author: JOHN D. SAUNDERS, Judge. AMY, J.,

text:
    James D. SIMPSON, et ux. v. Robert D. GRIMES, et al.
    No. 2002-0869.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 2003.
    Rehearing Denied Aug. 6, 2003.

      Robert G. Nida, Gold, Weems, Bruser, etc., Alexandria, LA, for Plaintiffs/Appellants, James D. Simpson, Juanita H. Simpson.
    Bruce Victor Schewe, Phelps, Dunbar, L.L.P., New Orleans, LA, for Defendants/Appellees, Robert D. Grimes, Argent Investment Services, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, SYLVIA R. COOKS, JOHN D. SAUNDERS, BILLIE COLOMBARO WOODARD and MARC T. AMY, Judges.
   JOHN D. SAUNDERS, Judge.

The plaintiffs filed suit for losses sustained in a self-directed IRA account. The defendants filed exceptions of no right and no cause of action, as well as an exception of prematurity due to an arbitration provision contained in the application to open the account. The trial court granted the exceptions and issued a stay of the proceedings while the matter continued in arbitration. The judgment was rendered final and appealable pursuant to La.Code Civ.P. art. 1915(B). The plaintiffs appeal. We reverse and remand.

Factual and Procedural Background

Juanita and James D. Simpson allege that the defendants, Robert D. Grimes and Argent Investment Services, Inc. (formerly known as TCL Securities, Inc.), are liable for losses to their Individual Retirement Account. They contend that in May of 1996 they established an account with TCL Securities under Mr. Simpson’s name, with Robert Grimes acting as a broker. In a petition filed October 23, 2001, they allege they “placed approximately $200,000.00 in the IRA Account with TCL with instructions that the money was to be invested for capital appreciation or growth.” The funds were distributed between a number of mutual funds.

In early 1999 the plaintiffs received a form from Mr. Grimes entitled “Trading Authorization-Limited to Purchases and Sales of Securities,” which, upon signing by the Simpsons, would allow Mr. Grimes to buy, sell, and trade securities without seeking specific authorization from the Simpsons. They maintain that they did not sign this form and that the signature appearing on the copy of this form presented at trial by TCL is false.

The plaintiffs further allege that Mr. Grimes, acting under the apparent authority of this “Trading Authorization,” began buying and selling securities on their | ¡.account. As a direct result of Mr. Grimes’ actions, the plaintiffs maintain that their IRA dramatically declined in value, experiencing losses exceeding the general decline of the market during that period.

Mr. and Mrs. Simpson filed suit, alleging that Mr. Grimes breached his fiduciary duty in a number of regards, and also that the actions of Mr. Grimes and TCL, as his employer, “constitute deceptive and unfair trade practices pursuant to La.R.S. 51:1401 in that those acts were unethical, unscrupulous and substantially injurious to petitioners as consumers of financial services.” They sought damages related to the losses associated with their account, as well as damages related to their anxiety over the loss of the funds.

Mr. Grimes and Argent filed a number of exceptions, alleging that the trial court lacked jurisdiction over the matter due to an arbitration clause contained in the account application, that the matter was premature due to the arbitration clause, and also that Mrs. Simpson lacked a cause of action or right of action as the account was held by Mr. Simpson. The trial court granted the exceptions, staying the proceedings in the district court and referring the matter to arbitration. The ruling was designated a final judgment pursuant to La.Code Civ.P. art.1915.

The plaintiffs assert the following assignments of error:

1. The trial court erred in granting the defendants’ declinatory exceptions and dilatory exceptions based upon the arbitration provisions of the May 7, 1996 contract.
2. The trial court erred in granting the defendants’ peremptory exceptions in ruling that Juanita H. Simpson is without a cause or right of action to assert the claims involved in this litigation.

DISCUSSION

In 1925 congress enacted the Federal Arbitration Act (FAA), 9 U.S.C. § 1 et | zseq. The purpose of the FAA was to make agreements to arbitrate disputes enforceable to the same extent as other contracts, and to counter the historic judicial hostility towards arbitration. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991). After the enactment of the FAA, and several key cases decided by the United States Supreme Court, the Court began to recognize a strong presumption in favor of arbitration and the enforcement of arbitration agreements. This strong presumption is firmly established in federal law and jurisprudence, and is also becoming strongly favored in state law.

