text:
    DEEP SOUTH SYSTEMS, INC., Appellant, v. Lester HEATH d/b/a Quality Architectural Metal Sales & Service, Appellee.
    No. 2D02-3318.
    District Court of Appeal of Florida, Second District.
    May 2, 2003.

      John S. Mills of Mills & Carlin, P.A., Jacksonville, for Appellant.
    Robert G. Fegers of Robert F. Fegers, P.L., Winter Haven, for Appellee.
   STRINGER, Judge.

Deep South Systems, Inc. (“Deep South”) seeks review of the summary final judgment requiring Deep South to pay Lester Heath d/b/a Quality Architectural Metal Sales & Service (“Quality”) monies due under a series of contracts to perform roofing services for Deep South. Deep South argues that the trial court erred in granting Quality’s motion for summary judgment and denying Deep South’s motion for summary judgment because Quality was precluded from enforcing its contracts as a matter of law. Because Quality was not a certified or registered contractor when it entered into the contracts with Deep South, we conclude that the contracts are unenforceable. Accordingly, we reverse.

Deep South entered into a subcontract agreement with M.M. Parrish Construction, the general contractor, for various labor, materials, and equipment required for the construction of two public school facilities. Deep South then entered into a series of written sub-subcontracts with Quality for the provision of all labor, tools, and equipment for the installation of all roof, wall, and soffit panels on the facilities. While Deep South is a state-certified licensed roofing contractor, Quality was not licensed at the time it entered into the contracts.

During the course of construction, Deep South paid Quality the amounts it requested in twenty-four applications for payment, but Deep South did not pay the retainage amount of $22,911.66 when the work was completed. When Deep South failed to pay Quality the retainage, Quality filed suit seeking payment under the contracts. The trial court granted summary judgment in favor of Quality, finding that the retainage was due under the contracts. The trial court also denied Deep South’s motion for summary judgment in which Deep South argued that the contracts were unenforceable because Quality was not a licensed contractor.

On appeal, Deep South challenges both the trial court’s denial of its motion for summary judgment and the summary judgment in favor of Quality. Deep South’s challenge to the denial of its motion for summary judgment requires reversal. Our reversal on this issue renders Deep South’s challenge to the summary judgment'moot.

Orders granting or denying motions for summary judgment are reviewed de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). “Summary judgment is appropriate if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Id.

Section 489.128, Florida Statutes (2001), provides that contracts made by unlicensed contractors are unenforceable. Because Quality was not a licensed contractor when it entered into the contracts, Deep South argues that the parties’ contracts are unenforceable as a matter of law. Quality concedes that it was not licensed, but argues that, under section 489.113, Florida Statutes (2001), it was not required to have a license because it was working under the supervision of a licensed contractor.

Section 489.113(2) provides that “[n]o person who is not certified or registered shall engage in the business of contracting.” That section provides an exception when (1) the person is being supervised by someone who is certified or registered; (2) the construction work is within the scope of the supervisor’s license; and (3) the person being supervised is not performing the type of construction work that would require a contractor’s license under sections 489.105(3)(d)-(o), Florida Statutes (2001). One type of construction work that would require a contractor’s license under section 489.105(3)(e) is that of a “roofing contractor.”

Quality argues that it qualified for the exception to the licensing requirement under section 489.113(2) because its work was performed under the supervision of Deep South, which is a certified licensed roofing contractor. Assuming Quality’s roofing work was supervised by Deep South as a certified licensed roofing contractor, Quality qualified for the exception only if it was not performing the work of a “roofing contractor” under section 489.105(3)(e). Section 489.105(3)(e) defines a “roofing contractor” as “a contractor whose services are unlimited in the roofing trade and who has the experience, knowledge, and skill to install, maintain, repair, alter, extend, or design ... and use materials and items used in the installation, maintenance, extension, and alteration of all kinds of roofing.” “Contractor” is defined as “the person who is qualified for, and shall only be responsible for, the project contracted for and means ... the person who, for compensation, undertakes to ... construct, repair, alter, remodel, ... or improve any building or structure.” § 489.105(3).

Quality’s act of entering into contracts to install all roof, wall, and soffit panels on a new building made it the entity responsible for and the entity undertaking the improvement of a building. Thus, Quality qualified as a “contractor.” § 489.105(3); cf. Sterner v. Phillips, 721 So.2d 450, 452 (Fla. 5th DCA 1998) (holding that a tenant who was to expend money and labor to renovate property was a “contractor” under section 489.105(3)); Stokes v. Millen Roofing Co., 466 Mich. 660, 649 N.W.2d 371, 375 (2002) (“A ‘contractor’ is defined in the statute as ‘a person who, pursuant to a contract with the owner or lessee of real property, provides an improvement to real property.’ MCL 570.1103(5). Millen built a slate roof pursuant to a contract with the owners. Therefore, it is a contractor.”). This undertaking shows that Quality has the experience, knowledge, and skill to install and use materials and items used in the installation of roofing and qualifies as a “roofing contractor” under the plain language of section 489.105(3)(e). Cf. Terranova v. State, 474 So.2d 1206, 1208 (Fla. 2d DCA 1985) (affirming trial court’s finding that a person who applies sealant to a roof, cleans the gravel off the roof, replaces portions of the roof, and installs felt on a roof is a “roofing contractor” under section 489.105(3)(e)); Op. Att’y Gen. Fla. 96-46 (1996) (stating that the installation of shingles on an already existing roof must be subcontracted to a licensed roofing contractor).

Because Quality was performing the work of a roofing contractor under section 489.105(3)(e), it was engaged in work that requires a license under that section. Accordingly, even if Quality was supervised by a certified licensed roofing contractor, Quality did not meet the criteria for the exception to the licensing requirement under section 489.113(2). Quality was therefore an “unlicensed contractor,” and the contracts it entered into with Deep South are unenforceable as a matter of law. See § 489.128. For these reasons, the trial court erred in denying Deep South’s motion for summary judgment.

Reversed and remanded.

FULMER and KELLY, JJ., Concur.

      . Florida law classifies construction contractors into two groups: certified contractors or registered contractors. § 489.105(8), (10), Fla. Stat. (2001). The two groups differ in the requirements for licensure. See § 489.111, Fla. Stat. (2001) (setting out the requirements of certification licensure); § 489.117, Fla. Stat. (2001) (setting out the requirements for registration licensure). A certified contractor may perform construction work anywhere in Florida, see § 489.113(1), Fla. Stat. (2001), while a registered contractor may only perform work covered by the registration in the county, municipality, or development district for which the registration applies, see § 489.117(l)(b).

      . Retainage is a percentage of the progress payments the contractor holds back for the purpose of curing or mitigating any subsequent default by the subcontractor and is paid upon satisfactory performance by the subcontractor. See Transamerica Ins. Co. v. Barnett Bank of Marion County, N.A., 540 So.2d 113, 115 (Fla.1989).

      . Other types of work include sheet metal contracting, Class A, B, and C air-conditioning contracting, mechanical contracting, commercial and residential swimming pool and spa contracting, swimming pool/spa servicing contracting, plumbing contracting, underground utility and excavation contracting, and solar contracting. See § 489.105(3)(d), (f)-(o), Fla. Stat. (2001).


source: Caselaw Access Project

license: Public Domain

text:
    Daniel ARCENEAUX, et al. v. AMSTAR CORP., et al.
    No. 2003-CC-1232.
    Supreme Court of Louisiana.
    May 5, 2003.
   In re Tate & Lyle North American Sugars Inc.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. B, No. 86-959; to the Court of Appeal, Fourth Circuit, No. 2003-C-0778.

Stay and writ denied.


text:
    STATE of Louisiana v. Ricky Joseph LANGLEY.
    No. 2003-KD-1242.
    Supreme Court of Louisiana.
    May 5, 2003.
   In re State of Louisiana; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. H, No. 10258-02; to the Court of Appeal, Third Circuit, No. KW 03-00551.

Denied.


text:
    In re J. Clemille SIMON.
    No. 2003-OB-1186.
    Supreme Court of Louisiana.
    May 7, 2003.
   In re Simon, J. Clemille; — Plaintiff; Applying for Writ of Mandamus Office of The Disciplinary Board, No. 02-DB-029.

Denied.


text:
    STATE of Louisiana v. Levi Joseph GARRICK.
    No. 2003-K-0137.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re State of Louisiana; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. D, No. 01-K-1288-D; to the Court of Appeal, Third Circuit, No. 02-0712.

Granted.


text:
    Yolanda Griffin HENDERSON, et al. v. NISSAN MOTOR CORPORATION, et al.
    No. 2003-C-0606.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re State of Louisiana Department of Transportation & Development; DOTD;— Defendant(s); Applying for Writ of Certio-rari and/or Review, Parish of St. John, 40th Judicial District Court Div. B, No. 32,486; to the Court of Appeal, Fifth Circuit, No. 02-CA-337.

Granted.


text:
    Mark CHEAIRS v. The STATE of Louisiana, through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Baton Rouge Police Department, the State of Louisiana, through the Department of Public Safety and Corrections and State farm Mutual Automobile Insurance Company.
    No. 2003-C-0680.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re State of Louisiana through et al.; Transportation & Development, Department of; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 440,499; to the Court of Appeal, First Circuit, No. 2002 CA 0083.

Granted.


text:
    In re M. Daniel LAGRONE, Jr.
    No. 2002-B-2974.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re M. Daniel • LaGrone, Jr.-Other (s); — Applying for Rehearing of an Order of this Court dated March 28, 2003; Findings and Recommendations (Formal charges) Office of Disciplinary Board, No. 00-DB-091.

Rehearing denied.


text:
    Charles CARTER v. SARGENT WRIGHT B-TEAM, Lieutenant Lemoine B-Team, Burl Cain, Warden and Richard Stalder, Secretary, Department of Public Safety and Corrections.
    No. 2002-CI-0832.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Carter, Charles; Applying for Reconsideration of this Court’s action dated March 21, 2003; Parish of East Baton Rouge, 19th Judicial District Court, Div. M, No: 466,342; to the Court of Appeal, First Circuit, No. 2000-CA-2107.

