ms. Hernandez filed suit against Mid America for payment of the annuity on November 8, 1988, and subsequently amended her petition to add the State as a defendant. Three other lawsuits were consolidated with this one; they were dismissed at the summary judgment stage. Ms. Hernandez died, and her succession representative was substituted as party plaintiff in the proceedings. The State filed a motion for summary judgment against the succession of Sharon Hernandez, which was denied on June 17, 1999, and the matter was then submitted to the trial court for decision on stipulations, documents, and briefs in March 2000. On February 4, 2002, the trial court 13issued written reasons for judgment, finding that Ms. Hernandez had failed to state a cause of action against the State and dismissing her claims against the State. A judgment to that effect was signed on February 15, 2002, and from that judgment, the succession of Sharon Gay Hernandez appeals.

LAW AND ANALYSIS

As recognized by the trial court, the threshold issue in this case is whether or not Ms. Hernandez purchased a registered or certificated annuity policy from Mid America. If the annuity was registered or certificated, then Mid America was required, pursuant to La. R.S. 22:1029, to place with the Commissioner of Insurance (the Commissioner) reserves sufficient to cover the annuity. Under the statute, once an insurer has shown the Commissioner proof that it has sufficient funds on deposit, the insurer may issue annuities which have on their face a certificate of deposit signed by the Commissioner stating the following:

STATE OF LOUISIANA.. .1, the undersigned Commissioner of Insurance of Louisiana, do hereby certify that the... Company invests and maintains in stipulated securities as required by the law of the State of Louisiana its fully paid up capital, together with the net cash value of every outstanding policy; and said company has on deposit with the commissioner of insurance of Louisiana such stipulated securities equal in amount to such net cash value of all outstanding policies as shown by its last annual statement, which fund the law requires the company to maintain during the continuance of this policy.

See La. R.S. 22:1029(B). According to Ms. Hernandez, the State of Louisiana, through the Commissioner, should be held liable under this statute, because it issued blank certificates of deposit to Mid America and did not follow up on their use or provide any safeguards to Mid America’s customers. In order to have a cause of action against the State, Ms. Hernandez must first establish that La. R.S. 22:1029 is applicable to her |4annuity policy by proving that her annuity was in fact a registered or certificated policy.

As noted by the trial court in its written reasons for judgment, Mid America kept sloppy and disorganized records, thereby making a rather simple factual question more difficult to determine. Ms. Hernandez’ application for annuity, dated November 6, 1985, makes no mention of whether the annuity was to be registered or not. The original policy she was issued, policy number 2433, does not state anywhere that it is a registered policy. It simply states on the policy schedule page that it is a “Single Premium Immediate Annuity.” Furthermore, policy number 2433 did not have a certificate of deposit from the Commissioner of Insurance attached to it.

On May 28, 1986, after Ms. Hernandez had been receiving payments under annuity policy number 2433 for about six months, Carolyn Greely, Vice President and Underwriter of Mid America, sent Ms. Hernandez a letter stating that policy number 2710 was being exchanged for policy number 2433. The letter states, “These changes in no way affect the guarantee or benefits to you, as outlined in your policy. This exchange is for our reserving purposes only.” However, policy number 2710 differs from Ms. Hernandez’ original policy, because at the bottom of the policy schedule page it states, “THIS IS A REGISTERED POLICY, CERTIFICATE NUMBER 103.” Attached to policy number 2710 was a certificate of deposit from the Commissioner of Insurance containing the language from La. R.S. 22:1029(B) and bearing certificate number 103.

Frederick Chiquet, the Secretary and Treasurer of Mid America, testified in his deposition that the reason for the exchange of policies was that there was a miscalculation in the way policy number 2433 had been | ¿valued in Mid America’s financial statements. Although this miscalculation did not affect the actual value of Ms. Hernandez’ annuity, it affected the amount of funds Mid America was required by law to keep on reserve. Therefore, Mid America wanted to reissue the policy under a new number so that it could reduce the amount of reserves it was required to keep.

On July 25, 1986, Carolyn Greely sent Ms. Hernandez another letter, explaining that a mistake had been made when Mid America exchanged policy number 2710 for policy number 2433. The letter states that policy number 2710 had included an incorrect policy schedule page and that the certificate of deposit should not have been attached to policy number 2710. The letter specifically notes that Ms. Hernandez’ policy is a structured annuity and not a certificated policy. Along with the letter, Carolyn Greely enclosed the correct policy schedule page which, like the policy schedule page of the original policy Ms. Hernandez had been issued, does not state anywhere that it is a registered policy, but simply states that it is a “Single Premium Immediate Annuity.” The letter asks Ms. Hernandez to replace the incorrect schedule page with the correct one and to return certificate of deposit number 103 to Mid America’s office for cancellation.

On September 29, 1986, Ms. Hernandez signed an exchange of policy receipt, acknowledging that she had received the new policy in exchange for the old one and that she understood “the exchange is for reserving purposes only and in no way affects the guarantee or benefits made to me under Policy Number 2433.” On that same date, Ms. Hernandez executed a lost policy form in which she stated that certificate of deposit number 103 had been lost, misplaced, or inadvertently destroyed and was no longer in her possession. Therefore, the certificate could not be returned to Mid America, 1 (¡and the lost policy form states that it is to be accepted in lieu of the return of the certificate of deposit.

The trial court found that, although sloppy record keeping was involved, there was no evidence Ms. Hernandez was ever purposefully issued a registered annuity. The trial court found that the original policy she was issued, policy number 2433, was not registered and that the second policy was registered in error, which was then corrected. When Ms. Hernandez was issued the second policy in exchange for policy number 2433, the exchange was to have no effect on her benefits under the original policy, as noted in the letter which accompanied the new policy. In contradiction to what the letter stated, the new policy, policy number 2710, mistakenly stated that it was registered, and it had a certificate of deposit attached to it. At the time she received that policy, however, Ms. Hernandez did not sign the exchange of policy receipt, acknowledging receipt of the new policy in exchange for the old one. In fact, she did not sign the exchange of policy receipt until September 29, 1986, long after Mid America had sent her a letter correcting its mistake, explaining that her policy was not a certificated annuity, and enclosing the correct policy schedule page for policy number 2710. The exchange of policy receipt acknowledges that the exchange is for reserving purposes only and that it in no way affects her benefits under policy number 2433. Furthermore, Ms. Hernandez signed a lost policy form for certificate of deposit number 103, which states in part “[A]ccept this in lieu of the return of Certificate of Deposit # 103.”