Louisiana law provides for the validity of arbitration agreements in La.R.S 9:4201, which provides:

A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

The Federal Arbitration Act, 9 U.S.C. § 1, et seq., provides a similar provision for enforcement of arbitration agreements. Section 2 of the FAA states:

A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

United States Supreme Court jurisprudence has consistently presented a strong and growing federal policy favoring arbitration of disputes and the enforcement of arbitration clauses and the FAA. See, e.g., Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995); Gilmer, 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26; Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). Specifically, in Allied-Bruce the Supreme Court held that the FAA governs all contracts falling within the scope of the Commerce Clause and Congress’s authority under it. In Moses H. Cone the court further stated its support for the FAA and enforcement of contractual agreements to arbitrate. “The Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitral issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or like defense to arbitrability.” Moses H. Cone, 460 U.S. at 24-25, 103 S.Ct. 927. “The Federal Arbitration Act (FAA) has been interpreted by the Supreme Court as mandating the enforcement of all arbitration agreements which ‘evidence a transaction involving commerce, unless they are revocable on contractual grounds.’ Southland Corp., v. Keating, 465 U.S. 1, 11-12, 104 S.Ct. 852, 858-59, 79 L.Ed.2d 1 (1984).” Lytle v. CitiFinancial Services, Inc., 810 A.2d 643, 654 (Pa.Super.2002).

Waiver of Constitutional Rights

The plaintiffs argue that the arbitration provision contained in the May 7, 1996 contract, and in fact any arbitration clause, waives a parties’ constitutional right to seek relief in court. They allege that, for a contractual waiver of constitutional rights to be enforceable, it must be brought to the attention of the party against whom it is to be enforced.

In the present case the arbitration provision, while located on the back of the application, is set out in all capital letters. The remainder of the text on the back of the application is in regular font. Despite this fact however, the dense text, relatively |Bsmall font, and the placement of the arbitration provision almost directly in the middle of the page prevent the provision from being particularly noticeable. The provision in paragraph 17 provides:

17. • ARBITATION [SIC] IS FINAL AND BINDING ON THE PARTIES.
• THE PARTIES ARE WAIVING THEIR RIGHTS TO SEEK REMEDIES IN COURT, INCLUDING THE RIGHT TO JURY TRIAL.
• PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED THAN AND DIFFERENT FROM COURT PROCEEDINGS.
THE ARBITRATORS’ AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDINGS OR LEGAL REASONING AND ANY PARTY’S RIGHT TO APPEAL OR TO SEEK MODIFICATION OF THE RULING BY THE ARBI-TRATIONS IS STRICTLY LIMITED.
• THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF ARBITRATORS WHO WERE OR ARE AFFILIATED WITH THE SECURITIES INDUSTRY.
THE CUSTOMER AGREES AND BY CARRYING AND [SIC] ACCOUNT FOR THE CUSTOMER, TCLSI AND MORGAN KEEGAN AGREE THAT ALL CONTROVERSIES WHICH MAY ARISE BETWEEN THE PARTIES CONCERNING ANY TRANSACTION OR CONSTRUCTION, PERFORMANCE, OR BREACH OF THIS OR ANY OTHER AGREEMENT BETWEEN U.S. PERTAINING TO SECURITIES AND OTHER PROPERTY, WHETHER ENTERED INTO PRIOR, ON OR SUBSEQUENT TO THE DATE HEREOF, SHALL BE DETERMINED BY ARBITRATION, ANY ARBITRATION UNDER THIS AGREEMENT SHALL BE CONDUCTED PURSUANT TO THE FEDERAL ARBITRATION ACT AND THE LAWS OF THE STATE OF LOUISIANA BEFORE THE AMERICAN ARBITRATION ASSOCIATION, OR BEFORE THE NEW YORK STOCK EXCHANGE, INC. OR AN ARBITRATION FACILITY PROVIDED BY ANY OTHER EXCHANGE OF WHICH TCLSI AND/OR MORGAN KEEGAN IS A MEMBER, OR THE NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC. OR THE MUNICIPAL SECURITIES RULE MAKING BOARD AND IN ACCORDANCE WITH THE RULES OBTAINING OF THE SELECTED ORGANIZATION. THE CUSTOMER MAY ELECT IN THE FIRST INSTANCE WHETHER ARBITRATION SHALL BE BY THE AMERICAN ARBITRATION ASSOCIATION, OR BY AND EXCHANGE OR SELF REGULATORY ORGANIZATION OF WHICH TCLSI AND/OR MORGAN KEEGAN IS A MEMBER, BUT IF THE CUSTOMER FAILS TO MAKE SUCH ELECTION, BY ^REGISTERED LETTER OR TELEGRAM ADDRESSED TO TCLSI AT, TCLSI’S MAIN ADDRESS, BEFORE THE EXPIRATION OF TEN DAYS AFTER RECEIPT OF A WRITTEN REQUEST FROM AIM OR STEPHENS TO MAKE SUCH ELECTION, THEN TCLSI AND/OR MORGAN KEEGAN MAY MAKE SUCH ELECTION THE AWARD OF THE ARBITRATORS, OR OF THE MAJORITY OF THEM, SHALL BE FINAL, AND JUDGEMENT UPON THE AWARD RENDERED MAY BE ENTERED AND ENFORCED IN ANY COURT, STATE OR FEDERAL, HAVING JURISDICTION.

