author: | ..PETTIGREW, J.

text:
    Roger D. CRAIG v. BANTEK WEST, INC.
    No. 2004 CA 0229.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 17, 2004.

      William R. Mustian, III, Metairie, for Plaintiff-Appellant Roger D. Craig.
    John J. Rabalais, Robert T. Lorio, Cov-ington, for Defendant-Appellee Bantek West, Inc.
    Before: CARTER, C.J., PETTIGREW, and McDONALD, jj.
   | ..PETTIGREW, J.

In this workers’ compensation case, the claimant appeals from a judgment granting his employer’s motion for summary judgment and dismissing, with prejudice, a claim for penalties and attorney fees filed by the claimant as a result of a February 2003 termination of benefits. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

The claimant, Roger D. Craig, injured his left shoulder on December 14, 1999, while working for Bantek West, Inc. (“Bantek”) as an armored car guard and ATM technician. According to the record, Mr. Craig’s injury occurred while he was “lifting a tote bag of money/coins when [the] handle (plastic) broke [and he] jerked [his] arm trying to catch [the] tote.” Mr. Craig subsequently underwent shoulder surgery, followed by physical therapy and orthopedic treatment. Mr. Craig was unable to return to work until September 24, 2000, at which time he began working as a surveillance investigator with a different employer.

On April 17, 2003, Mr. Craig filed a disputed claim for compensation against Bantek, alleging that he was entitled to multiple penalties for Bantek’s violations of workers’ compensation laws. Mr. Craig asserted that although he had received workers’ compensation benefits from Ban-tek, the “benefits were paid late and/or stopped at various times.” In response to Mr. Craig’s claim, Bantek filed an exception raising the objection of prescription. Therein, Bantek argued that Mr. Craig’s demands for penalties and attorney fees for alleged conduct that occurred more than one year prior to the filing of his action would be prescribed as a matter of law. Bantek maintained that Mr. Craig’s “fault-based claims would be subject to the suppletive prescriptive period of Article 3492 of the Louisiana Civil Code, providing that delictual actions are subject to a Iterative prescription of one year.”

The matter proceeded to hearing on July 18, 2003, at which time the workers’ compensation judge heard argument from counsel for both sides. At the conclusion of the | ¡¡hearing, the judge instructed counsel for both sides that a timeline of events was necessary in order to reach a decision on the exception. Thereafter, the parties submitted supplemental memoranda outlining their respective arguments. Mr. Craig provided the following details of his various claims for penalties and attorney fees:

December 14,1999 Date of Injury
On December 14, 1999 Roger Craig was involved in accident arising out of and in the course and scope of his employment. Despite the clear and substantial evidence regarding a work related injury, his claim for compensation was originally denied. This error was later recognized and Mr. Craig’s benefits were instated, albeit untimely.
September 24,2000 Return to Work
As a result of his injury, Mr. Craig came under the medical care of Dr. Ralph Katz and Dr. Chris J. Digrado. As a result of Mr. Craig’s injuries to his shoulder he was unable to return to work until September 24, 2000. Although Mr. Craig did return to work on September 24, 2000 he was unable to return to his previous occupation due [to] medically imposed work restrictions.
April 6, 2001 Acknowledgement of Mr. Craig’s Entitlement to SEB Beneñts
Despite the clear evidence establishing Mr. Craig’s inability to earn 90% of his pre-accident average weekly wage, his employer did not properly investigate the issue of [Supplemental] Earning Benefits until April 6, 2001, seven (7) months after [he] returned to work.... On April 6, 2001 it was finally acknowledged that Mr. Craig was entitled to SEB benefits. However, all past due compensation was not paid, instead Mr. Craig received payments in installments, in violation of the Act.
February 6, 2003, termination of Mr. Craig’s SEB Beneñts
On February 6, 2003, and without any reasonable justification, Employer terminated Mr. Craig’s SEB benefits.... Employer alleges that they were justified based on a medical report from Dr. Katz dated 12/1/00 but clearly this is not a valid justification as Employer waited 35 months after the issuing of this report to terminate his benefits. Once again and realizing their mistake Mr. Craig’s SEB benefits were reinstated. As a result of Employer’s numerous violations of Louisiana’s Workers’ Compensation Act, Mr. Craig filed a disputed claim for compensation based on his Employer’s arbitrary and capricious actions in this matter.

In a judgment rendered on July 24, 2003, the workers’ compensation judge granted Bantek’s exception raising the objection of prescription as to the claims for penalties and attorney fees due to alleged misconduct on December 14, 1999; September |424, 2000; and April 6, 2001. With regard to the claim for penalties and attorney fees due to alleged misconduct on February 6, 2003, Bantek’s exception was denied.

Bantek subsequently filed a motion for summary judgment as to the alleged improper February 6, 2003 termination of Mr. Craig’s supplemental earnings benefits (“SEB benefits”). Bantek argued that its action in terminating Mr. Craig’s SEB benefits was based on written confirmation from Mr. Craig’s treating physician that Mr. Craig was at maximum medical improvement and “may return to full duty.” Thus, Bantek maintained, it was in no way arbitrary and capricious in terminating Mr. Craig’s SEB benefits. Moreover, Bantek noted that once Mr. Craig’s physician withdrew this opinion, Mr. Craig’s SEB benefits were immediately reinstitut-ed, including payment for the prior suspended period. In support of its motion for summary judgment, Bantek submitted the August 25, 2003 affidavit of Shawn Jemison, a claims examiner employed by ESIS, Inc. (the third-party administrator for this claim) who was assigned to adjust Mr. Craig’s workers’ compensation claim. Attached to Ms. Jemison’s affidavit were copies of pertinent medical records and various letters, all of which were used by Ms. Jemison in her decision to terminate Mr. Craig’s benefits.

Mr. Craig filed a memorandum in opposition to Bantek’s motion for summary judgment. Mr. Craig alleged that Ban-tek’s motion for summary judgment was based on the “self-serving affidavit of the adjuster, Shawn Jemison,” who “rushed to terminate [his] benefits with minimal information and an unclear idea of [his] exact medical condition.” Thus, Mr. Craig argued, summary judgment was not appropriate. In support of his position, Mr. Craig introduced the deposition of Shawn Jemison, taken on September 18, 2003.

On September 29, 2003, the workers’ compensation judge heard arguments on the motion for summary judgment. After considering the applicable law and the evidence in the record, the judge granted Bantek’s motion for summary judgment, dismissing, with |Bprejudice, Mr. Craig’s claim for penalties and attorney fees as a result of the February 2003 termination of his SEB benefits. A judgment in accordance with these findings was signed on October 3, 2003. It is from this judgment that Mr. Craig has appealed.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Western Sizzlin Steakhouse v. McDuffie, 2002-0935, p. 3 (La.App. 1 Cir. 3/28/03), 844 So.2d 355, 357, writ denied, 2003-1147 (La.6/20/03), 847 So.2d 1236. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La.Code Civ. P. art. 966(A)(2). 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 mover is entitled to judgment as a matter of law. La.Code Civ. P. art. 966(B).

On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover must 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. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La.Code Civ. P. art. 966(C)(2); Robles v. Exxonmobile, 2002-0854, p. 4 (La.App. 1 Cir. 3/28/03), 844 So.2d 339, 341.

When appropriate under Articles 966 and 967, summary judgment is available in workers’ compensation cases. See La. Code Civ. P. art. 966(A)(2); La. R.S. 23:1317(A); Sept v. City of Baker, 98-1190, p. 6 (La.App. 1 Cir. 5/18/99), 733 So.2d 748, 751, |fiabrogated on other grounds; Du- frene v. Video Co-Op, Louisiana Workers’ Compensation Corp., 2002-1147 (La.4/9/03), 843 So.2d 1066. In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Allen v. State ex rel. Ernest N. Morial New Orleans Exhibition Hall Authority, 2002-1072, p. 5 (La.4/9/03), 842 So.2d 373, 377. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Ernest v. Petroleum Service Corp., 2002-2482, p. 3 (La.App. 1 Cir. 11/19/03), 868 So.2d 96, 97, writ denied, 2003-3439 (La.2/20/04), 866 So.2d 830. Review of summary judgments in workers’ compensation cases is conducted in the same manner. Davis v. AMS Tube Corporation, 2000-1311, p. 4 (La.App. 1 Cir. 6/22/01), 801 So.2d 466, 468, unit denied, 2001-2122 (La.11/2/01), 800 So.2d 877.

In Smith v. Our Lady of the Lake Hospital, Inc., 93-2512, pp. 26-27 (La.7/5/94), 639 So.2d 730, 751, the Louisiana Supreme Court set forth the following parameters for determining whether an issue is genuine or a fact is material.

A “genuine issue” is a “triable issue.” More precisely, “[a]n issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. Summary judgment is the means for disposing of such meretricious disputes.” In determining whether an issue is “genuine,” courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence. “Formal allegations without substance should be closely scrutinized to determine if they truly do reveal genuine issues of fact.”
A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. “[F]aets are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” Simply put, a “material” fact is one that would matter on the trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits. [Citations omitted.]

^Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Foreman v. Danos and Curole Marine Contractors, Inc., 97-2038, p. 7 (La.App. 1 Cir. 9/25/98), 722 So.2d 1, 4, unit denied, 98-2703 (La.12/18/98), 734 So.2d 637. Thus, we now turn to a discussion of the applicable law.

PENALTIES AND ATTORNEY FEES

The statutes providing for penalties and attorney fees are penal in nature and must be strictly construed. Barber Bros. Contracting v. Young, 2003-0747, p. 7 (La.App. 1 Cir. 2/23/04), 873 So.2d 677, 681, unit denied, 2004-0704 (La.5/7/04), 872 So.2d 1084. Penalties should be enforced only in those instances in which facts clearly negate good faith and just cause in connection with refusal of allowance of compensation. Hebert v. South Louisiana Contractors, Inc., 238 So.2d 756, 761 (La.App. 1 Cir.1970). The purpose of imposition of penalties and attorney fees is to discourage indifference and undesirable conduct by employers and insurers. Authement v. Wal-Mart, 2002-2434, pp. 11-12 (La.App. 1 Cir. 9/26/03), 857 So.2d 564, 574. A determination of whether a discontinuation of workers’ compensation benefits is arbitrary, capricious or without probable cause usually depends on the facts existing and known at the time benefits are terminated. Russell v. Snelling Personnel, 2002-1347, p. 6 (La.App. 1 Cir. 5/9/03), 849 So.2d 588, 591. An employer must adequately investigate a workers’ compensation claim. The crucial inquiry is whether the employer has artic-ulable and objective reason for denying or discontinuing benefits at the time it took that action. Hundley v. Bisso Properties, 2002-2110, p. 9 (La.App. 1 Cir. 6/27/03), 858 So.2d 545, 551. The court must consider whether there was a “reasonable” basis for a dispute as to the employee’s entitlement to benefits. Goodman v. Manno Electric, Inc., 2001-2863, p. 5 (La.App. 1 Cir. 11/8/02), 835 So.2d 697, 701.

| sAfter considering the evidence and the applicable law, the workers’ compensation judge granted Bantek’s motion for summary judgment, noting as follows:

Okay. I’ve read through the adjuster’s deposition; I’ve read through the exhibits attached to the motion for summary judgment. I’m going to go ahead and grant the motion for summary judgment based on the fact that the standard for interpreting whether the discontinuance was arbitrary and capricious is basically was there anything in front of the adjuster or in front of the person making the decision at the time the benefits were terminated.
To me, the arbitrary and capricious standard, it’s something in the nature of just on a whim. In my opinion, reading through the chronology and looking at the notation that Dr. Katz made, it’s evident to me at least that he had to have made the notation on it at some point after May 2001. And it was, in my opinion, in response to the letter of Mr. Lorio’s office. But in any event, Dr. Katz knew at the time that he was being asked of the clarification to begin with that Mr. Craig was doing surveillance work. In other words, it wasn’t a situation where he had no idea that Mr. Craig was back at work whether it was the same job or whether it was a different job and what his activities were.
When the benefits were stopped, in my opinion, I find that there was something in the file which, you know, would clearly negate a finding of arbitrary and capricious. Like I said, to me the standard for that is something in the nature of just on a whim without any evidence at all in the file.
The other — not that it’s relevant to the inquiry today because I have to look at what was known at the time the benefits were discontinued, but I do note that there was another clarification in March 2003. I think it was March 6th, 2003, from Dr. Katz and a check was issued March 13, 2003. But in any event, just for our purposes today, I’m finding that — well, I’m going to grant the motion for summary judgment. I find that there was something in the file in the nature of a return to work to full duty that was a basis for discontinuance.

On appeal, Mr. Craig argues that not only were there genuine issues of material fact remaining that precluded summary judgment, but that the workers’ compensation judge erred in applying an incorrect legal standard in determining whether Bantek’s |9behavior was arbitrary and capricious. Following our review of the record before us, we find no merit to Mr. Craig’s arguments on appeal.

The record in the instant case reveals that the termination of Mr. Craig’s SEB benefits in February 2003 was in no way arbitrary or capricious. On December 27, 2002, counsel for Bantek sent a letter to Mr. Craig’s treating physician, Dr. Ralph P. Katz, requesting his opinion as to Mr. Craig’s medical status. Dr. Katz was advised, “The purpose of this correspondence is to request confirmation from you as to whether the above referenced claimant, Roger Craig, has reached maximum medical improvement and is capable of a full return to his former employment as an armored personnel worker and ATM technician.” In response to this request, Dr. Katz issued a written response to counsel for Bantek enclosing a copy of his May 2, 2001 medical report regarding Mr. Craig. Included on the bottom of the May 2, 2001 report was a handwritten notation indicating that Mr. Craig had reached maximum medical improvement on December 1, 2000, and “may return to full duty.” The handwritten notation was followed by the initials “RPK.” According to the affidavit and deposition testimony of Shawn Jemi-son, this release to full duty by Dr. Katz provided the basis for her decision to terminate Mr. Craig’s SEB benefits. When asked if she knew when the handwritten note was made on the May 2, 2001 report, Ms. Jemison responded, “I don’t know the specific date, but [counsel for Bantek] sends a letter to Dr. Katz in December. In January we get a response. That’s my interpretation of this.”

|inMs. Jemison indicated further that after Mr. Craig’s SEB benefits were stopped in February 2003, Bantek received correspondence from Dr. Katz clarifying his position on Mr. Craig’s status. According to Dr. Katz, when he reported that Mr. Craig could return to full duty, it was his understanding that Mr. Craig was doing surveillance work. Dr. Katz indicated that had he known that Mr. Craig was “doing anything more than that,” he would have put restrictions on him. In subsequent correspondence dated March 6, 2003, Dr. Katz clarified his position, i.e., Mr. Craig was not capable of returning to his former employment as an armored personnel worker and ATM technician without restrictions. Thereafter, Mr. Craig’s SEB benefits were immediately reinstituted.

We have thoroughly reviewed the record herein and cannot say that Bantek acted with indifference in terminating Mr. Craig’s SEB benefits in February 2003. Based on the information known to Bantek concerning Mr. Craig’s medical status, Bantek had an articulable and objective reason for terminating Mr. Craig’s benefits. Bantek initiated an investigation into Mr. Craig’s medical status and requested the opinion of his treating physician concerning Mr. Craig’s ability to return to full duty. It was only after Bantek was advised by Dr. Katz that Mr. Craig had reached maximum medical improvement and could return to full duty work that Bantek decided to terminate his benefits. This evidence provided Bantek with a reasonable basis for disputing Mr. Craig’s entitlement to any further SEB benefits. Given the facts and circumstances herein, Bantek did not act in an arbitrary or capricious manner by terminating Mr. Craig’s SEB benefits. There were no genuine issues of material fact remaining. Thus, summary judgment on this issue was appropriate.

With regard to Mr. Craig’s argument that the workers’ compensation judge erred in applying an incorrect legal standard in this case, we find no merit to same. As previously indicated, this court’s review of a summary judgment is de novo and requires a determination of whether there are any unresolved genuine issues of material fact. We have thoroughly reviewed the record herein and find that Mr. Craig failed to bear his |T burden of producing evidence that there were genuine issues of material fact remaining as to his claim that Bantek acted arbitrarily and capriciously in terminating his benefits. Thus, even assuming arguendo that the judge below had utilized an incorrect legal standard, an issue that we need not reach at this time, our decision in this case would remain the same.

CONCLUSION

For the above and foregoing reasons, we affirm the judgment of the workers’ compensation judge. All costs associated with this appeal are assessed against Roger D. Craig.

AFFIRMED.

      . The July 24, 2003 judgment is the subject of a separate appeal to this court, Docket No. 2003 CA 2757, also decided this date.

      . Mr. Craig also assigns error to the judgment on the grounds that Bantek failed to offer any exhibits into evidence during the hearing on the summary judgment motion and therefore did not make the requisite showing necessary to sustain the judge’s granting of summary judgment. We note no objection to this alleged deficiency by Mr. Craig at the time of the hearing. Our review of the record reveals that contemporaneous with filing its motion for summary judgment, Bantek also filed exhibits in support of its motion. Moreover, it is clear from the judge's comments following the hearing that all of the parties’ exhibits were considered in connection with her ruling. Pursuant to La.Code Civ. P. art. 852, among the express types of permissible pleadings are “written motions.” A copy of any written instrument that is an exhibit to a pleading is a part thereof for all purposes. La.Code Civ. P. art. 853. Under La.Code Civ. P. art. 966(B), the judgment sought shall be rendered forthwith if, inter alia, the pleadings on file show that there is no genuine issue of fact. Accordingly, we find no merit to Mr. Craig's argument concerning this issue. See Eirick v. Southern Elec. Supply Co., Inc. of Delaware, 97-0435, p. 5, n.4 (La.App. 1 Cir. 5/15/98), 753 So.2d 248, 251, n. 4, writ denied, 98-2197 (La. 11/13/98), 731 So.2d 260.


source: Caselaw Access Project

author: [ Judge MAX N. TOBIAS, JR.

license: Public Domain

text:
    Alan CACAMO, Individually and on Behalf of all Other Similarly Situated v. LIBERTY MUTUAL FIRE INSURANCE COMPANY. Monique Poirrier, Individually, and on Behalf of all Others Similarly Situated v. Progressive Security Insurance Company. Edith Porobil, Individually, and on Behalf of all Others Similarly Situated v. Allstate Insurance Company. Benjamin R. Antin, Individually, and on Behalf of all Others Similarly Situated v. Allstate Indemnity Company. Michael A. Laforte, Jr., Individually, and on Behalf of all Others Similarly Situated v. State Farm Fire and Casualty Company.
    Nos. 2004-CA-0074, 2004-CA-0075, 2004-CA-0076, 2004-CA-0077, 2004-CA-0078.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 29, 2004.