17Accordingly, we conclude a reasonable factual basis exists for the finding of the trial court that Ms. Hernandez purchased an unregistered annuity from Mid America.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court finding that the succession representative of the plaintiff, Sharon Gay Hernandez, has no cause of action against the State and dismissing her claims against the State with prejudice. All costs of this appeal are assessed to plaintiff.

AFFIRMED.

      . The objection of no cause of action was not pled as a peremptory exception but as a defense in the answer. The finding of no cause of action was based on the evidence establishing or failing to establish proof of certification of an annuity, as hereinafter discussed.

      . Having determined that La. R.S. 22:1029 did not apply to this annuity, and therefore there was no cause of action against the State, the trial court did not reach the more difficult question of whether there would have been a cause of action if the policy had been registered. We, likewise, express no opinion on this issue.


text:
    Wilburn M. FLENIKEN, II v. SAFEWAY TRANSPORTATION, INC.
    No. 2002 CA 2389.
    Court of Appeal of Louisiana, First Circuit.
    July 2, 2003.

      Stacey Moak, Douglas Chapoton, Baton Rouge, Counsel for Plaintiff/Appellant Wilburn M. Fleniken, II.
    John J. Rabalais, Max K. Jones, Jr., Covington, Counsel for DefendanVAppel-lee Safeway Transportation, Inc.
    Before: KUHN, DOWNING and GAIDRY, JJ.
   1 .DOWNING, J.

Wilburn M. Fleniken, II, appeals a judgment rendered by the Workers’ Compensation Judge (WCJ) dismissing Fleniken’s claim for attorney fees under La. R.S. 23:1103(0 (hereinafter referred to as Moody fees), against his employer, Safeway Transportation, Inc. (Safeway). The WCJ ruled it lacked subject matter jurisdiction over Moody fee claims. We agree and for the following reasons affirm the judgment.

This matter arises from a work related accident. Fleniken instituted a tort action in district court against his employer, Safeway, as well as Entergy Corporation and TMI Enterprises, Inc. He also filed a disputed claim for workers’ compensation against Safeway, but requested that the workers’ compensation proceeding be stayed until the tort action was resolved. A jury trial was held, and the jury found no fault on the part of Entergy and allocated TMI and Safeway each with 50% fault, awarding Fleniken damages in the amount of $2,080,782.74. The jury also found that Safeway was immune from tort liability pursuant to the Louisiana Workers’ Compensation Act. The First Circuit Court of Appeal affirmed the damage award but reversed the jury’s finding of no fault on the part of Entergy and assessed it with 20% fault thereby reducing TMI’s and Safeway’s fault to 40% each. Safeway’s tort immunity was affirmed. Fleniken reasserted his workers’ compensation claim, adding a claim for Moody fees against Safeway pursuant to La. R.S. 23:1101(0(1). Safeway responded by | .asserting its entitlement to credits and offsets as a matter of law because Fleniken’s recovery in tort exceeded the value of his workers’ compensation claim. Safeway filed a declinatory exception asserting lack of subject matter jurisdiction exception. The WCJ sustained the exception and dismissed the Moody fee claim for lack of subject matter jurisdiction. Fleniken appeals.

The sole issue of this appeal is whether the Office of Workers’ Compensation (OWC) has jurisdiction to award claimant Moody fees pursuant to La. R.S. 23:1103(C).

Louisiana Revised Statutes 23:1103(0(1) provides the following:

If either the employer or employee intervenes in the third party suit filed by the other, the intervenor shall only be responsible for a share of the reasonable legal fees and costs incurred by the attorney retained by the plaintiff, which portion shall not exceed one-third of the intervenor’s recovery for prejudgment payments or prejudgment damages. The amount of the portion of attorney fees shall be determined by the district court based on the proportionate services of the attorneys which benefited or augmented the recovery from the third party. The employee as intervenor shall not be responsible for the employer’s attorney fees attributable to post-judgment damages nor will the employer as intervenor be responsible for the attorney fees attributable to the credit given to the employer under Subsection A of this Section. Costs shall include taxable court costs as well as the fees of experts retained by the plaintiff. The pro rata share of the intervenor’s costs shall be based on intervenor’s recovery of prejudgment payments or prejudgment damages. (Emphasis added.)

Fleniken argues that he is entitled to Moody fees on the amounts awarded to him against Safeway. Fleniken reasons that since Safeway was apportioned with 40% of the fault but escaped any obligation to pay because of its tort immunity, Safeway still owes its percentage of attorney fees for Fleniken pursuing the tort claim, thereby relieving it of the obligation it would otherwise bear to pay him compensation benefits and medical expenses. Fleniken argues that this claim need not be brought in district 14court as the OWC has broad discretion to settle “all claims or disputes arising out of this Chapter” in La. R.S. 23:1310.3(E).

We disagree. The plain language in La. R.S. 23:1103(0 requires that attorney fees must be determined by the district court. The word “shall” is mandatory and the word “may” is permissive. La. R.S. 1:3. The phrase “[a]ttorney fees shall be determined by the district court” is mandatory language. In construing legislative enactments, we must assume that the Legislature intended every word, phrase, and clause to have some meaning and that none was inserted by accident. Consequently, we must construe every provision of a statute in such a manner so as to give it some effect. Hoag v. State ex rel. Kennedy, 01-1076, p. 13 (La.App. 1 Cir. 11/20/02), 836 So.2d 207, 219, writ denied, 02-3199 (La.3/28/03), 840 So.2d 570; citing Elevating Boats, Inc. v. St. Bernard Parish, 00-3518, p. 18 (La.9/5/01), 795 So.2d 1153, 1166. And so construing, it is clear that the Office of Workers’ Compensation lacks jurisdiction in this regard.