Denied.


text:
    John MARIEN and Marilyn Marien, Individually and on Behalf of Joshua Paul Marien, Justin Andre Marien, and Jacob Charles Marien v. GENERAL INSURANCE COMPANY OF AMERICA, Barham Bros., Inc. and Robert L. Adams.
    No. 2003-C-0578.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Cherry, Earl; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. E, No. 193,085; to the Court of Appeal, Third Circuit, No. 02-545.

Not considered; not timely filed.


text:
    Warren L. REUTHER, Jr. v. AIRPORT SHUTTLE, INC., A. Airport Shuttle Colorado, Inc., Chicory Building, Inc., Delta Transit, Inc., Destination Management, Inc. Hospitality Enterprises, Inc., Lodging, Inc., New Orleans International Cruise Ship Terminal, Inc., et al.
    No. 2003-C-0779.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Reuther, Warren Jr.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. D, No. 2001-19874; to the Court of Appeal, Fourth Circuit, No. 2002-CA-1295.

Not considered; not timely filed.


text:
    Gwendolyn DOBY and Lola D. Patrick v. BILL HOOD FORD, INC., Legion Assurance Co., Allstate Ins. Co., State Farm Mutual Automobile Ins. Co., Progressive Ins. Co. and the Unopened Succession of Michael T. Hall.
    No. 2003-CC-0815.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Athena Assurance Company; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. C, No. 2000-15766; to the Court of Appeal, First Circuit, No. 2002 CW 2155.

Not considered; not timely filed.


text:
    Raymond W. BIANCHINI, et al. v. PLAQUEMINES PARISH GOVERNMENT and the State of Louisiana, et al.
    No. 2003-CC-1151.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Plaquemines Parish Government et al.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Plaquemines, 25th Judicial District Court Div. B, No. 38^447; to the Court of Appeal, Fourth Circuit, No. 2003-C-0680.

Stay denied. Writ denied.


text:
    STATE of Louisiana v. Houston JACKSON. State of Louisiana v. Samuel Kelly. State of Louisiana v. Nathaniel Culverson.
    No. 2001-K-1071.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Jackson, Houston; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. P, No. 9804959; to the Court of Appeal, Fifth Circuit, No(s). 00-KA-221, OO-KA-222, OO-KA-223.

Denied.

CALOGERO, C.J., recused.


text:
    STATE of Louisiana v. Nathaniel CULVERSON.
    No. 2001-KO-1258.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Culverson, Nathaniel; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. P, No. 98-4959; to the Court of Appeal, Fifth Circuit, No(s). 00-KA-221 C/W, 00-KA-222 C/W, 00-KA-223.

Denied.

CALOGERO, C.J., recused.


text:
    STATE ex rel. Samuel KELLY v. STATE of Louisiana.
    No. 2001-KH-1285.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Kelly, Samuel; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 98^4959; to the Court of Appeal, Fifth Circuit, No. 00-KA-222.

Denied.

CALOGERO, C.J., recused.


text:
    PONTCHARTRAIN STATE BANK fka Louisiana Commercial Bank v. SUNWOOD INVESTMENTS, INC.
    No. 2002-C-0889.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Pécora, Frances; — Other; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div.,D, No. 91-13040; to the Court of Appeal, First Circuit, No. 2000 CA 2686.

Denied.


text:
    STATE ex rel. Terry KEYS v. STATE of Louisiana.
    No. 2002-KH-1370.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Keys, Terry; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jackson, 2nd Judicial District Court Div. A, No. 32,412; to the Court of Appeal, Second Circuit, No. 35,950-KA.

Denied.


text:
    STATE of Louisiana v. Herman E. PIERRE, Jr.
    No. 2002-KO-1383.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Pierre, Herman E. Jr.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Grant, 35th Judicial District Court Div. 0, Nos. 99-654, 99-655; to the Court of Appeal, Third Circuit, No. 01-0542.

Denied.


text:
    STATE ex rel. Quantrell CAGER v. STATE of Louisiana.
    No. 2002-KH-1411.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Cager, Quantrell; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 380-954; to the Court of Appeal, Fourth Circuit, No. 2002-K-444.

Denied. Repetitive. Cf. La.C.Cr. P. art. 930.4(D)


text:
    STATE of Louisiana v. Elton COWART.
    No. 2002-KO-1457.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Cowart, Elton; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. C, No. 99-5664; to the Court of Appeal, Fifth Circuit, No. 01-KA-1178.

Denied.


text:
    STATE of Louisiana v. Richard MILLER.
    No. 2002-KO-1458.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Miller, Richard; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. H, No. 396-824; to the Court of Appeal, Fourth Circuit, No. 2000-KA-1109.

Denied.


text:
    STATE of Louisiana v. Bobby R. WILLIAMS.
    No. 2002-KO-1466.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Williams, Bobby R.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 11-99-458; to the Court of Appeal, First Circuit, No. 2001 KA 1398.

Denied.


text:
    STATE ex rel. Maurice HARBOR v. STATE of Louisiana.
    No. 2002-KO-1489.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Harbor, Maurice; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. P, No. 99-7555; to the Court of Appeal, Fifth Circuit, No. 01-KA-1261.

Denied.

JOHNSON, J., would grant the writ.


text:
    STATE ex rel. Ronald Wayne MORRISON v. STATE of Louisiana.
    No. 2002-KH-1530.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Morrison, Ronald, Wayne; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. B, No. 187,225; to the Court of Appeal, Second Circuit, No. 36051 KH.

Denied.


text:
    STATE ex rel. Simon MONTGOMERY v. STATE of Louisiana.
    No. 2002-KH-1559.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Montgomery, Simon; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. H, No. 95-5903;

Denied. Moot. The Court of Appeal has acted.


text:
    STATE ex rel. A.J. DAVIES v. STATE of Louisiana.
    No. 2002-KH-1564.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Davies, A. J.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Desoto, 11th Judicial District Court Div. B, No. 004540; to the Court of Appeal, Second Circuit, No. 35, 783-KA.

Denied.


text:
    STATE ex rel. Jewell SCOTT v. STATE of Louisiana.
    No. 2002-KH-1574.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Scott, Jewell; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Charles, 29th Judicial District Court Div. E, No. 83-0326; to the Court of Appeal, Fifth Circuit, No. 02 KH 342.

Denied.


text:
    STATE ex rel. Santana COLLINS v. STATE of Louisiana.
    No. 2002-KH-1578.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Collins, Santana; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 383-498; to the Court of Appeal, Fourth Circuit, No. 2002-K-415.

Denied.


text:
    STATE ex rel. Tijanna KELLY v. STATE of Louisiana.
    No. 2002-KH-1579.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Kelly, Tijanna; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. G, No. 185,799; to the Court of Appeal, Second Circuit, No. 36257 KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Ernest LEWIS v. STATE of Louisiana.
    No. 2002-KH-1582.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Lewis, Ernest; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 304-693; to the Court of Appeal, Fourth Circuit, No. 2002-K-0557.

Denied. Repetitive. Cf. La. C. Cr. P. art. 930.4(D).


text:
    STATE ex rel. James FULLER v. STATE of Louisiana.
    No. 2002-KH-1583.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Fuller, James; — -Plaintiff; Applying for Supervisory - and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. G, No. 179,480; to the Court of Appeal, Second Circuit, No. 36135 KH.

Denied.


text:
    STATE ex rel. George MULLENIX v. STATE of Louisiana.
    No. 2002-KH-1584.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Mullenix, George; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caldwell, 37th Judicial District Court Div. 0, Nos. 42885, 42886; to the Court of Appeal, Second Circuit, No. 36201 KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Rannell CRAIG v. STATE of Louisiana.
    No. 2002-KH-1598.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Craig, Rannell; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, No. 93-2112; to the Court of Appeal, Fifth Circuit, No. 02 KH 292.

Denied.


text:
    STATE ex rel. Roger COMEAUX v. STATE of Louisiana.
    No. 2002-KH-1599.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Comeaux, Roger; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 402-252; to the Court of Appeal, Fourth Circuit, No. 2002-K-498.

Denied.


text:
    STATE ex rel. D’Andre C. MOORE v. STATE of Louisiana.
    No. 2002-KH-1603.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Moore, D’Andre C.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 414-972; to the Court of Appeal, Fourth Circuit, No(s). 2002-K-0189, 2000-KA-2282.

Denied.


text:
    STATE ex rel. Ernest M. SERIO v. STATE of Louisiana.
    No. 2002-KH-1607.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Serio, Ernest, M.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, Nos. 00-6727, 76-2281, 99-605; to the Court of Appeal, Fifth Circuit, No(s). 02 KH 444, 02-KH-393, 02-KH-0413.

Denied. Repetitive. Cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Patrick METEVIA v. STATE of Louisiana.
    No. 2002-KH-1620.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Metevia, Patrick; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. N, Nos. 9-97-793, 1-99-796; to the Court of Appeal, First Circuit, No. 2001 KW 2712.

Denied.


text:
    STATE ex rel. Izish EPPS, Jr. v. STATE of Louisiana.
    No. 2002-KH-1621.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Epps, Izish, Jr.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 392-684; to the Court of Appeal, Fourth Circuit, No. 2000-K-2051.

Denied.


text:
    STATE ex rel. Jonathan MILLS v. STATE of Louisiana.
    No. 2002-KH-1625.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Mills, Jonathan; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 366-626; to the Court of Appeal, Fourth Circuit, No. 2001-K-1419.