      Paul H. Due’, Donald W. Price, Due’, Price, Guidry, Piedrahita & Andrews and Andre P. LaPlace, Baton Rouge, LA, and Patrick W. Pendley, Stan P. Baudin, Plaquemine, LA, For Plaintiffs/Appellants.
    Larry M. Roedel, Brent J. Bourgeois, Roedel, Parsons, Koch, Blache, Balhoff & McCollister, Baton Rouge, LA, for Defendant/Appellee, Liberty Mutual Fire Insurance Company.
    Jeffrey Lennard, Mark Hanover, Son-nenschein Nath & Rosenthal, Chicago, IL, and Allen D. Darden, H. Alston Johnson III, Jane H. Barney, Phelps Dunbar, L.L.P., Baton Rouge, LA, for Defendant/Appellee, Allstate Indemnity Company.
    J. Wendell Clark, E’Vinski L. Davis, Adams and Reese, LLP, Baton Rouge, LA, for Appellee, Progressive Security Insurance Company.
    Wayne J. Lee, Michael Q. Walshe, Jr., Stone Pigman Walther, Wittman L.L.P. New Orleans, LA, for Defendant/Appellee, State Farm Fire and Casualty Company.
    (Court Composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, and judge MAX N. TOBIAS, JR.).
   [ Judge MAX N. TOBIAS, JR.

These consolidated cases are before the court following the granting of summary judgment for the defendants/appellees, Liberty Mutual Fire Insurance Company (“Liberty Mutual”), Progressive Security Insurance Company (“Progressive”), Allstate Insurance Company (“Allstate Insurance”), Allstate Indemnity Company (“Allstate Indemnity”), and State Farm Fire and Casualty Company (“State Farm”)(hereinafter collectively referred to as “the insurers”). The plaintiffs/appellants, Alan Cacamo (“Cacamo”), Monique Poirrier (“Poirrier”), Edith Porobil (“Poro-bil”), Benjamin R. Antin (“Antin”), and Michael A. Laforte, Jr. (“Laforte”), ask that the judgments be reversed and the cases remanded for a trial on the merits.

The facts of these cases are substantially the same with respect to all of the insurers. The insurers have plans that allow their insureds to pay premiums on their policies in installments, and the insurers charge additional fees for installment payments. These fees are not set forth in the insurance policies, declarations Lsheets, or endorsements. Instead, the insurers send the insureds bills for “minimum payments due” that permit the insureds to pay the premium in full or to pay installments, which includes an “installment fee.” The insurers contend that the purpose of the installment fees is to offset the costs associated with the administration of the installment plans.

The individual appellants, as class representatives, each filed a separate suit against the insurers for allegedly failing to comply with the provisions of La. R.S. 22:627, which states in pertinent part:

A. The premium quoted by the insurer shall be a specific dollar amount which shall be inclusive of all fees, charges, premiums, or other consideration charged for the insurance or for the procurement thereof!.]
* * *
C. Each policy delivered to the insured shall have the full and accurate dollar amount of the premium disclosed on the policy, which shall be inclusive of all fees, charges, premiums, or other consideration charged for the insurance or for the procurement thereof!.]

The cases were then consolidated and the appellants were afforded an opportunity to conduct discovery.

|sEach of the insurers filed motions for summary judgment, which were heard on 29 September 2003. The trial court granted the motions, stating at the hearing that it was following the First Circuit’s decision in Blanchard v. Allstate Insurance Co., 99-2460 (La.App. 1 Cir. 10/18/00), 774 So.2d 1002 (en banc), unit denied, 2001-0285 (La.3/23/01), 787 So.2d 997. This appeal followed.

The primary issue presented for review by this court is whether the trial court erred in finding that the service fees charged by the insurers for installment payments are not within the scope of La. R.S. 22:627. Cacamo has also raised a separate claim against Liberty Mutual, which is whether the amount of fees charged are in excess of the rates allowed by the Louisiana Insurance Rating Commission (“LIRC”).

Since at least 1978, the LIRC has permitted an insurer to offer its policyholders the option of paying a premium either in one full, lump sum payment or through installments. If the insured chooses to pay in installments, a small fee is charged. These fees have been submitted to and approved by the LIRC and are not included in the premium quoted to the insured or listed in the policy. Instead, the fees are listed as an option on the bill the insured receives from the insurer.

The Blanchard case began when Ms. Blanchard and others filed suit in the Eighteenth Judicial Court for the Parish of Iberville against Allstate Insurance Company and several other insurers seeking a declaratory judgment that La. R.S. 22:627 requires insurers selling property and casualty insurance in Louisiana to include any finance, service, or installment charges or fees in the premium stated on the policy. In response, the insurers filed a petition for declaratory relief with the Louisiana Commissioner of Insurance seeking a judgment that the insurers’ | ¿method of disclosing installment fees did not violate La. R.S. 22:627. Blanchard, 99-2460 at p. 2, 774 So.2d at 1003.

The hearing officer for the insurance commissioner ruled that an installment fee is not part of the consideration charged for the procurement of the insurance and, thus, is not required to be included in the quoted premium. Instead, he found they were “merely an intramural arrangement for the convenience of the insured, with the insured remaining free to accept or reject it.” Id. at p. 3, 774 So.2d at 1003. The Commissioner adopted that ruling in its entirety. The insureds then filed a petition for judicial review in the Nineteenth Judicial District Court for the Parish of East Baton Rouge. The Commissioner intervened in that suit in support of his ruling and on behalf of the insurers.

The district court reversed the Commissioner. The court found that the fees were “perfectly reasonable and in line” and promoted public policy by aiding those with limited financial means to obtain insurance. Nevertheless, it held that the installment fees were charges for procuring insurance that must be included in the premium quoted and must be listed on the policy. The insurers appealed. Id.

In an en banc decision, the First Circuit reversed the trial court. It first reviewed both the hearing officer’s ruling and the decision of the trial court:

The hearing officer reasoned that because premium was defined by the Louisiana Insurance Code as a fee charged as consideration for the purchase or continuance of insurance, and because insurance is defined in Louisiana Revised Statute 22:5(9)(a) as a contract whereby one undertakes to indemnity [sic] another or pay a specified amount upon determinable contingencies, installment fees could not be considered premiums because they were not paid as consideration for an indemnity contract. Instead, he analogized the fees to interest on a promissory note given for insurance and | ¡¿found this voluntary arrangement for the insured’s convenience did not fall within the ambit of Revised Statute 22:627.
The district court took a different view. It focused on the language of Revised Statute 22:627 that states the premium quoted shall be inclusive of all fees, charges, premiums, or other consideration charged for the insurance or for the procurement of insurance. (Emphasis added.) The court stated that the inclusion of the word premiums in the definition of premium quoted indicated that the phrase was somewhat broader than the definition of premium set forth in Revised Statute 22:5(13). The court found that since an insured could not obtain insurance in installments unless he pays the installment fee, the fee was charged for the procurement of insurance. The court ruled that the fees were required to be included in the premium quoted and disclosed on the policy.
Although the district court found an insured could not obtain insurance in installments without paying the installment fees, it did not find that an insured could not obtain insurance without paying them. Defendants contend the fees are neither consideration for the insurance contract nor consideration for the procurement of the insurance. We agree. Plaintiffs rely on State Farm Mutual Automobile Insurance Company v. Louisiana Insurance Rating Commission, 79 So.2d 888 (La.App. 1st Cir. 1955), in which we found that the insurer was obligated to treat a membership fee as part of the premium when quoting a price to the insured or the public. But that case is factually distinguishable from the present case because one could not become a State Farm policyholder without paying the membership fee. In the case sub judice, payment of the installment fees is not a prerequisite to obtaining coverage.
Insurance, as defined in Revised Statute 22:5(9)(a), is an indemnification contract. The installment fees are paid not to procure an indemnification contract, but for the privilege of paying the premium over time.
Based on our analysis of the statutory language and definitions, we are convinced that these fees need not be disclosed on the policy. We find further support for our conclusion when we consider the purpose of Revised Statute 22:627. When one considers the statute is a full disclosure of premium statute, enacted to prevent nondisclosure of hidden charges and to allow consumers to shop for insurance by making knowledgeable comparisons of premiums, it is clear that the fees need not be disclosed on the policy.

