author: hKOSTELKA, Judge Pro Tempore.

text:
    Kayla C. LILES, Plaintiff-Appellant, v. Scotty L. LILES, Defendant-Appellee.
    No. 37,251-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2003.

      Kammer & Huckabay by Pugh T. Huck-abay, III, Shreveport, for Appellant.
    Steven R. Thomas, for Appellee.
    Before PEATROSS, DREW and KOSTELKA (Pro Tempore), JJ.
   hKOSTELKA, Judge Pro Tempore.

Kayla Liles appeals a judgment on a rule to increase child support by the Eleventh Judicial District Court for DeSoto Parish. For the reasons set forth below, we vacate the trial court’s judgment and remand for further proceedings.

Facts

Kayla Liles and Scotty Liles married in December 1987, and two children were born of the marriage. The couple separated in April 2001 and the following June entered into a consent agreement wherein a judgment was rendered awarding them joint custody of the minor children with each parent being named as a co-domiciliary parent. The judgment (the “2001 judgment”) also provided that Mr. Liles would pay $400.00 per month in child support.

In January 2002, Mrs. Liles filed a rule seeking a final divorce, an increase in child support, and a partition of community property. Following an August 2002 hearing on the issue of an increase in child support, the trial court rendered judgment (the “2002 judgment”) denying Mrs. Liles’ request for an increase in child support, from which Mrs. Liles has appealed.

Discussion

On appeal, Mrs. Liles contends that the trial court erred in denying her request for an increase in child support because a material change in circumstances exists. She maintains that the parties’ incomes greatly changed from the time of the consent agreement in June 2001 and that Mr. Liles was exercising substantially less visitation, and thereby avoiding the Ldaily expenses of the children, than was intended and agreed to by the parties originally. We conclude that the trial court erred because it deviated from the child support guidelines (the “guidelines”) as stated in La. R.S. 9:315, et seq., without reasons for said deviation.

The guidelines are to be used in any proceeding to establish or modify child support, and there is a rebuttable presumption that the amount of child support obtained by use of the guidelines is the proper amount of child support. La. R.S. 9:315.1(A). Although a court may deviate from the guidelines if their application would not be in the best interest of the child or would be inequitable to the parties, the court must give specific oral or written reasons for the deviation, including a finding as to the amount of support that would have been required under a mechanical application of the guidelines and the particular facts and circumstances that warrant a deviation from the guidelines. La. R.S. 9:315.1(B); Guillot v. Munn, 1999-2132 (La.03/24/00), 756 So.2d 290.

In the case sub judice, the statutory mandate for specific oral or written reasons, including the amount due under the guidelines, was not followed in connection with either judgment addressing the child support issue. The transcript of the hearing preceding the 2001 judgment indicates that Mrs. Liles’ counsel informed the trial court that a judgment and joint custody plan had been prepared, that both parties had signed, and that counsel could give the court the details, if desired. The court then confirmed that both parties agreed to the terms and had signed. Mrs. Liles’ counsel then stated:

|sYour Honor, the child support amount set in that judgment is below the guidelines. I have prepared a child support worksheet. We’re asking the Court to deviate from the guidelines because of the amount of time that Mr. Liles is spending with the child.

The trial court responded, “All right,” and at this point the proceedings were concluded.

Later, in the 2002 judgment, the trial court indicated that it had reviewed the record, the evidence adduced, and the briefs of counsel, and based upon the financial information of the parties “and the attached child support worksheet,” there was no material change in circumstances to warrant an increase of child support from the $400.00 amount. The worksheet that the trial court referred to was its own worksheet dated September 11, 2002. ■The calculation that the trial court performed pursuant to its worksheet indicated that Mr. Liles owed a child support obligation of $883.23 per month toward- the total child support obligation of $1497.00 per month. The trial.court’s judgment did not explain its conclusion that there was no substantial change in circumstances from the 2001 judgment which fixed Mr. Liles’ obligation at a much lower amount of child support, i.e., $400.00 per month.

In Stogner v. Stogner, 1998-3044 (La.07/07/99), 739 So.2d 762, the supreme court held that even though the parties had stipulated to an amount of child support, the trial court nevertheless was required to consider the guidelines and to give oral or written reasons warranting any deviation from |4the guidelines. Because the stipulated judgment was not given the proper consideration by the trial court, the supreme court held that the lower court erred in relying upon the flawed judgment to deny a modification of child support. Accordingly, the trial court’s judgment was reversed, and the case was remanded for expedited treatment for determination of modification of child support.

Here, we likewise hold that the trial court erred in relying upon the child support award made in the 2001 judgment to deny a modification of child support in the 2002 judgment. Furthermore, as to the 2002 judgment, in the absence of specific findings concerning such things as witness credibility, the amount of time each parent was to have physical custody of the children, the basis of the parties’ respective income calculations, the basis of the trial court’s findings as to the parents’ incomes, and any other reasons that might help explain that judgment and its deviation from the guidelines, we conclude that, as in Stogner, supra, this matter should be remanded to the trial court for further proceedings.

We also note that if the trial court orders shared custody as defined in La. R.S. 9:315.9(A), which was apparently the intent of the 2001 judgment, then the trial court should use Obligation Worksheet B found in the provisions of La. R.S. 9:315.20 in order to calculate the amount of support due .under the guidelines for a shared custody arrangement. Additionally, the trial court must at least calculate the amount of child support due under “a mechanical application of the guidelines,” even if the court decides to deviate from the guidelines based on particular facts and cireum-stances ^specifically set forth and made a part of the record of the proceedings. See La. R.S. 9:315.1(B).

Conclusion '

For the reasons set forth above, the trial court’s judgment is hereby vacated, and the case is remanded for expedited hearing on the issue of modification of child support. Costs of this appeal are to be paid by Scotty Liles.

VACATED AND REMANDED FOR EXPEDITED HEARING.

      . The issues of the divorce and the community property were disposed of by a judgment in May 2002.

      . That worksheet is substantially similar to the Obligation Worksheet A found in La. R.S. 9:315.20 and is the worksheet that the provisions of La. R.S. 9:315.8 require a court use to determine child support in cases of joint custody.


source: Caselaw Access Project

author: I,GASKINS, J.

license: Public Domain

text:
    William Dale WALKER, et al., Plaintiffs-Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE, et al., Defendants-Appellees.
    No. 37,063-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2003.

      Sockrider, Bohn, Anglin, Batte & Bowers, by James E. Bolin, Jr., Shreveport, for Appellants Meredith Walker, Price and Brooke Katherine Walker.
    Rountree, Cox, Guin & Achee by Roland J. Achee and Gordon Rountree, New Orleans, for Appellants William Dale Walker as Provisional Tutor of the Minors, Carmen Elizabeth Walker and Slade Ether-edge Walker.
    Corkern & Crews by Ronald E. Cor-kern, Jr., Guglielmo Marks Schutte, et al. by Henry Gerard Terhoeve, Counsel for Appellee State Farm Fire and Casualty.
    Before GASKINS, CARAWAY and DREW, JJ.
   I,GASKINS, J.

The plaintiffs, Meredith Ashley Walker and Brooke Katherine Walker, and William Dale Walker as provisional tutor for the minor plaintiffs, Carmen Elizabeth Walker and Slade Etheredge Walker, appeal a judgment by the trial court finding that the household exclusion in an umbrella insurance policy, purchased by the decedent, precluded recovery by the decedent’s two adult children and two minor children for damages resulting from the death of their father in an automobile accident. For the following reasons, we affirm in part and reverse in part the trial court ruling and remand for further proceedings.

FACTS

The facts of this case were set forth in an earlier appeal of other issues in this matter. In Walker v. State Farm Mutual Automobile Insurance Company, 38,781 (La.App.2d Cir.8/25/00), 765 So.2d 1224, this court stated:

On July 17, 1998, a tragic automobile accident occurred when the family van being driven by Susan Walker (“Susan”) collided with the rear of a tractor-trailer rig on Interstate 20 in Warren County, Mississippi. Susan’s husband, Frank M. Walker, Jr., and her daughter, Nina Walker, were killed in the accident. Susan and her son, Slade Walker (“Slade”), were also injured in the crash.
This suit was filed by William Dale Walker, as the court appointed tutor for Susan’s minor children, Carmen Elizabeth Walker (“Carmen”) and Slade, and by Frank’s adult children from a prior marriage, Meredith Ashley Walker and Brooke Katherine Walker. Named as defendants were Susan Walker and her two liability insurers, State Farm Fire and Casualty Company of Monroe and State Farm Mutual Automobile Insurance Company of Bloomington, Illinois.

In the prior appeal, this court upheld the trial court decision granting an exception of no right of action as to the wrongful death and survival Faction of the minor children against their mother, as well as Slade’s claims for his personal injuries. We found that the parent-child immunity statute of La. R.S. 9:571 applied to bar those claims. Also, the trial court granted an exception of no cause of action, dismissing the minor children’s wrongful death and survival claims for their sister, Nina. That ruling was not appealed.

On March 21, 2001, a partial dismissal was entered by Meredith and Brooke, the adult children, dismissing State Farm Mutual Automobile Insurance Company (State Farm Automobile), but reserving their claims against Susan and State Farm Fire and Casualty Company (State Farm Fire).