Fleniken argues that OWC has jurisdiction because of the language in La. R.S. 23:1310.3(E) provides OWC with exclusive jurisdiction over claims “arising out of this Chapter.” The Moody fee claim, however, arises from the tort litigation and does not “arise out of this Chapter” as contemplated in La. R.S. 23:1310.3. The statutory grant of jurisdiction to the Office of Workers’ Compensation in La. R.S. 23:1310.3(E) has been specifically limited by the language of the amendment to Article V, § 16(A) of the Louisiana Constitution, which gives the WCJ only as much jurisdiction as this constitutional amendment authorizes. Albe v. Louisiana Workers’ Compensation Corporation, 97-0581, p. 6 (La.10/21/97), 700 So.2d 824, 827.

|fiThe WCJ clearly did not err in sustaining the objection raised by the exception of no subject matter jurisdiction and dismissing Fleniken’s claim for attorney fees under La. R.S. 23:1103(0.

DECREE

Accordingly, the judgment of the Workers’ Compensation Judge is affirmed. The costs of this appeal are assessed against appellant, Wilburn M. Fleniken, II.

AFFIRMED.

      . La. R.S. 23:1310.1.

      . The label "Moody fees” derives from the case Moody v. Arabie, 498 So.2d 1081 (La.1986), in which the Louisiana Supreme Court set out when an attorney representing an injured plaintiff could recover attorney fees and costs from amounts an intervenor employer recovered in suit, and the holding of this case was codified in La. R.S. 23:1103(C).

        . Fleniken v. Entergy Corporation, 00-1824, 00-1825 (La.App. 1 Cir. 2/16/01), 780 So.2d 1175.


author: J^DOWNING, J. | ^OWNING, J., pGAIDRY, J.,

text:
    Derrick HURST v. Kenneth W. JUDSON and Illinois National Insurance Company.
    No. 2002 CA 2412.
    Court of Appeal of Louisiana, First Circuit.
    July 2, 2003.
    Robert J. Carter, Russell C. Monroe, Greensburg, Counsel for Plaintiff/Appellee Derrick Hurst.

      William E. Willard, Mark G. Murphey, Baton Rouge, Counsel for Defendants/Appellants Kenneth W. Judson and Illinois National Insurance Co.
    Before: KUHN, DOWNING and GAIDRY, JJ.
   J^DOWNING, J.

The issue in this appeal is whether the “no pay, no play” provision of La. R.S. 32:866 is applicable where a driver of an automobile backs into an uninsured automobile operated by a non-owner. This case arises out of an automobile accident where defendant, Kenneth Judson, backed his automobile into a parked, uninsured automobile owned by the mother of plaintiff, Derrick Hurst, who had taken his mother’s automobile to get gasoline. The trial court found that the “no pay, no play” provision of La. R.S. 32:866 was inapplicable and rendered judgment in favor of Hurst for personal injury damages he suffered. Judson and his insurer, Illinois National Insurance Company (collectively, Judson), appeal this issue. For the following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On November 25, 1999, Hurst drove his mother’s car to Swifty’s gas station to get gas. Upon arriving at Swifty’s, Hurst stopped in line behind Judson, who was filling up his vehicle with gasoline. Hurst, realizing he had to wait for a moment, decided to put his vehicle in park and turn off the engine. After Judson got back in his vehicle, he placed it in reverse and collided with Hurst’s vehicle. At this time, Hurst’s vehicle was still in park with the engine off. Hurst was injured as a result of the accident.

Hurst subsequently filed suit on June 6, 2000. Judson and Illinois National Insurance Co., Judson’s automobile liability insurer, were named as defendants. At the trial on the merits, Judson asserted that the “no pay, no play” provisions of La. R.S. 32:866 barred Hurst from recovering any damages that amounted to less than $10,000.00. The trial court disagreed and rendered judgment in favor of Hurst awarding him $8,346.40, together with legal interest from date of judicial demand and trial costs. Judson filed 13this appeal, assigning one assignment of error. He argues that, “The Trial Court erred as a matter of law by not applying the ‘No Pay, No Play’ Statute in this ease, thereby requiring Hurst/appellee to forfeit the first ten thousand dollars of recovery.”

DISCUSSION

Affirmative Defense

Under the terms of La. R.S. 32:866, recovery for the first $10,000.00 in damages an owner or operator of an automobile suffers from bodily injury is precluded where the owner or operator of a motor vehicle “fails to own or maintain compulsory motor vehicle liability security.” La. R.S. 32:866(A)(1). At the time of the accident at issue in this case, La. R.S. 32:866 provided in pertinent part as follows:

§ 866. Compulsory motor vehicle liability security; failure to comply; limitation of damages

A. (1) There shall be no recovery for the first ten thousand dollars of bodily injury and no recovery for the first ten thousand dollars of property damage based on any cause or right of action arising out of a motor vehicle accident, for such injury or damages occasioned by an owner or operator of a motor vehicle involved in such accident who fails to own or maintain compulsory motor vehicle liability security.
B. Each person who is involved in an accident in which the other motor vehicle was not covered by compulsory motor vehicle liability security and who is found to be liable for damages to the owner or operator of the other motor vehicle may assert as an affirmative defense the limitation of recovery provisions of Subsection A of this Section. (Emphasis added.)

Here, pursuant to the provisions of La. R.S. 32:866(B), Judson asserted the limitations of recovery set forth in La. R.S. 32:866(A)(1) as a defense. And the burden is on Judson, as the party asserting the affirmative defense, to prove that defense by a preponderance of the evidence. McDonald v. Champagne, 340 So.2d 1025, 1026 (La.App. 1 Cir.1976).

Accordingly, we have examined the record in this matter to evaluate whether a preponderance of evidence supports Judson’s assertion of this affirmative defense. And we review judgments for correctness, not reasons for judgment. See Huang v. Louisiana State Board of Trustees for State Colleges and Universities, 99-2805, p. 5 n.3 (La.App. 1 Cir. 12/22/00), 781 So.2d 1, 6 n. 3. “The court of appeal reviews judgments and, where the court of appeal believes that the trial court reached the proper result, the judgment will be affirmed.” Huang, 99-2805 at p. 5, 781 So.2d at 6.

