author: | ELIZABETH A. PICKETT, Judge.

text:
    William H. ST. MARTIN, M.D. v. Joseph Paul WILLARD.
    No. CA-03-204.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 2003.

      Stephen M. Pizzo, Dante’ Vincent Maral-do, Blue Williams L.L.P., Metairie, LA, for Plaintiff Appellant, William H. St. Martin, M.D.
    Larry A. Roach, Jr., Barry Alwin Roach, Larry A. Roach, Inc., Lake Charles, LA, for Defendant/Appellee, Joseph Paul Willard.
    Court composed of NED E. DOUCET, JR., Chief Judge, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   | ELIZABETH A. PICKETT, Judge.

FACTS

On October 12, 1998, Joseph Paul Willard injured his back while working as a roustabout for R & B Falcon Drilling USA, Inc. (R & B Falcon). Mr. Willard filed a Petition for Damages in the Thirty-Second Judicial District Court against R & B Falcon under the Jones Act. On January 9, 2001, the parties reached a compromise agreement wherein Mr. Willard agreed to settle his claim against R & B Falcon for a specified sum to be paid within thirty days. A document entitled Receipt, Release of All Claims and Indemnity Agreement which contained a general release of all claims Mr. Willard might have against all persons arising out of the accident was prepared by R & B Falcon for Mr. Willard to execute. Mr. Willard, however did not want to execute a general release. He wanted to execute a release which specifically reserved his rights against Dr. William H. St. Martin for medical malpractice. He refused to sign the agreement and R & B Falcon did not pay the agreed upon sum.

Both parties filed motions to enforce the settlement. The motions were heard on March 13, 2001. On March 14, 2001, the trial court rendered judgment in favor of R & B Falcon 'and issued a written order instructing Mr. Willard to execute the general release prepared by R & B Falcon. The release forwarded to Mr. Willard by R & B Falcon, however, unlike the original, specifically released Dr. St. Martin. Following a telephone conference with the trial court judge, the particular reference to Dr. St. Martin was removed from the release. Mr. Willard executed the agreement and general release in compliance with the trial court’s order. He subsequently appealed the trial court’s judgment to the First Circuit Court of Appeal. The appellate court upheld the judgment of the trial court which ordered Mr. Willard to exercise a general release.

|?On March 27, 2001, Joseph Paul Willard filed a medical malpractice complaint against Dr. St. Martin with the Louisiana Patient’s Compensation Fund Oversight Board. The complaint alleged that Dr. St. Martin was negligent in fading to diagnose an unfit spine during Mr. Willard’s pre-employment physical for R & B Falcon. Dr. St. Martin approved Mr. Willard for the work that resulted in his injury. The physical was performed some six months prior to the injury. Mr. Willard contends the injury to his back was due, in part, to an unhealthy and unfit spine.

On January 7, 2002, Dr. St. Martin filed a Petition for Declaratory Judgment with the Fourteenth Judicial District Court in Calcasieu Parish. In his petition Dr. St. Martin asserted that the plain language of the release prepared by R & B Falcon, and entered into by Mr. Willard, bars Mr. Willard’s subsequent medical malpractice claim as res judicata.

Mr. Willard filed a Peremptory Exception of No Right of Action or, in the alternative, Dilatory Exception of Prematurity. He argued that Dr. St. Martin had no right of action with regard to the release because Dr. St. Martin was not a party to the maritime action between Mr. Willard and R & B Falcon and paid no consideration for the release. In addition, Mr. Willard also argued Dr. St. Martin’s suit was premature because the appeal filed by Dr. Willard following the judgment of the Thirty-Second Judicial District Court was still pending before the First Circuit Court of Appeal. Alternatively, he argued Dr. St. Martin’s ability to raise the res judicata effect of the general release in the medical malpractice action was lis pendens to the declaratory judgment action.

Mr. Willard’s exception was heard on September 9, 2002. The trial court took the matter under advisement. Subsequently, judgment was rendered in favor of Mr. [¡¡Willard, granting the exception of no cause of action and dismissing Dr. St. Martin’s Petition for Declaratory Judgment. On October 17, 2001, written reasons for judgment were issued wherein the trial court found that the Receipt, Release of All Claims and Indemnity Agreement did not exclude claims arising out of the medical examination performed by Dr. St. Martin. Instead, the trial court found that it only excluded claims arising out of the accident of October 12, 1998. It is from this judgment that Dr. St. Martin appeals.

ASSIGNMENT OF ERROR

In the appellant’s sole assignment of error, he asserts the trial court erred in granting Mr. Willard’s exception of no right of action when the release agreement executed by Mr. Willard is a general release of all claims against all potential defendants with no specific reservation of rights against Dr. St. Martin, as recognized by the First Circuit Court of Appeal.

DISCUSSION

The appellant argues the First Circuit Court of Appeal has already determined the nature and scope of the release at issue and agreed with the trial court that “a general release of Falcon and all potential defendants was intended by the parties.” Willard v. R & B Falcon Drilling USA, Inc., 01-2334 (La.App. 1 Cir. 12/20/02), 836 So.2d 424.

The appellant’s analysis of the opinion of our sister court is misplaced. In Willard, the First Circuit was asked to review three separate issues:

1) Whether the trial court erred in allowing witnesses to testify outside the four corners of the January 9, 2001 settlement agreement regarding the intentions of the parties confecting the settlement and what is customary within the practice of maritime law.
2) WTiether the trial court was clearly wrong in disregarding the |4“four corners” rule, considering the intention of the parties and relying on custom within the practice of maritime law in ordering Willard to execute a general release, and,
3) WRether the trial court erred by not awarding punitive damages pursuant to La.R.S. 22:1200 based on the failure of Falcon to pay the agreed settlement within 30 days.

The First Circuit held that, there was no error in the trial court ruling which allowed “the introduction of parol evidence to clarify ambiguity as to what the parties intended to include in the settlement.” That court further held there was no error on the trial court’s part in denying Mr. Willard’s request for punitive damages.

The First Circuit Court of Appeal was never asked to consider the effect of the release at issue and whether it applied to alleged malpractice by Dr. St. Martin which is alleged to have occurred approximately six months prior to the accident resulting in the injury. As this specific issue had not been addressed by the trial court below then, it could not have been addressed on appeal. The trial court had ruled a general release had been intended by the parties. It had never addressed the effect of the release. We do not find, therefore, that the issue before this court has already been addressed by the First Circuit Court of Appeal.

The issue before this court is whether the district court erred in granting Mr. Willard’s exception of no right of action which was filed in response to the appellant’s Petition For Declaratory Judgment.

This court has recently expressed the appropriate standard of review for an exception of no right of action:

An exception of no right of action has the function of determining whether the plaintiff has any interest in the judicially enforced right asserted. The function of this exception is to terminate the suit brought by one who has no judicial right to enforce the right asserted in the lawsuit. The determination of whether a plaintiff has a right of action is a question of law. Accordingly, we review exceptions of no right of faction de novo.

Mississippi Land Co. v. S & A Properties II, Inc., 01-1623, pp. 2-3 (La.App. 3 Cir. 5/8/02), 817 So.2d 1200, 1202-03 (citations omitted).

We agree that in order to determine whether Dr. St. Martin has a right of action to enforce the release, the nature of the release must be determined.

In order for the appellant to benefit from the release, he must prove he has a judicial right to enforce the claim he asserted in his Petition For Declaratory Judgment. That is, the right to be discharged from any and all claims the appel-lee could bring as a result of the October 12, 1998 accident. In order for the appellant to exercise this right he must belong to the class of persons in whose favor the release was exercised.