On March 23, 2001, William Dale Walker, as provisional tutor for Carmen and Slade, released State Farm Automobile from all claims for the injuries and death of Frank.

On July 3, 2001, through his provisional tutor, Slade dismissed Susan Walker, State Farm Automobile and State Farm Fire regarding his personal injuries. He reserved his right to proceed against State Farm Fire on his claim for the wrongful death of his father.

On October 19, 2001, a stipulation was entered that the accident was caused solely by Susan Walker and that the only claims before the court are the survival and wrongful death actions by the four children of the deceased. The document provided that there were two liability policies in effect. First, there was a policy by State Farm Automobile covering the Chevrolet van involved in the accident. The policy limits of $100,000 per person were paid and Susan Walker and State Farm Automobile were released. Rights |3were reserved against State Farm Fire, issuer of the second policy, a personal liability umbrella policy (PLUP), with a policy limit of $1,000,000. The PLUP is the subject of the present dispute. The parties stipulated that the value of the claim of the children of the deceased is $1,000,000 if the court finds that coverage exists under the umbrella policy.

On March 11, 2002, a supplemental stipulation was entered specifying that the value of the claims by or on behalf of the decedent’s children is $1,000,000, if all four are allowed to recover. If only the adult children, Meredith and Brooke, are allowed recovery, they should receive $150,000 each, with no credit for the amount previously paid by State Farm Automobile.

A hearing was held on February 19, 2002, to determine whether there was coverage under the umbrella policy issued by State Farm Fire. Further argument was held on May 17, 2002, at the trial court’s request. Judgment was entered by the trial court on September 21, 2002, in favor of State Farm Fire and against William Dale Walker, on behalf of Carmen and Slade, and against Meredith and Brooke Walker.

In reasons for judgment, the trial court noted that the PLUP issued by State Farm Fire contained the following exclusion and definitions:

We will not provide insurance:
10. For bodily injury or personal injury to the named insured, spouse, or anyone within the meaning of part a. or b. of the definition of insured.
This exclusion also applies to any claim made or suit brought against you to share damages with or repay someone else who 14may be obligated to pay damages because of the bodily injury or personal injury.
5. ‘Insured’ means:
a. the named insured;
b. the following residents of the insured’s household:
(1) the named insured’s relatives; and
(2) anyone under the age of 21 under the care of a person named above ...
7. ‘relative’ means any person related by blood, adoption, or marriage to the named insured.
9. ‘personal injury’ means bodily harm, sickness, disease, shock, mental anguish or mental injury.

The court found that the household exclusion in the PLUP applied to preclude recovery by the decedent’s four surviving children. The trial court rejected the argument that the household exclusion in the PLUP was against public policy. The court noted that the Louisiana legislature recently found that such exclusions were against public policy in primary automobile insurance policy coverage. La. R.S. 22:622.2 was enacted to prohibit such exclusions. The trial court found that there is no mandatory requirement to maintain additional automobile liability insurance under an excess or umbrella policy and therefore, there are no public policy considerations with regard to the maintenance of such a policy. Parties are free to contract to accept or reject a family exclusion. The court reasoned that the PLUP is not mandatory and is aimed at affording protection from seizure by non-family members of the assets of the insured. Accordingly, the trial court held that the household exclusion in the PLUP did not violate public policy.

|fiBased upon this reasoning, the court found that the minor children who were members of the decedent-insured’s household are not entitled to recover under the PLUP due to the household exclusion.

As to the insured’s adult children that were not residing in his household, the court stated that their cause of action for the wrongful death of their father is barred because he would not be entitled to recover under the PLUP. Because the PLUP did not provide coverage for claims arising out of injury, including death, to the named insured, the court concluded that the exclusion is applicable to the adult children.

Both the minors and the adult plaintiffs appealed the trial court judgment.

GENERAL LEGAL PRINCIPLES

An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Louisiana Civil Code. The judicial responsibility in interpreting insurance contracts is to determine the parties’ common intent. The parties’ intent as reflected by the words of the policy determines the extent of coverage. Such intent is to be determined in accordance with the general, ordinary, plain and popular meaning of the words used in the policy, unless the words have acquired a technical meaning. Louisiana Insurance Guaranty Association v. Interstate Fire and Casualty Company, 93-0911 (La.1/14/94), 630 So.2d 759.

An insurance policy should not be interpreted in an unreasonable manner so as to enlarge or to restrict its provisions beyond what is ^reasonably contemplated by its terms or so as to achieve an absurd conclusion. Absent a conflict with statutory provisions or public policy, insurers, like other individuals, are entitled to limit their liability and to impose and enforce reasonable conditions upon the policy obligations they contractually assume. Louisiana Insurance Guaranty Association v. Interstate Fire and Casualty Company, supra. See also Mobley v. State Farm Mutual Automobile Insurance Company, 28,357 (La.App.2d Cir.5/8/96), 674 So.2d 1117, writ denied, 96-1402 (La.9/20/96), 679 So.2d 433.

PUBLIC POLICY

The clear wording of the PLUP excludes the minors’ right to recover unless the exclusion is written out due to public policy considerations. The minors first argue that the trial court erred in finding that public policy considerations of the Direct Action Statute, set forth in La. R.S. 22:655(D), do not apply to this case. They contend that the trial court erred in finding that the purpose of the PLUP was to protect the assets of the insured from seizure by non-family members, and therefore the household exclusion was not against public policy.

l7The minors assert that all liability policies are issued for the benefit of all injured persons and their survivors or heirs. They argue that the PLUP is a liability policy which is subject to the policy considerations of the Direct Action Statute. They claim that the courts have applied the policy considerations of La. R.S. 22:655(D), that all liability policies are executed for the benefit of all injured persons, to business use exclusions in automobile policies, mobile home owners’ policies, and surplus line automobile liability policies. The minors urge that the purpose of the insurance policy is for the protection of the public, not for the protection of the insured.

The minors also assert that the trial court erred in finding that the household exclusion in the umbrella policy was not against public policy, and further, that there was no public policy that applied to umbrella policies. They claim that the trial court acknowledged that the public policy considerations regarding mandatory automobile liability insurance caused the household exclusion to be contrary to public policy. However, because the umbrella policy was not compulsory, the trial court found that those public policy considerations did not apply in this case. The minors maintain that the PLUP, as applied in this case, is an automobile liability policy-

The minors insist that the optional nature of the umbrella coverage does not negate the public policy considerations. They argue that, because the policy provides automobile liability coverage, the household exclusion may not be applied.. The minors urge that there is no need to look further Rthan La. R.S. 22:655(D), reinforced by La. R.S. 22:622.2, for authority to strike down the household exclusion in this case.

According to the minors, La. R.S. 22:622.2 struck down the household exclusion on primary. automobile policies and specified that the full limits of the policy apply, rather than limiting recovery to the statutory minimum coverage required. In arguing the applicability of La. R.S. 22:622.2, which went into effect after this accident, the minors contend that the statute largely reiterates the public policy provisions already set forth in La. R.S. 22:655(D).

The minors argue that, in addition to excess homeowner’s coverage, the PLUP also provides excess automobile liability coverage.

It has long been the recognized public policy of this state that liability insurance is issued for the protection of the general public as well as for the security of the insured. Young v. Brown, 27,018 (La.App.2d Cir.6/21/95), 658 So.2d 750, writ denied, 95-1811 (La.10/27/95), 662 So.2d 1. The goal of all liability policies is to benefit injured persons and to give coverage and protection to all insureds. Marcus v. Hanover Insurance Company, 1998-2040 (La.6/4/99), 740 So.2d 603.

|qLa. R.S. 22:655 is designed to facilitate the recovery of damages ex delicto. When the statute is applicable and authorizes a direct suit against a tortfeasor’s insurer, the statute is read into and becomes a part of a policy written pursuant thereto, even though the policy does not contain the language required by the statute, or contains language prohibited by the statute. Quinlan v. Liberty Bank and Trust Company, 575 So.2d 336 (La.1990). La. R.S. 22:655 in part declares the policy underlying the creation of the direct cause of action against a liability insurer. La. R.S. 32:861, the Compulsory Insurance Law, reinforces the policy of La. R.S. 22:655. The purpose of the compulsory liability security law is not to protect the owner or operator against liability, but to provide compensation for persons injured by the operation of insured vehicles. Clarke v. Progressive American Insurance Company, 469 So.2d 319 (La.App. 2d Cir. 1985).

In the context of compulsory automobile liability insurance, we have found household exclusions to be void. This court in Clarke v. Progressive American Insurance Company, supra, found that the provision excluding coverage for bodily injury to an insured was .contrary to express and implied statutory policy. However, the exclusion was applied only to the statutory minimum levels of coverage required by the compulsory insurance law. Therefore, the court reformed the policy to provide the minimum policy limits required by law at that time. In Pitcher on Behalf of Pitcher v. Pitcher, 607 So.2d 838 (La.App. 1st Cir.1992), the first circuit found that, in the field of compulsory liability automobile insurance, the household exclusion provision denies coverage to a specific class of victim who may | inbe entitled by law to recover for' a tortfeasor’s negligence, except for their relationship to a person who is insured under the policy. Because such a denial is contrary to public policy, it was found to be void. The public policy considerations forming the basis for voiding the household exclusion in motor vehicle liability policies were written into the law in La. R.S. 22:622.2, set forth above.