Here, we conclude the trial court did not err in entering judgment in Hurst’s favor because we find no evidence in the record supporting an essential element of proof in support of Judson’s affirmative defense; Judson has introduced no evidence at trial tending to show that Hurst “fail[ed] to own or maintain compulsory motor vehicle liability security,” nor any evidence that his mother’s automobile “was not covered by compulsory motor vehicle liability security.”

Parked Automobile

Judson argues that the issue for us to decide is whether Hurst should be permitted to claim he was not “operating” an automobile, thus avoiding the application of La. R.S. 32:866(A), solely because the automobile was parked at a gas station at the time of the accident. Because of the above disposition, we do not decide this issue.

IJDECREE

For the foregoing reasons, the judgment of the trial court in favor of Hurst is affirmed. All costs of this appeal to be paid by Judson and his insurer, Illinois National Insurance Company.

AFFIRMED.

DOWNING, J., specially concurs.

KUHN, J., concurs.

GAIDRY, J., concurs with reasons.

| ^OWNING, J.,

specially concurring.

I write this specially concurring opinion to state an additional ground on which I would affirm the judgment of the trial court. It is undisputed that Hurst was not the owner of the allegedly uninsured automobile he was operating. And we are aware of no law, and Judson has cited none, compelling a non-owner of an automobile to own or maintain motor vehicle liability insurance. Accordingly, the trial court committed no error in concluding that the terms of La. R.S. 32:866 were inapplicable to Hurst.

We are aware of the strong policy against rewarding uninsured motorists involved in accidents. However, the language of the statute is clear and should be applied accordingly. The statute imposes remedial measurers on owners or operators “who [fail] to own or maintain compulsory motor vehicle liability security.” La. R.S. 32:866(A). Since Hurst is under no apparent duty to obtain compulsory motor vehicle liability security in connection with the vehicle at issue, we cannot conclude that he has failed to do so.

pGAIDRY, J.,

concurs and assigns reasons.

I agree with the result herein, mandated on the evidentiary grounds described, but not for the reasons assigned by the trial court. The trial court clearly erred in concluding that the evidence demonstrated that “there was no policy of liability insurance in effect” on the vehicle operated by plaintiff and in deciding the case on the grounds that La. R.S. 32:866 was inapplicable under the facts relating to the vehicle’s status of operation. As no evidence in support of the statute’s affirmative defense was introduced, there was no need to reach the merits of the statute’s applicability to the factual scenario.

I am compelled to concur by reason of dictum in the specially concurring opinion which may result in misinterpretation of the effect of the statute. It is quite true that there is no law which compels a person who does not own a motor vehicle to own or maintain a motor vehicle liability policy. But as the specially concurring opinion concedes, there are statutes which prohibit anyone from operating a motor vehicle which is not covered by liability insurance or alternative security. La. R.S. 32:866 was plainly |.>intended to reinforce the public policy inherent in those statutes by imposing a limited and appropriate limitation upon a permissible tort action by the owner or operator of a “motor vehicle ... not covered by compulsory motor vehicle liability security.” La. R.S. 32:866(B). The statute does not penalize an uninsured owner operator, as suggested in the special concurrence herein. Progressive Insurance Company v. Foster, 97-2985, pp. 8-9 (La.4/23/98), 711 So.2d 675, 682.

I agree that the language of the statute is clear and should be applied accordingly. But the special concurrence fails to consider the statute’s language in its entirety. The Section (A) language quoted must be read with Section (B)’s language in interpreting the statute’s meaning and effect. If plaintiff had no primary motor vehicle liability insurance of his own, or was not covered as an omnibus insured as a permissive operator of a nonowned vehicle, the absence of an express, affirmative duty to buy his own policy is immaterial to application of La. R.S. 32:866.

      . In Progressive Security Insurance Co. v. Foster, 97-2985, p. 14 (La.4/23/98), 711 So.2d 675, 684, the Louisiana Supreme Court held that the words "occasioned by” as used in this statute means "suffered by.”

      . Cf. La. R.S. 32:865 which imposes potential criminal liability for a non-owner who knowingly drives an uninsured automobile and La. R.S. 32:872(B) which requires suspension of the license of an uninsured owner or operator involved in an accident unless the owner or operator posts security in an amount determined by the commissioner of motor vehicles.


author: | ¡PARRO, J.

text:
    AZALEA LAKES PARTNERSHIP and Oak Harbor Investment Properties, L.L.C. v. PARISH OF ST. TAMMANY.
    No. 2002 CA 0050.
    Court of Appeal of Louisiana, First Circuit.
    July 2, 2003.
    Writ Denied Nov. 14, 2003.
    William J. Jones, Jr., Jones Fussell, L.L.P., Covington, for Plaintiffs-Appellees Azalea Lakes Partnership and Oak Harbor Investment Properties, L.L.C.
    Walter P. Reed, Neil C. Hall, III, Office of District Attorney, Covington, for Defen-danh-Appellee Parish of St. Tammany.

      Clement F. Perschall, Jr., Metairie, for Intervenor-Appellant Eden Isles Homeowners Association, Inc.
    Before: PARRO, McDONALD, and JAMES, JJ.

      . Judge A. Clayton James, retired from the Twenty-Second Judicial District Court, is serving as judge pro tempore, by special appointment of the Louisiana Supreme Court.

   | ¡PARRO, J.

An intervenor, Eden Isles Homeowners Association, Inc. (Eden), appeals a trial court judgment that sustained exceptions raising the objection of no cause of action and granted motions for summary judgment filed by the parties to the main demand, resulting in the dismissal of its intervention. For the following reasons, the judgment is affirmed.