Additionally, however, the consumer is notified of the existence of an arbitration provision immediately above the signature line on the New Accounts Application. Directly above this signature line, where the customer’s personal and account information is contained, another provision in bold type and in “all caps” provides:

I/WE UNDERSTAND THAT THE CUSTOMER AGREEMENT ON THE REVERSE OF THIS APPLICATION CONTAINS, IN NUMBERED PARAGRAPH 17, A PRE-DISPUTE ARBITRATION CLAUSE REQUIRING ALL DISPUTES UNDER THIS AGREEMENT TO BE SETTLED BY BINDING ARBITRATION. BY SIGNING BELOW THE CUSTOMER ACKNOWLEDGES RECEIVING A COPY OF THIS AGREEMENT.

Mr. Simpson’s signature and the date “5/7/96” are inscribed immediately beneath the above provision.

We find no requirement that the defendants were obliged to bring the arbitration clause to Mr. Simpson’s attention beyond these two statements, which are directed to the potential customer. See Blount v. Smith Barney Shearson, Inc., 96-0207 (La.App. 4 Cir. 2/12/97); 695 So.2d 1001. In fact, in Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996), the United States Supreme Court found that the presumptions of the FAA, discussed above, preempted a state statute requiring special notice requirements before an arbitration clause could be enforced. Finally, the document contains Mr. Simpson’s signature. In Stadtlander v. Ryan’s Family Steakhouses, Inc., 34,384, p. 9 (La.App. 2 Cir. 4/4/01); 794 So.2d 881, 889, writ denied, 01-1327 (La.6/22/01); 794 So.2d 790, the second circuit explained: “[I]t is well settled that a party who signs a written instrument is presumed to know its contents and cannot avoid its obligations by contending that she did not read it, that she did not understand it, or that the other party failed to explain it to her.”

For the above reasons we find no merit to this argument.

Louisiana Unfair Trade Practices Act

The plaintiffs also maintain that, since they have asserted a cause of action under the Louisiana Unfair Trade Practices Act, La.R.S. 51:1401, et seq., the arbitration clause is rendered invalid. They direct this court’s attention to La.R.S. 51:1418, which provides in pertinent part:

§ 1418. Jurisdiction
C. The following terms of a writing executed by a consumer are invalid with respect to consumer transactions or modification thereof; (1) that the law of another state will apply; (2) that the consumer consents to the jurisdiction of another state; or (3) any term that fixes venue.

(emphasis added).

It is this final portion of Section C that the plaintiffs contend renders the arbitration clause unenforceable as it “fixes venue.” It is the plaintiffs’ contention that “if it is illegal for a contract to provide that the consumer consents to jurisdiction in the courts of another state, it certainly would be illegal to make the consumer consent to jurisdiction before a non-judicial tribunal unaffiliated with any state.”

Although the plaintiffs allege unfair trade practices pursuant to La.R.S. 51:1401, this type of action under the Louisiana Unfair Trade Practices Act has been Isfound inapplicable to cases involving securities. See Feiber v. Cassidy, 98-0405 (La.App. 1 Cir. 12/28/98); 723 So.2d 1101; Taylor v. First Jersey Securities, Inc., 533 So.2d 1383 (La.App. 4 Cir.1988). Furthermore, United States Supreme Court jurisprudence unquestionably indicates that the FAA’s presumption of arbitrability preempts any state law to the contrary. See Southland Corp., 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1.

Accordingly, we find that this argument is also without merit.

Contract of Adhesion

Next, the plaintiffs argue that the arbitration provision contained in the Argent application is unenforceable as it is an unconscionable contract of adhesion. They point out that the document is a standard form contract containing a “Cash Account Agreement” on the reverse side of the document, printed in fine print of less than 7 point type. In Golz v. Children’s Bureau of New Orleans, 326 So.2d 865 (La.1976), the supreme court defined contracts of adhesion as follows:

Broadly defined, a contract of adhesion is a standard contract, usually in printed form, prepared by a party of superior bargaining power for adherence or rejection of the weaker party. Often in small print, these contracts sometimes raise a question as to whether or not the weaker party actually consented to the terms.

Additionally, Louisiana Civil Code article 2056, enacted in 1984, cited Golz in the Revision Comments to the Article. Revision Comment (c) provides that “[ujnder the Article, a contract of adhesion must be interpreted against the party who prepared it.”