After reviewing the record, and the plain language of the release, we agree with the trial court that the appellant has no right of action to proceed in his Petition for Declaratory Judgment. The release acknowledges receipt of a sum of money in exchange for the express release and discharge of the following:

FALCON DRILLING COMPANY, INC, R & B FALCON DRILLING USA, INC, FALCON DRILLING COMPANY, L. P, FALCON DRILLING ASSOCIATES, L. P, FALCON DRILLING SYNDICATE, L.P. FALCON DRILLING ENTERPRISES, L. P, FALCON DRILLING GROUP, L. P„ FALCON DRILLING, INC, FAL-RIG OFFSHORE, INC, FAL RIG OFFSHORE, LTD, FALRIG OFFSHORE, USA, LTD, FALRIG OFFSHORE (U.S.A.), L.P. FALCON DRILLING HOLDINGS, L.P, FALCON DRILLING MANAGEMENT, INC, FALCON OFFSHORE, INC, FALCON RIG INVESTMENT CORP, FDI MARINE INC, FALCON SERVICES COMPANY, INC. OF DELAWARE, FALCON INLAND, INC, INTERESTED UNDERWRITERS and any and all parties with whom they had contractual relationships, with whom they were in privity, or for whom they were working, including, but not limited to AMERADA HESS CORPORATION, its and/or their subsidiaries, affiliates, predecessor, successor, parent and/or related corporations and/or entities, owners, general partners, limited partners, agents, officers, representatives, employees, executive officers, directors, stockholders, | (¡successors, assigns, underwriters and insurers, FALCON RIG NO. 30, its and/or their engines, gear, tackle, appeal, furniture, appurtenances, owners, charterers, underwriters and insurers, the agents, employees, officers, representatives, masters and/or members of the crew of any and all of the foregoing and any and all other insurers, underwriters, entities, persons, firms, corporations, partnerships, joint ventur-ers, and/or parties whomsoever (hereinafter sometimes referred to as RE-LEASEES), of and from any and all past, present and/or future claims, demands, causes of action and rights of action whatsoever, which he may or might have and/or which may hereafter accrue to him, known and unknown, foreseen, and unforseen, under the Jones Act, the General Maritime Law of the United States, the Longshore and Harbor Workers’ Compensation Act, the Louisiana Workers’ Compensation Act, the Outer Continental Shelf Lands Act, the Employment Retirement Income Security Program (ERISA), the Americans with Disabilities Act, the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), the laws of the State of Louisiana, any and all other federal and state laws, any and all other laws whatsoever, including but not limited to, any and all claims, demands, causes of action and rights of action which APPEARER may or might have under any of these laws or any other laws whatsoever, for past, present and/or future bodily and personal injuries ... and any and all other damages and other items of possible recovery whatsoever to which APPEARER may be or might become entitled and all other rights whatsoever in any way arising out of, related to, resulting from or to result from the alleged accident which occurred on or about October 12, 1998, on the FALCON RIG No. 80, ....
[H]e is completely giving up and discharging any and all rights he may have against the parties hereinabove set forth ... in full settlement and discharge of all of his legal rights arising out of or resulting from the above-described accident and from any and all other accidents and injuries sustained during Joseph Paul Willard’s employment with R & B Falcon Drilling USA INC., -
(emphasis ours)

We find the appellant does not belong to the class of persons discharged under the terms of the release. The appellant is not expressly named in the release. R & B Falcon attempted to include it following the rendition of the judgment of the Thirty-Second Judicial District Court and it was removed after a telephone conference with that court. The facts in the record clearly show it was the appellee’s intent not to discharge the appellant under the release. The release expressly and specifically states the discharge is from the ap-pellee’s legal rights arising out of the accident of |7October 12, 1998, described in the release. The action the appellant seeks to have barred is a medical malpractice claim, the alleged malpractice having occurred in April, 1998, some six months prior to the accident described in the release. The trial court in the instant matter concluded that, “there is a separate cause of action against DR. ST. MARTIN, not released in the Falcon Release and that therefore, this Exception Of No Right Of Action should be maintained at plaintiffs cost.” We agree with the trial court’s conclusion that the medical malpractice action against the appellant was not discharged and released by the R & B Falcon release dated March 22, 2001. Instead, the appellee’s medical malpractice claim against the appellant arises out of the pre-employment examination in April, 1998, which was a separate occurrence.

DECREE

We find that the plain language of the release does not include Dr. St. Martin as one of the parties discharged by the release and does not contemplate a medical malpractice claim arising from a pre-em-ployment examination. We find the appellant has no right of action to proceed with the Petition for Declaratory Judgment and affirm the trial court’s granting of appel-lee’s exception. All costs of this appeal are to be paid by the appellant.

AFFIRMED.


source: Caselaw Access Project

author: JjWOODARD, Judge.

license: Public Domain

text:
    BENO’S INC. v. PROFESSIONAL GAMING TECHNOLOGY.
    No. 02-1470.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 2003.

      Keith E. Thibodeaux, St. Martinville, Louisiana, for Plaintiff/Appellant, Beno’s Inc.
    Alex L. Andrus III, Andrus & Doherty, Opelousas, Louisiana, for Defendant/Ap-pellee, Professional Gaming Technology.
    Craig Ryan Onebane, Bernard, Torian, Diaz, McNamara & Abell, Lafayette, Louisiana, for Appellee, Iberia Bank.
    Court composed of BILLIE COLOMBARO WOODARD, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   JjWOODARD, Judge.

This appeal arises out of a contract dispute. Beno’s appeals the trial court’s decision that PGT was entitled to 45% of revenues that PGT’s gaming devices, located on Beno’s premises, generated from August 31, 2001 through October 29, 2001. We affirm.

# ‡' # ‡

Professional Gaming Technology (PGT), an electronic video poker machine business, and Beno’s Inc. (Beno’s) initiated a business relationship with each other in 1992. Beno’s contracted with PGT for certain video poker gaming devices to be placed in its restaurants. The initial contract was for a three-year term with a subsequent self-executing option to renew the contract on an annual basis. It provided for each entity to receive 50 percent of the after-tax proceeds of the games. Af-terwards, the parties executed another agreement in which they altered their percentages of revenue; namely, Beno’s received 55 percent of the proceeds and PGT received 45 percent of them. In 1999, Beno’s gave notice of its intent not to renew the contract. However, the parties disagreed concerning the execution date of their last contract, and, therefore, when the contract ended. The trial court found that the contract terminated on October 29, 2000 and awarded 100 percent of the proceeds gained after that date to Beno’s. This judgment also required PGT to remove its machines from Beno’s.

Both parties appealed that judgment. PGT suspensively appealed, which suspended, inter alia, the order for PGT to remove its machines. On March 28, 2001, while the appeal was pending, the parties entered into another contract — the “Escrow Agreement”- — -in order to secure the disputed funds until a final judgment was rendered. Specifically, it provided that 45 percent of the proceeds, generated from the machines after October 29, 2000, would be deposited into an escrow account until both parties authorized distribution or until a court order was rendered, directing the escrow agent regarding the manner in which to distribute them. Furthermore, this agreement provided that PGT would remove its machines from Beno’s premises no later than Oetobter 29, 2001, regardless of the status of the litigation. This date was exactly one year from when the trial court had found that the contract terminated. _J¿However, this court reversed the trial court’s decision, finding that the contract did not terminate until August 31, 2001, entitling PGT to 45 percent of the proceeds until then. The current dispute is about the revenues that accrued in the two months between the termination of the contract on August 31, 2001 and October 29, 2001, the date on which PGT was required to, and did have, the machines removed under the Escrow Agreement.

PGT, Beno’s, and Iberia Bank, the designated Escrow Agent, filed a joint petition for concursus to have the money in the escrow account deposited into the registry of the court and relieve Iberia of its obligations, as well as to permit PGT to withdraw the portion that undisputably belonged to it. By the time of the fifing, forty-five percent of the after tax revenues, which the machines generated from October 29, 2000 through October 29, 2001, had been deposited into the escrow account. The total of these funds, plus interest, was $305,032.76. In their petition for concursus, the parties agreed that PGT was entitled to withdraw $260,997.94, the amount collected from October 29, 2000 until August 31, 2001, the date that the contract terminated according to this court. Therefore, the amount that remained in the escrow account, $44,034.82, represented 45 percent of the proceeds collected from August 31, 2001 through October 29, 2001, which, under the Escrow Agreement, was the final date for PGT to remove the machines from Beno’s. It is the disputed ownership of these funds that is before us on appeal.

At the hearing before the trial court, Mr. Donald Johnson testified for PGT; Mr. Reuben Talley testified for Beno’s, as they were the ones who signed the contracts on the entities’ behalf. The trial court ruled that the parties had agreed to continue the 55/45 percent split of the proceeds by executing the Escrow Agreement. Accordingly, it awarded PGT the entire amount remaining in the escrow account — 45 percent of the net revenues, plus interest that the machines generated from August 31, 2001 through October 29, 2001.