Factual Background and Procedural History

Azalea Lakes Partnership (Azalea Lakes) and Oak Harbor Investment Properties, L.L.C. (Oak Harbor) sued the Parish of St. Tammany (St. Tammany Parish), alleging breach of a development agreement (the agreement) entered into by the three parties on September 21, 1995. The purpose of the agreement was to develop certain property within a planned unit development (PUD), the Oak Harbor PUD, that had been created in 1988, pursuant to the authority of Ordinance 523, passed by St. Tammany Parish in 1971. In their petition, Azalea Lakes and Oak Harbor sought to have the agreement declared null and void and asked for damages and the refund of impact fees paid under the agreement. St. Tammany Parish answered, denying that the agreement was a nullity. In an amended and restated petition, Azalea Lakes and Oak Harbor sought specific performance of the agreement, a declaratory judgment concerning their rights under the agreement, and an injunction to prevent any violation of those rights. Azalea Lakes and Oak Harbor also requested damages for prior breaches of the agreement by St. Tammany Parish in connection with the approval or permit process, as well as attorney fees.

Eden intervened in the lawsuit, challenging the validity of the agreement. Eden alleged that the creation of the Oak Harbor PUD was ultimately based on zoning authority granted to St. Tammany Parish by 1954 La. Acts, No. 518 (Act 518), which Eden argued was unconstitutional. Eden filed a motion for summary judgment and an exception raising the [¡¡objection of no cause of action, which were opposed by the parties to the main demand. Subsequently, Azalea Lakes, Oak Harbor, and St. Tammany Parish filed exceptions raising the objection of no cause of action and motions for summary judgment relative to Eden’s intervention. Azalea Lakes’, Oak Harbor’s, and St. Tammany Parish’s exceptions were sustained and their motions for summary judgment were granted, resulting in the dismissal of Eden’s intervention. Eden appeals.

Constitutionality of Ordinance 523

Eden assigns as error the trial court’s finding that Ordinance 523 was constitutional. Eden contends Ordinance 523 was dependent on Act 518, which it claims was unconstitutional, because it was a local and special law that was not advertised as required by Article XIV, Section 29 of the Louisiana Constitution of 1921.

In 1971, St. Tammany Parish sought to zone the territory within its borders with the passage of Ordinance 523. This ordinance divided the parish into six types of land use districts in a comprehensive plan designed to lessen congestion in the streets, prevent overcrowding of the land, secure safety from fire, and ensure that adequate public services were available to the population. Along with its amendments, Ordinance 523 is the zoning ordinance under which the Oak Harbor PUD was created. The Oak Harbor PUD, consisting of 141,219.69 acres, was created on May 19, 1988, as an amendment to the then-existing Eden Isles PUD. There are 27 specifically numbered or lettered parcels of land in the Oak Harbor PUD. Each has a designated land use, such as residential' — single family or multi-family; commercial; multi-use — church, school, elderly housing, medical clinic, hospital, fire station, recreation, or other institutional uses; or open space — golf course, tennis, swimming, parkway, or water. Each residential parcel has a specific density (number of dwelling units per acre) that cannot be exceeded.

As noted by the trial court, the constitutionality of Ordinance 523 was addressed and answered by the supreme court in Folsom Road Civic Ass’n v. St. Tammany Parish, 407 So.2d 1219, 1222 (La.1981). After reviewing the applicable constitutional provisions, the supreme court concluded that Ordinance 523 was a reasonable exercise of the police power and was not unconstitutional. Folsom, 407 So.2d at 1222. In particular, the court addressed whether Ordinance 523 was contrary to the grant of authority relative to zoning contained in the Louisiana Constitution of 1974, as well as the prior constitution of 1921, as amended in 1962.

Under the 1974 constitution, the constitutional requirements relative to zoning within the state are in Article VI, § 17, which provides:

Subject to uniform procedures established by law, a local governmental subdivision may (1) adopt regulations for land use, zoning, and historic preservation, which authority is declared to be a public purpose; (2) create commissions and districts to implement those regulations; (3) review decisions of any such commission; and (4) adopt standards for use, construction, demolition, and modification of areas and structures. Existing constitutional authority for historic preservation commissions is retained.

The court in Folsom determined that Ordinance 523 was not in conflict with Article VI, § 17 of the 1974 constitution, in that the constitutional provision authorizes local governmental subdivisions to enact zoning laws. Folsom, 407 So.2d at 1223. The court then addressed whether Ordinance 523, which was enacted in 1971, had survived the adoption of the 1974 constitution. For this to occur, St. Tammany Parish must have been acting within its | .^constitutionally afforded authority at the time of the enactment of Ordinance 523. See LSA-Const. art. XIV, § 18(A); Folsom, 407 So.2d at 1223.

Prior to the adoption of the 1974 constitution, zoning ordinances were governed by Article XIV, § 29 of the Louisiana Constitution of 1921, which, in pertinent part, provided: “All municipalities are authorized to zone their territory; to create residential, commercial and industrial districts, and to prohibit the establishment of places of business in residential districts.” The supreme court in Plebst v. Barnwell Drilling Co., 243 La. 874, 148 So.2d 584 (1963), concluded that neither this constitutional provision nor subsequent special constitutional amendments operated as a tacit restriction or limitation on the legislative power to delegate zoning authority to other public subdivisions. Plebst, 148 So.2d at 591.

Of more significance for our case, and as emphasized by the trial court, the legislature authorized an amendment to Article XIV, § 29 in 1962 to add a paragraph stating it was within the police power of St. Tammany Parish to adopt zoning ordinances. See 1962 La. Acts, No. 519. Thereafter, St. Tammany Parish’s authority to zone was expressly set forth in Article XIV, § 29(e), as follows:

The Parish of St. Tammany is authorized to zone its territory; to create residential, agricultural, commercial and industrial districts, and to protect such districts by regulating the intrusion of incompatible land uses. The provisions of this paragraph shall be self-operative.

Clearly, at the time of the adoption of Ordinance 523 in 1971, St. Tammany had express constitutional authority to enact regulations relative to zoning. This authority was self-operative and independent of Act 518. Therefore, the question of whether Act 518 was or was not constitutional is irrelevant to the resolution of this case.