\cjd. at pp. 6-7, 774 So.2d at 1005-06 (emphasis in original). Thus, the First Circuit concluded that the district court committed legal error in ruling that installment fees must be included in the premium quoted to the insured pursuant to La. R.S. 22:627. Id. at p. 8, 774 So.2d at 1006.

Three of the judges of the First Circuit dissented from the decision, relying on the First Circuit’s earlier interpretation of “premium” in State Farm Mutual Automobile Insurance Co. v. Louisiana Insurance Rating Comm’n, 79 So.2d 888 (La. App. 1 Cir.1955). In State Farm, the court treated La. R.S. 22:657 as a consumer-protection statute, noting:

The average consumer does not possess the specialized knowledge and skill to analyze insurance rates and charges to know how much he is paying for what protection, and the legislative requirement that the ‘price’ to the consumer must include all charges paid by him is indicative of the legislative concern for his protection in this regard.

79 So.2d at 895. The court then found that a membership fee proposed by the insurer was illegal under the law because the insurer did not intend to include the fee as part of the premium when quoting a “price” to the insured or the public. Id. at 896.

Relying on State Farm, the Blanchard minority stated:

Today, LSA-R.S. 22:627(0 still provides that the premium disclosed on the policy shall be inclusive of all fees, charges, premiums, or other consideration charged for the insurance or for the procurement thereof. (Emphasis added.) The majority has overlooked that all important conjunction or. While the installment fees may not be consideration for the insurance contract itself, they are consideration for the procurement of that insurance as they must be paid if an insured wishes to obtain a policy and pay in installments. Therefore, in order to protect the consumer from hidden charges or fees in the premium quoted, as anticipated by the | legislature in enacting LSA-R.S. 22:627, the installment fees must be included in the premium quoted.

99-2460 at pp. 1-2, 774 So.2d at 1006-07.

The insurers urge this court to follow Blanchard, while the appellants maintain that Blanchard is erroneous and an “anomaly,” running contrary to legal authority in the rest of the country. In the alternative, the appellants urge the court to reverse, in part, the summary judgment in favor of Liberty Mutual, whose fees in some instances exceeded the installment fees approved by the LIRC.

We first address the question of whether one of the claims asserted by Cacamo against Liberty Mutual is res judicata. Cacamo was a plaintiff in the cases decided by the First Circuit, see Cacamo v. Liberty Mutual Fire Ins. Co., 99-2512 (La.App. 1 Cir. 10/18/00), 774 So.2d 1013, writ denied, 2001-0287 (La.3/23/01), 787 So.2d 998, in which he asserted that installment fees charged by Liberty Mutual are “premiums.” As conceded by counsel during the oral argument of this matter, this claim has already been litigated and decided in favor of Liberty Mutual. However, Caca-mos claim that Liberty Mutual has charged more than $66.00 per year in installment fees remains before the court.

The insurers’ respective installment plans are as follows:

In order to obtain insurance from Progressive, a prospective insured contacts a Progressive agent and provides application and underwriting information. The applicant is typically quoted an insurance premium after submitting the ^application. After the application is processed, a policy and declarations page are sent to the insured.

Progressive provides guidelines to its agents, which include policyholders’ options for payment of premiums through installments. The payment option information is provided to an insured during the application process once a premium has been quoted. It is not mandatory that an insured utilize the installment plan in order to obtain insurance from Progressive. Neither the policy nor declarations page discloses the amount of any installment fee. However, as part of the application package provided to the insured, a proposed payment schedule is included if a policyholder elects to pay premiums in installments, rather than as a lump sum. The payment schedule specifically states that installment payments will include a $6.00 installment fee per payment.

At any time throughout the policy period, a policyholder utilizing the installment plan may elect to pay the remaining balance and thus avoid any further installment fees. However, the installment plan is not required by the Louisiana Insurance Code and is provided as a convenience to policyholders.

Allstate Insurance’s and Allstate Indemnity’s installment plan is similar to Progressive’s. When an Allstate Insurance or Allstate Indemnity insured initially procures insurance, the insurer sends the insured a complete copy of the policy, including a declarations page stating the full amount of the premium. Upon receiving the first bill, the insured is presented with payment options set forth on the bottom of the bill. The first option is to pay the premium in full, as set forth on the declarations page. If this option is selected, the insured never pays an installment, fee. Only if an insured elects to pay less than the full amount of the premium will Allstate Insurance or Allstate Indemnity charge an installment fee. 19At any time, the insured may elect to pay the balance in full and avoid paying any additional fees.

Like the other insurers, Liberty Mutual also offers its policyholders the option of paying insurance premiums over time. The prospective insured initially completes an application form, which references the installment plan payment option. The application form states the insurance premium amount, but not the exact amount of the installment fees.

Liberty Mutual later issues a policy to the insured, including the declarations page, the policy jacket, and any applicable endorsements. It does not disclose the fees charged for the installment plan because not every policyholder participates in the plan.

The initial billing statement explains the installment plan option. Prior to 2001, the billing statement required a minimum down payment of 15% of the premium. Thereafter, policyholders electing to participate in the installment payment plan paid a fee equal to 0.75% per month in the outstanding balance. This equaled a 9% annual percentage rate (“APR”) charge. In 2001, the installment payment plan fee was changed to a flat fee of $3.00 per installment. As with the other installment plans, Liberty Mutual’s policyholders can pay the remaining balance at any time.

State Farm offers the State Farm Payment Plan (“SFPP”), which is not dissimilar from the other plans. When State Farm issues a new insurance policy, the premium as shown on the declarations page of the policy is immediately due. This premium is determined before, and independent of, the insured’s decision to participate in the SFPP.

| iqAII insureds electing to participate in the SFPP pay a one-time $2.00 set-up charge and then $1.00 per installment. If the insured elects to pay by electronic funds transfer, there is no charge other the initial $2.00 set-up fee. If the insured signs onto the SFPP, other policies can be placed on, or removed from, the SFPP with no change in the installment fee.

State Farm does not reflect the installment fee on the face of the policy. An insured can elect to join the SFPP either with a new policy or any policy renewal. Brochures, available through State Farm agents, describe the SFPP to insureds and prospective insureds, including the amount of the fee. An insured using the SFPP signs a separate agreement and selects a payment mode. The statements sent to the insured expressly disclose the installment fee separate from the premium.

Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226, 230. The interpretation of a statute is a question of law, which may be decided by summary judgment. MeritPlan Ins. Co. v. DeSalvo, 2003-1493, p. 4 (La.App. 4 Cir. 3/24/04), 871 So.2d 461, 464; Levy v. Vincent, 2001-0277, p. 3 (La.App. 3 Cir. 7/18/01), 796 So.2d 34, 36. On legal issues, the appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and renders judgment on the record. Gonzales v. Xerox Corp., 320 So.2d 163, 165 (La.1975).

As stated by 1 Couch on Insurance, § 1:6:

Insurance can be, and has been, defined in numerous ways, but these variations are primarily semantic. Essentially, insurance is a contract by which one party (the insurer), for a consideration that usually | nis paid in money, either in a lump sum or at different times during the continuance of the risk, promises to make a certain payment, usually of money, upon the destruction or injury of “something” in which the other party (the insured) has an interest. The specific “thing” that must be destroyed or injured in order to trigger the insurer’s obligation varies according to the nature of the contract. In fire insurance and in marine insurance the thing insured is property; in life or accident insurance it is the life or health of the insured. Other common definitions of insurance are (1) a contract to pay a sum of money upon the happening of a particular event or contingency; (2) indemnity for loss in respect of a specified subject by specified perils; (3) an undertaking by one party to protect another party from loss arising from named risks, for the consideration and upon the terms and under the conditions recited; (4) a contractual security against anticipated loss where the risk of loss is occasioned by some future or contingent event and is shifted to or assumed by the insurer, with a distribution of the risk of loss by the payment of a premium or other assessment into a general fund; and (5) a contract whereby one party promises for a consideration to indemnify the other against certain risks. [Footnotes omitted.]

In addition, 1 Couch on Insurance, § 69:1 defines “premium” as “consideration paid an insurer for undertaking to indemnify the insured against a specific peril. The amount of the premium varies in proportion to the risk assumed.”

La. R.S. 22:5(13) defines “premium” as

[A]U sums charged, received, or deposited as consideration for the purchase or continuance of insurance for a definitely stated term, and shall include any assessment, membership, policy, survey, inspection, service or similar fee or charge made by an insurer as a part of the consideration for the purchase or continuance of insurance. The term premium, as used in R.S. 22:636(D) and 637(B), shall not include any assessment, membership, policy, survey, inspection, service or similar fee or charge made by an insurer as part of the consideration for the purchase or continuance of insurance.

[Emphasis added.]

|12The appellants encourage the court to consider legal opinions from other states to find that the trial court erred in following Blanchard. However, in reviewing the cases cited, the court finds them easily distinguishable and, thus, unpersuasive. Two of the cases involve the interpretation of a state statute, while the third court was called upon to interpret a provision of its state’s constitution. In addition, all the cases concern whether the installment fees are contained within the definition of “gross premiums” for tax purposes insofar as those statutes and constitutional provisions are concerned. Any other language in the opinions is mere dicta

The only case in Louisiana addressing the issue before the court is Blanchard, supra. The First Circuit found that the installment plan fees were not “premiums,” as defined by the Louisiana Insurance Code. While this court is not bound by the opinion, State v. Wolfe, 630 So.2d 872, 883 (La.App. 4 Cir.1993), we find Blanchard’s reasoning sound.