In Southern American Insurance Company v. Dobson, 441 So.2d 1185 (La.1983), the Louisiana Supreme Court considered that the language found in the uninsured motorist statute made it apply to insurance “covering liability arising out of the ownership, maintenance, or use of any motor vehicle.” The court determined that an umbrella policy was automobile liability insurance for the purposes of the uninsured motorist statute, covering liability arising out of the ownership, maintenance, or use of any motor vehicle. The court found that it made no difference that such coverage is made to depend upon a primary policy or that the policy contains other provisions which cover other types of losses. However, this is also not compulsory insurance, and the insured is free to reject the coverage.

It is clear that a household exclusion is not valid in a primary automobile insurance policy. We must now consider whether the excess coverage provided by the umbrella policy, issued in addition to a mandatory motor vehicle policy, is subject to the same public policy considerations of the primary policy which bar application of the household exclusion.

InThe umbrella policy under consideration in this case is not a mandatory primary automobile liability policy. Rather, it provides excess insurance for accidents that result in personal injury or property damage. These are not limited to automobile accidents. Because the policy is not compulsory, the same public policy considerations set forth in the Clarke case and La. R.S. 22:622.2 are not operable here. Clarke, supra, and La. R.S. 22:622.2 insure that all innocent injured victims, including spouses and residents of the tortfeasor’s household, are provided a basic level of insurance coverage for their damages. However, the insurer in an umbrella policy is not providing compulsory coverage and the insurer has the right to express the limits of its liability. The insured is free to accept or reject those terms.

We also find that La. R.S. 22:655 does not support the contention that the household exclusion is void under all circumstances. Such exclusions are applicable in other contexts, such as homeowner’s insurance. See Whitaker v. State Farm Fire and Casualty Company, 454 So.2d 1251 (La.App. 2d Cir.1984), unit denied, 462 So.2d 1262 (La.1985), and Marchese v. State Farm Fire and Casualty Company, 396 So.2d 490 (La.App. 4th Cir.1981), cited in Clarke v. Progressive American Insurance Company, supra.

The language in La. R.S. 22:622.2 is not as broad as that found in Southern American Insurance Company v. Dobson, supra, wherein the Louisiana Supreme Court found the PLUP met the definition found in the uninsured motorist statute that covered “liability arising- out of the ownership, maintenance, or use of any motor vehicle.” Here, La. R.S. 1 ,¡,22:622.2 applies to a “motor vehicle liability policy” or “any uninsured motorist coverage for bodily injury.” As such the PLUP does not meet the definition of the statute.

The determination of whether the household exclusion is against public policy in an umbrella policy is res nova in this state. However, the issue has been considered in other states.

In some cases, state law provides that the umbrella policy is not a motor vehicle liability policy and is not subject to statutory requirements for such policies. See Wright v. State Farm Mutual Automobile Insurance Company, 332 Or. 1, 22 P.3d 744 (2001).

Some states have noted that, while the household exclusion is void as to mandatory automobile liability insurance, the same considerations are not applicable to umbrella policies, -which are optional. In those cases,- the household exclusion has been applied in umbrella policies. See Bogas v. Allstate Insurance Company, 221 Mich.App. 576, 562 N.W.2d 236 (1997), appeal denied, 456 Mich. 925, 573 N.W.2d 620 (1998); Weitz v. Allstate Insurance Company, 273 N.J.Super. 548, 642 A.2d 1040 (1994); State Farm Mutual Automobile Insurance Company v. Gengelbach, (D.Kan. 1992), 1992 WL 88025; Electric Insurance Company v. Rubin, 32 F.3d 814 (1994).

In other states, the household exclusion has been found to be enforceable in both the primary automobile liability insurance policy and the umbrella policy. See Shahan v. Shahan, 988 S.W.2d 529 (Mo. 1999); Schanowitz v. State Farm Mutual Automobile Insurance Company, 299 Ill.App.3d 843, 234 Ill.Dec. 289, 702 N.E.2d 629 (1998); Auto Owners Insurance Company v. Van Gessel, 665 So.2d 263 (Fla.2d DCA 1995), review denied, 671 So.2d 788 (Fla.1996); Shelter General Insurance Company v. Lincoln, 590 N.W.2d 726 (Iowa 1999).

. In still other states, the household exclusion is unenforceable, as contrary to public policy in both mandatory automobile insurance policies and in umbrella policies. See Safeco Insurance Company of Illinois v. Automobile Club Insurance Company, 108 Wash.App. 468, 31 P.3d 52 (2001); Dairyland Insurance Company v. State Farm Mutual Automobile Insurance Company, 41 Wash.App. 26, 701 P.2d 806 (1985), review denied, 104 Wash.2d 1016, 1985 WL 320889 (Wash.1985).

Although we recognize a trend in the jurisprudence and legislation of this state to preclude the household exclusion in the context of compulsory automobile insurance coverage, we do not find the same policy considerations to be applicable in the context of discretionary' coverage in this umbrella policy. We note-, that La. R.S. 22:622.2 was enacted after the accident in this case occurred. The statute does not specify that it is to be given retroactive application. We make no -determination as to the outcome of this matter had the accident - occurred after the passage of this provision.

Under the facts presented in this;case, we find that the household exclusion is applicable to preclude recovery by the minor children of the decedent.

‘ luADULT CHILDREN’S RIGHT TO RECOVERY

State Farm Fire contends that the adult children’s claims are for injuries to a named insured under the terms of the PLUP and ,are barred by the household exclusion. The adults argue that, because they were not residents of the decedent’s household, they were not included in the definition of “insured.” They also contend that their wrongful death claim is not derivative of the injuries sustained by their father in the accident. Rather, they are asserting wrongful death claims which are specific injuries to them. This argument has merit.

In Louisiana, the wrongful death action is authorized by La. C.C. art. 2315.2. The provision clearly and unambiguously expresses that the wrongful death action compensates the beneficiaries for their own injuries suffered as a result of the victim’s death. The plaintiffs injury in a wrongful death action occurs when the victim dies. Walls v. American Optical Corporation, 1998-0455 (La.9/8/99), 740 So.2d 1262. The survival action and the wrongful death action are two separate and distinct causes of action that arise at different times, address themselves to the recovery of damages for different injuries and losses, and accrue to different tort victims. The survival action comes into existence simultaneously with the tort, permits recovery only for the damages suffered by the victim from the time of injury to the moment of death, and is transmitted to the victim’s beneficiaries upon his death. Conversely, the wrongful death action arises only if and when the victim dies and compensates the beneficiaries for their own individual injuries that occur at the moment of the victim’s death and | ^thereafter. Boullt v. State Farm Mutual Automobile Insurance Company, 1999-0942 (La.10/19/99), 752 So.2d 739.

The wrongful death action is not a derivative cause of action. Rather, the wrongful death action is an independent and distinct action that arises even in the absence of a viable personal injury action by the direct tort victim and compensates the beneficiaries for their own individual injury arising out of the victim’s death. Walls v. American Optical Corporation, supra.

In this matter, the adult plaintiffs were not residents of the decedent’s household. Accordingly, they are not “insureds” under the policy definition. We also note that State Farm Fire argues that the household exclusion is based upon policy considerations in La. R.S. 9:291, prohibiting suits between spouses, and La. R.S. 9:571, prohibiting suits by unemancipated children against their parents. State Farm Fire also notes the possibility of collusion between family members as a reason for excluding coverage for injury claims resulting from the negligence of a family member. The fact that the injuries have to meet the $300,000 threshold for the PLUP negates the notion that injuries of that magnitude could be feigned or fraudulently induced.

The household exclusion is not a bar to recovery by the adult plaintiffs for their ■wrongful death claims suffered as a result of this accident. In denying their claim, the trial court stated that the policy provided that “we will not provide insurance for injury to the named |1fiinsured.” The trial court construed this provision to exclude coverage for claims in connection with injury to the named insured, even though that language does not appear in the policy. Upon examination of the policy language, we finid that this interpretation of the policy is not correct.

As stated above, the wrongful death claim is not derivative of the decedent’s claim. As a result of Mrs. Walker’s negligence, the adult plaintiffs suffered their own individual injuries occurring at the' time of their father’s death and thereafter. “Personal injury” is defined under the policy as “bodily harm, sickness, disease, shock, mental anguish or mental injury. This includes required care, loss of services, and death resulting therefrom.” Accordingly, we reverse that portion of the trial court judgment denying coverage for wrongful death claims to Meredith and Brooke Walker. We note that it appears unfair to afford different treatment to the adult plaintiffs who were not residents of the decedent’s household, as opposed to minor children who were living with their father. However, this is a matter of contract in which the parties can decide the limitations of their agreement.

CONCLUSION

For the reasons stated above, we affirm in part and reverse in part the decision of the trial court. We deny recovery to William Dale Walker as provisional tutor for the minor plaintiffs, Carmen Elizabeth Walker and Slade Etheredge Walker. We grant judgment in favor of the adult plaintiffs, Meredith Ashley Walker and Brooke Katherine Walker, for their wrongful |17death claims arising from the death of their father. The matter is remanded for further proceedings. • ■

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . La. R.S. 22:655(D) provides:
      It is also the intent of this Section that all liability policies within their terms and limits are executed for the benefit of all injured persons and their survivors or heirs to whom the insured is liable; and, that it is the purpose of all liability policies to give protection and coverage to all insureds, whether they are named insured or additional insureds under the omnibus clause, for any legal liability said insured may have as or for a tort-feasor within the terms and limits of said policy.