Nonetheless, Eden urges that the 1921 constitution, as amended, did not authorize the creation of a PUD. Thus, in this respect, Eden argues that Ordinance 523 is in conflict [ fiwith former Article XIV, § 29(e). The supreme court in Folsom held that although the language of this constitutional provision, as amended, authorized only the creation of residential, agricultural, commercial, and industrial districts, this grant of authority for the enumerated types of districts did not prohibit the establishment of other types of districts (in that case, rural districts) best suited to the needs of the local population. Folsom, 407 So.2d at 1223. We believe the Folsom rationale can also be applied to the issue of whether creation of a PUD was authorized, as an “other type of district” best suited to the needs of the population.

The preamble to Ordinance 523 recites that the planning commission followed a comprehensive plan and gave reasonable consideration to the character of the six districts and their suitability for particular uses, with a view to conserving the value of buildings and encouraging the most appropriate use of the land throughout the parish. St. Tammany Parish’s creation of a planned unit zoning district was made pursuant to a determination that such a district was best suited to the needs of St. Tammany Parish. Ordinance 523 anticipated that a PUD would contain a mixture of the individual uses permitted by the ordinance. The Oak Harbor PUD does just that. Accordingly, we conclude that the Oak Harbor PUD qualified as an “other type of district” that is best suited to the needs of the population. Based on our review of the record in this case, we further conclude the trial court did not err in its factual findings or in its application of the law when it determined that Ordinance 523 fell within the purview of former Article XIV, § 29(e) and that the Oak Harbor PUD was constitutionally established pursuant to that ordinance.

Constitutionality of Louisiana Revised Statute 33:4780.21, et seq.

In its third assignment of error, Eden questions whether the provisions of LSA-R.S. 33:4780.21, et seq. concerning the agreement are an unconstitutional delegation of legislative authority and whether the agreement itself is in violation of the statutes. Azalea Lakes, Oak Harbor, and St. Tammany Parish objected to Eden’s third assignment of error to |7the extent that the second portion of the argument exceeded the allegations of Eden’s intervention and its assertions at trial.

A final judgment shall grant relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contains no prayer for general and equitable relief. See LSA-C.C.P. art. 862. Nevertheless, Article 862 does not confer jurisdiction on a trial court to decide issues that the litigants have not raised. The court may only grant relief warranted by the arguments contained in the pleadings and the evidence. Wilson v. Wilson, 30,445 (La.App. 2nd Cir.4/09/98), 714 So.2d 35, 43. Due process requires adequate notice to the parties of the matters that will be adjudicated. Glover v. Medical Center of Baton Rouge, 97-1710 (La.App. 1st Cir.6/29/98), 713 So.2d 1261, 1262. The question of whether the statu tory provisions regarding development agreements were fulfilled with respect to the agreement and PUD at issue in this case was not raised in Eden’s intervention and was not litigated in the trial court. Accordingly, Eden’s argument pertaining to statutory compliance is not considered. See Tichenor v. Roman Catholic Church of Archdiocese of New Orleans, 95-0930 (La.App. 4th Cir.12/14/95), 665 So.2d 1307, 1312, writ denied, 96-0183 (La.3/15/96), 669 So.2d 424. We will limit our discussion of Eden’s third assignment of error to the constitutionality of LSA-R.S. 33:4780.21, et seq.

Eden’s argument to this court is that LSA-R.S. 33:4780.21, et seq., concerning development agreements, constitutes an unconstitutional delegation of legislative authority to private persons, i.e., developers. A state may not surrender, abdicate, or abridge its police power. Nonetheless, the police power of the state may be delegated to municipalities and other governmental subdivisions, because these entities are part of the total government of the state. City of Baton Rouge v. Williams, 95-0308 (La.10/16/95), 661 So.2d 445, 449. Louisiana Revised Statute 33:4780.22 declares that a parish may enter into a development agreement with any person having a legal or equitable interest in real property for the development of such property. The legislature recognized that development agreements can be used to avoid the waste of resources, hinder the escalating cost of housing, strengthen the public planning process, encourage private participation in comprehensive planning, and ^reduce the economic costs of development. See LSA-R.S. 33:4780.21. Relative to development agreements, LSA-R.S. 33:4780.22 through 4780.33 set forth, among other things, procedures, contents, enforcement, rules, regulations, official policies, public hearing requirements, notice requirements, approval by ordinance, amendments, modifications, terminations, cancellations, and recordation. Nothing in this statutory scheme attempts to delegate to the developer the right to rezone. To the contrary, LSA-R.S. 33:4780.27 provides:

Unless otherwise provided by the development agreement, the rules, regulations, and official policies governing permitted uses of the land, governing density, and governing design, improvement, and construction standards and specifications applicable to development of the property subject to a development agreement shall be those rules, regulations, and official policies in force at the time of execution of the agreement. A development agreement shall not prevent a municipality or parish, in subsequent actions applicable to the property, from applying new rules, regulations, and policies which do not conflict with those rules, regulations, and policies applicable to the property as set forth herein, nor shall a development agreement prevent a municipality or parish from denying or conditionally approving any subsequent development project application on the basis of such existing or new rules, regulations, and policies.

Moreover, LSA-R.S. 33:4780.33 provides that nothing in the Subpart pertaining to development agreements shall be construed to authorize property use contrary to existing zoning classifications or to authorize the reclassification of such zones. Therefore, we conclude that Eden’s argument relative to the constitutionality of these statutes lacks merit.

Decree

For the foregoing reasons, the judgment of the trial court dismissing Eden Isles Homeowners Association, Inc. is affirmed. All costs of this appeal are assessed to Eden Isles Homeowners Association, Inc.

AFFIRMED.

      . The trial court declared that the judgment of dismissal based on the motions for summary judgment was a final judgment. See LSA-C.C.P. art.1915.

      . Made additional defendants were the St. Tammany Parish Zoning Commission, the St. Tammany Parish Planning Commission, and the St. Tammany Parish Council that replaced the St. Tammany Parish Police Jury. We will refer to this group of defendants as St. Tammany Parish.

      . In this amended and restated petition, Azalea Lakes and Oak Harbor no longer sought to have the agreement declared a nullity and no longer sought the refund of the impact fees.

      . Save St. Tammany, Inc. was also a party to the intervention filed by Eden; however, it subsequently obtained an order of voluntary dismissal, leaving Eden as the sole intervenor. Eden's members are property owners in Eden Isle, which is in the original tract of which the Oak Harbor PUD is a part.