Denied.


text:
    STATE ex rel. Michael BROWN v. STATE of Louisiana.
    No. 2002-KH-1626.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Brown, Michael; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 294-382; to the Court of Appeal, Fourth Circuit, No. 2002-K-0329.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Jonathan STEVENSON v. STATE of Louisiana.
    No. 2002-KH-1627.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Stevenson, Jonathan; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. L, No. 5-90-1487; to the Court of Appeal, First Circuit, No. 2001 KW 2628.

Denied. La. C. Cr. P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La. C. Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Robert WARREN v. STATE of Louisiana.
    No. 2002-KH-1628.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Warren, Robert; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, No. 99-507; to the Court of Appeal, Fifth Circuit, No. 02-KH-369.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Charles GRAY v. STATE of Louisiana.
    No. 2002-KH-1629.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Gray, Charles; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. James, 23rd Judicial District Court Div. D, No. 2629; to the Court of Appeal, Fifth Circuit, No. 02-KH-416.

Denied. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE of Louisiana v. Kennedy KIRK.
    No. 2002-K-3079.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re State of Louisiana; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. G, No. 398-116; to the Court of Appeal, Fourth Circuit, No. 2002-KA-0190.

Denied.

TRAYLOR, J., would grant the writ.

WEIMER, J., would grant the writ.


text:
    David JOHNSON v. LOUISIANA CONTAINER COMPANY.
    No. 2002-C-3099.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Louisiana Container Co.; — Defendant; Applying for Writ of Certiorari and/or Review Office of Workers’ Comp. Dist. 2, No. 99-04705; to the Court of Appeal, Third Circuit, No. 02-382.

Denied.


text:
    STATE of Louisiana v. John Randall TURNER.
    No. 2003-K-0148.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Turner, John Randall; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Evangeline, 13th Judicial District Court Div. B, No. 47,173-F; to the Court of Appeal, Third Circuit, No. 02-0702.

Denied.


text:
    STATE of Louisiana v. Segundia Reynalda GORDON.
    No. 2003-K-0208.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re State of Louisiana; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. H, No. 297087-1; to the Court of Appeal, First Circuit, No. 2002 KA 0516.

Denied.

TRAYLOR, J., would grant the writ.


text:
    STATE of Louisiana v. Eugene FORTINO.
    No. 2003-K-0251.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Fortino, Eugene; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. G, No. 01-4444; to the Court of Appeal, Fifth Circuit, No. 02-KA-708.

Denied.


text:
    STATE of Louisiana v. Terry HAYES.
    No. 2003-K-0257.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Hayes, Terry; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 02-00-689; to the Court of Appeal, First Circuit, No. 2002 KA 0909.

Denied.


text:
    STATE of Louisiana v. John BUNIFF.
    No. 2003-K-0298.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Buniff, John; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. N, No. 99-7414; to the Court of Appeal, Fifth Circuit, No. 02-KA-0567.

Denied.

CALOGERO, C.J., recused.


text:
    Mary HOBSON v. EAST JEFFERSON GENERAL HOSPITAL.
    No. 2003-C-0416.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re East Jefferson General Hosp.; — ■ Defendant; Applying for Writ of Certiora-ri and/or Review Office of Workers’ Comp. Dist. 8, No. 00-00084; to the Court of Appeal, Fourth Circuit, No. 2002-CA-1212.

Denied.


text:
    John MARIEN and Marilyn Marien, Individually and on Behalf of Joshua Paul Marien, Justin Andre Marien and Jacob Charles Marien v. GENERAL INSURANCE COMPANY OF AMERICA, Barham Bros., Inc. and Robert L. Adams.
    No. 2003-C-0474.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re General Insurance Company/America; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. E, No. 193,085; to the Court of Appeal, Third Circuit, No. 02-545.

Denied.


text:
    John MARIEN and Marilyn Marien, Individually and on Behalf of Joshua Paul Marien, Justin Andre Marien, and Jacob Charles Marien v. GENERAL INSURANCE COMPANY OF AMERICA, Barham Bros., Inc. and Robert L. Adams.
    No. 2003-C-0513.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Adams, Robert L.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. E, No. 193,085; to the Court of Appeal, Third Circuit, No. 02-545.

Denied.


author: CALOGERO, C.J.,

text:
    Melinda CHRISTIANA and Nicholas Christiana, Jr. v. SOUTHERN BAPTIST HOSPITAL, et al.
    No. 2003-CC-0544.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Southern Baptist Hospital a/k/a et al.; Christian Health Ministries; — Defendants); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. C, No. 92-13936; to the Court of Appeal, Fourth Circuit, No. 2002-C-2750.

Denied. Adequate remedy on appeal.

CALOGERO, C.J.,

concurs in the denial of the application. If the district court ultimately renders a judgment against relator in excess of the cap, relator will have an adequate remedy on appeal, at which time it can re-raise its arguments regarding the applicability of the medical malpractice act and ask that the judgment be reduced to the amount of the cap.

VICTORY, J., would grant the writ.


text:
    Myrne CAMPBELL, et al. v. Vikrom S. SOTTIURAI, M.D., et al.
    No. 2003-CC-0610.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Sottiurai, Vikrom S. M.D. et al.; Brown, Thomas C. M.D.; Brown, James E. M.D.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. C, Nos. 98-18633, 2000-01294; to the Court of Appeal, Fourth Circuit, No. 2002-C-2223.

Denied.

VICTORY, J., would grant the writ.

KNOLL, J., would grant the writ.


text:
    Cynthia ADAMS v. Alton E. CHENAULT, Jr., Southern Made Trucking, Employees Mutual Casualty Company, Jessie D. Laprarie, and Trinity Universal Insurance Company of Kansas, Inc.
    No. 2003-C-0616.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Adams, Cynthia; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Desoto, 11th Judicial District Court Div. A, No. 60,578; to the Court of Appeal, Second Circuit, No. 36,-729-CA.

Denied.


text:
    Elizabeth CARNEY, Jason Carney and Tara Hebert, Individually and as the Natural and Court Appointed Custodian of the Minor Child Valerie Hebert v. Derrick WILLIAMS, Dean Blanchard Seafood, Inc., Dean Blanchard, XYZ Ins. Co., State of Louisiana through the Department of Public Safety and Corrections and State of Louisiana though the Department of Transportation & Development.
    No. 2003-CC-0617.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Scottsdale Insurance Company;— Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, No. 553846; to the Court of Appeal, Fifth Circuit, No. 03-C-65.

Denied.

TRAYLOR, J., would grant the writ.


text:
    Veronica S. MEDICE v. Timothy P. RUIZ, XYZ Insurance Company and State Farm Insurance Company.
    No. 2003-C-0645.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Medice, Veronica S.;- — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. A, No. 99-14073; to the Court of Appeal, Fourth Circuit, No. '2002-CA-0894.

Denied.

CALOGERO, C.J., would grant the writ.

JOHNSON, J., would grant the writ.


text:
    Sharon L. DESOTO v. Nidal A. BALBEISI, USA Agencies Casualty Insurance Company and State Farm Mutual Automobile Insurance Company.
    No. 2003-C-0672.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Desoto, Sharon L.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, No. 464,011; to the Court of Appeal, First Circuit, No. 2002 CA 0169.

Denied.

KIMBALL, J., would grant the writ.

KNOLL, J., would grant the writ.


text:
    Terence E. HALL v. VALLEY FORGE LIFE INSURANCE COMPANY, Continental Assurance Company, CNA Insurance Companies, James M. Cook, FLMI, CLU, CLFC, CFP, MSFS, Robert G. McNamara, and XYZ Insurance Company.
    No. 2003-C-0698.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Hall, Terence E.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. A, No. 561-565; to the Court of Appeal, Fifth Circuit, No. 02-CA-977.

Denied.

CALOGERO, C.J., would grant the writ.


text:
    Mary L. RUBIN and Richard L. Rubin v. WESTPORT INSURANCE CORPORATION, et al.
    No. 2003-CC-0699.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re West Port Insurance Corp. et al.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 537-481; to the Court of Appeal, Fifth Circuit, No. 03-C-25.

Denied. Adequate remedy on appeal.


text:
    SUCCESSION OF Betty Kinchen BANKSTON.
    No. 2003-C-0710.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Simpson, Joseph H.; Simpson, William Paul; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. H, No. 2000-030211; to the Court of Appeal, First Circuit, No. 2002 CA 0548.

Denied.

KNOLL, J., would grant the writ.


text:
    Chris ANGELETTE and Jennifer Angelette, Individually, and on Behalf of Their Minor Children Bucky Angelette, Rocky Angelette, and Hoby Angelette v. LADY OF THE SEA GENERAL HOSPITAL, Dr. Jose Rivero, Louisiana Medical Mutual Insurance Company (Lammico), and Louisiana Hospital Association Trust Fund.
    No. 2003-C-0718.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Louisiana Patients Compensation Fund; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of La-fourche, 17th Judicial District Court Div. B, No. 85939; to the Court of Appeal, First Circuit, No. 2002 CA 0930.

Denied.

VICTORY, J., would grant the writ.


text:
    Louise Racey Burns, Wife of/and Alastair H. BURNS v. Randy L. HETLER, Dry Klean Carpet Maintenance, Inc., Travelers Insurance Company and State Farm Mutual Automobile Insurance Company.
    No. 2003-C-0720.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Burns, Louise Racey; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. G, No. 99-11365; to the Court of Appeal, Fourth Circuit, No. 2002-CA-1733.

Denied.

JOHNSON, J., would grant the writ.


text:
    Robert M. JOHNSON, Joseph J. Johnson, Jr., Husband of/and Mary H. Johnson v. The ROMAN CATHOLIC CHURCH FOR the ARCHDIOCESE OF NEW ORLEANS; Sts. Peter and Paul Parish; Archbishop Frances B. Schulte; and Father Michael Fraser.
    No. 2003-C-0730.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Roman Catholic Church for the Archdiocese of N.O. et al.; St. Peter and Paul Parish; Schulte, Frances B. Archbishop; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. H, No. 98-11299; to the Court of Appeal, First Circuit, No. 2002 CA 0429.