      . La. R.S. 22:622.2 which became effective on August 15, 2001, provides as follows:
      No motor vehicle liability policy nor any uninsured motorist coverage for bodily injury shall limit the coverage of the spouse or resident relative of a named insured who may suffer bodily injury due to any fault of the named insured in any amount less than the face value of the policy. Any provision of a motor vehicle insurance policy issued in the state of Louisiana that is not in accord with this Section is contrary to the public policy of this state and shall be null, void, and unenforceable.

      . The applicability of La. R.S. 22:622.2 to the PLUP uninsured motorist policy was not asserted at the trial below, and consequently, will not be addressed on appeal.


author: JjWILLIAMS, J.

text:
    Benjamin J. STRONG, Plaintiff-Appellant, v. INTERKRAFT CORPORATION, Defendant-Appellee.
    No. 37,427-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2003.

      Richard L. Fewell, Jr., West Monroe, for Appellant.
    Cyd S. Page, Donald C. Douglas, Jr., Monroe, for Appellee.
    Before WILLIAMS, GASKINS and MOORE, JJ.
   JjWILLIAMS, J.

Plaintiff, Benjamin Strong, appeals from a summary judgment in favor of defendant, Interkraft Corporation, dismissing plaintiffs personal injury claim based on the exclusive remedy provision of the Louisiana Worker’s Compensation Act. LSA-R.S. 23:1032. For the following reasons, we affirm.

FACTS

Interkraft Corporation (“Interkraft”) is a company engaged in the processing of bulk paper products. Benjamin Strong (“Strong”) was employed by Interkraft as a paper baler operator. On February 1, 2000, Strong was operating the machine to compress a load of waste paper when the machine jammed. Strong reached into the machine with his left arm to clear the jam. Thereafter, the machine resumed its crushing operation. Unfortunately, Strong was unable to withdraw his arm from the machine before it resumed crushing the paper and his arm was severely injured.

Strong filed a lawsuit in district court against Interkraft alleging, inter alia, that the company intentionally failed to observe industry-wide safety procedures and intentionally failed to instruct, him in how to safely use the machine. After discovery was completed, Interkraft filed a motion for summary judgment and urged that Strong would be unable to prove that In-terkraft intentionally caused his injuries within the meaning of the intentional act exclusion. In support of this motion, In-terkraft evidently attached several depositions, including the deposition of the plaintiff. However, those depositions are not included in the record on appeal.

| ¡.Strong opposed the motion for summary judgment and, in addition to referring to the depositions, presented several other items of evidence. This evidence is included in the appellate record. Strong presented the affidavit of Dr. Dale Anderson, who holds a Ph.D. in mechanical engineering. Dr. Anderson stated that the safety gate on the paper baler had been disabled for many years and that “the employer had to know that someone’s arm or hand would be significantly damaged and the likelihood of that result was substantially certain to follow the failure to repair the safety gauge (sic).” Strong also presented the nearly .identical affidavit of another mechanical engineer, Andrew J. McPhate. In addition, Strong offered some of his medical records and photographs of the catastrophic injury to his arm.

The trial court conducted a hearing on the motion for summary judgment and heard arguments based upon the evidence presented. Apparently the paper baler was equipped at the time of its manufacture with a safety gate that would not allow the machine to operate while the operator had access to the crusher, but the previous owner of the machine had disabled this mechanism. Interkraft argued that the machine had nevertheless been operated safely for many years. Strong, in an effort to show that the employer knew that injury was substantially certain to occur, cited the deposition of the Inter-kraft employee, Mr. Parker, who trained Strong to use the machine and who admitted that it was possible that an individual’s extremity could be caught in the baler. Interkraft responded by citing portions of Parker’s deposition wherein he testified that he himself had been trained on the machine in the absence of a safety gate and he did 13not know that the machine was supposed to operate in a different manner. The trial court concluded that Strong would be unable to show that the intentional injury exception should apply and granted summary judgment in favor of Interkraft. Strong now appeals.

DISCUSSION

The instant dispute concerns the intentional act exclusion to the exclusive remedy provision of the Worker’s Compensation Act. The issue before this court is whether the trial court erred in granting summary judgment in favor of the employer, Interkraft,’ and dismissing the employee’s tort suit.

Summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by law; the procedure is favored and must be construed to accomplish these ends. LSA-C.C.P. art. 966(A)(2); McKoin v. State Farm Fire and Casualty Company, 36,429 (La.App.2d Cir.10/23/02), 830 So.2d 437. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B); Leckie v. Auger Timber Co., 30,103 (La.App.2d Cir.1/21/98), 707 So.2d 459. When a motion is made and supported as required by LSA-C.C.P. art. 966, the adverse party may not rest on the mere allegations or denials of his pleading, but his response must set forth specific facts showing a genuine issue for trial. Otherwise, summary judgment, if appropriate, shall be | rendered against him. LSA-C.C.P. art. 967; McKoin, supra. Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Kennedy v. Holder, 33,346 (La.App.2d Cir.5/10/00), 760 So.2d 587.

Under the provisions of LSA-C.C.P. art. 966(C)(2), when a party moving for summary judgment will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but instead to point out the absence of factual support for one or more elements essential to such claim. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

Employers and their employees are not liable in tort for an employee’s injuries which occur within the scope and during the course of the employee’s duties, and the employee’s exclusive remedy for workplace injuries is in workers’ compensation. LSA-R.S. 23:1032(A). An employee may, however, recover in tort when the employer’s intentional actions or inactions cause injury to the employee. LSA-R.S. 23:1032(A), (B).

Nevertheless, an employer does not act intentionally even when it knows that there is a high probability that someone will be injured. Howell v. Taylor, 35,279 (La.App.2d Cir.10/31/01), 799 So.2d 1175. An employer is liable in tort only when the employer is substantially certain | ¡¿hat the employee will be injured. Id. In Howell, this court repeated the supreme court’s explanation of “substantial certainty” in Reeves v. Structural Preservation Systems, et al., 98-1795 (La.3/12/99), 731 So.2d 208:

The traditional definition is simply a way of relieving the claimant of the difficulty of trying to establish subjective state of mind (desiring the consequences) if he can show substantial certainty that the consequences will follow the act. The latter takes the case out of the realm of possibility or risk (which are negligence terms), and expresses the concept that an actor with such a certainty cannot be believed if he denies that he knew the consequences would follow. In human experience, we know that specific consequences are substantially certain to follow some acts. If the actor throws a bomb into an office occupied by two persons, but swears that he only “intended” to hurt one of them, we must conclude that he is nonetheless guilty of an intentional tort as to the other, since he knows to a virtual certainty that harmful consequences will follow his conduct, regardless of his subjective desire.

Also as noted in Howell, this court held in Henderson v. Claiborne Electric, et al., 34,825 (La.App.2d Cir.6/20/01), 793 So.2d 247, that “ ‘substantial certainty’ requires a showing that the injury must be inevitable [and] the injury-causing event must be incapable of failing, [and] use of the phrases such as ‘intentional’ or ... ‘substantial certainty’ [are] not magical; their mere recitation does not transform a plaintiffs allegations into intentional acts.”

This court’s de novo review of summary judgment is hindered in this ease by the incomplete nature of the appellate record. A portion of Benjamin Strong’s deposition is attached to the appellee’s brief, and there are numerous attachments to the appellant’s brief. However, appellate briefs are not part of the record on appeal, and this court has no authority to consider on appeal facts referred to in appellate briefs, or in exhibits, if|fithose facts are not in the record on appeal. LSA-C.C.P. art. 2164; Reed v. Peoples State Bank of Many, 36,531 (La.App.2d Cir.3/5/03), 839 So.2d 955. Any inadequacy in the record is attributable to the appellant. Kennedy v. Kennedy, 36,974 (La.App.2d Cir.5/5/03), 840 So.2d 679. Even in the absence of these documents, however, we conclude that a fair decision can be made on the record before us.

Based upon review of the record, we agree with the trial court that Strong has made an insufficient showing of intentional harm to allow this tort action to proceed. The plaintiff showed that operation of the paper baler was potentially dangerous in the absence of the safety gate and that the hazard presented was precisely the sort that the plaintiff suffered. However, the potential danger of the machine is insufficient under Howell and the cases cited therein to render the accident substantially certain to occur. The injury in this case was not inevitable, nor was the injury causing event incapable of failing. Also, evidence showed that Interkraft had operated the machine with a non-functioning safety gate for many years. This is so even accepting the evidence presented in Strong’s opposition to summary judgment. Although unwise and hazardous, the practice of operating the machine without a safety gate did not make Strong’s injury a virtual certainty. Accordingly, the district court’s grant of summary judgment in favor of the defendant, Interkraft, was correct.

CONCLUSION

For the reasons set forth above, the judgment of the district court is affirmed. Costs of this appeal are assessed to appellant, Benjamin Strong.

AFFIRMED.

      . A paper baler is a machine that compacts waste paper by compression.


author: It GASKINS, J.

text:
    Valerie ALLEN, Plaintiff-Appellant, v. WAL-MART STORES, INC., Defendant-Appellee.
    No. 37,352-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2003.
    Norman R. Gordon & Associates by Richard S. Feinberg, Shreveport, for Appellant.