      . The judgment also disposed of a motion for partial summary judgment and other exceptions filed by St. Tammany Parish relative to the main demand. These rulings are not before this court on this appeal.

      . The pertinent provisions of Act 518 stated:
      Section 1. Be it enacted by the Legislature of Louisiana, That for the purpose of promoting health, safety, morals, or the general welfare of the community, the legislative body of St. Tammany Parish is hereby empowered to regulate and restrict the heights, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of population, and the location and use of the buildings, structures and land for trade, industry, residence or other purposes.
      Section 2. For any or all of said purposes the local legislative body may divide the said Parish into districts of such number, shape, and area as may be deemed best suited to carry out the purposes of this act; and within such districts it may regulate and restrict the erection, construction, alteration or use of buildings, structures or land. All such regulations shall be uniform for each class or kind of buildings throughout each district, but the regulations of one district may differ from those in other districts.
      Section 3. Such regulations shall be made in accordance with a comprehensive plan and design to lessen congestion in the public streets; to secure safety from fire; to promote health and the general welfare; to provide adequate light and air; to avoid undue concentration of population; to facilitate adequate transportation, water supply, sewerage, schools, parks, and other public requirements. Such regulations shall be made with reasonable consideration, among other things to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the values of buildings and encouraging the most appropriate use of land throughout such municipality.

      .Ordinance 523, titled "St. Tammany Parish Land Use Ordinance,” has been amended many times to keep up with population increases and development within the parish.

      . However, Eden correctly asserts that although the court discussed Act 518 in reaching its decision, the constitutionality of Act 518 was not an issue before the court in Folsom.

      . A law or an ordinance that is unconstitutional at the time of its enactment is not validated by a subsequent constitutional amendment that does not expressly ratify and confirm that law, but merely authorizes the enactment of such a law or ordinance. See Dennis v. The Finish Line, Inc., 99-1413, 99-1414 (La.App. 1st Cir. 12/22/00), 781 So.2d 12, 29, writ denied, 01-0214 (La.3/16/01), 787 So.2d 319.

      .Laws in force on the effective date of this constitution, which were constitutional when enacted and are not in conflict with this constitution, shall remain in effect until altered or repealed or until they expire by their own limitation. LSA-Const. art. XIV, § 18(A).

      . Notably, Ordinance 523 simply recognized that all requirements of Act 518 with regard to the preparation of the report of the planning commission and the subsequent action of the policy jury had been satisfied. This reference to Act 518 does not make Ordinance 523 dependent upon it, as Eden contends. We conclude further that Ordinance 523 was not invalid simply because it did not reference Article XIV, § 29(e) or any other constitutional provision as supporting authority for its adoption.

      . In its petition to intervene, Eden alleged, in pertinent part:

        [T]he Development Agreement, if enacted pursuant to the provisions of La. R.S. 33:4780.21, then in such event same is unconstitutional. The aforesaid statute attempts to delegate to a developer the right to rezone and/or make other changes regarding building heights, characteristics, etc., and/or control population density within the area outlined in the development agreement. Section 17 of Article 6 of the Louisiana Constitution [of 1974] specifically reflects that zoning laws are for a public purpose, therefore, this is strictly a legislative function which is non-delegable.

      . The effective date of this statute predated the agreement.


author: LPER CURIAM.

text:
    Vera M. RAINEY v. ENTERGY GULF STATES, INC. and Mike Case.
    No. 2001 CA 2414.
    Court of Appeal of Louisiana, First Circuit.
    July 2, 2003.
    Writ Denied Nov. 14, 2003.

      Leonard Cardenas, III, John T. Joubert, Henri M. Saunders, Baton Rouge, Counsel for Plaintiff/Appellee Vera M. Rainey.
    John A. Braymer, Kenneth Carter, Joseph K. West, Charles L. Rice, Baton Rouge, Counsel for Defendants/Appellants Entergy Gulf States, Inc. Mike Case.
    Before: KUHN, DOWNING and LANIER, JJ.

      . The Honorable Walter I. Lanier, Judge (retired), First Circuit Court of Appeal, is serving as judge ad hoc by special appointment of the Louisiana Supreme Court.

   ON REHEARING

LPER CURIAM.

On original hearing, we ruled that the trial court abused its discretion when it denied the appellant’s motion to amend its answer to assert the statutory employer affirmative defense when no trial was scheduled at the time the motion was filed. We reversed the trial court judgment and remanded this action to the trial court for further proceedings in accordance with law and special enumerated instructions. The appellee filed a motion for a rehearing that was granted with oral argument.

PROCEDURAL FACTS

Shortly after this appeal was lodged, Craig Brigalia filed a motion to be substituted herein as the party plaintiff-appel-lee. In this motion, he asserted that Vera Rainey died and he was the confirmed testamentary executor of her succession. Another panel of this court granted this motion with an unpublished ex parte order.

Prior to submission of this matter on rehearing, the defendant-appellant filed a peremptory exception raising the objection of no right of action. La. C.C.P. art. 927 A(5). This pleading admits that Brigalia is the testamentary executor of Rainey’s succession but asserts that he has no right of action or interest in this action because Rainey is survived by two children and pursuant to La. C.C. art. 2315.1 A(l) these children are the legal successors of Rai-ney’s cause of action.

Also, prior to submission of this matter on rehearing, Brigalia filed a “Motion of Intervention” to be recognized as a party individually and, in the alternative, as a particular legatee and the residual legatee of Rainey’s estate and her cause of action.

OBJECTION OF NO RIGHT OF ACTION

Generally, an action can only be brought by a person having a real and actual interest that he asserts. La. C.C.P. art. 681. The objection of no right of action is designed to test whether the plaintiff has a real and actual interest in the action. La. C.C.P. art. 927(5). The function of the objection of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause |3of action asserted in the suit. The objection of no right of action assumes the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation. Unlike the trial of an objection of no cause of action, evidence is admissible on the trial of an objection of no right of action to “support or controvert any of the objections pleaded, when the grounds therefor do not appear from the petition.” La. C.C.P. art. 931; Industrial Cos. Inc. v. Durbin, 2002-0665, pp. 11-12 (La.1/28/03), 837 So.2d 1207, 1216.