Denied.

CALOGERO, C.J., would grant the writ.

VICTORY, J., would grant the writ.

KNOLL, J., would grant the writ.


text:
    Michael ASHMORE, et al. v. Rapides Parish Sheriff William E. HILTON, et al.
    No. 2003-C-0746.
    Supreme Court of Louisiana.
    May 9, 2003.
   In 're Pineville, City of; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. G, No. 189,486-G; to the Court of Appeal, Third Circuit, No. 02-816.

Denied.


text:
    Cynthia ADAMS v. Alton E. CHENAULT, Jr., Southern Made Trucking, Employees Mutual Casualty Company, Jessie D. Laprarie, and Trinity Universal Insurance Company of Kansas, Inc.
    No. 2003-C-0749.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Chenault, Alton E. Jr.; Southern Made Trucking; Employees Mutual Casualty Company; Laprarie, Jessie D.; Trinity Universal Insurance Company of Kansas, Inc.;- — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Desoto, 11th Judicial District Court Div. A, No. 60,578; to the Court of Appeal, Second Circuit, No. 36,729-CA.

Denied.


text:
    Michael ASHMORE, et al. v. Rapides Parish Sheriff William E. HILTON, et al.
    No. 2003-C-0750.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Ashmore, Amanda; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. G, No. 189,486; to the Court of Appeal, Third Circuit, No. 02-816.

Denied.


text:
    Jocenta H. FERROUILLET Individually and on Behalf of Her Minor Son Keith D. Ferrouillet, and Eric M. Ferrouillet, Jr. v. STATE of Louisiana through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT and Myron Harris. Carl Johnson v. State of Louisiana through the Department of Transportation and Development, Myron Harris and State Farm Mutual Automobile Insurance Company.
    No. 2003-C-0751.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Johnson, Carl; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. N, Nos. 95-02137, 94-05026; to the Court of Appeal, Fourth Circuit, No(s). 2002-CA-0576, 2002-CA-0577.

Denied.

CALOGERO, C.J., would grant the writ.

JOHNSON, J., would grant the writ.


text:
    George DEYA v. Michael CASCIO and Angie Cascio, Husband and Wife, Allstate Insurance Company, State of Louisiana, Department of Transportation and Development and City of Baton Rouge/Parish of East Baton Rouge.
    No. 2003-C-0752.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Deya, George; — -Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 468,041; to the Court of Appeal, First Circuit, No. 2002 CA 0249.

Denied.


text:
    Cleo DAVIS v. CIPPRIANI'S ITALIAN RESTAURANT.
    No. 2003-C-0753.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Cippriani’s Italian Restaurant;— Defendant; Applying for Writ of Certiora-ri and/or Review Office of Workers’ Compensation District 05, No. 99-07679; to the Court of Appeal, First Circuit, No. 2002 CA 1144.

Denied.

VICTORY, J., would grant the writ.

TRAYLOR, J., would grant the writ.


text:
    Jocenta H. FERROUILLET Individually and on Behalf of Her Minor Son Keith D. Ferrouillet, and Eric M. Ferrouillet, Jr. v. STATE of Louisiana through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT and Myron Harris. Carl Johnson v. State of Louisiana through the Department of Transportation and Development, Myron Harris and State Farm Mutual Automobile Insurance Company.
    No. 2003-C-0756.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Ferrouillet, Jocenta H.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. N, Nos. 95-02137, 94-05026; to the Court of Appeal, Fourth Circuit, No(S). 2002-CA-0576, 2002-CA-0577.

Denied.

CALOGERO, C.J., would grant the writ.

JOHNSON, J., would grant the writ.


text:
    William C. KINCHEN and Barbara Kinchen v. John L. MORRISON, Allstate Insurance Company, Livingston Parish School Board, and Town of Springfield.
    No. 2003-C-0768.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Kinchen, William C.; Kinchen, Barbara; — Plaintiffs); Applying for Writ of Certiorari and/or Review, Parish of Livingston, 21st Judicial District Court Div. B, No. 80,876; to the Court of Appeal, First Circuit, No. 2002 CA 0600.

Denied.


text:
    Norman L. TYNES v. GAYLORD CONTAINER CORPORATION.
    No. 2003-C-0769.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Gaylord Container Corporation;- — ■ Defendant; Applying for Writ of Certiora-ri and/or Review Office of Workers Compensation District 6, No. 01-00705; to the Court of Appeal, First Circuit, No. 2002 CA 0519.

Denied.


text:
    BOARD OF TRUSTEES OF STATE GROUP BENEFITS PROGRAM v. The ST. LANDRY PARISH SCHOOL BOARD, et al.
    No. 2003-C-0770.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re St. Landry Parish School Board; Vernon Parish School Board; — Defendants); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 472,189; to the Court of Appeal, First Circuit, No. 2002 CA 0393.

Denied.


text:
    Danny P. BAKER and Faye M. Baker, Individually and on Behalf of Their Minor Children, Dustie M. New and Pepper T. Baker v. Richard W. BEATTY, Abundant Life Church, Inc., and Preferred Risk Mutual Insurance Company.
    No. 2003-C-0772.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Caseio, J. Donald; — Third Party; Applying for Writ of Certiorari and/or Review, Parish of Livingston, 21st Judicial District Court Div. D, No. 81,511; to the Court of Appeal, First Circuit, No. 2002 CA 0367.

Denied.


text:
    Donald GONZALES v. JACOBS ENGINEERING GROUP, INC.
    No. 2003-C-0774.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Gonzales, Donald; — Plaintiff; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation Dist>-5, No. 97-03407; to the Court of Appeal, First Circuit, No. 2002 CA 0507.

Denied.


text:
    Angie Marie WILLIAMS, et al. v. HBM RIVER PLANT, INC.
    No. 2003-C-0777.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Williams, Angie Marie et al.;— Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Ascension, 23rd Judicial District Court Div. A, No. 55,792; to the Court of Appeal, First Circuit, No. 2002-CA-0551.

Denied.


text:
    Robert M. JOHNSON, Joseph J. Johnson, Jr. Husband of/and Mary H. Johnson v. The ROMAN CATHOLIC CHURCH FOR the ARCHDIOCESE OF NEW ORLEANS; Sts. Peter and Paul Parish; Archbishop Frances B. Schulte; and Father Michael Fraser.
    No. 2003-C-0778.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Fraser, Michael Father; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. H, No. 98-11299; to the Court of Appeal, First Circuit, No. 2002 CA 0429.

Denied.

CALOGERO, C.J., would grant the writ.

VICTORY, J., would grant the writ.

KNOLL, J., would grant the writ.


text:
    Debra SENSLEY v. GLENWOOD REGIONAL MEDICAL CENTER and Dr. Charles Hand.
    No. 2003-CC-0782.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Sensley, Debra; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. B, No. 98-5174; to the Court of Appeal, Second Circuit, No. 37383-CW.

Denied.


text:
    R.L. BLANTON CONSTRUCTION CO., INC. v. UNITED SOILS, INC. d/b/a/ United Soils of Delaware, Inc.
    No. 2003-C-0783.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re United Soils, Inc. d/b/a; United Soils of Delaware, Inc.; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Concordia, 7th Judicial District Court Div. B, No. 36,797; to the Court of Appeal, Third Circuit, No. 02-1127.

Denied.


text:
    Donald ROVIRA and Julie Rovira v. Dr. George BYRAM, Jr.
    No. 2003-C-0784.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Rovira, Donald et al.; Rovira, Julie; — Plaintiffs); Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. E, No. 494-738; to the Court of Appeal, Fifth Circuit, No. 02-CA-1115.

Denied.

CALOGERO, C.J., would grant the writ.

JOHNSON, J., would grant the writ.


text:
    H. Thomas BOURGEOIS v. LOUISIANA STATE GAS CORPORATION, and ABC Unknown Defendants.
    No. 2003-C-0785.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Acadian Gas Pipeline System, Successor to; Louisiana State Gas Corporation; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of St. John, 40th Judicial District Court Div. A, No. 24715; to the Court of Appeal, Fifth Circuit, No. 02-CA-787.

Denied.


text:
    STONEGATE HOMEOWNERS CIVIC ASSOCIATION, et al. v. CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE, et al.
    No. 2003-C-0786.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Baton Rouge City of et al.; Baton Rouge Parish of; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. K, No. 322,028; to the Court of Appeal, First Circuit, No. 2001 CA 2883.

Denied.


text:
    Perry BURNS v. UHS OF NEW ORLEANS, INC., Individually, d/b/a, and Chalmette Medical Center, and Chalmette Medical Center, Inc., UHS of De La Rhonde, Inc., Individually, d/b/a, and Chalmette Medical Center.
    No. 2003-C-0793.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Burns, Perry; — -Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of St. Bernard, 34th Judicial District Court Div. C, No. 88-238; to the Court of Appeal, Fourth Circuit, No. 2002-CA-1514.

Denied.


text:
    Edward LAIN v. Terry TERRELL, Preston Henderson, and Betty Duplichan.
    No. 2003-CP-0797.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Lain, Edward, — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Allen, 33th Judicial District Court Div. A, No. C-2001-523.

Denied.


text:
    Jim E. CLARK v. Ricky A. SUMMERS, et al.
    No. 2003-C-0810.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Summers, Ricky A.; EPIC Group, Inc.; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. H, No. 461,423; to the Court of Appeal, First Circuit, No. 2001 CA 0706.

Denied.


text:
    CITY OF EUNICE v. Earlyn CARRIER.
    No. 2003-C-0813.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Eunice City of; — Plaintiff; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation District 02, No. 99-00558; to the Court of Appeal, Third Circuit, No. 02-1132.