We must decide whether the trial court erred in finding that the parties’ Escrow Agreement extended their original renewal contract.

* * * %

ESCROW Agreement

The trial court reasoned that:

Both, Mr. Donald Johnson, a principal with Professional Gaming Technology and Mr. Reuben Talley, a principal with Beno’s testified that the arrangement to allow the Professional Gaming Technology machines to remain operational in Beno’s place of business while the case was on appeal, was a mutual agreement for their mutual benefit in order to comply with state regulations for the operation of those machines and to insure that video gaming machines would remain on the premises at Beno’s through a coordinated move.
The court finds that while the basic contract between the parties terminated, as decided by the Third Circuit [sic] of Appeals, on August 31, 2001, the parties entered into an agreement for the Professional Gaming Technology machines to remain in Beno’s place of business and essentially agreed to a continuation of the contract for that period of time by executing the escrow agreement for their mutual benefit. The Court does not believe that Professional Gaming Technology would have agreed to accommodate Beno’s by keeping its machines in Beno’s place of business without an expectation of receiving some financial benefit from doing so. Likewise, the Court does not believe that Beno’s would expect a business person to donate the use of its equipment, free of charge for a two month period. Thus, the Court finds that the gross proceeds from the operation of the Professional Gaming Technology machines at Beno’s for the months of September and through October 29, 2001, have been thus far divided by the payment of applicable taxes to the State of Louisiana, with fifty-five (55 percent) percent of net proceeds being paid to Beno’s and finds that the remaining forty-five (45 percent) percent in escrow is the property of Professional Gaming Technology.

While we agree with the basic premise of the trial court’s analysis, we do not agree that the parties intended a tacit renewal of the previous contract by executing the Escrow Agreement. On the contrary, both were awaiting this court’s determination of when the previous contract terminated. The Escrow Agreement does not explicitly provide for the distribution of the revenues that are currently in dispute.

The Escrow Agreement states, in pertinent part:

Whereas PGT desires to appeal, as does Beno’s. The purpose of this agreement is to govern the conduct of the parties until such time as a final judgment is rendered in the aforementioned law suit .... if upon |4final judgment, PGT is required to remove its machines from Beno’s, PGT hereby agrees to conduct a coordinated move with Beno’s and the State Police, as to minimize machine downtime.
PGT hereby agrees to remove its machines in a coordinated move, so as to minimize downtime, no later than October 29, 2001, regardless of the status of the referenced litigation....
Agent shall hold the above described funds in escrow in a money market account until such time as Agent receives either:
a) Written authorization to distribute said funds from both Beno’s and PGT .... or,
b) A final order of the 16th Judicial District Court, in and for the Parish of St. Martin, or the 3rd Circuit or the Supreme Court, State of Louisiana, specifically directing the Agent as to the manner in which the funds shall be distributed.

The purpose of the Escrow Agreement was to isolate and freeze the generated revenues during litigation. However, the Escrow Agreement does not contemplate the particular scenario that occurred. Namely, it does not provide for the fate of any revenues that might accrue after the date which our court deemed to be the expiration date but before October 29, 2001 — the date that the Escrow Agreement required PGT to remove the machines. The Escrow Agreement’s directive, that the funds be distributed according to our order, encompasses only the funds escrowed from October 29, 2000 to August 31, 2001, as those were the only funds affected by our court’s resolution of the previous dispute. Our decision that the contract terminated on August 31, 2001 has no effect on the funds escrowed from that date until the machines were removed at the end of October in 2001. And the Escrow Agreement makes no provision for the contingency that a new dispute would arise over the revenues that accrued while Beno’s retained the machines under the Escrow Agreement and permitted them to be used.

Nevertheless, PGT has asserted three distinct legal theories under which it urges its entitlement to the disputed 45 percent; namely, reconduction, unjust enrichment, and estoppel/detrimental reliance. After examining each of these under the light of the instant facts, we find none of these theories apply. Rather, we believe that this is, simply, a situation which the parties did not foresee and, therefore, did not provide for |Rin the Escrow Agreement. Ideally, the move could have been coordinated on or close to the termination date which this court decided, in which case no additional revenues would have accrued after the contract’s termination. However, while our court decided that the termination date was August 31, 2001, it did not render the decision until October of 2001, and revenues had already accrued after August. The parties did not account for this situation.

When the words of a contract do not address a specific situation, we must examine, not only, the words of the contract but, also, the surrounding circumstances to determine if the parties intended or would have included any implied incidental obligations in that situation. “[I]t must be assumed that they intended to bind themselves not only to the express provisions of the contract, but also to whatever the law, equity, or usage regards as implied in a contract of that kind or necessary for the contract to achieve its purpose.” (Emphasis added.)

The circumstances of the instant case reveal several motivating factors for Beno’s to have entered into the Escrow Agreement and to consent to having PGT’s machines in use in its establishment until October 29, 2001. Since PGT filed a sus-pensive appeal which, in effect, suspended the court’s order for it to remove its machines, presumably, Beno’s could not simply bring in its own machines at that time but had to wait until PGT removed its machines. Thus, it needed for PGT to keep the machines operational until PGT would agree to remove them as a coordinated move or this court made its decision, whichever came first, or it would have garnered no revenues at all. Compounding the situation for Beno’s was the Video Poker division of the Louisiana State Police, which strictly regulates the industry. The latter’s permission is required for all removals and installations of these machines, and the State Police must be present when new machines are installed, as Beno’s intended to do upon PGT’s removal of its machines. Obtaining approval, which first requires a written application, and arranging for the State’s Police’s presence take time. If PGT had simply removed its machines without a “coordinated move,” Beno’s would have had no operational machines and, therefore, no revenues until it could make the appropriate arrangements with the State Police. Thus, in order to replace PGT’s ^machines with its own without sacrificing any revenues, Beno’s wanted and agreed to a “coordinated move” and the outside date of October 29, 2001 for that endeavor.

On the other hand, PGT agreed to maintain and service the machines, as well as to arrange a “coordinated move” with Beno’s and the State Police, thus, ensuring there would be no “down time” for Beno’s, necessitating lost revenue, and with the hope that our court would rule in its favor, awarding it 45 percent of all accumulated revenues. Essentially, by leaving the machines in place and by agreeing to continue to its previous obligations to maintain and service the machines two or three times per week, PGT was taking a risk that it would incur these operational costs, as well as not receive any revenues for Beno’s use of its machines if our court affirmed the trial court’s decision that the contract ended on October 29, 2000 and Beno’s was to receive 100 percent of any revenues accrued after that date. While PGT tries to bolster its alleged entitlement to the disputed funds by arguing that it could have put its machines elsewhere and, impliedly, earned what it was earning in Beno’s, we must wonder why it refused to do so when it knew that Beno’s preference was for it to remove its machines so Beno’s could install its own. We must assume that PGT, too, thought it would financially benefit from having its machines in Beno’s.

Accordingly, regarding the parties’ implied obligations under the Escrow Agreement, we find that Beno’s impliedly obligated itself to give PGT 45 percent of the proceeds in exchange for maintaining and servicing the machines, as well as for PGT’s cooperation in arranging for a “coordinated move.” Thus, concerning the revenue for which these parties did not account, we find that their previous revenue-sharing agreement is the best evidence of equity and usage — -55 percent to Beno’s, 45 percent to PGT.

CONCLUSION

Beno’s appeals a judgment rendered against it, finding that 45 percent of the revenues, which the operation of PGT’s gaming machines generated for the two months after the parties’ contract terminated, still belonged to PGT based upon the parties’ execution of an Escrow Agreement. We affirm the trial court’s decision.

AFFIRMED.

PICKETT and EZELL, JJ., concur in the result.

      . Beno’s, Inc. v. Prof'l Gaming Tech., 01-436 (La.App. 3 Cir. 10/3/01), 796 So.2d 856, writ denied, 01-2959 (La. 1/25/02), 807 So.2d 842.

      . Hollenbach v. Holden, 98-970 (La.App. 3 Cir. 2/3/99), 728 So.2d 544.