In further support of their contention that this agreement represents an unconscionable contract of adhesion, the plaintiffs cite Sutton’s Steel & Supply, Inc., v. BellSouth Mobility, Inc., 2000-511 (La. App. 3 Cir. 12/13/00), 776 So.2d 589, writ denied, 01-152 (La.3/16/01), 787 So.2d 316. In Sutton’s Steel a group of plaintiffs filed suit against BellSouth alleging breach of contract. BellSouth argued that the claims were subject to arbitration and sought to compel arbitration and stay the proceedings. This court upheld the ruling of the trial court, denying the defendant’s motion to compel on the basis that the arbitration provision contained in Bell-South’s standard form contract was unduly burdensome and extremely harsh. We specifically noted that the arbitration provision in that matter bound the plaintiffs to arbitration, while the defendant reserved the option to pursue non-arbitral remedies, including court action.

The defendants argue that the present case is distinguishable from the case of Sutton’s Steel, therefore, that decision is not controlling in this matter. They contend that Sutton’s Steel dealt with the unusual situation where one party to the contract has “monopoly or near-monopoly power and presents unfair and one-sided ‘take it or leave it’ choices to persons who, in fact, cannot ‘leave it’.” The defendants point out that the arbitration clause in the agreement from BellSouth was “extremely harsh” and that BellSouth was not bound to arbitrate. They allege that the agreement between Simpson and TCL does not contain those inequities.

Specifically, the defendants claim that, unlike Sutton’s Steel, both parties to the Argent agreement are bound to arbitrate disputes that may arise between them. They further contend that both parties waived their right to a trial by jury. Finally, the defendants argue that both parties retain the right to seek a court’s modification of the award of the arbitrators. They maintain that there are no provisions in the Argent agreement like the clauses we viewed as problematic in Sutton’s Steel.

linThe plaintiffs dispute the defendants’ contention that Sutton’s Steel involved a party with monopoly or near monopoly power. They note that the contract in that matter was not one for standard residential or commercial telephone service. It was a contract for cellular phone service. They argue that the cellular communications industry is highly competitive and BellSouth enjoys no monopoly, or even near monopoly, in this area of communication. As a result, the plaintiffs argue that the decision of this court in that matter was not based on the circumstance that BellSouth Mobility enjoyed a monopoly status. Additionally, the plaintiffs contend that all factors which were found to render the BellSouth Mobility contract enforceable do exist in the present case. They specifically note that paragraph 24 of the agreement allows Argent to unilaterally modify any and all specific terms of the agreement, including the arbitration provision. Paragraph 24 of the agreement provides:

This agreement and other written forms and agreements executed by Customer collectively constitute the entire agreement between TCLSI and/or Morgan Keegan and Customer with respect to any brokerage accounts opened on Customer’s behalf, except that TCLSI and/or Morgan Keegan may amend this Agreement upon written mailing notice to Customer. Either TCLSI or Morgan Keegan or Customer may terminate this agreement any time effective upon mailing written notice to the other. If the Agreement is terminated, Customer will continue to be responsible for an obligation incurred by customer prior to termination.

(emphasis added).

The plaintiffs argue that this paragraph renders Argent’s promise to be bound by the arbitration provision completely illusory. Therefore, contrary to the claims of the defendant, both parties are not necessarily bound to arbitrate disputes that may arise between them and Argent’s apparent waiver of its right to a trial by a jury is revokable by Argent at any time. The plaintiffs assert that these factors render the agreement in the present case strikingly similar to the agreement this court found | nunenforceable in Sutton’s Steel.

As stated above, both federal and state law recognize a presumption in favor of arbitration, and against finding a waiver or default, has been recognized in Louisiana jurisprudence and legislation. However, despite that presumption arbitration agreements are not blindly validated where there is evidence that they contain material faults which render them unconscionable and unduly burdensome to one party. In Sutton’s Steel, this court found that the arbitration agreement in question was unduly burdensome to the consumer, and lacked sufficient mutuality, rendering the adhesionary contract unconscionable and, therefore, unenforceable on a contractual basis.

Importantly, while BellSouth attempts to bind the plaintiffs to arbitration, it reserves unto itself the option of pursuing other remedies, including court action. Specifically, in paragraph (b), BellSouth clearly excludes from arbitration any “ATTEMPT TO COLLECT A DEBT OWED TO [BELLSOUTH] BY THE [PLAINTIFFS].” Thus, Bell-South has reserved unto itself the right to pursue an open account debt and collect the attorney fees and costs allowed in such an action by La.R.S. 9:2781 while, at the same time, limiting the plaintiffs to only the relief available under the arbitration clause for any claims they may have.
Such disproportionate dispensation by BellSouth of rights and remedies is arbitrary and is lacking in good faith. In fact, the promise by BellSouth to arbitrate is totally illusionary and is actually no promise at all. We do not find, under these circumstances, the consent requisite for the enforcement of this provision, and, thus, we decline to recognize this adhesionary provision.

Sutton’s Steel, 776 So.2d at 596-97.