Denied.


text:
    Stephen Scott SEWELL v. Gary BENOIT, Custodian of Records, Orleans Levee District and Orleans Levee District.
    No. 2003-C-0817.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Benoit, Gary Custodian/Records Orleans Levee District; Orleans Levee District; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. N, No. 99-465; to the Court of Appeal, Fourth Circuit, No. 2002-CA-1714.

Denied.


text:
    Lynn CARTER, Joseph Durio, Jr., Walter Graham, Jr., Walter Graham, III, Edward Jackson, Andrew Sampson, Jr., Michael Tate, Gwendolyn Dabney and Michelle Jefferson v. HANOVER INSURANCE COMPANY.
    No. 2003-CC-0819.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Hanover Insurance Co.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. B, Nos. 512-781, 509-154, 512-169, 512-750, 512-792, 570-785; to the Court of Appeal, Fifth Circuit, No. 03-C-192.

Denied.

TRAYLOR, J., would grant the writ.


text:
    PAN AMERICAN ENGINEERS OF BATON ROUGE, INC. v. WATER WORKS DISTRICT NO. 2 OF TANGIPAHOA PARISH.
    No. 2003-C-0820.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Pan American Engineers of Baton Rouge Inc.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Tan-gipahoa, 21st Judicial District Court Div. D, No. 89-01712; to the Court of Appeal, First Circuit, No. 2002 CA 0067.

Denied.


text:
    The COWBOY CONNECTION, INC. v. STATE of Louisiana, through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 2003-CC-0829.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re State of Louisiana et al.; Department of Transportation & Development;— Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Vernon, 30th Judicial District Court Div. B, No. 62499; to the Court of Appeal, Third Circuit, No. CW 02-01500.

Denied.


text:
    Frank Eugene BRUSCATO, Sr, et al. v. MONTGOMERY KONE, INC., et al. (and Other Consolidated Cases).
    No. 2003-CC-0835.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Tri-State/Sehindler Elevator Company; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. 0, Nos. 98-4757, 99-3937, 99^1114, 99-4311, 99-4328, 99-4357, 99-4310, 99-4213; to the Court of Appeal, Second Circuit, No(s). 37342-CW, 37343-CW, 37344-CW, 37345-CW, 37346-CW, 37347-CW, 37348-CW, 37349-CW.

Denied.


text:
    STATE of Louisiana v. John BERTONE.
    No. 2003-KK-0905.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Bertone, John; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. G, No. 101299; to the Court of Appeal, First Circuit, No. 2003 W 0169.

Denied.


text:
    STATE of Louisiana v. Dale R. MILLER.
    No. 2003-KH-1043.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Miller, Dale R.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. C, No. 92141; to the Court of Appeal, Third Circuit, No. KH 03-00238.

Denied.


text:
    Raymond W. BIANCHINI, et al. v. PLAQUEMINES PARISH GOVERNMENT and the State of Louisiana, et al.
    No. 2003-CC-1081.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Louisiana State of; Natural Resources Dept, of; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Plaquemines, 25th Judicial District Court Div. B, No. 38-447; to the Court of Appeal, Fourth Circuit, No. 2003-C-0680.

Denied.

VICTORY, J., would grant the writ.


text:
    STATE of Louisiana v. Kelvin WELLS.
    No. 2003-C-1137.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Wells, Kelvin; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, Juvenile Court Parish Of East Baton Rouge, No. 2-00-097; to the Court of Appeal, First Circuit, No. 2002 CA 0390.

Denied.


author: hPER CURIAM.

text:
    Reginald BERNARD v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, et al.
    No. 2000 CA 1912.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 2002.
   ON REHEARING

hPER CURIAM.

The Louisiana Department of Public Safety and Corrections (the Department) applied for a rehearing, alleging our original opinion was in error regarding our interpretation of the screening provisions of Louisiana Revised Statute 15:1188 as applied by the district court in this case. While the Department’s application for rehearing was pending, an additional decision, which affects our original opinion, was rendered by this court. See Madison v. Ward, 00-2842 (La.App. 1st Cir.7/3/02), 825 So.2d 1245 (en banc). In addition, the legislature enacted 2002 La. Acts, 1st Ex. Sess., No. 89 (Act 89), effective April 18, 2002, which addresses a number of matters pertinent to prisoner litigation. Accordingly, we granted a rehearing without oral argument in order to examine our original opinion in the light of these recent developments.

We note first that Bernard claims habeas corpus relief should be granted to him under the authority of Louisiana Code of Criminal Procedure article 362(2), which allows relief if the original custody was lawful, but by some act, omission, or event which has Lsince occurred, the custody has become unlawful. Bernard contends the application of an allegedly unconstitutional statute to return him to custody on a parole violation is the act that has occurred since his original custody, making his current custody unlawful. We note first that under Madison, Article 362(2) claims arise from a criminal proceeding and are governed by the procedures in Louisiana Code of Criminal Procedure articles 352, et seq. A prisoner claiming he is entitled to immediate release on such grounds must raise his challenge by a writ of habeas corpus under the criminal jurisdiction of the appropriate district court. Madison, 825 So.2d at 1254. The district court’s denial of such a claim is not appealable; review by this court would be by supervisory writ only. LSA-C.Cr.P. art. 369; Madison, 825 So.2d at 1250.

However, after further review of Bernard’s claim, we conclude it was not one that could properly be raised through post-conviction habeas under Article 362(2). The statute that he claims is unconstitutional on its face or as applied to him has never been declared unconstitutional. Rather, as the commissioner noted in the screening recommendation, Louisiana Revised Statute 15:571.5 has been upheld in a number of cases that challenged its constitutionality. Therefore, the triggering event-application of an unconstitutional statute — for a habeas corpus claim under Article 362(2) has not occurred. Accordingly, Bernard’s claim does not meet the criteria for classification as a true writ of habeas corpus.

Bernard’s claim was initiated as a civil action seeking redress from a governmental entity. In Madison, this court observed that an alleged violation of a constitutionally protected right could be raised in a separate suit invoking the district court’s original jurisdiction. Treating Bernard’s claim as such a suit, the screening provisions of § 1188 were correctly applied by the district court, acting under its original lajurisdiction, and the district court’s judgment of dismissal is appropriate for appellate review by this court. As noted in our original opinion, the commissioner’s recommendation thoroughly analyzed the substantive' merits of Bernard’s constitutional claims. We find no legal error in that analysis; the district court’s dismissal of Bernard’s claims was legally correct.

CONCLUSION ON REHEARING

For the foregoing reasons, we set aside that portion of our original opinion that reversed the judgment of the district court and remanded this matter for further proceedings. On rehearing, the judgment of the district court dismissing Bernard’s claims is affirmed. All costs of this appeal are assessed against Bernard.

AFFIRMED.

      . In our original opinion, we limited the application of § 1188 to a "prisoner suit,” as that term is defined in Louisiana Revised Statute 15:1181(2). We retract that portion of our original opinion imposing such a limitation, and we agree with the Department that the coverage of § 1188 is much broader and specifically applies to "a petition in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.” Bernard's suit is such a civil action.


author: hBROWN, C.J.

text:
    Joy GILCREASE, Plaintiff-Appellee, v. WAL-MART STORES, INC., Defendant-Appellant.
    No. 36,523-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 11, 2002.

      Allen & Gooch by Eric J. Waltner, Lafayette, for Appellant.
    The Law Offices of Jack M. Bailey, Jr., by Mary Lou Salley, Shreveport, for Ap-pellee.
    Before BROWN, C.J., and WILLIAMS and STEWART, JJ.
   hBROWN, C.J.

The employer, Wal-Mart Stores, Inc. (“Wal-Mart”), appeals a WCJ’s judgment finding that the claimant, Joy Gilcrease, sustained a work-related accident and awarding her supplemental earnings benefits (“SEB”); Wal-Mart also appeals that portion of the WCJ’s judgment rejecting its claim that Mrs. Gilcrease violated La. R.S. 23:1208. Mrs. Gilcrease answered the appeal, contesting the WCJ’s denial of her claim for penalties and attorney fees under La.R.S. 23:1201.2. For the reasons expressed, we affirm.

Facts

Mrs. Gilcrease was a 16-year employee of Wal-Mart in Shreveport, Louisiana. She was the department manager over men’s wear. On June 5, 1997, Mrs. Gil-crease injured her left hip and lower back by lifting heavy boxes of jeans at work; she reported this incident to her supervisor later the same day, and a report was filed.

Four days later, on June 9th, Mrs. Gil-crease sought medical attention from Dr. Walter Asseff, her family physician. Dr. Asseff referred her to Dr. Ronald Green, an orthopedic surgeon, who treated Mrs. Gilcrease from June 26, 1997 through September 17, 2001. Dr. Green diagnosed her condition as a chronic lumbosacral L-5 strain superimposed upon a degenerative joint disease of the lumbar spine, inducing a facet syndrome. Dr. Green opined that Mrs. Gilcrease’s condition was work-related. She returned to work as a cashier on July 7, 1997; however, upon experiencing a recurrence of her back pain symptoms, she left work again on August 22, 1997.

On February 9, 1998, Dr. A.E. Dean, another orthopedic surgeon, examined Mrs. Gilcrease. He opined that she could return to work as a |2checker and believed that although her back pain began at work, she did not necessarily have a back injury. She returned to work again in 1998, this time as a greeter at the store’s main entrance; however, after standing for several hours at a time performing this job, she had to leave work again experiencing back pain. From April 20-29, 1998 and on January 15,1999, Dr. Austin Gleason reviewed Mrs. Gilcrease’s medical history and examined her. He diagnosed her with a mild bulging disc at L4-L5 and referred her for an impairment evaluation.