      . La.Civ.Code art.2054.


author: h COOKS, Judge.

text:
    STATE of Louisiana v. Earl DABNEY.
    No. 01-1110.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 2003.
    Alisa Ardoin Gothreaux, Assistant District Attorney, Opelousas, LA, for Appellee State of Louisiana.
    Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Appel-lee Earl Dabney.
    Court composed of SYLVIA R. COOKS, BILLIE COLOMBARO WOODARD and MICHAEL G. SULLIVAN, Judges.
   h COOKS, Judge.

Defendant, Earl Dabney, was charged by bill of information with one count of possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1 and possession of a firearm while in possession of a controlled dangerous substance, a violation of La.R.S. 14:95(E). A jury found Defendant guilty of both charges. Defendant failed to appear at the prescribed sentencing date, but finally turned himself in approximately two years later. Defendant was then sentenced to ten years at hard labor, plus a one-thousand dollar fine, for possession of a firearm by a convicted felon and seven years at hard labor for possession of a firearm while in possession of a controlled dangerous substance. Both sentences were to run concurrently, without benefit of probation, parole or suspension of sentence.

Defendant filed a motion for appeal, which was granted. Subsequently, this court reversed Defendant’s convictions finding the state failed to prove Defendant intended to exercise dominion or control over the firearm retrieved by the police from under the driver’s seat of his girlfriend’s vehicle. State v. Dabney, 01-1110 (La.App. 3 Cir. 2/27/02), 809 So.2d 1196. The Louisiana Supreme Court granted writs and reversed the judgment of this court finding the judgment to set aside Defendant’s convictions was reached by “overriding the rational credibility choices made by the jurors in returning their verdicts.” State v. Dabney, 02-0934 (La.4/9/03), 842 So.2d 326. The case was remanded for consideration of Defendant’s remaining assignment of error.

ANALYSIS

Defendant asserts in his lone remaining assignment of error that his sentences were excessive. Defendant acknowledges that trial counsel failed to file a motion to 1 ^reconsider sentence, as required by La. Code Crim.P. art. 881.1. However, he argues the assignment should be reviewed under the aegis of an ineffective assistance of counsel claim, pursuant to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2062, 80 L.Ed.2d 674 (1984).

This court has chosen to review bare claims of excessiveness even when a defendant has faded to file the statutorily-required motion. Thus, the Strickland argument need not be addressed, and we will proceed with the review of the assignment, as a bare claim of excessiveness.

Regarding excessiveness claims, we have stated:

The only relevant question on review, however, was “whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.” State v. Humphrey, 445 So.2d 1155, 1165 (La.1984) (citing State v. Williams, 412 So.2d 1327 (La.1982)).
State v. Cook, 95-2784, p. 3 (La.5/31/96), 674 So.2d 957, 959, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). Further, the supreme court noted, “A trial judge has broad sentencing discretion because he or she remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” Id. at 958.

State v. Marcotte, 01-1586, pp. 17-18 (La.App. 3 Cir. 5/15/02); 817 So.2d 1245, 1255, writ denied, 02-1687 (La.2/7/03); 836 So.2d 96.

As noted earlier, the court sentenced Defendant pursuant to La.R.S. 14:95(E) & 14:95.1. La.R.S.14:95(E) states:

If the offender uses, possesses, or has under his immediate control any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, while committing or attempting to commit a crime of violence or while in the possession of or during the sale or distribution of a controlled dangerous substance, the offender shall be fined not more than ten thousand dollars and imprisoned at hard labor for not less than five nor more than ten years without the benefit of probation, parole, or suspension of sentence. Upon a second or subsequent conviction, the offender shall be imprisoned at hard labor for not less than twenty years nor more than thirty years without the benefit of probation, parole, or suspension of sentence.

laLa.R.S. 14:95.1(B) states:

Whoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than ten nor more than fifteen years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars.

Thus, Defendant’s seven-year sentence under R.S. 14:95(E) was in the middle range of possible sentences; while under R.S. 14:95.1, Defendant received the minimum sentence of ten years, with the minimum one-thousand dollar fine. These sentences were ordered to run concurrent with each other. In its reasons for sentencing, the court noted that it had reviewed the Pre-Sentence Investigation (PSI) report, and noted the guidelines of La.Code Crim.P. art. 894.1, as the following colloquy shows:

THE COURT: Okay; anything further, any other input from any other source?
(No response)
THE COURT: There being none, the court is ready to pronounce sentence in this particular matter. As stated earlier, this court, either every month or, certainly, every four months has sen-tencings that it hands down and the court has noted for the last two years and two months, since March 5, 1999, that the Earl Dabney file was still in the sentencing file because it had been done and Mr. Dabney has not showed up for over two years and a bench warrant was issued for his arrest. However, Mr. Dabney did turn himself in and finally has showed up and was brought before the court at lineup during this week and then his sentencing was set for today so this matter could be concluded. This defendant was found guilty by jury verdict on December 22, 1998, on Count I, possession of a firearm while in possession or sale or distribution of a controlled dangerous substance in violation of 14:95E. He was found guilty on December 22, 1998, Count II, convicted felon in possession of a firearm, in violation of Revised Statute 95.1. The court has considered the input from the defendant, the input from the State, reviewed the presentence investigation. Even the presentence investigation, Mr. Dabney, you didn’t show up for that either, so at least you were consistent. The probation officer, Ms. Richardson, who tried to contact you on several occasions, noted in her report that she was |4never able to get in touch with you and you failed to report for your interviews. Finally, you have appeared. This sentencing in this, Mr. Dabney, is such that the court has very little leeway insofar as the sentencing provisions in Title 14:— Revised Statute 14:95.1 and 95E are very severe and mandatory sentencings, mandatory mínimums, very serious penalties for those particular offenses. The court notes that Article 894.1, Subsection A(2) 'and (3) are pertinent in this particular matter, and those provisions are as follows: 894A(2) and (3), when a defendant has been convicted of a felony, the court should impose a sentence of imprisonment if any of the following occurs: Subsection A(2), the defendant is in need of correctional treatment or custodial environment that can be provided most effectively by his commitment to an institution; and Subsection A(3), a lesser sentence would deprecate the seriousness of the defendant’s crime....

Defendant is a second felony offender, and was on probation at the time he committed the offenses. The jurisprudence indicates Defendant’s sentences were not excessive. See, e.g., State v. Daggs, 36,216 (La.App. 2 Cir. 8/14/02), 823 So.2d 1093 (upheld seven-and one-half year sentence for attempted possession of a firearm by a convicted felon); State v. Felder, 36,228 (La.App. 2 Cir. 8/14/02), 823 So.2d 1107 (twelve-year sentence for possession of a firearm by a convicted felon); State v. Jones, 01-539 (La.App. 3 Cir. 10/31/01), 799 So.2d 772, writ denied, 01-3310 (La.12/13/02), 831 So.2d 975 (fifteen-year sentence, plus one-thousand dollar fine, for possession of a firearm by a convicted felon); State v. Rodriguez, 00-1521 (La.App. 4 Cir. 3/14/01), 786 So.2d 122 (ten-year sentence for possession of a firearm by a convicted felon); State v. Short, 00-866 (La.App. 5 Cir. 10/18/00), 769 So.2d 823, unit denied, 00-3271 (La.8/24/01), 795 So.2d 336 (ten-year sentence for possession of a firearm while in possession of a controlled dangerous substance). Therefore, Defendant’s assignment of error lacks merit.

DECREE

For the foregoing reasons, Defendant’s sentences are affirmed.

AFFIRMED.

      . Defendant’s argument regarding article 894.1 is not addressed, as it does not fall under the aegis of a bare excessiveness claim. State v. Willis, 36,198 (La.App. 2 Cir. 8/14/02); 823 So.2d 1072.


author: hAMY, Judge. I-i SAUNDERS, J.,

text:
    Virginia Gail EDWARDS, as Natural Tutrix, et al. v. Edward DAUGHERTY, Jr., Sphere Drake Ins. Co., et al.
    No. 02-354.
    Court of Appeal of Louisiana, Third Circuit..
    June 25, 2003.