We agree with the plaintiffs on this matter. It cannot realistically be argued that BellSouth Mobility enjoys anything resembling monopoly status in the cellular communications industry. In the Sutton’s Steel opinion we mentioned that [ 12adhesionary contracts are of particular concern in the context of parties with monopoly like power. We specifically noted, however, that problematic contracts of adhesion may also arise in connection with activities that are less regulated, or not regulated at all. We find no reference in Sutton’s Steel to support a proposition that our holding in that case was dependent upon, or even based upon, a monopoly or near-monopoly situation.

Of particular concern in the BellSouth contract, as is correctly noted by the plaintiffs, was the striking lack of mutuality present in the terms of the arbitration provision. We find a similar lack of mutuality in the contract between Argent and Mr. Simpson. While BellSouth explicitly retained its right to resolve its disputes in a variety of settings, including the courts, the Argent agreement signed by Mr. Simpson manages to achieve the same goal through clever subterfuge. By retaining the right to modify at will any and all provisions of the agreement in question, Argent allows itself an escape hatch from its promise to be similarly bound to arbitrate all disputes arising between the parties. Argent’s ability to modify the specific terms of the agreement at will is not shared by the potential customer signing the agreement.

While the doctrine of mutuality exists in Louisiana contract law, there is very little jurisprudence discussing the theory. Generally, where terms of a contract were not bargained for by the parties, and any benefits conferred by it are merely gratuitous or illusionary, the contract term lacks mutuality of obligation. In Leger v. Tyson Foods, Inc., 95-1005, p. 5 (La.App. 3 Cir. 1/31/96), 670 So.2d 397, 401, a panel of this court recognized the importance of mutuality of obligation in valid contracts. “A contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished. La.Civ.Code art.1906. There are four necessary elements 113for a valid contract: capacity, consent, object, and lawful cause. La.Civ. Code arts.1918, 1927, 1966, 1971. In other words, the parties must have the capacity to contract and give their consent freely for a certain object, and the contract must have a lawful purpose. Id. Both parties must be bound in order for there to be a contract.” (emphasis added).

The concept of mutuality of contract is recognized in most jurisdictions. Therefore, we find it helpful look to outside sources for a more detailed discussion of contract mutuality, specifically in terms of arbitration provisions within contracts. In the case of The Money Place, LLC v. Barnes, 349 Ark. 411, 414, 78 S.W.3d 714, 716-17 (2002), the Arkansas Supreme Court addressed the necessity of mutuality within arbitration provisions. In Barnes, the plaintiff filed suit against a payday-loan/deferred-check establishment alleging the loans violated the state’s usury laws. The defendant filed a motion to compel arbitration based on arbitration clauses contained in the Deferred Presentment Agreements.

Under the terms of the agreements in that case The Money Place retained the right to pursue all civil remedies when a check is returned, while the customer was required to submit all disputes arising between the parties to binding arbitration. There the court stated:

Mutuality of contract means that an obligation must rest on each party to do or permit to be done something in consideration of the act or promise of the other; that is, neither party is bound unless both are bound.... Because there is no mutuality, the arbitration provision is not valid and is not subject to enforcement under any arbitration act.

Id. at 418, 718.

We note that some courts have held that not all lack of mutuality in an adhesive arbitration agreement is unconscionable and invalid. The California Supreme Court 114held that “a contract can provide a ‘margin of safety’ that provides the party with superior bargaining strength a type of extra protection for which it has a legitimate commercial need without being unconscionable.” Stirlen v. Supercuts, Inc., 51 Cal.App.4th 1519, 1586, 60 Cal.Rptr.2d 138, 148 (Cal.App. 1 Dist.1997). The court, however, was referring specifically to situations of patent infringement and non-compete agreements. We find no similar legitimate commercial need eliminating the need for contractual mutuality in the present matter.

Therefore, we find the lack of mutuality in the arbitration provision contained in the Argent agreement renders it unconscionable and unenforceable.

Scope of the Agreement to Arbitrate

Forgery of Mr. Simpson’s Signature

In addition to the lack of mutuality discussed above, we question whether the parties could have considered potentially criminal actions such as forgery among the types of disputes the parties were agreeing to submit to arbitration based on the language of the agreement. We were unable to find a similar matter decided by any court within this jurisdiction. For guidance we look to outside jurisdictions for matters with similar circumstances.