On April 19, 2000, Dr. Carl Goodman examined Mrs. Gilcrease and on May 31, 2000, he reviewed her MRI. Dr. Goodman believed that she was at her maximum medical improvement; he also stated that as of August 21, 2000, Mrs. Gilcrease could return to work in a “light-duty capacity” with permanent restrictions of no repeated bending, twisting, or lifting over 25 lbs. Upon reviewing Dr. Green’s and Christus Schumpert’s medical records, Dr. Goodman opined that Mrs. Gilcrease could perform the job of a greeter at Wal-Mart as of September 13, 2000. However, he went on to warn that she could not perform the job of greeter if such position required her to stand for eight hours without the opportunity to sit. Notably, Dr. Goodman agreed to defer to Dr. Green’s assessment of Mrs. Gilcrease’s back pain.

On September 13, 2000, Wal-Mart offered Mrs. Gilcrease the position of greeter. However, Dr. Green stated that Mrs. Gilcrease would not be able to perform this job if she were not allowed to sit and stand ^occasionally; he also warned that she would not be able to push large stacks of shopping carts. She declined to accept the job offer.

In June 1997, Mrs. Gilcrease’s average weekly wage was $381.83 and her weekly workers’ compensation rate was $254.68. Wal-Mart has paid to Mrs. Gilcrease weekly indemnity benefits of $254.68 from the date of the accident until October 1, 2000, when those benefits were terminated.

Mrs. Gilcrease filed this disputed claim on January 4, 2001, with the OWC. She sought payment of her medical expenses, indemnity benefits, penalties and attorney fees. On March 19, 2001, Wal-Mart filed an answer denying all of Mrs. Gilcrease’s claims.

The matter was tried on September 20, 2001. Both sides submitted post-trial briefs. On December 10, 2001, in a “Reply to Claimant’s Post-Trial Memorandums/Replies,” Wal-Mart raised for the first time the affirmative defense of fraud pursuant to La.R.S. 23:1208, urging that Mrs. Gilcrease willfully made false representations in connection with her claim in order to obtain workers’ compensation benefits. Specifically, Wal-Mart claimed that in her deposition, when asked about prior injuries or accidents, Mrs. Gilcrease failed to acknowledge a 1991 work accident at Wal-Mart, which was documented by a 1007 accident report, as well as a 1989 automobile collision.

Judgment was rendered on February 15, 2002, and written reasons were assigned on March 26, 2002. By her written reasons for judgment, the WCJ found that Mrs. Gilcrease had met her burden of proving by a preponderance of the evidence that she sustained a work-related accident |4and resulting back strain injury on June 5, 1997, in the course and scope of her employment at Wal-Mart. The WCJ therefore awarded supplemental earnings benefits (SEB) effective October 1, 2000, and continuing in accordance with La.R.S. 23:1221(3), based on Mrs. Gilcrease’s pre-injury average weekly wage of $381.83, pre-injury weekly workers’ compensation rate of $254.68, and a zero monthly earning capacity assessed to her after October 1, 2000.

The WCJ awarded Mrs. Gilcrease medical expenses of $735.00 incurred from Larsen Physical Therapy. The WCJ noted how Mrs. Gilcrease failed to submit her (physical therapy) medical expenses to Wal-Mart and only listed the outstanding medical expenses in her pre-trial statement. The WCJ further found that Wal-Mart failed to prove a La.R.S. 23:1208 violation by the claimant; she found that Mrs. Gilcrease’s denial of a prior work and car accident were “inadvertent based on the length of time of such accidents in relation to the June 5, 1997 work acci-dente.]” The WCJ also found that Wal-Mart was not arbitrary or capricious in its discontinuance of indemnity benefits and therefore denied Mrs. Gilcrease’s claims for penalties and attorney fees. The WCJ further found that Wal-Mart reasonably controverted Mrs. Gilerease’s claim due to the “adverse” medical opinions given by different doctors, disputed issues of causation, and the fact that the greeter position offered by Wal-Mart was approved by two of her doctors, Drs. Goodman and Gleason. Wal-Mart was assessed with costs and interest.

| ¡Wal-Mart has appealed, raising three assignments of error. Mrs. Gilcrease filed an answer, responding to Wal-Mart’s assignments and raising one of her own.

Discussion

La.R.S. 23:1021(1): Definition of an “Accident”

By its first assignment of error, Wal-Mart urges that the claimant failed to satisfy her burden of establishing a com-pensable “accident” according to the law. Wal-Mart cites La.R.S. 23:1021, which provides the following definition:

(1) “Accident” means an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violating with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.
* * *

Citing McConnell v. City of Ruston, 27,-154 (La.App. 2 Cir. 08/23/95), 660 So.2d 100, writ denied, 95-2348 (12/15/95), 664 So.2d 453, Wal-Mart argues that under this definition, Mrs. Gilcrease failed to produce evidence pointing to a “specific moment” that she sustained her injury. Rather, the evidence adduced only showed that her injury resulted over time and was more of a progressive degeneration. Wal-Mart urges that Mrs. Gilcrease never described an identifiable event as an accident causing her injuries.

1 fiWal-Mart observes that on August 28, 1997, when asked how she was injured, Mrs. Gilcrease responded, “over a period of working.” In the 1007 accident/report form, the store manager, Robert Tombole, wrote:

Joy has been having back problems for some time. She does not know of any one thing that caused the problem. On June 4, 1997, Joy left work thinking she had a kidney infection.

Wal-Mart also notes an associate accident review form in which Mr. Tombole states that there was not an accident but a gradual deterioration. Further, Mrs. Gilcrease told an adjuster at Claims Management, Inc., that she had been hurting on and off for months and that it had gradually worsened until she finally sought medical attention. Wal-Mart argues that on her first visits with Dr. Asseff on June 9, 1997 and Dr. Green on June 26, 1997, Mrs. Gilcrease never mentioned an accident at all.

The WCJ’s factual findings are entitled to great discretion and will be reversed only on a showing of manifest error. Hoy v. Gilbert, 98-1565 (La.03/02/99), 754 So.2d 207. The actual, identifiable, precipitous event may include a routing movement that the claimant is able to identify with some particularity as to time, place, and manner the objective manifestation of the accidental injury. McConnell v. City of Ruston, 27,154 (La.App.2d Cir.08/23/95), 660 So.2d 100, writ denied, 95-2348 (La.12/15/95), 664 So.2d 453.

Citing La.R.S. 23:1021(1) and Dyson v. State Employees Group Benefits Program, 610 So.2d 953 (La.App. 1 Cir.1992), Mrs. Gilcrease responds that claimants who are worn down by their work rather than |7immediately crippled by it are not excluded from workers’ compensation coverage. We agree.

The First Circuit addressed the definition of an accident under the 1989 amendment to § 1021(1) in Dyson, supra. In Dyson, plaintiffs problem was diagnosed as plantar fasciitis, an inflammation in the heel area common to people who are overweight, flat-footed, and required to stand for prolonged periods. In Dyson, the identifiable and precipitous event was the pivoting or turning movement that the plaintiff testified preceded a sharp pain in her feet. The court found for the plaintiff, stating that an otherwise healthy employee with a preexisting condition is entitled to benefits if she can prove that her work contributed to, aggravated, or accelerated her injury. Id.

In the instant case, as in Dyson, Mrs. Gilcrease’s testimony about the event which caused her injury in her lower back was unrebutted by Wal-Mart. Claimant testified that on June 5, 1997, while she was lifting a heavy box of freight in the men’s department, she felt a “shooting pain” in her lower back. In spite of the fact that the claimant did make statements to the effect that she had been having some back problems, she was able to identify with particularity as to time, place, and manner with regard to the objective manifestation of the accident itself. See McConnell, supra.

Mrs. Gilcrease’s specification of when, where, and how the accident occurred was corroborated in several ways. Before she left work on the day of the accident, Mrs. Gilcrease did report her injury to the assistant manager, who filled out an accident report or a 1007 form that same day. She also | stold her husband that she had experienced a “sharp pain” when she was lifting a box in the men’s wear department and that she went to the doctor about the pain. Further, her daughter, Tonya Gil-crease, who was also employed at Wal-Mart at one time, was aware that as the manager over the men’s wear department, her mother was required to lift large boxes of freight frequently; Tonya testified that her mother also told her that she hurt her back when she picked up an “oversized box that was full of freight.”

Medical evidence further corroborates that Mrs. Gilcrease sustained an accident. A mere four days after the accident, she sought medical attention from Dr. Asseff complaining of lower back problems. Dr. Green opined that Mrs. Gilcrease’s prior back injury, for which he had treated her in 1991, had fully resolved itself when he saw her in June 1997. There was no medical evidence adduced to show that she had seen him or any other physician for back problems since her 1991 injury had healed until her 1997 work accident.

After a thorough review of the evidence in its entirety, we find that there were objective findings that an actual and identifiable event caused Mrs. Gilcrease’s back injury on that specific date. Her unrebut-ted testimony, corroborated by both Stanley and Tonya Gilcrease as well as her treating physicians, clearly establishes that she suffered an accident within the meaning of La.R.S. 23:1021(1). The WCJ was not clearly wrong or manifestly erroneous in finding that an accident occurred on June 5, 1997. This assignment lacks merit.

[ JLa.R.S. 28:1208: Willful Misrepresentation to Obtain Benefits

By its second assignment of error, Wal-Mart contends that the WCJ erred in finding that Mrs. Gilcrease did not violate La.R.S. 23:1208. It alleges that in her deposition testimony and in statements to Dr. Goodman, she made some misrepresentations of fact in order to obtain benefits. Specifically, Wal-Mart claims that Mrs. Gilcrease failed to mention her automobile accident in 1989 and her work accident at Wal-Mart in 1991. Both of these incidents resulted in back problems.