      Barham & Warner, L.L.C. by Luden H. Marioneaux, Jr., Shreveport, for Appellee.
    Before STEWART, GASKINS and DREW, JJ.
   It GASKINS, J.

A Wal-Mart store patron, who slipped and fell on a pink liquid substance, appeals the judgment of the trial court granting the defendant’s motion for summary judgment. After reviewing the law and evidence, we affirm.

FACTS

On May 18, 2001, Valerie Allen entered the Wal-Mart store located at 6285 West-port Avenue in Shreveport, Louisiana. While walking down an aisle, Ms. Allen slipped and fell. Ms. Allen did not notice any substance on the aisle floor prior to falling. As a result of her fall, Ms. Allen allegedly suffered multiple injuries to her head, face, neck, back, arms, shoulders, knees, legs, hips, abdomen, chest, fingers, hands, feet and toes.

Ms. Allen filed suit against Wal-Mart Stores, Inc., on April 11, 2002, for the damages sustained as a result of Wal-Mart’s alleged negligence in failing to take the necessary steps to prevent the accident from occurring. In its answer, Wal-Mart asserted that the plaintiff was solely at fault for her fall.

On July 11, 2002, Wal-Mart filed a motion for summary judgment asserting that the plaintiff would be unable to present evidence sufficient to prove the essential elements of her claim as set forth in La. R.S. 9:2800.6. In opposition to the motion for summary judgment, Ms. Allen filed an affidavit stating that the “Kool Aid” she slipped on was spread six to seven feet down the aisle, suggesting that it had been on the floor for some time. She also submitted her deposition testimony in which she denied having Lseen the pink substance before she slipped and fell. Her deposition provides no other evidence as to the source or state of the spill.

After hearing oral argument on the motion on September 27, 2002, the trial court granted the motion for summary judgment and signed a judgment to that effect on October 21, 2002. Ms. Allen appeals.

LAW

Appellate courts review summary judgments de novo. Independent Fire Insurance Company v. Sunbeam Corporation, 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226. Summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact, and that the movant is entitled to judgment as a matter of law. La. C.C.P. art. 966.

The mover has the burden of establishing the absence of a genuine issue of material fact. However, if the movant will not bear the burden of proof at trial on the matter before the court, the movant’s burden on the motion does not require it to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one' or more elements essential to the adverse party’s claim, action, or defense. La. C.C.P. art. 966(C)(2). Thereafter, if the adverse party fails to produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial, there is no genuine issue of material fact. The party opposing summary | .judgment cannot rest on the mere allegations' of its pleadings, but must show that it has evidence which could satisfy its evidentiary burden at trial. Row v. Pierremont Plaza, L.L.C., 35,796 (La.App.2d Cir.4/3/02), 814 So.2d 124, writ denied, 2002-1262 (La.8/30/02), 823 So.2d 952.

Because Ms. Allen would have borne the burden of proof at trial, the determination of whether summary judgment was properly granted, dismissing her claims, turns on whether she failed to establish a prima facie case of premises liability under La. R.S. 9:2800.6. That statute provides:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to. keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a. condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

C. Definitions:

(1) “Constructive notice” means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.
(2) “Merchant” means one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business. For | purposes of this Section, a merchant includes an innkeeper with respect to those areas or aspects of the premises which are similar to those of a merchant, including but not limited to shops, restaurants, and lobby areas of or within the hotel, motel, or inn.
D. Nothing herein shall affect any liability which a merchant may have under Civil Code Arts. 660, 667, 669, 2317, 2322, or 2695. [Emphasis added.]

The plaintiff has the burden of proving all three elements set forth in La. R.S. 9:2800.6(B)(1) through (3). White v. Wal-Mart Stores, Inc., 97-0393 (La.9/9/97), 699 So.2d 1081. The motion for summary judgment and memorandum in support filed by Wal-Mart Stores clearly question Ms. Allen’s ability to establish the second element regarding actual or constructive notice of the unreasonably safe condition which allegedly caused her fall. The record is devoid of any evidence of actual notice and Ms. Allen does not argue that Wal-Mart had actual notice. Consequently, the propriety of the summary judgment hinges on whether Wal-Mart can be held to have had constructive notice of the condition prior to the accident.

DISCUSSION

Ms. Allen argues that the evidence was sufficient for a reasonable person to conclude that Wal-Mart had constructive notice of the spill on the floor which caused her to slip and fall. Specifically, she argues that, since the spill as she observed it after her fall extended for approximately six to seven feet, it was more probable than not that the spill had existed for some time prior to the accident and that this evidence was sufficient to establish constructive notice as mandated by the statute. We disagree.

To prove constructive notice, the claimant must show that the substance remained on the floor for such a period of time that the defendant | swouId have discovered it by the exercise of ordinary care. White, 699 So.2d at 1086. La. R.S. 9:2800.6 does not allow for the inference of constructive notice absent some showing of this temporal element. Whether the period of time is sufficiently lengthy that a merchant should have discovered the condition is necessarily a fact question; however, there remains the prerequisite showing of some time period. A claimant who simply shows that the condition existed without an additional showing that the condition existed for some time before the fall has not carried the burden of proving constructive notice as mandated by the statute. White, 699 So.2d at 1084. To avoid a summary judgment motion, mere speculation or suggestion is not enough to meet the stringent burden imposed upon a plaintiff by La. R.S. 9:2800.6. Robinson v. Brookshires # 26, 33,713 (La.App.2d Cir.8/25/00), 769 So.2d 639.

In the present case, the plaintiff did not present any evidence that anyone noticed the presence of the liquid on the floor at any time prior to the accident. Furthermore, the plaintiff presented no evidence personally or from third party witnesses as to the condition of the liquid after the fact that would suggest it had been there for some period of time — i.e., that areas of the spill had dried, that there were shopping cart tracks or footprints in the liquid or that the liquid was dirty, evidencing earlier traffic, etc. At best, the plaintiffs evidence merely established that sufficient liquid had spilled so as to make a large spill.

The suggestion that the size of the spill allows one to infer that a sufficient amount of time elapsed for the liquid to have traveled a distance |fiof six feet to seven feet assumes that the evidence established the method and origin of the spill. If the spill occurred when the foreign substance was horizontally ejected out of a container, it might not have taken any length of time to be spread across six to seven feet of floor. If, on the other hand, it slowly spilled on one spot of the floor and spread in one direction on a level or nearly level surface for six to seven feet, the passage of some time could be inferred.

In support of her claim that she met the burden of proof on the temporal element, the plaintiff compares the facts in this case to those of Broussard v. Wal-Mart Stores, Inc., 1998-813 (La.App. 3d Cir.1/20/99), 741 So.2d 65, writ denied, 1999-0486 (La.4/1/99), 742 So.2d 562. However, we are not persuaded by this comparison. The court in Broussard, supra, found the plaintiff had established constructive notice on behalf of Wal-Mart. In so concluding, the trial court considered the totality of the circumstances which included pictures taken by a Wal-Mart employee showing that the spill was elongated, not uniform, and covered approximately three to four tiles, suggesting that it had spread over a period of time. The origin of the spill was identified as a bottle of Lemon Joy on the shelf above the spill which was partially empty. The accident occurred on the third busiest day of the week in one of the busiest departments, of the store. This department had more than its share of slip and fall accidents. Evidence showed that no one was working in the household, chemicals department when the accident occurred, thus making Wal-Mart’s “zone, defense policy” ineffective.

|7We are not faced with any similar set of facts here. The plaintiff in the present case asks for an inference to be drawn as to the presence of the spill for some time before the fall solely from the size of the area covered by the spill. Without some other evidence as to the origin or state of the spill, the inference she is asking the court to draw is merely one possibility which is no more likely than any other potential scenario. Furthermore, in response to the trial court’s inquiry, Ms. Allen’s counsel indicated that there was no discovery which he could perform which would help him further develop the case for establishing that the spill had been there for some period of time. That being the ease, we find the limited' information regarding the size of the spill, even when accepted as true, is insufficient to meet Ms. Allen’s burden.

CONCLUSION

For the reasons set forth above, the summary judgment granted by the trial court in favor of Wal-Mart Stores, Inc: is affirmed. Costs of this appeal are assessed against Valerie Allen.

AFFIRMED.

      . Excerpts of the plaintiff’s deposition were attached to her opposition to the motion for summary judgment; Wal-Mart offered the entire deposition at the hearing on the motion.


author: I, BROWN, C.J.

text:
    Alicia JACKSON, Plaintiff-Appellee, v. USAGENCIES INSURANCE COMPANY, Defendant-Appellant.
    No. 37,317-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2003.

      Thomas E. Gibbs, Baton Rouge, for Appellant.
    Tracy L. Oakley, Ruston, for Appellee.
    Before BROWN, STEWART and CARAWAY, JJ.
   I, BROWN, C.J.

Defendant, USAgencies Insurance Company, seeks reversal of the trial court’s denial of its exception of no right of action. Plaintiff, Alicia Jackson, purchased automobile liability insurance including collision coverage from defendant. When she purchased the insurance she told defendant that although the vehicle was titled in the name of her brother-in-law, Joseph Martin, she was the actual owner and would be the sole driver. In fact, Joseph Martin was listed as an “excluded person” in the policy. Following an accident, defendant denied coverage and Ms. Jackson sued. Defendant claims that it issued a policy with collision coverage to Joseph Martin and that only Mr. Martin had a right to demand performance for damage to the vehicle. Agreeing with the trial court that Ms. Jackson has a right of action, we affirm.