We found that a factually indistinguishable case was decided by the Alabama Supreme Court. In Gregory Chrysler-Plymouth v. Barnes, 700 So.2d 1358 (Ala.1997), a customer purchased a used vehicle from an automobile dealership. In the process of selling Mr. Barnes and his fian-cé their vehicle, Gregory attempted to also sell them a “Used Vehicle Extended Service Agreement” (“service agreement”), which would operate as an extended warranty on the vehicle purchased. Mr. Barnes |isand his flaneé refused this service agreement. They purchased the vehicle and were told by Gregory representatives that they would receive copies of the executed paperwork in the mail. When they received the paperwork, they also received a fully executed service agreement, for which Mr. Barnes had been charged $1,495.00, and that appeared to contain Mr. Barnes’s signature. Mr. Barnes did not dispute the authenticity of his signature on the purchase agreement, but claimed that his signature on this document was a forgery. The purchase agreement contained an arbitration agreement which provided as follows:

“Buyer and Dealer agree that all claims, demands, disputes or controversies of every kind or nature that may arise between them concerning any of the negotiations leading to the sale of the vehicle, terms and provisions of the sale, the performance or condition of the vehicle, or any other aspects of the vehicle and its sale shall be settled by binding arbi-tration_Without limiting the generality of the foregoing, it is the intention of the Buyer and Dealer to resolve by binding arbitration all disputes between them concerning the vehicle, the terms and meaning of any of the documents signed or given in connection with the sale of the vehicle, and any representations, promises or omissions made in connection with the financing, credit life insurance, disability insurance, and vehicle service contract purchased or obtained in connection with the vehicle. Either party may demand arbitration by filing with the American Arbitration Association a written demand for arbitration along with a statement of the matter in controversy.”

Id. at 1360 (emphasis added).

In light of this arbitration agreement contained in the purchase agreement, which the plaintiffs did not dispute was validly signed and executed, Gregory argued that this fraud claim should be submitted to arbitration. Although there was also an arbitration agreement in the service agreement, as in the trading authorization form in the present matter, Gregory did not rely on the arbitration agreement within that contract in requesting that the dispute be submitted to arbitration. Rather, it relied upon the arbitration agreement contained in the purchase agreement as being |1fiinclusive of all disputes arising between the parties from that transaction. Gregory argued that the arbitration agreement was sufficiently broad to apply to Barnes’s forgery claim, specifically pointing to the language emphasized in the above quote.

The Alabama Supreme Court noted that, while the arbitration agreement in the purchase agreement was broadly worded, it clearly did not compel arbitration of Mr. Barnes’s claim. The court stated:

The dispute here does not concern the negotiations leading to the sale of the Hyundai, nor does it concern the terms and provisions of the sale, the performance or the condition of the Hyundai, or any other aspect of the vehicle or its sale. The dispute arises solely from Gregory’s alleged forgery of Barnes’s signature onto the service agreement. The fact that the arbitration provision mentions service contracts does not compel arbitration of this dispute, because Barnes says the only reason he has a service agreement is that his name was forged onto it — this alleged forgery is the heart of the fraud alleged in this case.
The United States Supreme Court has stated that “courts should remain attuned to well-supported claims that the agreement to arbitrate resulted from the sort of fraud ... that would provide grounds ‘for the revocation of any contract.’ ” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 627, 105 S.Ct. 3346, 3354, 87 L.Ed.2d 444 (1985). While this is true, courts should be even more attuned to claims that the agreement from which arbitration allegedly stems was, in fact, a forged document, which would not even provide the basis from which a court could find a valid contract to be revoked; it is impossible to revoke a contract that never existed. Certainly, if the facts are as Barnes and Rogers allege, the service agreement here has never even existed as a valid contract. Although separate contractual documents may arise from a single transaction and thus be subject to an arbitration provision in a “master agreement,” see Reynolds & Reynolds Co. v. King Automobiles, Inc., 689 So.2d 1 (Ala.1996), the service agreement here cannot be subject to the purchase contract arbitration clause because its very existence is in dispute, because of the alleged forgery. We further note that, contrary to Gregory’s contentions, the claims made by Barnes and Rogers are entirely dissimilar to those found by this Court to be arbitrable in Ex parte Gates, 675 So.2d 371 (Ala.1996), none of which entailed the forgery of a document relied upon to help bring the dispute into arbitration.
A party cannot be required to arbitrate a dispute that he or she did not agree to arbitrate. Capital Investment Group, Inc. v. Woodson, 694 So.2d 1268 (Ala.1997). For these reasons, the trial court correctly denied Gregory’s motion to arbitrate Barnes and Rogers’s fraud claim. Therefore, the order of the trial court denying arbitration is affirmed.

Gregory Chrysler-Plymouth, at 1360-61

We find the language of the arbitration provision in Gregory is even more broad than the language of the arbitration provision contained in the Argent agreement signed by Mr. Simpson. The Argent agreement requires arbitration of “any transaction or construction, performance, or breach of this or any other agreement between us pertaining to securities.” This list of arbitrable subject matter clearly does not cover the possible forgery of a customer’s signature on additional agreements or contracts between the parties. For the reasons cited by the Alabama Supreme Court we find that claims of forgery are outside the scope of the disputes the parties agreed to submit to arbitration in the Argent agreement.