The installment fees paid by insureds choosing that option are not for the insurance or for the procurement of insurance as those words are used in La. R.S. 22:5(13) and La. R.S. 22:627. These installment plans are not required by statute and are done solely for the convenience of policyholders who want insurance, but are unable or unwilling for whatever reason to pay the premium in full. Because not every insured utilizes installment payments, it would be inequitable to increase the quoted premium for all policyholders in order to | ^accommodate those persons who are unable or unwilling to pay the premium in one lump sum. Thus, we find that the installment fees are not included in the definition of “premium,” found in La. R.S. 22:5(13) and La. R.S. 22:627.

Lastly, the court considers the argument that Liberty Mutual has charged certain policyholders more that the $66.00 per year allowed by the LIRC. On 11 April 1994, the LIRC issued La. Bulletin 94-01, which provides in pertinent part:

For personal lines where an installment plan and/or direct bill plan is utilized for the consumer’s convenience, a maximum of (11) eleven installment payments with the maximum charge of $6.00 per installment, totaling $66.00 annually, may be applied to the premium charged. [Emphasis in original.]

Liberty Mutual contends that it has been charging its customers a 9% APR since approximately 1973. In 1980, Liberty Mutual requested that the Department of Insurance allow an increase of its installment fees from 9% APR to 12% APR, which request was denied. However, Liberty Mutual contends that it is not required to conform its pre-existing installment payment plan to the cap of 1980. It further argues that the subsequent guidelines in 1985 and 1994 are to be applied prospectively, i.e., to future submissions only.

We reject Liberty Mutual’s argument as to the prospective application of the new guidelines. In the beginning of Bulletin LIRC 94-01, which was issued to all licensed property and casualty carriers, it states:

The purpose of this bulletin is to inform you that during- its regularly scheduled meeting of March 16, 1994, the Louisiana Insurance Rating Commission voted to rescind the existing personal lines installment guidelines and institute the following new- guidelines[.] [Emphasis added.]

While the 1994 guidelines may not have applied to installments plans already in existence, ie., insurance policies previously issued, the court is of the opinion that 114the 1994 guidelines apply to insurance policies issued on or after 11 April 1994 and to all other policies upon their renewal. Therefore, we find a genuine issue of material fact with respect to the subclass of Liberty Mutual policyholders and reverse that portion of the summary judgment.

Based on the foregoing, we affirm the summary judgments granted in favor of Progressive, Allstate Insurance, Allstate Indemnity, and State Farm. With respect to Liberty Mutual, we affirm the summary judgment in part and reverse in part and remand the matter to the trial court for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

      . Cacamo sued Liberty Mutual, Poirrier sued Progressive, Porobil sued Allstate Insurance; Antin sued Allstate Indemnity, and Laforte sued State Farm.

      . The appellants’ counsel first filed suit raising these claims against the insurers as a class action in the Eighteenth Judicial District court for the Parish of Iberville. The insurers removed the cases to federal court and also instituted administrative declaratory judgment proceedings against the named appellants before the Commissioner of Insurance. The appellants then filed their respective suits in Orleans Parish. All judicial proceedings were stayed pending completion of the administrative proceedings, which eventually led to the First Circuit's decision in Blanchard v. Allstate Insurance Co., 99-2460 (La.App. 1 Cir. 10/18/00), 774 So.2d 1002 (en banc), writ denied, 2001-0285 (La.3/23/01), 787 So.2d 997. Following the denial of writs by the Supreme Court, the Iberville Parish cases were dismissed on exceptions of res judicata.

      . The trial court's oral reasons for judgment were apparently not transcribed and not made a part of the appellate record before us.

      . Before Liberty Mutual filed its motion for summary judgment, Cacamo filed a supplemental and amending petition requesting a subclass of plaintiffs "who had paid in excess of $66.00 per year" in installment fees be added in the suit against Liberty Mutual. This subclass does not constitute a new group of policyholders, but instead purports to designate a portion of the policyholders already named as plaintiffs.

      . How Louisiana treats installment fees for tax purposes is not before the court.

      . We also note that the Attorney General and Insurance Superintendent opinions from other states all concern tax issues. We take no judicial notice of these opinions.

      .This opinion is held by the Commissioner of Insurance, and resulted after three days of hearings before the Commissioner.


author: | .MICHAEL E. KIRBY, Judge. I,ARMSTRONG, C.J.,

text:
    Martin C. SHAMBRA, Sr., Argonaut Great Central Insurance Company, Deuce & Four-Top, Inc. d/b/a Peristyle, and Scottsdale Insurance Company v. Lisa ROTH, ABC Insurance Company, Black & Decker (U.S.), Inc., and XYZ Insurance Company. Elizabeth Roth v. Scottsdale Insurance Company, Martin C. Shambra and Shambra, Inc.
    Nos. 2004-CA-0467, 2004-CA-0468.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 29, 2004.

      Rachel S. Kellogg, Timothy G. Schafer, Schafer & Schafer, New Orleans, LA, for Defendants/Appellees, Lisa Roth and USAA Cas. Ins. Co.
    Terrill W. Boykin, Kriste L. Taitón, Bor-denave, Boykin & Ehret, New Orleans, LA, for Defendant/Appellee, Black & Decker.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS JR.).
   | .MICHAEL E. KIRBY, Judge.

On November 28, 1999, a fire heavily damaged the building located at 900 North Rampart Street in New Orleans that housed Peristyle Restaurant on the first floor and an apartment leased by Lisa Roth (Roth) on the second floor. Two lawsuits were filed in connection with that fire. In the first action, Martin C. Sham-bra, Jr. (Shambra), the owner of the property, his insurer, Scottsdale Insurance Company (Scottsdale), Deuce & Four Top, Inc., d/b/a/ Peristyle (Peristyle), and its insurer, Argonaut Great Central Insurance Company (Argonaut), named Roth, her renters’ insurance provider, USAA, and Black & Decker (U.S.), Inc. (Black & Decker) as defendants. That suit alleged that the fire started as a result of Roth’s negligence and/or a defective Black & Decker toaster oven located in Roth’s apartment. Roth brought the second action against Shambra, Scottsdale and Black & Decker alleging that the property at issue was in an unreasonably dangerous condition at the time of the fire, and that the toaster oven was a cause of the fire. Both matters were consolidated in the trial court.

On August 6, 2003, Roth and USAA filed a motion for summary judgment, asking for dismissal of the claims asserted against them by Shambra, Argonaut, Peristyle and Scottsdale. The motion was brought before the trial court on |2November 17, 2003. Judgment was rendered on December 18, 2003, granting the motion for summary judgment and dismissing the action against Roth and USAA. Black & Decker, as co-defendant with Roth, and USAA, now appeal that ruling. ■

In Black & Decker’s appeal, it argues that: (1) the trial court erred in granting the motion for summary judgment when material questions of fact remain as to Roth’s responsibility for the fire and (2) the trial court erred in granting the motion for summary judgment when discovery was incomplete.

Black & Decker contends that the exact source of the fire is a disputed issue of fact, considering the varied theories espoused by investigators. These theories, as argued by Black & Decker, include: faulty wiring; placement and use of a power strip; faulty installation/repair of an air conditioning /heating system; circuit breaker overload; and Roth’s misuse of the toaster oven. Black & Decker submits that because Roth may be found to have at least partial responsibility for any of these causes, material issues of fact remain.

Roth and USAA argue that evidence presented in support of the motion for summary judgment sufficiently demonstrates that Roth is free from fault, and that Black and Decker failed to produce any evidence in support of its opposition to the motion that would demonstrate any fault on the part of Roth.

Appellate courts review the granting of summary judgment de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. Reynolds v. Select Properties, Ltd., 93-1480, p. 2 (La.4/11/94), 634 So.2d 1180, 1182; Alexis v. Southwood Ltd. Partnership, 2000-1124, p. 2 (La.App. 4 Cir. 7/18/01), 792 So.2d 100, 101. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of actions. Two Feathers Enterprise, Inc. v. First National Bank of Commerce, 98-0465, p. 3 (La.App. 4 Cir. 10/14/98), 720 So.2d 398, 400. This procedure is now favored and shall be construed to accomplish those ends. La. C.C.P. art. 966 A(2). A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966. If the court finds that a genuine issue of material fact exists, summary judgment must be rejected. Oakley v. Thebault, 96-0937, p. 3 (La.App. 4 Cir. 11/13/96), 684 So.2d 488, 490. The burden does not shift to the party opposing the summary judgment until the moving party first presents a prima facie case that no genuine issues of material fact exist. Id. At that point, the party opposing the motion must “make a showing sufficient to establish existence of proof of an element essential to his claim, action, or defense and on which he will bear the burden of proof at trial.” La. C.C.P. art. 966(C).