      Clayton Davis, Samuel B. Gabb, Lundy & Davis, L.L.P., Lake Charles, LA, for Plaintiff/Appellee, Virginia Gail Edwards.
    James B. Doyle, David B. Green, Wood-ley, Williams, Boudreau, Norman Brown & Doyle, Lake Charles, LA, for Defendant/Appellee, Beth Lundy, In Her Capacity as Sheriff of Calcasieu Parish.
    David R. Frohn, Robin A. Anderson, Frohn & Thibodeaux, L.L.C., Lake Charles, LA, for Defendant/Appellant, Sphere Drake Insurance.
    Marshall M. Redmon, Virginia Y. Trai-nor, Phelps Dunbar, L.L.P., Baton Rouge, LA, for DefendanVAppellee, Underwriters at Lloyd’s of London.
    Court composed of NED E. DOUCET JR., Chief Judge, JOHN D. SAUNDERS, BILLIE COLOMBARO WOODARD, MARC T. AMY, and GLENN B. GREMILLION, Judges.
   hAMY, Judge.

The policy limits of a surplus lines insurance provider are at issue in this appeal. Following a remand by the Louisiana Supreme Court, the trial court accepted evidence and concluded that only $835,683.15 of the original one million dollar policy limit remained. The surplus lines insurer appeals, contending that the trial court erred in failing to consider certain evidence regarding what it contends to be an ever-diminishing policy limit. The insurer also contends that the trial court erred in failing to include interest paid on the judgment in calculating the available policy limit, and in awarding interest on future damages from the date of judicial demand. The plaintiffs have answered the appeal, seeking a declaration that the insurer is liable for the entire one million dollar policy limit. For the following reasons, we affirm in part, vacate in part, and remand with instructions.

Factual and Procedural Background

This matter stems from a 1993 automobile accident and entails a complex procedural background. The particularities of the factual background have been previously set forth in full and we decline to do so again. Important for our consideration, however, is the fact that a $3,378,168.00 award, plus costs, was imposed against Edward M. Daugherty, the Calcasieu Parish Sheriffs Department and the Sheriffs insurer, Sphere Drake Insurance, P.L.C. Fault for the accident was | ¡..apportioned 62.5% to Daugherty and 37.5% to the Sheriff of Calcasieu Parish. Sphere Drake was made liable in solido for the fault of the Sheriff. The judgment indicated that Sphere Drake’s liability was subject to the policy limits. On appeal, fault was reapportioned 55% to the Sheriff and 45% to Daugherty. See Edwards v. Daugherty, 97-1542 (La.App. 3 Cir. 3/10/99), 729 So.2d 1112, writs denied, 99-1393, 99-1434 (La.9/17/99), 747 So.2d 1105.

Following the appellate determination, $334,000.00 was deposited in the registry of the court. Sphere Drake asserted that, under the terms of its policy, this was the totality of all that remained of the one million dollar policy limit. This reduced figure, it asserted, resulted from the terms of the policy which included payments for defense costs and payments made to other claimants from the policy. The funds were withdrawn from the registry of the court. Subsequently, on May 9, 2000, the plaintiffs obtained a trial court judgment de-daring that “Sphere Drake P.L.C. remains liable to plaintiffs, Virginia Gail Edwards, et al, in the amount of One Million and No/100 ($1,000,000.00) Dollars, plus judicial interest from April 12, 1994, which is the date of judicial demand, less any payments Sphere Drake P.L.C. may have previously provided to plaintiffs.”

Sphere Drake appealed the May 9, 2000 judgment asserting that this second, amended judgment was procedurally incorrect. The insurer also sought a determination that it had satisfied the judgment previously rendered. On appeal, a 1¡¡panel of this court concluded that the amended judgment constituted an erroneous substantive change to the judgment, that a portion of the Sphere Drake policy that permitted the reduction of the limit of liability due to the payment of defense costs, expenses, and interest, was violative of public policy, and that the policy limits were one million dollars. See Edwards v. Daugherty, 00-606 (La.App. 3 Cir. 12/6/00), 776 So.2d 557.

The Louisiana Supreme Court granted writs on the matter, instructing:

Writ granted in part; otherwise denied. The ruling of the court of appeal is vacated to the extent that it does anything other than 1) reverse the judgment of the trial court of May 9, 2000; 2) reinstate the original trial court judgment; and 3) reverse the judgment against Continental Casualty Company. The case is remanded to the trial court for the taking of evidence on whether defendant Sphere Drake Insurance, P.L.C. was an admitted carrier and whether the policy at issue was a surplus lines policy at the time of the issuance. If so, the trial judge should determine the amount remaining available, pursuant to the terms and conditions of the policy, for satisfaction of the judgment rendered in the case. The propriety of that determination may thereafter be raised by any party aggrieved.

Edwards v. Daugherty, 01-0540, p. 1 (La.4/27/01), 791 So.2d 107, 107-08.

On remand, the parties narrowed the focus of the supreme court remand by stipulating that the Sphere Drake policy was a surplus lines policy at the time of issuance and that, Sphere Drake was an “approved unauthorized surplus lines insurance company pursuant to the La.Insurance Code.” At a July 17, 2001 hearing, the trial court accepted evidence and determined that $835,683.15 remained of the Sphere Drake policy at the time of trial. This figure reflected deductions taken for attorney’s fees incurred in the defense of both Sphere Drake and the Sheriff. In finding this reduction from the one million dollar policy limit, the trial court found Rthat the inclusion of these fees in the policy limits was contracted for by the parties. However, the trial court declined to reduce the policy limit by the amount of an appeal bond, concluding that the appeal for which the bond was taken advanced only the interest of Sphere Drake, not the Sheriff. Finally, the trial court found that reduction in the policy limit due to the payment of interest, as urged by Sphere Drake, is against public policy. The judgment reflected liability of $835,683.15 as well as interest from the date of judicial demand. Credit was given for payments made by Sphere Drake.

Sphere Drake appeals and assigns the following as error:

1. The trial court erred when it failed to admit detailed evidence submitted by an insurance company of its payments under an insurance policy, when the trial court was ordered by the Supreme Court to take such evidence and determine whether the insurer had paid its policy limit.
2. The trial court erred when it did not consider the terms and conditions of an insurance policy in order to determine from the evidence whether the insurer had paid its policy limit.
3. The trial court erred when it held an approved unauthorized (surplus lines) insurance carrier violated Louisiana public policy by including interest within its policy limit.

The plaintiffs have answered the appeal, asserting that the judgment should be amended to reflect a one million dollar policy limit.

Discussion

Sphere Drake contests the trial court’s ruling, asserting that the trial court failed to follow the supreme court’s instructions regarding the acceptance of new evidence of payments made after the date of the original trial held in the matter. It contends that consideration of the evidence entered, generally as a proffer, in this matter indicates that it is entitled to a declaration that the judgment against it of June 12, I,^1997 has been satisfied in full. Furthermore, it contends that the trial court erred in concluding that interest payments are not to be considered as deductions under the terms of the policy. It argues that because the policy at issue is a surplus lines policy, it is to be construed according to the intent of the contracting parties and not according to public policy considerations that may be applicable to other policies.

Interest as a Deduction from the Policy Limits

Sphere Drake contends that the terms of the policy permit reduction due to interest payments and that, because the policy is one of surplus lines, it is to be interpreted according to its terms. It points to the portion of the supreme court’s remand language in which it instructed the trial court to “determine the amount remaining available, pursuant to the terms and conditions of the policy, for satisfaction of the judgment rendered in the case.” Edwards, 791 So.2d at 107-08. In its brief to this court, Sphere Drake asserts that this language indicates that “the Supreme Court approved the policy’s terms and conditions, such that the provision including the payment of interest in the policy limit was acceptable to the Court.” The plaintiffs argue, and the trial court found, that La.R.S. 13:4203, along with case law, indicates that public policy prohibits the inclusion of interest as a deduction from policy limits.

With regard to the concept of a diminishing policy limit, the Sphere Drake policy includes the following, entitled “SECTION II — LIMITS OF LIABILITY,” which provides:

4. All “Defense Costs and Expenses” paid by Underwriters shall be added to judgments and settlements paid by Underwriters to determine the exhaustion of Underwriters applicable Limit of Liability.
[6S. Each payment made by Underwriters for damages because of injury or damage to which this insurance applies and for “Defense Costs and expenses” reduces, by the amount of such payment, the applicable Limit of Liability of this policy. Each such payment reduces, by the amount of such payment, the applicable Annual Aggregate Limit of this policy. The limits thus reduced will then be the “Amount of Insurance” available for further payments of claims or expenses.