Claims in Tort

As we have found the arbitration provision contained in the May 7, 1996 agreement unenforceable for the reasons stated above, we need not address the arbitrability of the plaintiffs’ claims for anxiety and worry based on the tort of conversion.

Mrs. Simpson’s Cause and Right of Action

In their final argument, the plaintiffs contest whether any rights Mrs. Simpson may have to protect her community property interests are subject to the arbitration provision. In particular, Mrs. Simpson contends that the funds placed into the account are community property and that, even if the arbitration clause is found effective, it cannot be enforced against her as she did not sign the arbitration 11sagreement. We find no merit in this argument.

We first note that the brokerage agreement, along with the arbitration clause, are contained on a document evidencing only Mr. Simpson’s signature. Furthermore, the account is in his name alone. Assuming, however, that Mrs. Simpson holds property interests in the funds insofar as they may be community property, we find no merit in the argument that, even if the agreement to arbitrate is found valid, she is not bound to arbitrate her claims. Insofar as state law may affect arbitration agreements, we observe that La.Civ.Code art. 2346 provides: “Each spouse acting alone may manage, control, or dispose of community property unless otherwise provided by law.” Further, La.Civ.Code art. 2360 provides: “An obligation incurred by a spouse during the existence of a community property regime for the common interest of the spouses or for the interest of the other spouse is a community obligation.” Mr. Simpson’s agreement to arbitrate squarely fits within this provision of the Civil Code. See also Shroyer v. Foster, 01-885 (La.App. 1 Cir. 3/28/02); 814 So.2d 83.

The plaintiffs cite Ciaccio v. Cazayoux, 519 So.2d 799 (La.App. 1 Cir.1987), as support for their proposition that one spouse cannot bind another to arbitration. However, we find Ciaccio, not sufficiently analogous to the present matter. In the first circuit case, Mrs. Ciaccio, pregnant with twins, visited the defendant physician due to premature labor. She had previously signed an arbitration agreement with the physician. The children died immediately after birth. Mrs. Ciaccio and her husband filed wrongful death and survival actions both individually and as parents of the liadeceased children. The first circuit observed that Mr. Ciaccio did not sign the agreement, nor did Mrs. Ciaccio sign the agreement as the representative of the deceased children. The court concluded, therefore, that Mr. Ciaccio and the children did not agree to submit to arbitration for the actions pursued. Certainly a survival action and one for wrongful death must be viewed differently from the type of actions arising from Mr. Simpson’s attempts to “manage” or “dispose” of any community property associated with the brokerage agreement.

Pursuant to La.Civ.Code art. 2346, we find no merit in this argument.

DECREE

For the above reasons, we find the arbitration provision contained in the May 7, 1996 agreement to be unconscionable and unenforceable. We reverse the trial court’s grant of the defendant’s exceptions and its issuance of a stay of the proceedings, and remand the matter to the trial court for trial on the merits.

REVERSED AND REMANDED.

WOODARD, J., concurs.

AMY, J., dissents and assigns written reasons.

AMY, J.,

dissenting.

I conclude that an affirmation is required in this case. I differ from the majority in that I find the arbitration agreement enforceable and not a contract of adhesion. In my opinion, the appropriate starting point for resolution of this matter is consideration of the state and federal statutory provisions for arbitration clauses. As set forth in the majority opinion, La.R.S. 9:4201 provides:

§ 4201. Validity of arbitration agreements
A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

Furthermore, Section 2 of the Federal Arbitration Act, 9 U.S.C. § 1, et seq., also provides for resolution of issues by arbitration, stating:

A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

In Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995), the United States Supreme Court reaffirmed the positive consideration afforded arbitration clauses and explained that the FAA reflected the intent of Congress to ^exercise its commerce power to its fullest extent. The FAA’s use of the term “involving commerce” was interpreted as “affecting ” commerce. Id. See also Collins v. Prudential Ins. Co. of America, 99-1423 (La. 1/19/00), 752 So.2d 825. The Supreme Court has also observed that substantive provisions of the FAA preempt state law insofar as the arbitration clause is contained in a contract involving interstate commerce. See Southland Corp. v. Keating, 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984).

In the present case, it is clear that the contract entered into between the parties, a contract for securities investment, contemplates actions that “affect” commerce. Therefore, while I have considered federal guidance in reviewing the plaintiffs’ assignments of error, I am also mindful that the United States Supreme Court has further instructed:

States may regulate contracts, including arbitration clauses, under general contract law principles and they may invalidate an arbitration clause “upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2 (emphasis added). What States may not do is decide that a contract is fair enough to enforce all its basic terms (price, service, credit), but not fair enough to enforce its arbitration clause. The Act makes any such state policy unlawful, for that kind of policy would place arbitration clauses on an unequal “footing,” directly contrary to the Act’s language and Congress’ intent. See Volt Information Sciences, Inc., 489 U.S., at 474, 109 S.Ct., at 1253.