After reviewing the authorities cited herein below, we conclude that it is arguable that Rainey’s surviving children, and not Brigalia, are the proper parties plaintiff-appellee in this case. La. C.C. arts. 870, 871, 872, 876, 1519, 1589 and 2315.1; La. C.C.P. arts. 426, 685, 801, 821, 927 B and 934; Uniform Rules—Courts of Appeal, Rule 2-9; Haas v. Baton Rouge Gen. Hosp., 364 So.2d 944, 945 (La.1978); Carl v. Naquin, 93-1725 (La.App. 1 Cir. 5/20/94), 637 So.2d 736; W. Mengis, The Article 2315.1 Survival Action: A Probate or Non-Probate Item, 61 La.L.Rev. 417 (2001); F. Maraist and H. Lemmon, 1 Louisiana Civil Law Treatise, Civil Procedure, § 4.13, pp. 84-85 (1999); W. Crawford, 12 Louisiana Civil Law Treatise, Tort Law, §§ 5.1-5.2, 5.6-5.10, pp. 87-89, 96-101 (2000); F. Maraist and T. Galligan, Louisiana Tort Law, §§ 18.1-18.2, pp. 415-421 (1996). Rainey’s children are not parties to this proceeding. In this procedural posture, any judgment rendered on the merits of this case in favor of, or against, the defendant-appellant Entergy, will not be res judicata and affect the children’s cause of action (if they are. Rai-ney’s legal successors). La. R.S. 13:4231; see Burguieres v. Pollingue, 2002-1385 (La.2/25/03), 843 So.2d 1049.

JOINDER OF PARTIES NEEDED FOR A JUST ADJUDICATION

La. C.C.P. art. . 641 provides as follows:

A person shall be joined as a party in the action when either:
(1) In his absence complete relief cannot be accorded among those already parties.
(2) He claims an interest relating to the subject matter of the action and is so situated that the adjudication of the action in his absence may either:
(a) As a practical matter, impair or impede his ability to protect that interest.
(b) Leave any of the persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations.

|4A person should be deemed needed for a just adjudication only when absolutely necessary to protect substantial rights. La. C.C.P. art. 641 provides two sets of circumstances under which a third-party may be considered a party needed for just adjudication. A person may be considered indispensable only if one of the two circumstances listed therein exists. Pursuant to La. C.C.P. art 641(1), a person may be considered a party needed for a just adjudication if, absent his presence, “complete relief cannot be accorded among those already parties.” Pursuant to La. C.C.P. arti 641(2), a person may be considered a party needed for a just adjudication if that person claims an interest relating to the subject matter of the suit and if other conditions specified in that subpart are present. Industrial Cos. Inc. v. Durbin, 2002-0665 at pp. 14-15, 837 So.2d at 1217.

In this suit there is only one cause of action. Rainey timely filed suit on this cause of action and this interrupted prescription on this cause of action. La. C.C. art. 3462; W. Mengis, supra, p. 421 n. 19; W. Crawford, supra, §§ 5.7-5.8, pp. 98-99. This interruption continues “as long as the suit is pending.” La. C.C. art. 3463. Prescription commences to run again only when this suit is no longer “pending.” La. C.C. art. 3466. As previously indicated, if Rainey’s children are not parties to this action, a conclusive judgment herein for, or against, Entergy will not bar a subsequent action by them against Entergy because res judicata does not apply. Thus, if Rainey’s children are not joined as parties herein and subsequently file their own action on Rainey’s cause of action, the following will occur: (1) the courts will have to adjudicate two cases on a single cause of action; (2) Entergy will have to defend two suits on a single cause of action; and (3) if there are two suits on Rainey’s single cause of action, three results could occur: (a) Entergy prevails in both cases; (b) Entergy prevails in one case and is cast in judgment in the other (this is inconsistent); or (c) Entergy is cast in judgment in both (and pays twice on a single cause of action). Having two trials on this one cause of action is not in the best interest of judicial economy. Having two actions litigated on one cause of action creates the potential for inconsistent and patently unjust results.

Accordingly, pursuant to La. C.C.P. art. 645, on our own motion, we notice that Rainey’s children should be joined herein because they are needed for a just [.■¡adjudication and, in their absence, complete relief cannot be accorded among those who are already parties. See also La. C.C.P. art. 927 A(3) and B.

Pursuant to La. C.C.P. arts. 644, 646 and 2164, on the remand of this case, the trial court shall cite James A. McAllister and Joanne M. Mays to appear in this action and order them to either assert a claim of a right to be a party in this case or renounce the right of action and be precluded thereafter from asserting it. We shall not rule on the request for rehearing until a determination of the proper parties has been made.

DECREE

For the foregoing reasons, on our own motion, we notice that James A. McAllister and Joanne M. Mays are parties needed for a just adjudication. This matter is remanded to the trial court. The trial court, in the following order, shall: (1) issue citations to James A. McAllister and Joanne M. Mays ordering them to either assert claims to rights of action in this case or renounce claims thereto and be precluded from asserting them thereafter; (2) if either McAllister or Mays, or both of them, assert a right of action, hold an evidentiary hearing on Entergy’s peremptory exception raising the objection of no right of action and render a judgment on the exception; (3) if a judgment is rendered on the exception, issue written reasons for judgment to accompany the judgment, which reasons for judgment shall consider and address the pertinent authorities cited in this opinion; and (4) thereafter, consider and take appropriate action on Brigalia’s motion to intervene individually, and in the alternative, as a particular legatee and a residual legatee.

REMANDED WITH INSTRUCTIONS.

      . Rainey’s deposition was filed in the record at the trial on the merits in lieu of her testimony. Her deposition shows that she had two major children: James A. McAllister and Joanne M. Mays. Brigalia is identified therein as her boyfriend.

      .An intervention is an incidental demand provided for in La. C.C.P. art. 1031 et seq. and art. 1091 etseq.