Facts

In November 1999, Alicia Jackson sought to purchase a 1996 Chevrolet Cavalier. Being a student with inadequate credit, she was unable to do so without the help of her brother-in-law, Joseph Martin. Although the vehicle was titled in Mr. Martin’s name, Ms. Jackson paid the monthly notes. On November 16, 1999, Ms. Jackson went to the local USAgencies office in Ruston, Louisiana. Ms. Jackson specifically informed the agent that the vehicle was not titled in her name, but that she owned .the vehicle and needed insurance.

The agent filled out an application in the name of Joseph Martin and had Ms. Jackson sign his name. The only covered driver under the policy was Ms. Jackson; Joseph Martin was listed as an “excluded person.” At, all Intimes pertinent to this case, Ms. Jackson resided at 3023 Courtney Avenue in Ruston, the address shown on the insurance application. Mr. Martin has at all pertinent times resided in New Roads, Louisiana, although on the application form, his address was shown as 3023 Courtney Avenue in Ruston. Ms. Jackson was issued a policy for which she paid the premium.

On June 13, 2000, while driving Ms. Jackson’s Cavalier, Jerrell L. Nelson rear-ended a 1996 Ford Ranger owned and operated by John K. Patín. Ms. Jackson notified USAgencies of the accident on June 14, 2000. USAgencies determined that the vehicle was a total loss and appraised its value at $4,225. On June 20, 2000, USAgencies forwarded a letter addressed to Joseph Martin at Ms. Jackson’s Ruston address denying coverage because of a material misrepresentation involving whether Jerrell Nelson resided with Ms. Jackson.

On August 2, 2000, Ms. Jackson filed suit against USAgencies seeking property damages, loss of use, rental and inconvenience. She also sought penalties and attorney fees under La. R.S. 22:1220 and 22:658 based upon the insurer’s failure to properly adjust and pay her claim. On August 21, 2000, USAgencies filed an answer to the petition admitting that it had issued a policy in favor of Ms. Jackson but asserted the affirmative defense of material misrepresentation warranting denial of coverage.

|3On September 9, 2000, USAgencies paid $996.25 to Phillips Automotive for towing and storage of Ms. Jackson’s vehicle. Thereafter, on September 26, 2000, USAgencies made an unconditional tender in the amount of $3,412.50 to Ms. Jackson and the lien holder, Ford Motor Credit Company. This check was forwarded to Ford Motor Credit. USAgencies also settled Mr. Patin’s claims.

Plaintiff continued to pursue her claim for damages due to the failure of USAgen-cies to provide her with a rental vehicle and for penalties and attorney fees.

The matter was tried on February 6, 2002. The record was left open for the parties to take and submit the deposition of Mr. Martin, which was filed into the record on June 25, 2002. On July 29, 2002, USAgencies filed an exception of no right of action alleging that Ms. Jackson had no right to sue. This exception was denied by the trial court. Judgment was rendered awarding Ms. Jackson general damages for inconvenience in the amount of $3,000, penalties of $6,000 (twice the damage award as provided for under R.S. 22:1220), and attorney fees in the amount of $5,000. USAgencies filed the instant appeal questioning only the denial of its exception.

1 ¿Discussion

The exception 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. arts. 681, 927(5). The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. Industrial Companies, Inc. v. Durbin, 02-0665 (La.01/28/03), 837 So.2d 1207; Louisiana Paddlewheels v. Louisiana Riverboat Gaming Commission, 94-2015 (La.11/30/94), 646 So.2d 885.

USAgencies asserts that its insurance contract was with Joseph Martin and that as owner of the vehicle, he was the beneficiary of the contract and the only person who could sue for the damage to the vehicle. Under the circumstances of this case, this argument is disingenuous sophistry. USAgencies admitted in its answer that the insurance policy was issued “in favor” of Ms. Jackson; this admission represents the very privity of contract that the insurer is now denying. Further, after suit was filed, USAgencies issued a check for property damage payable to Ms. Jackson and Ford Motor Credit.

Ms. Jackson testified that Joseph Martin, her sister’s husband, helped her purchase the 1996 Chevrolet Cavalier by allowing her to put it in his name. Mr. Martin testified via deposition that he had known Ms. Jackson for over 25 years and that he allowed her to put the car in his name because she had no other means of obtaining a vehicle. He further stated that the car insured by USAgencies belonged to and was paid for by Ms. Jackson.

|bMs. Jackson went to the USAgencies office in Ruston, Louisiana, to purchase insurance for her vehicle. She disclosed to the agent that although the car was in Mr. Martin’s name, she was the only individual driving it and she needed insurance coverage. The agent told Ms. Jackson that the application would have to be made in the name of Joseph Martin. The agent then had Ms. Jackson sign Mr. Martin’s name to the contract. The declarations page lists the 1996 Chevrolet Cavalier as the sole vehicle covered by the policy. The application lists Alicia Jackson as the only covered driver under the policy and lists her Ruston address. More importantly, Joseph Martin was listed as an “excluded person.”

This is not a situation in which the insured tried to play fast and loose with the insurer. If anything, it appears to be the other way around. Knowing that Ms. Jackson was the owner and principal driver of the vehicle, USAgencies wrote the insurance contract as it is and represented to Ms. Jackson that the only way she could get coverage for her vehicle was to go through Mr. Martin. The insurer collected the premiums and when Ms. Jackson tried to collect for the damage done to her car, USAgencies did all it could to avoid payment. Clearly, Ms. Jackson has a right of action and the trial court correctly denied the exception filed by the insurer.

Conclusion

For the reasons set forth above, the trial court’s judgment in favor of plaintiff, Alicia Jackson, is AFFIRMED. Costs of this appeal are assessed to defendant, USA-gencies.

      . The accident report listed Jerrell Nelson's address as 3023 Courtney Avenue in Ruston, Louisiana; thus, defendant concluded that Mr. Nelson was a member of Ms. Jackson's household who was not listed in her application for insurance. Believing this failure to disclose was a material misrepresentation, USAgencies denied coverage.

      . This represented the value of the vehicle ($4,225) less a $250 deductible and $562 salvage value.

      . The trial court found that Mr. Nelson did not live with Ms. Jackson when the application for insurance was made or when the accident occurred. At these times, he was in Baton Rouge fulfilling an internship obligation to get his master's degree in health care administration. Mr. Nelson and Ms. Jackson had lived together at other times and had a son together. This finding of the trial court was not appealed.

      . Plaintiff did not answer this appeal asking for additional attorney fees.


author: pPEATROSS, J.

text:
    SERVICE STEEL AND PIPE, INC., Plaintiff-Appellant, v. GUINN'S TRAILER SALES, INC., Defendant-Appellee.
    No. 37,291-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2003.

      Lynn E. Estes, Jr., Shreveport, for Appellant.
    Norman I. Lafargue, Shreveport, for Appellee.

      Before PEATROSS, DREW and KOSTELKA (Pro Tempore), JJ.
   pPEATROSS, J.

This appeal arises from a trial court judgment in favor of the defendant, Guinn’s Trailer Sales, Inc. (“Guinn’s Trailers”), and against the plaintiff, Service Steel and Pipe, Inc. (“Service Steel”). Plaintiff now appeals the judgment of the trial court. For the reasons stated herein, we affirm.

FACTS

In 1998, Nabors Trailers of America, LLC (“Nabors LLC”), located in Mansfield, Louisiana, contracted to buy steel from Service Steel. Subsequently, Nabors LLC submitted to Service Steel an order to buy certain steel products. Mike Waters (‘Waters”), a salesman for Service Steel, presented the order to Vicki Wallace (Wallace”), the credit manager for Service Steel, for approval. Wallace refused to open a credit account for Nabors LLC because she did not receive any credit information about the company. Waters then called Nabors LLC and informed them of the situation. Following Waters’ phone call, Nabors LLC faxed to him the credit information for Guinn’s Trailers. Waters does not know who faxed him this credit information, but he did submit it to Wallace and she approved the opening of a credit account in the name of Guinn’s Trailers. L All orders by Nabors LLC were thereafter charged to this account. Later, Wallace admitted at trial that she had not spoken to Charles Guinn, Sr. (“Guinn, Sr.”), Charles Guinn, Jr. (“Guinn, Jr.”), or any of the company officers at Guinn’s Trailers or Nabors LLC about setting up the account in the name of Guinn’s Trailers. She testified that the only contact she made with Guinn’s Trailers was when she spoke to the receptionist at Guinn’s Trailers in Nashville who told her that all invoices for the account at issue should be sent to Nabors LLC in Mansfield.

After making some purchases from Service Steel, Nabors LLC eventually began falling behind in its payments. Ultimately, Nabors LLC had an outstanding balance with Service Steel of $85,019.34. In an attempt to collect the debt owed, interest and attorney fees, Service Steel filed a lawsuit against both Guinn, Sr., in his individual capacity, and Guinn’s Trailers, because the credit account for Nabors LLC was established in the name of Guinn’s Trailers. Later, both Guinn, Sr. and Nabors LLC filed for bankruptcy protection. The petition was filed in 2000 and Guinn, Sr. filed for Chapter 7 bankruptcy protection in June 2001; thus, Guinn’s Trailers is the only defendant now remaining in this case. A trial on these matters began in June 2002.