Forfeiture of benefits for misrepresentation is governed by La.R.S. 23:1208, which provides in part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation. (Emphasis added).
* * *
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

This statute authorizes forfeiture of benefits upon proof that (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment. Resweber v. Haroil Const. Co., 94-2708 (La.09/05/95), 660 So.2d 7; Louisiana Workers’ Compensation Corp. v. Gray, 34,731 (La.App.2d Cir.05/09/01), 786 So.2d 310. All three requirements must be present before a penalty will be imposed. Louisiana Workers’ Compensation Corp. v. Gray, 35,198 (La.App.2d 10/31/01), 799 So.2d 820; Carver v. U.S. Copy, Inc., 96-611 (La.App. 5th Cir.03/25/97), 694 So.2d 423, writ denied, 97-1507 (La.09/26/97), 701 So.2d 986.

Whether a workers’ compensation claimant has forfeited her right to benefits by making a false statement for the purpose of obtaining benefits is a question of fact that will not be disturbed on appeal absent manifest error. Bossier Electric v. Cubley, 35,852 (La.App.2d Cir.06/14/02), 821 So.2d 685. We are mindful that the forfeiture remedy is a harsh one and, thus, “statutory forfeiture must be strictly construed.” Wise v. J.E. Merit Constructors, Inc., 97-0684 (La.01/21/98), 707 So.2d 1214. False statements that are inadvertent or inconsequential will not result in forfeiture. Re-sweber, supra.

In her written reasons for judgment, the WCJ determined that Mrs. Gilerease’s statements denying a prior work and motor vehicular accident were “inadvertent based on the length of time of such accidents in relation to the June 5, 1997 work accident at Wal-Mart.” On September 2, 1997, Mrs. Gilcrease disclosed to a Wal-Mart workers’ compensation representative that she pulled a muscle and injured her back while working in Wal-Mart about 13 years earlier when asked if she had sustained any prior injuries. She also told Dr. Gleason that she had “pulled (a) muscle 12 years ago.” It is incomprehensible to imagine that she would willfully deny a prior work accident which had also occurred at Wal-Mart when there had been a 1007 form completed at that time and it occurred in the same store. Mrs. Gil-crease’s automobile accident occurred earlier than her prior Wal-Mart accident and she was not the driver when the accident occurred. We Infind that such omissions hardly rise to the level of being willful misrepresentations of facts.

Based upon this record, the WCJ could reasonably have found that Mrs. Gil-crease’s non-disclosure of her two prior back injuries was not a deliberate misrepresentation made for the purpose of obtaining workers’ compensation benefits. Consequently, we cannot find that the WCJ was clearly wrong in finding that Mrs. Gilcrease did not violate § 1208 and that forfeiture was not warranted. This assignment is meritless.

La.R.S. 28:1221(3) (a): Supplemental Earnings Benefits

In its last assignment of error, Wal-Mart urges the WCJ erred in finding that the claimant was entitled to SEB from October 1, 2000, forward based upon a zero earnings capacity. Citing La.R.S. 23:1221, it argues that Mrs. Gilcrease had the burden of proving by a preponderance of the evidence that her injury resulted in her inability to earn wages equal to 90% or more of wages at the time of her injury. Wal-Mart contends that it made a suitable offer of employment as a greeter, which would have allowed Mrs. Gilcrease to earn at least 90% of her pre-accident average weekly rate.

Wal-Mart notes that Dr. Goodman and Dr. Gleason gave their approval for Mrs. Gilcrease to perform this offered position and gave their approval for her return to work. Wal-Mart argues that Dr. Green wrote that she was only unable to work “without restriction.” It further points out the trial testimony of Robert Malone, a co-manager at another Wal-Mart, who testified that if she had been unable to perform the job duties of being a greeter at the store’s entrance, she could have been placed as a greeter in the | ^garden center. Mr. Malone testified that there is usually less traffic and fewer shopping carts in the garden center and that Mrs. Gilcrease would have had the opportunity to sit down at times.

The purpose of SEB is to compensate the injured employee for the wage earning capacity she has lost as a result of her accident. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.07/01/97), 696 So.2d 551; Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52 (La.1993). An employee is entitled to receive supplemental earnings benefits if she has sustains a work-related injury that results in her inability to earn 90% or more of her average pre-injury wage. La.R.S. 23:1221(3)(a). Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in her inability to earn that amount under the facts and circumstances of the individual case. Banks, supra; Freeman v. Poulan/Weed Eater, 93-1530 (La.01/14/94), 630 So.2d 733. This analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that workers’ compensation is to be liberally construed in favor of coverage. Daigle v. Sherwin-Williams Co., 545 So.2d 1005 (La.1989).

Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the employee’s claim for SEB or establish the employee’s earning capacity, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in her or the employer’s community or reasonable geographic |13region. La.R.S. 23:1221(3)(e)(i). Actual job placement is not required. Banks, supra. The amount of SEB is based upon the difference between the claimant’s pre-injury average monthly wage and the claimant’s proven post-injury monthly earning capacity. La. R.S. 23:1221(3)(a); Id.

In the present case, it is undisputed that Mrs. Gilcrease is unable to return to her pre-injury employment at Wal-Mart as department manager over men’s wear, where lifting heavy boxes of freight is part of the job requirement. The sole remaining issue regarding her entitlement to SEB is whether Wal-Mart carried its burden of proving that it offered her a job which she would be able to physically perform in her geographic region and which would enable her to earn 90% or more of her pre-injury wage.

On September 13, 2000, Wal-Mart offered Mrs. Gilcrease the job position of a greeter at the same store in which she had been employed for 16 years. Such a position would enable her to earn at least 90% of her average pre-injury wage in a suitable geographic region. However, whether Mrs. Gilcrease would be able to physically perform the job of greeter is disputed by the parties.

At Wal-Mart, there are two kinds of greeter positions: one at the front entrance of the store and the other in the garden center. Evidence adduced at trial reveals that the front entrance greeter would be responsible for pulling shopping carts apart from each other, which involves twisting and turning, in addition to marking return items and welcoming incoming customers. Tonya Gilcrease, a former Wal-Mart employee, testified that she never saw a front entrance greeter sitting down because “it’s too busy.” 114Shane Jackson and Robert Malone, who both serve in managerial roles at Wal-Mart, testified to the effect that an employee with physical restrictions of occasional sit down breaks would need to be placed in the garden center, rather than at the front entrance, as a greeter. Wal-Mart claims that the position in the garden center would allow a greeter to be able to sit at times and that there are not as many shopping carts for which the greeter is responsible. However, the garden center is located outside and the greeter would be subjected to adverse weather temperatures.

As noted previously, Dr. Goodman placed with Mrs. Gilcrease the permanent physical restrictions of no repeated bending, twisting, or lifting over 25 pounds. All of the physicians who treated her stated that she needed to be able to sit down and move about at times.

The September 13, 2000 job offer extended to Mrs. Gilcrease possessed the generic title of “greeter.” Wal-Mart’s job matrices never specified that a greeter would be provided with a chair or would be able to sit. In fact, the job offer never specified any restrictions of any kind for the position. Despite Wal-Mart’s contentions that she would have been able to work in the garden center, where it claims that she would have been able to sit and stand as needed, the offer itself failed to state that she would be in the garden center and not at the front entrance. Actually, hand-written in the description section for the job, it stated that the greeter was responsible for “tagging returns coming entrance.” Thus, it would have been rather illogical for Mrs. Gilcrease to conclude that this job offer would allow her to work in the garden center, rather than at the entrance of the store.

|1fiThe WCJ found that Mrs. Gilcrease had “proven by clear and convincing evidence that she was unable to perform the jobs offered by Wal-Mart.” The WCJ evidently found that Wal Mart had not carried its burden of proving, by a preponderance of the evidence, that it offered her a specific job she was physically able to perform. Dr. Green did not opine that Mrs. Gilcrease could return to work and perform the greeter position even if she had a chair. He assigned her permanent physical restrictions which would have required her occasionally to sit, stand, and walk as needed; another permanent physical restriction included “avoiding damp .cold,” a condition which would be unavoidable even as a greeter in the garden center.

The WCJ evidently assigned greater weight to the medical opinion of Dr. Green, Mrs. Gilcrease’s primary treating physician. We find no cogent reason why Wal-Mart could not have fashioned a job to have met Dr. Green’s restrictions. In light of the evidence presented in the record, we do not find that the WCJ’s award of SEB from October 1, 2000, forward were manifestly erroneous or clearly wrong. The record supports the WCJ’s finding that Wal-Mart failed to offer Mrs. Gilcrease a job position which she was able to perform. This assignment lacks merit.

La.R.S. 23:1201.2: Attorney Fees for Discontinuance of Benefits

In her answer, Mrs. Gilcrease urges that Wal-Mart was arbitrary and capricious in terminating her weekly indemnity benefits; thus, pursuant to La. R.S. 23:1201.2, she claims that she is entitled to penalties and attorney fees. She contends that Wal-Mart did not have sufficient facts concerning 11fiher medical condition when it terminated her indemnity benefits. She further argues that in September 2000, Dr. Goodman only approved of her working a “light duty capacity” job, but never specified what position she could work. Mrs. Gilcrease maintains that it was not until after Wal-Mart had terminated her benefits that Dr. Goodman approved of her performing the greeter position.

Discontinuance of payment is governed by La.R.S. 23:1201.2, which provides:

Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of all reasonable attorney fees for the prosecution and collection of such claims.

Both penalties and attorney fees are recoverable under La.R.S. 23:1201 F if the employer or insurer fails to commence payments of benefits timely or to pay continued installments timely unless the claim is reasonably controverted. However, only attorney fees are recoverable under La.R.S. 23:1201.2 if the employer arbitrarily discontinues payment of benefits due. Williams v. Rush Masonry Inc., 98-2271 (La.06/29/99), 737 So.2d 41. Stated differently, La.R.S. 23:1201.2 authorizes an award of attorney fees, but not penalties, when an employer arbitrarily or capriciously discontinues payment of benefits due.

The instant case involves the claimant requesting penalties and attorney fees for her employer’s discontinuance of benefits, which were commenced timely. Thus, benefits were commenced timely as required by |17La.R.S. 23:1201 B. The only statute at issue in this case is La.R.S. 23:1201.2, which governs an employer’s discontinuance of benefits. Because this statute does not authorize an award of penalties, we will only consider whether the WCJ erred in failing to award attorney fees to Mrs. Gilcrease.