The portion of the policy regarding deduction of defense costs and expenses, of which interest is argued to be included, is labeled Section IV(3). It provides:

3. “Defense Costs and Expenses” means payments allocated to a specific claim for its investigation, settlement or defense, including:
(a) Attorney fees and all other litigation expenses;
(b) the cost of bonds to appeal a judgment or award;
(c) the cost of bonds to release attachments, but only for bond amounts within the “Amount of Insurance” available;
(d) reasonable expenses incurred by the Insured at Underwriters request to assist Underwriters in the investigation or defense of a claim or suit, including actual loss of earnings up to $100 a day because of time off from work;
(e) costs taxed against the Insured in the suit;
(f) interest on the full amount of any judgment that accrues before or after entry of the judgment and before Reinsurers have paid, or deposited in court the amount available for the judgment under the provisions of SECTION II — Limits of Liability;
(g) fees and expenses of independent adjusters and investigators hired by Underwriters;

Louisiana Revised Statutes 13:4203 provides: “Legal interest shall attach from date of judicial demand, on all judgments, sounding in damages, “ex delicto”, which may be rendered by any of the courts.” Although Sphere Drake argues that this provision is not applicable to the surplus lines policy, we disagree due to the broad language contained in Martin v. Champion Ins. Co., 95-0030 (La.6/30/95), 656 So.2d |7991. In Martin, the supreme court considered the issue of whether an uninsured motorist insurer owed interest on the portion of a judgment in excess of its limits. The supreme court broadly stated: “Under La.R.S. 13:4203 all liability and UM carriers owe interest on their policy limits from the date of judicial demand. Any policy provision which attempts to limit an insurer’s liability for legal interest on the policy limits contravenes the public policy of La.R.S. 13:4203 and cannot be enforced.” Id. at 995 (citations omitted).

Although Sphere Drake presented testimony at the hearing from the Louisiana Department of Insurance regarding the unique nature of surplus lines policies and the fact that the Department is not concerned with the policy language issued by those insurers, we do not find that this testimony undercuts the policy statements of the supreme court in Martin. Although the supreme court was not considering a surplus lines policy in Martin, we conclude that the breadth of its statement requires this court to consider surplus lines affected by the statement. Accordingly, we do not find error in the trial court’s determination that interest does not reduce the amount of the policy limit available.

Interest on Future Damages

Sphere Drake also argues that the award made for future damages should not be subject to prejudgment interest, noting that the first, second, and fourth circuits have reached this conclusion. See, e.g., Williams v. Rubicon, 01-74 (La.App. 1 Cir. 2/15/02), 808 So.2d 852, writ granted, 02-0802 (La.6/7/02), 818 So.2d 766, writ denied as improvindently granted, 02-0802 (La.12/4/02), 833 So.2d 942; Williams v. City of Monroe, 27,065, 27,066 (La.App. 2 Cir. 7/3/95), 658 So.2d 820, writs denied, 95-1998 (La.12/15/95), 664 So.2d 451, 95-2017 (La.12/15/95), 664 So.2d 452; O’Bryan v. Folk Const. Co., 594 So.2d 900 (La.App. 4 Cir.1991).

In consideration of this argument, we first note the wording of La.R.S. 13:4203, which, requires that “Illegal interest shall attach from date of judicial demand, on all judgments, sounding in damages, “ex delic-to”, which may be rendered by any courts.” Considering this language, which is without limit, we find no merit in Sphere Drake’s assertion that the trial court erred in its finding the award of future losses is subject to the payment of interest from date of judicial demand. As noted in Louisiana Farms v. LA. Dept. of Wildlife, 95-845 (La.App. 3 Cir. 10/9/96), 685 So.2d 1086, writs denied, 97-0486 (La.4/4/97), 692 So.2d 420, 97-0507 (La.4/4/97), 692 So.2d 422, the statute makes no differentiation between elements of quantum related to past losses and those elements related to future losses. See also Bruce v. Rogers Oil Tool Services, Inc., 556 So.2d 922 (La.App. 3 Cir.1990). Accordingly, we find no merit in this argument.

Plaintiffs’Answer

The plaintiffs have answered the' appeal, arguing that the trial court erred in accepting evidence in establishing the policy limit. They argue that the wording of the supreme court’s remand indicates that the trial court was only to take evidence as to whether the policy was one of surplus lines. They contend that this error by the trial court permitted evidence to be taken regarding payments made after the time of | atrial. They assert that it is only appropriate that the trial court establish the policy limit to be one million dollars.

We conclude that, based on the supreme court’s instructions in Edwards, 791 So.2d 107, the presentation of evidence on remand was anticipated. The remand language instructed the trial court to take evidence on the surplus lines issue and then determine, if applicable, “the amount remaining available, pursuant to the terms and conditions of the policy, for satisfaction of the judgment rendered in the case.” Id. at 107-08. It appears that if the taking of new evidence was not foreseen, the supreme court could have ruled on the issue based on the appellate record before it at that time. Accordingly, we find that the trial court’s determination to permit the introduction of new evidence to establish the policy limits was not in error.

Neither do we find error in the trial court’s determinations regarding permissible/impermissible deductions to be taken in the calculation of the remaining policy limits. The plaintiffs contest those deductions found permissible. With regard to the deduction of the attorney’s fees from the policy limits, the policy language, excerpted above, broadly provides for the inclusion of “[ajttorney’s fees and all other litigation expenses.” Although the trial court indicated its concern over the inclusion of this type of fees in the contract, it ultimately concluded that the contract provided for this type of expense for the insurer. We find no error in this regard. Although public policy may be implicated insofar as the payment of the insurer’s attorney’s fees are at issue, there is no case from the supreme court, as we have above with Martin, prohibiting this type of contractual provision relating to defense costs. Accordingly, we affirm this aspect of the ruling.

|inWe also affirm those aspects of the trial court’s ruling excluding certain expenses from the determination of the policy limits. Above, we affirmed the determination that interest is not a permissible deduction. Furthermore, we affirm the trial court’s decision to exclude the appellate bond costs from the policy limit. The trial court explained that the bond serves no interest other than that of the insurer and, accordingly, was inappropriately asserted to reduce the policy limits.

Remand

Having found no error in the type of deductions from the policy limits found appropriate by the trial court, review of the record does not allow this court to arrive at a precise figure for the remaining policy limit and then review that figure against the figure arrived at by the trial court. After a lengthy hearing, the trial court stated that it was arriving at its figure by considering a schedule of expenses, submitted by the plaintiffs, which contained amounts related to payments on Edwards, and other claims, up to the time of trial.

However, the trial court added to this a judgment in another Calcasieu Parish case, Guillory v. Calcasieu Parish, 410 So.2d 1213 (La.App. 3 Cir.1982), rendered prior to the judgment in this case. Accordingly, the judgment owed in Guillory would be deducted from the $1,000,000.00 Calcasieu Parish policy limit available for the subsequent judgment in Edwards. The consideration of the payment made in Guillory was correct. However, the trial court was imprecise, as was the evidence, as to the exact amount of the Guillory judgment, a portion of which was apparently interest and which, under the ruling of the trial court and this court, cannot be deducted from the policy limits. In the end, the record is inconclusive. The evidence and arguments indicate that there are certain deductions the insurer is entitled to take under the terms of the policy. |¶1 These have been proven in the schedules and payment logs submitted by the parties. However, because the insurer was possibly including interest in a number of these payments, it seems that payments, as presented, may not be reflective of what figure was in payment of a claim and what was related to interest. It is impossible without further explanation/clarification from the attorneys and trial court, to perform that task on this record. Due to the deficiency, we are unable to determine whether the trial court followed the supreme court’s order to “determine the amount remaining | ^available, pursuant to the terms and conditions of the policy, for satisfaction of the judgment rendered in the case.” Edwards, 791 So.2d at 107-08.