At trial, Guinn’s Trailers argued that it never opened a credit account with Service Steel. Guinn, Jr., as President of Guinn’s Trailers, testified at trial that neither he nor anyone at his company was contacted by representatives of Service Steel regarding the opening of an account at | ¡¡Service Steel in the name of Guinn’s Trailers. He indicated that he was not aware that such an account had been opened until this lawsuit was filed. In addition, Sam Derrick, controller for Nabors LLC, testified that the account with Service Steel was a Na-bors LLC account and he was unaware that the invoices submitted by Service' Steel to Nabors LLC were in the name of Guinn’s Trailers.

Guinn, Sr. testified that it was never his intent to open an account with Service Steel in the name of Guinn’s Trailers. He did testify, however, that, during the time he was setting up his company, Nabors LLC, he circulated the credit information for Guinn’s Trailers to various vendors so they would know something about his background and accomplishments with the company he previously ran as President. Guinn, Sr. also indicated that he never opened an account with anyone under the name of Guinn’s Trailers and that he was not authorized to act for Guinn’s Trailers.

Guinn, Jr. testified that he had no knowledge of his father using Guinn’s Trailers’ credit information in any attempt to obtain credit for Nabors LLC and that, if he had known about it, he would have opposed the information being used in that manner. He also confirmed that Guinn, Sr. did not have authority to open an account for Guinn’s Trailers with Service Steel and that Guinn’s Trailers never adopted a corporate resolution authorizing Guinn, Sr. to open an account. Finally, he testified that he was not contacted by Service Steel either when the account was opened or later when it became past due; and, as previously stated, he did not become aware of this account until this lawsuit was filed.

14At the conclusion of the trial, the trial judge found in favor of Guinn’s Trailers. The trial judge concluded that Guinn, Sr. was not an officer of Guinn’s Trailers; he had no' authority to act for Guinn’s Trailers; Guinn’s Trailers was not a co-obligor with Nabors LLC; there was no evidence that Guinn, Jr. knew that Service Steel opened an account in the name of Guinn’s Trailers; there was not a scintilla of evidence to suggest clear intent of Guinn’s Trailers to guarantee the payment of the account; and no suretyship agreement existed between Service Steel and Guinn’s Trailers. Service Steel now appeals, raising the following assignment of error (verbatim):

The trial court erred as a matter of law in ruling in' favor of Guinn’s Trailer Sales, Inc. when the evidence adduced at trial and the factual findings made by the trial judge are such that the controlling case law from this Court of Appeal dictates an opposite result.

DISCUSSION

It is well settled that a court of appeal may not set aside a trial court’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong;” and, 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 court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989). If the- trial court findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. Where there are two permissible | ¡¡views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.

Imputed Knowledge

Service Steel argues that Guinn, Sr. deliberately attempted to establish an account for Nabors LLC in the name of Guinn’s Trailers and that he had authority from Guinn’s Trailers to open such an account and to act on behalf of Guinn’s Trailers; thus, Guinn’s Trailers is now liable for the debt owed by Nabors LLC. The trial judge found that there was not sufficient evidence for him to infer or conclude that Guinn, Jr. knew about the actions of Guinn, Sr.; and, therefore, he could not impute knowledge to Guinn, Jr. and Guinn’s Trailers. We agree.

First, the record does not support the contention that Guinn, Jr. knew about Guinn, Sr.’s use of Guinn’s Trailers’ credit information. As previously stated, Guinn, Jr. testified that he did not know about the actions of Guinn, Sr. and that he would have opposed the use of Guinn’s Trailers’ credit information if he had known about the manner in which Guinn, Sr. used it. Second, Guinn, Jr. testified that Guinn, Sr. did not have the authority to open an account in the name of Guinn’s Trailers and no corporate resolution was ever adopted allowing Guinn, Sr. to open such an account.

Service Steel cites Ogden v. Culpepper, 474 So.2d 1346 (La.App. 2d Cir.1985), in support of its argument that, where an individual controls a significant portion of the shares of a closely-held corporation, takes an active role in the managing of the corporation’s business and is entrusted by | (¡related stockholders to watch out for and to act in their best interests, that individual’s knowledge of the corporation’s business affairs may be imputed to those who have entrusted him to act on their behalf. We find, however, that Ogden is inapplicable to the case sub judice for the following reasons. Even if Guinn’s Trailers is considered to be a closely-held corporation and Guinn, Sr. owned a significant portion of the shares in Guinn’s Trailers, the evidence presented at trial indicates that Guinn, Sr. did not take an active role in managing Guinn’s Trailers after he retired as President in 1994. In addition, the record does not support the assertion that the other stockholders of Guinn’s Trailers were allowing Guinn, Sr. to go out and do business on behalf of Guinn’s Trailers. We conclude, therefore, that imputed knowledge is inapplicable in this case.

Detrimental Reliance

Service Steel further argues that Guinn, Sr. induced it to believe that Guinn’s Trailers would be responsible for the account and that Service Steel relied on this induced promise to its detriment. Citing La. C.C. art.1967, Service Steel asserts that, when it sold its products to Nabors LLC, it relied on being paid by Guinn’s Trailers to its detriment and that, if it had known that Guinn’s Trailers was not a co-obligor with Nabors LLC, then it would not have extended credit. La. C.C. art.1967 provides:

Cause is the reason why a party obligates himself.

A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying. Recovery may be limited to the expenses incurred or the damages suffered as a result of the promisee’s reliance |7on the promise. Reliance on a gratuitous promise made without required formalities is not reasonable.

Detrimental reliance is not favored in our law and is sparingly applied as it bars the normal assertion of rights otherwise present. Miller v. Miller, 35,-934 (La.App.2d Cir.5/8/02), 817 So.2d 1166, unit denied, 02-1890 (La.10/25/02), 827 So.2d 1154. In order to recover damages for detrimental reliance, the party must prove the existence of a promise and reasonable reliance on that promise to the party’s detriment. Magic Moments Pizza, Inc. v. Louisiana Restaurant Association, 02-160 (La.App. 5th Cir.5/29/02), 819 So.2d 1146. In addition, a claim of detrimental reliance must meet three requirements: (1) a representation by conduct or word; (2) justifiable reliance thereon; and (3) a change in position to one’s detriment because of the reliance. Robinson v. Healthworks Intern., L.L.C., 36,802 (La.App.2d Cir.1/29/03), 837 So.2d 714, unit not considered, 03-0965 (La.5/16/03), 843 So.2d 1120, citing Edwards v. Conforto, 636 So.2d 901 (La.1998).

In the case sub judice, Service Steel has failed, to prove the existence of a promise by Guinn’s Trailers or Guinn, Jr. to pay the debts of Nabors LLC; and, therefore, Service Steel could not have reasonably relied on a promise not given. The record before us indicates that Service Steel failed to prove that Guinn, Sr. represented by conduct or word that Guinn’s Trailers would be responsible for the debts of Na-bors LLC. Further, the evidence does not support a conclusion that the credit information sent to Service Steel was intended to induce it to set up an account in reliance on Guinn’s Trailers paying for the debts owed by Nabors LLC. Moreover, in border to claim it justifiably relied on' Guinn’s Trailers’ alleged promise to pay for the debts of Nabors LLC, Service Steel had a duty to verify that the fax sent to it was intended to be used to establish a credit account in the name of Guinn’s Trailers. The fax is not sufficient to prove that Guinn’s Trailers promised to pay for the debts of Nabors LLC; and, therefore, it cannot prove justifiable reliance on the part of Service Steel.

Open Account

Service Steel also contends that an open account exists in this case between it and Guinn’s Trailers; and, thus, it is entitled to judgment. We do not agree.

A creditor suing on an open account must prove that the debtor contracted for the sales on an open account. Metrospec Computers & Supply, Inc. v. R.A. Roldan & Company, Inc., 94-0102 (La.App. 4th Cir.9/29/94), 643 So.2d 833. For there to be an action on an open account, there must necessarily be a contract which gave rise to the debt. Blackie’s Rental Tool & Supply Co., Inc. v. Vanway, 563 So.2d 350 (La.App. 3d Cir.1990). In order for there to be a contract which gave rise to the debt there must be a “meeting of the minds” between the parties. Id. To prevail on a suit on open account, the creditor must prove that the debtor contracted for the services of an open account. Dixie Machine Welding & Metal Works, Inc. v. Gulf States Marine Technical Bureau, Inc., 96-869 (La.App. 5th Cir.3/12/97), 692 So.2d 1167. One who sues on open account has the burden of proving the contract. Deubler Elec. Inc. v. Knockers of Louisiana, Inc., 95-372 (La.App. 5th Cir.11/15/95), 665 So.2d 481.