The action against Roth is based in negligence. Specifically, the petition for damages alleges Roth’s negligence in connection with her misuse of the toaster oven and/or her possession of a defective toaster oven. As such, determinations of negligence are based on a duty/risk analysis.

Under La. C.C. art. 2315, negligence claims are examined using a duty/ risk analysis, wherein the plaintiff must prove each of the following elements: (1) defendant’s conduct was a cause in fact of the plaintiffs injuries; (2) the defendant had a duty to conform conduct to a specific standard; (3) the defendant breached that duty; (4) the defendant’s conduct was the legal cause of plaintiffs injuries; and (5) plaintiff sustained actual damages. Roberts v. Benoit, 605 So.2d 1032, 1051 (La.1991). A negative answer to any of the inquiries of the duty-risk analysis |4results in a determination of no liability. See Mathieu v. Imperial Toy Corporation, 94-0952, p. 11 (La.11/30/94), 646 So.2d 318, 326.

The first step in determining liability under the duty-risk analysis is to determine cause in fact which essentially involves a “but for” inquiry. Cormier v. Albear, 99-1206, p. 6 (La.App. 3 Cir. 2/2/00), 758 So.2d 250, 254. In other words, it must be determined that the fire would not have occurred but for Roth’s actions.

In the case at hand, the supporting documentation that accompanied the motion for summary judgment included excerpts of depositions and reports from numerous fire investigators, Roth’s deposition, and the deposition of John Gula, who was with Roth on the night of the fire.

The deposition testimony of both Roth and Gula established that the toaster oven was off on the night of the fire, that it had not been used for quite some time before the fire as Roth had been out of town, and that Roth never experienced a problem with the appliance. Nothing found in any of the experts’ reports contradicts these assertions. In fact, the experts who examined the toaster oven after the fire concluded that the oven was plugged in but in the off position, and that it had not been used immediately prior to the fire. Further, the report from Engineering and Fire Investigations, Inc., ruled out unex-tinguished smoking materials, open flame from a lit candle or any ignitable liquid accelerant as cause of the fire. In sum, there is no evidence in the record to show any negligence on the part of Roth or to demonstrate that any of her actions were a cause in fact of the fire.

Although there is dispute between some of the experts as to the origin of the fire, no expert has concluded that the toaster oven was left on, and no expert has IfiOpined that any of Roth’s actions caused the fire. Experts Dennis Seardino and James Moore opined that the controls on the toaster oven most likely malfunctioned, causing the heating elements to energize. Expert George Hero concluded that the source of the fire was the building’s wiring system. Clearly, that theory, if proven correct, would not implicate Roth.

Black & Decker argues that Roth may have misused the toaster oven by placing paper products in close proximity to the oven and/or that she had a duty to leave the toaster oven unplugged. However, Black & Decker offered no documentation in support of its claims that Roth was negligent. After our de novo review, we find that the record completely lacks any suggested basis for Roth’s liability. Accordingly, we find no error on the part of the trial court in granting the motion for summary judgment.

Finally, we find no merit in Black & Decker’s argument that summary judgment was premature because of ongoing discovery. This case was initiated in July of 2000. The record is replete with requests for interrogatories, production of documents, records subpoenas, and depositions of the parties, witnesses and numerous experts. We conclude, therefore, that Black & Decker had ample opportunity to conduct discovery prior to the hearing on the motion for summary judgment.

As this court has recently set forth in Rhea v. Winn Dixie Market Place Store, 2002-2181 (La.App. 4 Cir. 6/4/03), 849 So.2d 759, it is the province of the trial court to control the progress of discovery. As further stated in Rhea, it is not an abuse of the trial court’s wide discretion in discovery matters to entertain a motion for summary judgment when the parties have had adequate time to secure discovery. See Orillion v. Alton Ochsner Med. Found., 97-115, p. 6 (La.App. 5 Cir. 5/28/97), 695 So.2d 1063, 1065; Oliva v. Winn-Dixie Louisiana, Inc., 99-831, p. 7 (La.App. 5 Cir. 1/4/00), 756 So.2d 444, 448.

For the foregoing reasons, the trial court judgment granting summary judgment in favor of Roth and USAA and dismissing the claims asserted against them by Shambra, Argonaut, Peristyle and Scottsdale is hereby affirmed.

AFFIRMED

ARMSTRONG, C.J., concurs.

I,ARMSTRONG, C.J.,

concurs.

I respectfully concur in the decision to affirm the judgment of the trial court.


author: | AEON A. CANNIZZARO, JR., Judge.

text:
    Margaret Ann PIERRE v. ZULU SOCIAL AID & PLEASURE CLUB, INC., and K & K Insurance Group, Inc.
    No. 2004-CA-0752.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 29, 2004.

      Lee V. Faulkner, Jr., Gretna, LA, for Plaintiff/Appellant, Margaret Ann Pierre.
    Jerry W. Sullivan, Leefe, Gibbs, Sullivan, Dupre’ & Aldous, Metairie, LA, for Defendants/Appellees, Zulu Social Club, Inc. and Tig Insurance Co.
    (Court composed of Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO, JR.).
   | AEON A. CANNIZZARO, JR., Judge.

This appeal arises from the trial court’s granting of a motion for summary judgment in favor of the defendants. For the reasons assigned below, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Margaret Ann Pierre filed suit against Zulu Social Ad and Pleasure Club, Inc. and K & K Insurance Group,- Inc. for personal injuries sustained at the Zulu parade on Mardi Gras Day in 2001. The petition was later amended to correctly identify TIG Insurance Company as Zulu’s insurer.

Ms. Pierre alleged that she was struck in the head by a coconut thrown from float number 16 by one of the Zulu float riders. The allegations made against the Zulu organization are that Zulu failed to take the necessary precautions to prevent the accident and failed to exercise due care.

A motion for summary judgment was filed on behalf of Zulu and its insurer. Following a hearing on the motion, the trial court granted the motion for summary judgment and dismissed Ms. Pierre’s action with prejudice. Ms. Pierre’s timely appeal followed.

^STANDARD OF REVIEW

Appellate courts review the granting of summary judgment de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1182. See also Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 7 (La.2.29/00), 755 So.2d 226, 231. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions. Two Feathers Enterprises v. First National Bank of Commerce, 98-0465, p. 3 (La.App. 4 Cir. 10/14/98), 720 So.2d 398, 400.

A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966. If the court finds that a genuine issue of material fact exists, summary judgment must be rejected. Oakley v. Thebault, 96-0937 (La.App. 4 Cir. 11/13/96), 684 So.2d 488, 490. The burden does not shift to the party opposing the summary judgment until the moving party first presents a prima facie case that no genuine issues of material fact exist. Id. At that point, if the party opposing the motion “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.” La. C.C.P. art. 966(C). Summary judgment should then be granted.

DISCUSSION

Zulu’s motion for summary judgment was predicated on the statutory immunity granted to Mardi Gras parade organizations pursuant to La. R.S. 9:2796. The statute provides in pertinent part:

|SA. Notwithstanding any other law to the contrary, no person shall have a cause of action against any krewe or organization, ... or any member thereof, which presents Mardi Gras parades, ... or against any non-profit organization chartered under the laws of this state, or any member thereof, ... for any loss or damage caused by any member thereof, during or in conjunction with or related to the parades ... presented by such krewe or organization, unless said loss or damage was caused by the deliberate and wanton act or gross negligence of the krewe or organization, or any member thereof as the case may be.... The provisions of this Section shall not be intended to limit the liability of a compensated employee of such krewe or organization for his individual acts of negligence.
B. Any person who is attending or participating in one of the organized parades of floats or persons listed in Subsection A of this Section, when the parade begins and ends between the hours of 6:00 a.m. and 12:00 midnight of the same day, assumes the risk of being struck by any missile whatsoever which has been traditionally thrown, tossed, or hurled by members of the krewe or organization in such parades held prior to the effective date of this Section. The items shall include but are not limited to beads, cups, coconuts, and doubloons unless said loss or damage was caused by the deliberate and wanton act or gross negligence of said krewe or organization.

(Emphasis added.)

Zulu argued before the trial court that regardless of the acts of the float rider, Zulu itself committed no acts which reasonable minds could characterize as gross negligence. In support of the motion, Zulu presented the affidavit of Clarence A. Becnel, the float captain of float number 16 to evidence that Zulu undertook all reasonable efforts to provide a reasonably safe parade experience. The affidavit stated that Zulu requires its riders to hand out coconuts and forbids riders from throwing coconuts. Mr. Becnel further stated that he did not observe any [¿participant on float number 16 deliberately throw any coconuts during the course of the parade.

The affidavit of Zulu President Frank Boutte was also submitted in support of the motion for summary judgment. Mr. Boutte stated that Zulu is a non-profit organization, that the parade was conducted pursuant to a permit issued by the City of New Orleans, that Zulu only allows coconuts to be handed out to parade spectators from the first tier of the parade floats, that Zulu members are not paid compensation to participate in the parade, and that “[a]t no time did the Krewe of Zulu deliberately or intentionally hand, throw or toss any coconuts during the course of the 2001 parade in a manner to intentionally cause bodily injury or harm to anyone participating in or viewing said parade.”