We affirm the trial court’s findings regarding the exclusion of interest and bond costs. We also affirm the trial court’s determinations regarding the inclusion of attorney’s fees. We remand this matter strictly for calculation of the policy limit and the taking of evidence limited to determining and/or clarifying the calculation in accordance with the issues resolved above regarding permissible deductions. The policy limit deductions taken for other claims in Calcasieu Parish are to be made without the inclusion of interest. We order that all calculations and supporting evidence be entered into the record in the event of review.

DECREE

For the foregoing reasons, we affirm the factual findings of the trial court regarding permissible deductions to the policy limits of the Sphere Drake policy. Thus, we affirm the finding that attorney’s fees are to be included as a deduction from the policy limits. We further affirm the determination that interest and bond costs are not to be included in determining the policy limit. The trial court’s determination-that $835,683.15 remains of the policy limit is vacated. This matter is remanded for the trial court to receive evidence as to the policy limit. In particular, the trial court is to consider evidence regarding payments made in other cases that affect the policy limits. As in this case, the sums relating to these other suits are not to include interest paid on those judgments. The trial court is ordered to list all deductions, specifically including the specific dollar figure, and make all calculations a part of the record so that such deductions and calculations might be reviewed. Costs of this proceeding 113are assigned equally to Sphere Drake Insurance, P.L.C. and the plaintiff, Virginia Gail Edwards, as Natural Tutrix, et al.

AFFIRMED IN PART. VACATED IN PART. REMANDED WITH INSTRUCTIONS.

SAUNDERS, J., dissents and assigns written reasons.

WOODARD, J., dissents.

I-i SAUNDERS, J.,

dissents.

I respectfully dissent from the majority opinion on two specific points. First, I disagree with the majority decision that the trial court did not err in re-opening evidence on the issue of Sphere Drake’s available policy limit after remand from the supreme court, and second, I must disagree with the majority’s inclusion of certain attorney fees in establishing the available policy limit.

The majority finds no error in the trial court’s acceptance of new evidence on remand concerning the remaining value of the Sphere Drake policy at the time of the original trial. At the July 17, 2001 hearing, after reviewing the new evidence, the trial court found that valid deductions were to be taken from the $1,000,000.00 aggregate policy for attorney’s fees incurred in the defense of both Sphere Drake and the Sheriff, as apparently contracted for by the parties, as well as for a prior judgment in another Calcasieu Parish case.

The supreme court remanded this matter for the taking of evidence on two very specific issues. As stated in the supreme court’s opinion:

The ruling of the court of appeal is vacated to the extent that it does anything other than 1) reverse the judgment of the trial court of May 9, 2000; 2) reinstate the original trial court judgment; and 3) reverse the judgment against Continental Casualty Company. The case is remanded to the trial court for the taking of evidence on whether defendant Sphere Drake Insurance, P.L.C. was an admitted carrier and whether the policy at issue was a surplus lines policy at the time of issuance. If so, the trial 1 ?judge should determine the amount remaining available, pursuant to the terms and conditions of the policy, for satisfaction of the judgment rendered in the case. The propriety of that determination may thereafter be raised by any party aggrieved.

Edwards v. Daugherty, 01-540, p. 1 (La.4/27/01), 791 So.2d 107, 107-08 (emphasis added).

Based on this directive by the supreme court, evidence was to be opened on two issues only; first, whether Sphere Drake was an admitted carrier, and second, whether Sphere Drake was a surplus lines carrier. After those two issues were determined, the court was to determine the amount left on the policy pursuant only to the terms and conditions of the policy, not on additional evidence of the earlier judgment from the Guillory v. Calcasieu Parish case. The plaintiffs argue, correctly so, that the directive from- the supreme court was not meant to allow Sphere Drake to present evidence that should have been presented in the initial trial. Evidence of the Guillory case, and the trial court judgment in that matter, was available at the time of the original trial and should have been raised by Sphere Drake at that time. The supreme court’s instructions were clear, and I suggest that the admission of evidence beyond that authorized by the supreme court was improper.

Additionally, I respectfully disagree with the majority determination that attorney fees for Sphere Drake’s defense should be subtracted from the available policy limit. The plaintiffs argue that Sphere Drake improperly deducted dual attorney fees to the detriment of the insured. The majority notes that, although the trial court indicated concern over the inclusion of this type of fee in the contract, it ultimately concluded that the contract provided for this type of expense. Furthermore, the majority admits that public policy may be implicated to the extent that payment of the insurer’s attorney fees are at issue, yet with the absence of a 1 ^supreme court decision specifically prohibiting this type of contractual provision relating to defense costs they are unwilling to prohibit a deduction for those fees. Despite the lack of specific supreme court precedent on this issue, I would hold that this contract provision allowing Sphere Drake to reduce the limit on the policy for their own attorney fees is against public policy, and more importantly, under the mandates of contract interpretation in Louisiana law, Sphere Drake is not entitled to such compensation even under the terms of their own policy.

Sphere Drake’s policy sets forth that it is responsible for all defense costs and expenses. It then lists an exclusion to the definition of “defense costs and expenses” which states that the phrase does not include salaries and expenses of underwriters’ employees, other than, “that portion of underwriters’ employed attorneys fees, salaries, and expenses allocated to a specific claim or suit.”

We recognize that provisions in an insurance policy that seek to restrict an insurer’s obligation are strictly construed against the insurer. Blackburn v. National Union Fire Ins. Co. of Pittsburgh, 99-1872 (La.App. 3 Cir. 8/23/00); 771 So.2d 175, reversed on other grounds, 2000-2668 (La.4/3/01), 784 So.2d 637. If more than one reasonable interpretation exists regarding a policy exclusion, any ambiguity must be construed against the insurer. Calogero v. Safeway Ins. Co., 99-1625 (La.1/19/00); 753 So.2d 170; reversed on other grounds, 1999-1625 (La.1/19/00), 753 So.2d 170; LeBlanc v. American Int’l Ins. Co., 99-1583 (La.App. 3 Cir. 3/22/00); 760 So.2d 387. This provision at issue is very broad and seems to allow the deduction of any type of attorney fees, as long as they can be vaguely referenced to a particular claim. It seems that, logically, this provision is meant to allow deduction of attorney’s fees incurred in the defense of the insured, not costs incurred by Sphere Drake alone. The 14attorney fees assessed by Frohn & Thibodeaux are not costs that have been incurred by Sphere Drake in defense of the suit against the Sheriff, but instead, costs incurred by Sphere Drake alone in defending its own claim. Thus, I would hold that Sphere Drake may not deduct attorney fees assessed by Frohn & Thibodeaux from the insured’s policy limits.

For the above stated reasons, I respectfully dissent in part from the majority’s opinion in this case. I agree with the opinion in all other respects.

      . For opinions addressing various aspects of this matter, see Edwards v. Daugherty, 00-606 (La.App. 3 Cir. 12/6/00), 776 So.2d 557, writ granted in part, vacated in part, 01-540 (La.4/27/01), 791 So.2d 107; Edwards v. Daugherty, 00-606 (La.App. 3 Cir. 6/14/00), 769 So.2d 611; Edwards v. Daugherty, 98-635 (La.App. 3 Cir. 6/9/99), 736 So.2d 345, writ denied, 99-2034 (La.9/17/99), 747 So.2d 568; Edwards v. Daugherty, 97-1542 (La.App. 3 Cir. 3/10/99), 729 So.2d 1112, writs denied, 99-1393, 99-1434 (La.9/17/99), 747 So.2d 1105; Edwards v. Daugherty, 95-702 (La.App. 3 Cir. 1/10/96), 670 So.2d 220, writ denied, 96-0362 (La.3/22/96), 669 So.2d 1212; Edwards v. Daugherty, 96-2966 (La.12/13/96), 692 So.2d 364; Edwards v. Daugherty, 95-702 (La.App. 3 Cir. 8/16/95), 663 So.2d 102.

      . Sphere Drake Insurance, P.L.C., provides an excess insurance policy to the Louisiana Sheriff’s Risk Management Program. The policy is an aggregate policy providing an annual aggregate of $1,000,000 per claim, per parish, and $2,000,000 for the state as a whole. Prior to this policy coming into effect, the Sphere Drake policy requires the payment of $100,000 from the sheriff’s self-insurance fund and $850,000 from the self-insured retention fund of the Louisiana Sheriff’s Risk Management Program. The record indicates that, at the time of the 1993 trial, the $100,000 and $850,000 ''deductibles” were satisfied. Therefore, the Sphere Drake excess policy and another excess policy, that issued by Lloyd’s of London remained. The Lloyd’s policy provides coverage in the amount of $1,000,000 per claim, per parish, subject to an annual aggregate of $10,000,000.