Accordingly, the only inquiry is whether the employer acted arbitrarily, capriciously, or without probable cause in discontinuing the payment of compensation benefits so as to warrant imposition of attorney fees under § 1201.2. Arbitrary and capricious behavior consists of willful and unreasoning action, without consideration and regard for facts and circumstances presented, or of seemingly unfounded motivation. Williams, supra; Brown v. Texas-LA Cartage, Inc., 98-1063 (La.12/01/98), 721 So.2d 885.

Based upon the record, the WCJ could conclude that not only were there factual disputes, but that Wal-Mart’s discontinuance of benefits is based upon the factual contention that Mrs. Gilcrease forfeited her claim for benefits. Further, Wal-Mart terminated her benefits on September 30, 2000, because Dr. Goodman had released her to perform the duties of a greeter on September 21, 2000. Its termination was based upon a factual dispute as to whether a compensable “accident” had actually occurred. Further, Wal-Mart extended a bona fide job offer which Mrs. Gilcrease declined. Therefore, discontinuance of benefits in light of the facts does not constitute arbitrary or capricious conduct.

| ^Accordingly, we find that the WCJ was not manifestly erroneous or clearly wrong in failing to award penalties and attorney fees in connection with Wal-Mart’s discontinuance of workers’ compensation benefits. This assignment is merit-less.

Conclusion

For the reasons expressed, we affirm the judgment of the WCJ. Costs are assessed equally to both parties.

AFFIRMED.

      . Her answer to appeal also complains of the WCJ’s failure to award penalties and attorney fees for Wal-Mart’s failure to pay medical bills. She also prays for attorney fees for work performed both at the trial and appellate level. However, her brief completely omits discussion of both of these issues.


author: |.COOKS, Judge.

text:
    LAMSON PETROLEUM CORPORATION v. HALLWOOD PETROLEUM INC., et al.
    Nos. 01-1201, 02-0138.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 31, 2002.

      Mark H. Tompkins, Lafayette, LA, for Defendants-Appellants, Union Oil Company of California, Petrocorp Inc., Triton Oil & Gas Corp., James H. Echezabal, J.H. Echezabal, Inc., Doug Ashy and Ena Claire Ashy.
    Ewell E. Eagan, Jr., Gordon, Arata, McCollam, Duplantis & Eagan, New Orleans, LA, for Defendant-Appellant, Union Oil Company of California.
    Jefferson J. Moss, Jr., Lafayette, LA, for Defendants-Appellants, Doug Ashy and Ena Claire Ashy.
    Richard F. Price, Jr., Metairie, LA, for Defendants-Appellants, James H. Echeza-bal and J.H. Echezabal, Inc.
    Robin D. McGuire, Jones, Walker, Wae-chter, Poitevent, Carrere & Denegre, L.L.P., Lafayette, LA, for Plaintiff-Appel-lee and Cross-Appellant, Lamson Petroleum Corporation.
    Carl D. Rosenblum, Covert J. Geary, Jones, Walker, Waechter, Poitevent, Car-rere & Denegre, L.L.P., New Orleans, LA, for Plaintiff-Appellee and Cross-Appellant, Lamson Petroleum Corporation.
    Arthur D. Mouton, Lafayette, LA, for Plaintiff-Appellee and Cross-Appellant, Lamson Petroleum Corporation.
    Matthew J. Randazzo, III, Gordon, Ara-ta, McCollam, Duplantis & Eagan, New Orleans, LA, for DefendanL-Appellant, Union Oil Company of California, Arthur C. LeBlanc, Jr., CPL & Assoc.
    Marshall F. Maestri, Lafayette, LA, for Union Oil Company of California.
    Barousse & Craton, Crowley, LA, for Succession/Estate of Raleigh Bernard, Debbie Bernard Smith, Ida Mae Beard.
    Mel Lewis Credeur, Lafayette, LA, for Dwayne P. Credeur, Barbara Ann Brous-sard Credeur.
    John Weir Grant, Lafayette, LA, for Sunset Production Corp., Consolidated Oil & Gas, Inc.
    Timothy Scott Cragin, New Orleans, LA, for Lamson Petroleum Corp.
    James Caffery Wilbourn, Houston, TX.
    James Cary Wilbourn, Houston, TX.
    Barbara D. Cowart, Breaux Bridge, LA.
    Walter C. Flower, III, Breaux Bridge, LA.
    Wilson A. Montgomery, Lake Charles, LA.
    Stephen E. Montgomery,. Houston, TX.
    Court composed of NED E. DOUCET, C.J., HENRY L. YELVERTON, ULYSSES GENE THIBODEAUX, SYLVIA R. COOKS, JOHN D. SAUNDERS, BILLIE COLOMBARO WOODARD, OSWALD A. DECUIR, JIMMIE C. PETERS, MARC T. AMY, MICHAEL G. SULLIVAN, GLENN B. GREMILLION and ELIZABETH A. PICKETT, Judges.
   |.COOKS, Judge.

These cases are on remand from the Supreme Court. This Court was ordered to hold an en bane hearing to determine whether our “decisions in Lamson Petroleum Corporation v. Hailwood Petroleum, Inc., et al., 2001-01156 (La.App. 3 Cir. 2/6/02), 814 So.2d 134 and Lamson Petroleum Corporation v. Hailwood Petroleum, Inc., et al., 2002-138 (La.App. 3 Cir. 7/10/02), 823 So.2d 431 are in conflict with [our] decision in Lamson Petroleum Corporation v. Hallwood Petroleum, Inc., et al., 2001-1201 (La.App. 3 Cir. 3/20/02), 814 So.2d 596, on the issue of whether or not defendants are good faith possessors after the filing of judicial demand, and if so, to determine which view is correct.” We have conducted the en banc hearing as instructed and the majority of this Court has determined that our decisions in Lamson, 814 So.2d 134 and Lamson, 823 So.2d 431 are sound and supported by the clear and unambiguous language found in La. Civ.Code art. 487, which provides:

For purposes of accession, a possessor is in good faith when he possesses by virtue of an act translative of ownership and does not know of any defects in his ownership. He ceases to be in good faith when these defects are made known to him or an action is instituted against him by the owner for the recovery of the thing.

(Emphasis added.)

In Lamson Petroleum Corporation v. Hallwood Petroleum, Inc., et al., 2002-138 (La.App. 3 Cir. 7/10/02), 823 So.2d 431, we noted the plain language of article 487 mandates that a possessor “ceases to be in good faith” when an action is instituted against it, and stated as follows:

There is no exception or qualification to this rule set out in ... article [487], In Edmundson [Bros. Partnership v. Montex Drilling Co., 98-1564; 731 So.2d 1049], we held a mineral lessee ceases to be in good faith under La. Civ. Code arts. 487 and 488 at the time of judicial demand and ceases to be entitled to recover the costs of production. We specifically noted, although the defendants-appellants were in good faith prior to judicial demand, they ceased to be in good faith after the filing of the petitory action. La.Civ.Code art. 488 provides that a possessor in bad faith does not have the right to reimbursement of expenses. Accordingly, defendants-appellants are not entitled to recover expenses they incurred after the filing of this suit. That portion of the judgment finding defendants-appellants in good faith after the filing of suit is - reversed, and they are not entitled to expenses after that date.

Lamson, 823 So.2d at 437.

Accordingly, that portion of the decision rendered in Lamson Petroleum Corporation v. Hallwood Petroleum, Inc., et al., 2001-1201 (La.App. 3 Cir. 3/20/02), 814 So.2d 596, finding to the contrary is hereby reversed and we hereby hold on remand that defendants ceased to be in good faith when suit was filed.

AFFIRMED AND REVERSED IN PART.

PICKETT, J., dissents.


author: WOODARD, Judge.

text:
    LAMSON PETROLEUM CORPORATION v. HALLWOOD PETROLEUM, INC., et al.
    No. 01-1156.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 31, 2002.

      Carl David Rosenblum, Timothy Scott Cragin, Jones, Walker, MeCollan, New Orleans, LA, Arthur Daniel Mouton, Attorney at Law, Robin Daniel McGuire, Jones, Walker, et al., Lafayette, LA, for Plaintiff'Appellee/Appellant, Lamson Petroleum Corporation.
    Ewell Elton Eagan, Jr., Matthew Joseph Randazzo, III, Gordon, Arata, Waechter, et al., New Orleans, LA, for Defendants/Appellants/Appellees, Arthur C. Le-Blanc Jr. CPL & Assoc., et al., Union Oil Company of California.
    Richard Ferguson Price, Jr., Attorney at Law, Metairie, LA, for Defendants/Appellants/Appellees, J.H. Echezabel, Inc., James H. Echezabel.
    Mark Harrison Tompkins, Attorney at Law, Lafayette, LA, for Defendant/Appellant/Appellee, Union Oil Company of California.
    James Caffery Wilbourn, Houston, TX, Pro Se.
    James Cary Wilbourn, Houston, TX, Pro Se.
    Barbara D. Cowart, Breaux Bridge, LA, Pro Se.
    Walter C. Flower, III, Breaux Bridge, LA, Pro Se.
    Wilson A. Montgomery, Lake Charles, LA, Pro Se.
    Stephen E. Montgomery, Houston, TX, Pro Se.
    Court composed of SYLVIA R. COOKS, BILLIE COLOMBARO WOODARD, and MICHAEL G. SULLIVAN, Judges.
   ON REMAND

WOODARD, Judge.

In light of the en banc decision in Lamson Petroleum Corporation v. Hallwood, Petroleum, Inc., et al., we reaffirm our previous decision in its entirety.

AFFIRMED.

      . 01-1201 (La.App. 3 Cir. 3/20/2002), 814 So.2d 596.