Ms. Pierre maintains that the trial court erred in granting the motion for summary judgment when material questions of fact still exist. Specifically, Ms. Pierre argues that the question remains whether her injuries were caused by the deliberate and wanton act or gross negligence of the Zulu krewe or organization. In support of her position, Ms. Pierre relies on her deposition testimony and the deposition of her friend, Vanessa Green, who accompanied her to the Zulu parade. Both Ms. Pierre and Ms. Green stated that Ms. Pierre was not actively seeking beads or other parade throws, that she told the krewe member on float number 16 not to throw the coconut, and that the coconut was thrown anyway in an overhand manner. This is the only evidence that Ms. Pierre has presented in support of her allegations that Zulu, the organization, as opposed to the individual float rider, was negligent.

This Court recognized in Gardner v. Zulu Social Aid and Pleasure Club, 98-1040 (La.App. 4 Cir. 2/10/99), 729 So.2d 675, that it can be assumed that the | ¡¡legislature, in enacting La. R.S. 9:2796, weighed the public utility of Mardi Gras parades against the risks ordinarily associated with such events, such as being struck by throws. This Court held that “[t]he immunity granted by La. R.S. 9:2796 represents a decision by the legislature that the public utility of Mardi Gras parades outweighs the risks normally associated with such events.” 98-1040, p. 6-7, 729 So.2d at 679.

In Graves v. Krewe of Gladiators, 2001-0986 (La.App. 4 Cir. 6/27/01), 790 So.2d 155, this Court discussed the intent of the legislature in enacting La. R.S. 9:2796. This Court stated that the intent of the legislature was to provide relief from liability for krewes and other organizations that had difficulty obtaining insurance for parade activities. This Court further stated that “[t]he legislature took into account that parade organizations need relief from high insurance rates or from the failure to obtain any insurance based on claims concerning parade festivities that were not caused by the deliberate and wanton act or gross negligence of the krewe/organization.” 2001-0986, p. 8; 790 So.2d at 159.

For Zulu to be held liable under La. R.S. 9:2796, Ms. Pierre must allege and prove that “the loss or damage was caused by the deliberate and wanton act or gross negligence of the organization” itself. Gross negligence by a float rider will not necessarily impose liability on Zulu.

Gross negligence has a well-defined legal meaning, which is distinctly different from the definition of ordinary negligence. In Ambrose v. New Orleans Police Department Ambulance Service, 93-3099, 93-3110, and 93-3112 (La.7/5/94), 639 So.2d 216, 219-220, citing State v. Vinzant, 200 La. 301, 7 So.2d 917 (La.1942), the Louisiana Supreme Court stated that “Louisiana courts have frequently addressed the concept of gross negligence” and that “[gjross negligence | ¡¡has been defined as the “want of even slight care and diligence’ and the ‘want of that diligence which even careless men are accustomed to exercise.’ ” Considering this definition of gross negligence, we find that Ms. Pierre failed to present factual support that she will be able to satisfy her evidentiary burden of proof at trial. The record does not reveal any facts evidencing gross negligence on the part of Zulu, the organization, as opposed to the individual float rider.

The Fifth Circuit Court of Appeal has considered cases, similar to the instant case, addressing the immunity afforded by La. R.S. 9:2796.1, a statute similar to La. R.S. 9:2796, but which is applicable to street parades connected with ethnic celebrations rather than with Mardi Gras. In Schell v. K & K Insurance Group, Inc., 99-786 (La.App. 5 Cir. 2/16/00), 756 So.2d 546, during an Irish-Italian parade, the plaintiff was hit in the face by a cabbage and by a “blow-pop.” The appellate court found that the trial court had properly granted summary judgment, because the plaintiff established no facts in opposition to the motion to support a claim that deliberate and wanton acts or gross negligence were committed by the parade association.

In Trondsen v. Irish-Italian Parade Committee, 95-28 (La.App. 5 Cir. 5/10/95), 656 So.2d 694, the plaintiff was struck in the head by a cabbage thrown from one of the floats in an Irish-Italian parade. In opposition to the defendants’ motion for summary judgment, the plaintiff relied on her allegations that the cabbage was thrown in a reckless manner in contravention of common sense, that the actions of the person who threw the cabbage were grossly negligent, and that the Louisiana Irish-Italian Association, Inc. was responsible for the actions of those individuals. The plaintiff failed to submit to the court any of the depositions that she had taken to support her claims, and her only countervailing exhibit in ^connection with the defendants’ motion for summary judgment was her own affidavit, which did not state any facts to support an allegation of deliberate and wanton acts or gross negligence committed by the Irish-Italian Association. On appeal from the granting of summary judgment, the appellate court found that the plaintiff failed to meet her burden to show that genuine issues of material fact existed.

In Orlando v. Corps de Napoleon, 96-991 (La.App. 5 Cir. 12/20/96), 687 So.2d 117, summary judgment was also granted in favor of the defendant. In that case a sign fell on the plaintiffs head after the sign was broken as a result of being hit by a bag of beads that had been thrown by a rider in a Mardi Gras parade. The court held that under La. R.S. 9:2796 the defendant was entitled to summary judgment, because the plaintiff failed to produce any evidence or affidavits to create an issue of material fact regarding the wanton conduct or gross negligence of the defendant Mardi Gras krewe.

In the present case, Ms. Pierre argues that her case is distinguishable from the cases discussed above, because she was a mere spectator, rather than an active parade participant, and because she told the float rider that she did not want the coconut. We disagree, because under the provisions of La. R.S. 9:2796, the acts of the float rider are not attributable to Zulu unless the float rider’s actions were caused by the “deliberate and wanton act or gross negligence of said krewe or organization.” There is nothing in the record to indicate that Zulu was in any way grossly negligent or that Zulu acted in a deliberate or wanton manner that resulted in Ms. Pierre’s injuries. Therefore, the float rider, not Zulu, may bear the full | sresponsibility for the actions that caused Ms. Pierre’s damages, if the rider’s negligence is proven.

After reviewing the pleadings, depositions, and affidavits, we conclude that Zulu bore its burden of proving immunity under La. R.S. 9:2796 for purposes of — the summary judgment. Further, Ms. Pierre failed to create a genuine issue of material fact concerning whether Zulu acted in a deliberate wanton or grossly negligent manner in distributing throws at the parade.

CONCLUSION

We find no error in the trial court’s conclusion that Zulu and its insurer were entitled to summary judgment in their favor as a matter of law. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

      . We do not determine whether or not the float rider was negligent in view of the fact that we are only called upon to decide this case as it relates to the actions of Zulu, the organization, and not the individual float rider.


author: JjTOBIAS, J. h ARMSTRONG, C.J.

text:
    Bernard BUTLER v. NEW ORLEANS POLICE DEPARTMENT.
    No. 2003-CA-2180.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 2004.
    Gary M. Pendergast, New Orleans, Counsel for Plaintiff/Appellant.
    Sherry S. Landry, City Attorney, Joseph V. Dirosa, Jr., Deputy City Attorney, New Orleans, Counsel for Defendant/Ap-pellee.
    Court Composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, and Judge MAX N. TOBIAS, Jr.
   JjTOBIAS, J.

This appeal arises from a decision of the Civil Service Commission for the City of New Orleans (hereinafter “Commission”) to reverse the appointing authority’s termination of a New Orleans police officer, Bernard Butler (hereinafter “Butler”), substituting instead a six-month suspension without pay for his admitted misconduct.

The facts of this case are not in dispute. On 6 January 2003, Butler entered a convenience store in New Orleans in plain clothes, as he was off duty at the time. He was wearing sweat pants and had his service revolver tucked in the waistband. When he approached the counter to make a purchase, the revolver slipped from his waistband and he reached to grab it with his right hand. After grabbing the gun, Butler, holding the gun at or below the level of the counter, pointed the gun in the direction of the cashier, Ms. Thu Thi Tu, and said “give me all your money.” He then laughed, put the weapon away, and told Ms. Tu that he was “just playing” or something to that effect. The entire incident was recorded on the security cameras located in the store. The next day, Ms. Tu, who was also the owner of the store, filed a complaint with the police department.

| ¡.Following the incident, Butler was terminated for cause from the police department by correspondence dated 26 March 2003. Butler appealed his termination to the Commission and the matter was set for hearing. The Commission held hearings on 5 June 2003 and 15 June 2003. The testimony presented at the Commission hearing revealed that at the time of the incident, Butler was an eighteen-year veteran of the New Orleans Police Department and was considered “one of the more aggressive and better officers” by his commanding officer, Deputy Superintendent Warren Riley, Chief Operations Officer. Deputy Superintendent Riley also testified that Ms. Tu knew Butler and likely did not believe that she was really being robbed, insofar as Butler was a regular customer at her store. However, the mere fact that such a “bad joke” was made by a police officer brandishing a weapon, and that Ms. Tu was upset enough by the incident to report it to the department, led Deputy Superintendent Riley to the conclusion that Butler should be terminated. He admitted that this incident was the only reason for the termination.