      . The Edwards appeal of December 6, 2000, was a consolidated case, with the companion matter reported at Edwards v. Daugherty, 00-966 (La.App. 3 Cir. 12/6/00), 776 So.2d 567.

      . The supreme court continued, stating: "While section 13:4203 prohibits an insurer from reducing its liability for interest on its policy limits, that section does not prohibit insurers from lowering, excluding or extending their interest liability on amounts in excess of their policy limits. Limiting interest obligations for excess judgments does not violate the public policy of section 13:4203 which mandates legal interest on the policy limits from the date of judicial demand.” Id.

      . Although the original ruling of a panel of this court reaching this result with regard to interest was vacated by the supreme court writ grant, the supreme court generally vacated the ruling, making no specific reference to the determination that the policy provision was against public policy.

      . The lack of specificity is exemplified in the following exchange between counsel for Sphere Drake and a Sphere Drake representative:
      Q. Mr. Sawden, for this policy, did you ever pay any other claim where you also paid interest?
      A. Yes.
      Q. Which claim was that?
      A. It was a claim entitled Guillory v. Cal-casieu Parish.

      Q. When you paid that claim was that a judgment?
      A. That was a judgment.
      Q. There was some interest on that judgment?
      A. Yes.
      With regard to the amount of interest, counsel for Sphere Drake stated to the trial court that: "Like this Clofus Guillory case that we talked about, there’s about $12,000 in interest that was paid out of this policy but deducted from the million.” Similarly, in ruling, the trial court referenced the Guillory matter stating generally that:
      I’m looking at $791,853 because I subtracted the amount of the judgment that Judge Godwin ordered in the Guillory case I think it was. Was it the Guillory case, $85,000? I’m giving you the benefit of that because I’m taking your position even though I don’t have a copy of that order. I don’t think you would misrepresent the Court, being a longstanding officer, that it was $84,000 (sic) that was entered by oral order by Judge Godwin.
      While these statements are helpful in some respects, they are illustrative of the lack of precision in the evidence presented and the trial court's ruling. These general references prevent review with any degree of certainty.


author: JjPICKETT, J.

text:
    Francena SOILEAU v. RICHARD THERIOT BUILDING & REMODELING.
    No. 03-04.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 2003.
    H. Douglas Hunter, Guglielmo, Lopez, Tuttle, Hunter & Jarrell, Opelousas, LA, for Defendant/Appellant Richard Theriot Building & Remodeling.
    Stanton Kyle Sherman, Attorney at Law, Lafayette, LA, for Plaintiff/Appellee Francena Soileau.
    Court composed of NED E. DOUCET, JR., Chief Judge, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   JjPICKETT, J.

FACTS

Richard Theriot is a residential contractor. He owns and operates Richard Theri-ot Building and Remodeling. In May, 2001, Theriot’s personal residence burned down. Theriot started rebuilding his home. His intention was to sell it after it was rebuilt. He performed much of the work himself, but was unable to do drywall work due to a broken ankle. He was referred by Mr. Ray of St. Landry Lumber, to Advanced Drywall which was owned by Dwayne Heinonen. Heinonen did not perform drywall work himself. Craig Finch performed the work. Heino-nen was in the process of selling the equipment used to operate Advanced Drywall to Craig Finch and Francena Soileau because he was getting out of the business. According to Heinonen, he and Theriot never negotiated a contract on this job. Instead Heinonen referred the job to Finch and Soileau. Heinonen informed Theriot that Advanced Drywall had no workers’ compensation insurance coverage. Allegedly, Theriot required a certificate of insurance be provided before the drywall work began. On the Saturday before Finch and Soileau began working on the home, they went to the job-site and spoke with Theri-ot. The two men agreed upon a price of fourteen cents per foot. When Finch told Theriot they would start the job the following Monday, Theriot allegedly replied, “that was fíne so long as he received a certificate of insurance.” When Finch and Soileau showed up to work on Monday, September 24, 2001, no one else was present. That same day Soileau was hanging drywall when she fell off a bench. As a result of her fall, she injured her right ankle and underwent surgery. At the time of Soileau’s injury, Advanced Drywall had no worker’s compensation insurance.

pFrancena Soileau brought suit against Richard Theriot Budding and Remodeling to recover damages for her injury. The workers’ compensation judge found Soi-leau was covered under the Workers’ Compensation Act as an independent contractor performing manual labor. Judgment was rendered in favor of Soileau and against Theriot for indemnity benefits in the sum of $266.80 per week from September 24, 2001 through May 3, 2002. In addition, the claimant was awarded medical expenses for the injury to her right ankle. It is from this judgment Theriot appeals.

DISCUSSION

In the appellant’s sole assignment of error, the appellant asserts that the workers’ compensation judge erred in finding Francena Soileau an employee of Richard Theriot d/b/a Richard Theriot Building and Remodeling at the time of her injury.

There is a presumption established by La.R.S. 23:1044 that:

A person rendering service for another in any trades, businesses or occupations covered by this Chapter is presumed to be an employee under this Chapter.

This presumption is rebuttable. Shelvin v. Waste Management, Inc., 580 So.2d 1022 (La.App. 3 Cir.1991). The employer bears the burden of proof in overcoming this presumption and showing that a worker was not his employee for workers’ compensation purposes. Estate of Harris v. Ledet, 95A85 (La.App. 3 Cir. 11/2/95), 664 So.2d 561, writ denied, 95-2894 (La.2/2/96), 666 So.2d 1102.

Mr. Theriot asserts he is exempt from coverage pursuant to La.R.S. 23:1035(B) because he was rebuilding his private residence. The workers’ compensation judge rejected that argument, stating “Mr. Ther-iot’s business and private status cannot be ladistinguished therefore he cannot avail himself of the exemption”, and determined the appellee qualified for benefits as an independant contractor performing manual labor pursuant to La.R.S. 23:1021(6). We disagree with the workers’ compensation judge’s application of 23:1035(B).

La.R.S. 23:1035(B) provides, in pertinent part, as follows:

(A) The provisions of this Chapter shall also apply to every person performing services arising out of and incidental to his employment in the course of his own trade, business, or occupation, or in the course of his employer’s trade, business, or occupation ...
(B) There is exempt from coverage under this Chapter all labor, work, or services performed by any employee of a private residential householder in connection with the private residential premises of such householder ... and which labor, work, or services are not incidental to and do not arise out of any trade, business, or occupation of such householder ... With respect to such labor, work, or services and any employee performing the same, a private residential householder ..., shall have no liability under the provisions of this Chapter either as employer or as a principle; however, any person who is engaged in the trade, business, or occupation of furnishing labor, work, or services to private residential premises ..., shall be liable under the provisions of this Chapter to his employees or their dependants for injury or death arising from and incidental to their employment in rendering such labor, work, or services.

(emphasis added)

We find the appellant is entitled to the exemption provided in 23:1035(B). Although the appellant is a residential contractor, this injury was in no way related to him conducting business as a residential contractor. Had the appellant been building or remodeling a home for a client or someone else he would not be entitled to the exemption because he would be classified as “[A]ny person who is engaged in the trade, business, or occupation of furnishing labor work, or services to private residential premises ...(emphasis added). Such is not the case under the facts of this case.

There is no question the appellee was working on the appellant’s private | ¿residence at the time of her injury. Her services were not engaged for any business enterprise associated with the appellant’s profession. Had the appellant secured the services of appellee to work on a residence in association with his business, or for another individual, the exemption would not apply. That is not the case. Whether the appellant intended to resume residence in the rebuilt home or intended to sell it upon completion is of no moment. Under the facts before us, the appellee was an “employee of a private residential householder” providing services “in connection with the private residential premises of such householder.” The appellant is entitled to the exemption provided by 23:1035(B) and is not liable to the appellee for workers’ compensation benefits.

DECREE

Accordingly, the judgment of the workers’ compensation judge is reversed. The appellee is cast with the costs of this appeal.

REVERSED.