IsA corporation is a legal entity which is separate and distinct from its principals and shareholders and it can only take action through its authorized representatives. McKendall v. Williams, 467 So.2d 1301 (La.App. 4th Cir.1985), writ denied, 469 So.2d 986 (La.1985). We find that the record does not support the assertion that Guinn, Sr. had authority from Guinn’s Trailers to open an account with Service Steel. On the contrary, both Guinn, Sr. and Guinn, Jr. testified at trial that Guinn, Sr. did not have the authority to open accounts in the name of Guinn’s Trailers. La. C.C. art. 2997(3) and (4) provide:

Authority also must be given expressly to:

* * *
(3) Contract a loan, acknowledge or make a remission of a debt, or become a surety.
(4) Draw or endorse promissory notes and negotiable instruments. (Emphasis added.)

Since Guinn, Sr. did not have the authority to open an account with Service Steel in the name of Guinn’s Trailers, then there was no “meeting of the minds” between Guinn’s Trailers and Service Steel to form a contract and to have an open account.

Service Steel further asserts that Guinn, Sr. had apparent authority to act on behalf of Guinn’s Trailers, but this argument is also without merit. The burden of proving apparent authority is on the party relying on the mandate. Vermilion Bank & Trust Company v. Miller, 284 So.2d 662 (La.App. 3d Cir.1973). A third party seeking benefits from the apparent authority doctrine may not blindly rely on the assertions of an agent. Tedesco v. Gentry Development, Inc., 521 So.2d 717 (La.App. 2d Cir.1988), aff'd 540 So.2d 960 (La.1989). One dealing with an agent, by the mere fact of agency, is given the right and duty to determine, at his peril, whether the authority purportedly granted by the principal will permit the proposed act by the agent. Bamber Contractors, Inc. v. Morrison Engineering & Contracting Company, Inc., 385 So.2d 327 (La.App. 1st Cir.1980). (Emphasis added.)

Service Steel has not proved in this case that Guinn, Sr. had the apparent authority to act on behalf of Guinn’s Trailers. In addition, Service Steel had a duty to determine whether or not Guinn, Sr. had the authority to bind Guinn’s Trailers; and it failed to properly verify this crucial piece of information. Waters could not remember with whom he talked at Nabors LLC about receiving the credit information and he did not know who faxed this information to him. Wallace was responsible for setting up accounts at Service Steel and never talked to any management officials at Nabors LLC or Guinn’s Trailers regarding the establishment of an account in the name of Guinn’s Trailers. Moreover, the record does not support Service Steel’s contention that Guinn’s Trailers or Guinn, Jr. either contracted to set up an account with Service Steel or knew that the company’s credit information was used to open an account. Service Steel, therefore, has not met its burden of proving an open account with Guinn’s Trailers in this case.

Finally, pursuant to the Uniform Rules, Court of Appeal, Rule 2-12.4, we find that any assertions concerning suretyship have not been briefed or argued by Service Steel; and, consequently, any arguments concerning this h tissue have been abandoned. Knotts v. Snelling Temporaries, 27,773 (La.App.2d Cir.12/6/95), 665 So.2d 657.

Since the trial judge’s findings in the instant case are reasonable in light of the record reviewed in its entirety, we find that he did not commit “manifest error,” nor was he “clearly wrong.” Service Steel’s assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the judgment of the trial court against Plaintiff, Service Steel and Pipe, Inc., is affirmed. Costs of this appeal are assessed to Plaintiff, Service Steel and Pipe, Inc.

AFFIRMED.

      . Guinn's Trailers is a corporation organized under the laws of the State of Tennessee. Charles Guinn, Sr. formed Guinn’s Trailers in 1977 and managed the company and served as its President until 1994, when his son, Charles Guinn, Jr., took over as President.

      . Nabors LLC is owned by Charles Guinn, Sr. Nabors LLC's predecessor was called Nabors Trailers, which went out of business a few years before.

      . Waters testified that he did not remember with whom he talked at Nabors LLC.

      . The fax does not list any information for Nabors LLC and the name of Charles Guinn, Sr. is not listed anywhere on the fax.

      . Waters testified that he never told Wallace that the credit information should be used to open an account under the name of Guinn's Trailers and that the information was submitted to set up an account for Nabors LLC.

      . Service Steel has argued that Guinn, Sr., as the majority shareholder of Guinn's Trailers, had the authority to bind Guinn's Trailers to the account with Service Steel.


author: 1 .BROWN, C.J.

text:
    STATE of Louisiana, Appellee, v. Everett C. FULLER, Appellant.
    No. 37,127-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2003.
    James E. Beal, Louisiana Appellate Project, for Appellant.
    William R. Coenen, Jr., District Attorney, Doug Wheeler, Assistant District Attorney, for Appellee.
    Before BROWN, DREW and MOORE, JJ.
   1 .BROWN, C.J.

For nearly two years, starting when she was seven years old, defendant, Everett C. Fuller, repeatedly sodomized his stepdaughter. A grand jury indicted defendant for aggravated rape. The state filed notice of aggravating circumstances and of its intent to seek the death penalty. On September 17, 2002, prior to a hearing to suppress his inculpatory statement and pursuant to a written plea and sentencing agreement, defendant pled guilty to forcible rape, a violation of La. R.S. 14:42.1, and to violating his probation on a prior drug offense. The trial court sentenced defendant to serve thirty years at hard labor for the forcible rape conviction, revoked the previously imposed five-year probated sentence for the drug charge, and ordered him to serve the five-year and thirty-year sentences consecutively. Defendant filed a pro se appeal on September 24, 2002, without an attached proposed order. On October 18, 2002, he filed the proposed order, pro se. Defendant was granted an out-of-time appeal, and an attorney was appointed to represent him.

On December 17, 2002, defendant’s counsel filed a motion to withdraw as counsel of record, together with a Benjamin brief in support of the motion. On January 10, 2003, this court notified defendant that he could file a brief in this appeal within 30 days; however, defendant neither requested the record nor filed any brief. The state’s appellate brief asserts that there are no errors patent in the record.

|;¡Discussion

Motion to Withdraw

State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990), outlines the procedure to be utilized in the appellate courts when a brief is filed on behalf of an indigent defendant by appointed counsel who does not find any error to raise on appeal. Such counsel must provide a detailed discussion of various aspects of the case, including sufficiency of the evidence, the lack of objection to any of the-testimony presented at trial, and , the adequacy of the trial court’s compliance with sentencing procedures. Id. A defendant is entitled to “the benefit of what wealthy defendants (contemplating an appeal) are able to acquire by purchase — a diligent and thorough review of the record and an identification of any arguable issues revealed by that review ...” Id., quoting McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

In the instant case, the court-appointed counsel adequately reviewed and evaluated defendant’s prospects for an appeal. Defendant had agreed to the guilty plea and the sentence in a written document. Counsel also reviewed the voluntary nature of defendant’s oral inculpatory statement. Counsel ultimately concluded that the appeal was without merit and wished to withdraw. The brief filed on behalf of defendant sufficiently complies with the Benjamin requirements. As previously noted, this court informed defendant that he had the right to file a brief on his own behalf; he has not done so. Therefore, appellate counsel’s motion to withdraw is granted.

1 ¿Conviction and Sentence

This court has conducted an error patent review of the record and found no errors patent. The grand jury selection procedure (including the foreperson selection procedure), the grand jury indictment, the amendment to the bill of indictment, the arraignment, and the guilty plea and sentencing procedure were correctly done.

Pursuant to La. C. Cr. P. art. 881.2(A)(2), a defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which is set forth in the record at the time of the plea. See State v. Armstrong, 26,031 (La.App.2d Cir.05/04/94), 637 So.2d 629. Even so, considering that defendant greatly benefitted from the plea agreement by avoiding the possibility of a death penalty or life imprisonment, the sentence was not unconstitutionally excessive.

The trial court specified to defendant during the guilty plea colloquy that “[A]t least two years of the sentence (for forcible rape) imposed shall be without benefit of probation, parole, or suspension of sentence.” However, at sentencing, the trial court did not impose the mandatory two years without benefit. In a case where a specific time period is mandated to be served without benefit, the failure of the sentencing court to specifically state this “shall not in any way affect the statutory requirement that all or a portion of the sentence be served” without such benefit. La. R.S. 15:301.1(A); State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, 799.

In addition, under La. R.S. 15:538, the denial of probation, parole, or suspension of the entire sentence for forcible rape is mandatory and self Executing¿ for a “sexual offender” such as defendant. See State v. Moseley, 36,550 (La.App.2d Cir.10/23/02), 830 So.2d 354 (Brown, J., concurring). Defendant is the quintessential “sexual offender” as defined in La. R.S. 15:536.

[A] person who has violated R.S. 14:78 (incest), R.S. 14:78.1 (aggravated incest), R.S. 14:89(A)(1) (crime against nature), R.S. 14:89.1 (aggravated crime against nature), R.S. 14:93.5 (sexual battery of the infirm) or any provision of Subpart C of Part II (which includes forcible rape), or Subpart A(l) of Part V (which includes indecent behavior with a juvenile and molestation of a juvenile), of Chapter 1 of Title 14 of the Louisiana Revised Statutes of 1950. (Emphasis added).

Furthermore, La. R.S. 15:537 mandates the denial of good time to a “sexual offender” such as defendant. State v. Moseley, supra. The provisions are self-executing and are to be implemented by the Louisiana Department of Public Safety and Corrections.

Accordingly, defendant’s conviction and sentence are affirmed.

Conclusion

For the foregoing reasons, the motion to withdraw is GRANTED, and defendant’s conviction and sentence are AFFIRMED.