Sergeant Tyronne Smith, the investigating officer, also testified at the hearing. Sergeant Smith was assigned to the Public Integrity Bureau within the police department. Sergeant Smith testified that his report noted three infractions of the internal rules of the police department committed by Butler. The three violations charged to Butler were unauthorized force for exhibiting his weapon, unprofessional-ism, and failure to carry his weapon in a holster. In the course of his ^investigation, Sergeant Smith interviewed Ms. Tu. Ms. Tu’s statement reflects that she felt threatened by Butler and that she thought that he had been drinking prior to the incident. Sergeant Smith prepared a report for Deputy Superintendent Riley. Sergeant Smith testified that he made no recommendations regarding disciplinary action, as his only function was to investigate complaints and prepare reports on the evidence.

Butler was the final witness to testify at the Commission hearing. Butler testified that he was giving a ride to a friend when he decided to stop at Ms. Tu’s store to purchase gumbo. He testified that his service revolver was in his vehicle, and that he did not feel comfortable leaving the gun in his car with his friend, so he slipped it into the waistband of his sweat pants. He reportedly felt the gun slipping, so he grabbed it to place it in his pocket, so that he wouldn’t drop it. It was during the course of this movement that he uttered the statement “give me all your money.” He testified that he grew up in the neighborhood of the convenience store and that Ms. Tu knew him and knew that he was a police officer. Butler and Ms. Tu reportedly went on to have a conversation about complaints Ms. Tu had about the local police district. He testified that Ms. Tu told him that she was out of gumbo, but invited him to return the next day if he still wanted to purchase some. After the exchange, Butler left the convenience store.

The Commission rendered a decision on 13 November 2003 reversing the department’s termination of Butler, reducing the penalty to a six-month suspension without pay. In its ruling, the Commission noted that the department had trouble retaining experienced officers, and that the best interests of the department would not be served by the termination of an officer with an otherwise commendable 1 .¡record. Further, the Commission found that the penalty was not commensurate with the offense.

Both the police department and Butler appeal the ruling. Butler maintains that the Commission does not have the authority to suspend an officer for a period more than 120 days, and that the penalty levied against him should be reduced to reflect the maximum suspension time. The police department, however, argues that the Commission abused its discretion and acted arbitrarily and capriciously in reversing the termination of Butler as imposed by the Superintendent of Police, given that there was a clear factual basis for the termination.

First we address whether the Commission acted within its discretion when it reversed the termination of Butler given the uncontested factual allegations. The standard of review for an appellate court with respect to a Commission decision is “multifaceted.” Char-Jua v. Department of Fire, 577 So.2d 332, 335 (La.App. 4 Cir.1991). An appellate court must utilize a “manifestly erroneous” or “clearly wrong” standard when reviewing the factual findings of the Commission; however, when an appellate court examines the discretion exercised by the Commission in determining whether a disciplinary action is legally justified or commensurate with the complained-of offense, the reviewing court should not disturb the finding of the Commission unless it is “arbitrary, capricious or characterized by abuse of discretion.” Id., citing, Walters v. Dept. of Police, 454 So.2d 106, 114 (La.1984). I,^Because there is no factual dispute in this case, our inquiry is confined to whether the Commission abused its discretion in setting aside the penalty instituted by the police department, substituting its own, less severe punishment.

La. R.S. 33:2423A provides:

When any employee in the classified service is unable or unwilling to perform the duties of his position in a satisfactory manner or has committed any act to the prejudice of the service, or has omitted to perform any act that it was his duty to perform, or otherwise has become subject to corrective action, the appointing authority shall take action warranted by the circumstances to maintain the standards of effective service ....

After disciplinary action is taken and an officer appeals his case to the Commission, an appointing authority has the burden of establishing by a preponderance of the evidence that the offense complained of “did in fact impair the efficiency and orderly operation of the public service.” Bruckel v. Department of Fire, 97-0635, p. 6 (La.App. 4 Cir. 9/17/97), 700 So.2d 553, 556; see also, Saacks v. City of New Orleans, 95-2074, p. 12 (La.App. 4 Cir. 11/27/96), 687 So.2d 432, 440. The appointing authority must further establish that there is a “real and substantial relationship between the improper conduct and the efficient operation of the public service.” Dean v. Department of Police, 99-2454, p. 2 (La.App. 4 Cir. 3/01/00), 756 So.2d 1150, 1152-53, citing, Macelli v. New Orleans Police Dept., 98-1441, p. 5 (La.App. 4 Cir. 10/21/98), 720 So.2d 754, 756. (Internal cites omitted.)

Chief Warren Riley testified that he interviewed Butler and viewed the surveillance tape before deciding to terminate Butler. He testified that he believed that Butler was joking with Ms. Tu and that he was remorseful for his actions, but that he did not believe that Butler’s actions were excusable, especially in light of | fithe fact that cashiers at convenience stores have a very real and valid fear of armed robbery. He also noted that although Ms. Tu understood it was a joke, she was upset and angry enough to copy the surveillance tape and file a formal complaint. Deputy Superintendent Riley went on to testify that he had worked with Butler for a number of years and that he did not come to his decision lightly, as he believed Butler to be a good police officer. However, he noted that Butler’s “level of unprofessionalism was just inexcusable.”

We agree. Although we recognize that the actions of Butler seemed to lack actual malice or ill intent, we find that the brandishing of a firearm while joking about robbing a cashier with a real fear of armed robbery is sufficient legal cause for severe disciplinary action. In Stevens v. Department of Police, 2000-1682, p. 8 (La.App. 4 Cir. 5/9/01), 789 So.2d 622, 627, this court held:

The public puts its trust in the police department as a guardian of its safety, and it is essential that the appointing authority be allowed to establish and enforce appropriate standards of conduct for its employees sworn to uphold that trust, citing, Newman v. Department of Fire, 425 So.2d 753 (La.1983).... Indeed the [Civil Service] Commission should give heightened regard to the appointing authorities that serve as special guardians of the public’s safety and operate as quasi-military institutions where strict discipline is imperative.

The brandishing of a firearm in a joking and unprofessional manner in the presence of a civilian whom an officer is sworn to protect necessarily threatens the trust the public has in the police department. Further, the failure of Butler to even have his firearm in a holster, instead carrying a weapon in the waistband of his sweat pants, presents a real public safety issue. Butler’s blatant disregard for such a simple safety requirement is troubling and certainly grounds for severe discipline by the department.

^Finally, we address whether the Commission’s substitution of a six-month suspension for a dismissal from the department was arbitrary and capricious. This court has held that:

[i]t is not the job of the Commission to decide who should be disciplined how. The appointing authority is charged with the operation of the department. He is the one who must run the department, an obviously necessary part of which is dismissing or disciplining employees. While he may not do so without cause, he may, and indeed must, within the exercise of sound discretion, dismiss or discipline an employee for sufficient cause. The Commission is not charged with such operation or disciplining.

Stevens v. Department of Police, 2000-1682, pp. 6-7 (La.App. 4 Cir. 5/09/01), 789 So.2d 622, 626, quoting, James v. Sewerage and Water Board of New Orleans, 505 So.2d 119, 121 (La.App. 4 Cir.1987). Given the serious nature of the complaint against Butler, we find that the Commission abused its discretion in reversing the termination of Butler. The Commission’s apparent justification of its decision, that New Orleans can ill afford to lose good police officers, is not sufficient to abrogate the right of the appointing authority to discipline its officers for infractions, especially those that pose a threat to public safety.

Because we find that the Commission abused its discretion in reversing the termination of Butler by the appointing authority, we do not address Butler’s assignment of error regarding the validity of a six-month suspension. For the foregoing reasons, the judgment of the Commission is reversed and the termination of Butler by the appointing authority is hereby reinstated.

REVERSED AND RENDERED.

ARMSTRONG, C.J., Concurs in the Result.

h ARMSTRONG, C.J.

Concurs in the Result.

I respectfully concur in the result. The controlling principle in this case was expressed by this Court in Smith v. New Orleans Police Dept., 00-1486, p. 13 (La.App. 4 Cir. 4/11/01), 784 So.2d 806, 812, wherein we held that where there was “ample evidence to show that the [appointing authority] acted reasonably and with sufficient legal cause,” but the Civil Service Commission nonetheless overrules or modifies the action of the appointing authority, then the action of the Civil Service Commission must be characterized as “arbitrary” and reversed.

      . . La. R.S. 33:2423 B requires the appointing authority to notify an employee in the classified service of his/her removal, reduction in pay, or demotion in writing, including the reasons for the disciplinary action. Butler is an employee in the classified service as delineated by La. R.S. 33:2401, which defines unclassified service using an exclusive list of positions in city service, of which member of the police department is not included. Section (B) of the same statute provides that "the classified service shall comprise all other positions now existing or hereafter created in the city service." La. R.S. 33:2401.

      . The jurisdiction of the Commission over such matters and this court over the appeal are not in dispute. Article X, Section 12 of the Louisiana Constitution provides, in part, that "[e]ach city Commission established by Part I of this Article shall have the exclusive power and authority to hear and decide all removal and disciplinary cases La. Const. Art. X § 12(B). Decisions of the Commission are reviewable by the court of appeal whose jurisdiction encompasses the locality of the Commission.