Allied-Bruce, 513 U.S. at 281, 115 S.Ct. at 843. Accordingly, while considering applicable federal law, the “contract law principles” of the Louisiana Civil Code and Louisiana jurisprudence are not absent from my analysis.

La.Civ.Code art.1983 provides: “Contracts have the effect of law for the parties and may be dissolved only through the consent of the parties or on grounds provided by law. Contracts must be performed in good faith.” However, as can be seen in Sutton’s Steel & Supply, Inc. v. BellSouth Mobility, Inc., 00-511 (La.App. 3 Cir. 12/13/00), 776 So.2d 589, writ denied, 01-152 (La.3/16/01), 787 So.2d 316, a contract found to be adhesionary may require further examination. An adhesion contract is “a standard contract, usually in printed form, prepared by a party of superior bargaining power for adherence or rejection by the weaker party.” Golz v. Children’s Bureau of New Orleans, Inc., 326 So.2d 865, 869 (La.1976). See also Stadtlander v. Ryan’s Family Steakhouses, 34,384 (La.App. 3 Cir. 4/4/01), 794 So.2d 881. Noting that these contracts are often in small print, the Louisiana Supreme Court explained that the issue of whether the weaker party consented to the terms is often raised. Golz, 326 So.2d 865. Similarly, the United States Supreme Court referenced the final portion of 9 U.S.C. § 2 and advised that “courts should remain attuned to well-supported claims that the agreement to arbitrate resulted from the sort of fraud or overwhelming economic power that would provide grounds ‘for the revocation of any contract.’ ” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614, 627, 105 S.Ct. 3346, 3354, 87 L.Ed.2d 444 (1985).

In Sutton’s Steel, 00-511; 776 So.2d 589, a case advanced by the plaintiffs and discussed by the majority, a panel of this court found that an arbitration clause contained in a contract between a customer and BellSouth was unenforceable. The customer’s consent to the terms was found to be unclear. Setting forth the contractual provision at issue in that case, the Sutton’s Steel panel found it important that the arbitration clause was on “BellSouth’s standard form and [was] in exceedingly small print.” Id. at p. 10; 596. The court observed that BellSouth did not demonstrate that the plaintiffs were able to negotiate the contents of the arbitration provision. Finally, the court concluded that the arbitration provision was unduly burdensome while, at the same time, providing BellSouth with the option to pursue remedies other than arbitration. In the end, the court found that “[s]uch disproportionate dispensation by ^BellSouth of rights and remedies is arbitrary and is lacking in good faith.” Id. at p. 11; 597.

I differ from the majority in that I do not find Sutton’s Steel controlling in this case. First, I find the instant matter distinguishable from the earlier panel decision. Although the arbitration clause in this case is contained on a printed form as it was in Sutton’s Steel, the form is limited to a single page, printed on the front and the back. The clause is set forth in different print than the remainder of the contract and the customer signed immediately beneath a notification of the arbitration clause on the reverse of the application. Further, I do not conclude that the provisions of this arbitration clause are unduly burdensome to the plaintiffs. As can be seen from reference to the text of the clause above, it even provides that “[t]he customer may elect in the first instance whether arbitration shall be by the American Arbitration Association, or by and [sic] exchange or self regulatory organization of which TCLSI and/or Morgan Keegan is a member[.]” It is only in the event that “the customer fails to make such election, by registered letter or telegram addressed to TCLSI at, TCLSI’s main address, before the expiration of ten days after receipt of a written request from AIM or Stephens to make such election, then TCLSI and/or Morgan Keegan may make such election[.]” Thus, although the parties may have contracted for resolution of issues in a different forum than the courts, the plaintiffs retained the right to initially choose their arbitrator. Finally, although the plaintiffs contend that the defendants “have reserved the right to escape any provisions of the agreement which they might find disadvantageous to them by stipulating the right to ‘amend this Agreement upon mailing written notice to Customer[,]’” review of the entirety of the paragraph reveals support for a finding that the contract is not one of adhesion. In its entirety, paragraph 24 of the contract provides:

| ¡¡This Agreement and other written forms and agreements executed by Customer collectively constitute the entire agreement between TCLSI and/or Morgan Keegan and Customer with respect to any brokerage accounts opened on Customer’s behalf, except that TCLSI and/or Morgan Keegan may amend this Agreement upon mailing written notice to Customer. Either TCLSI or Morgan Keegan or Customer may terminate this Agreement any time effective upon mailing written notice to the other. If the agreement is terminated, Customer will continue to be responsible for an obligation incurred by customer prior to termination.

(Emphasis added.) Although there is no provision for the customer to amend the agreement upon written notice, the customer is not wholly without remedy as the contract provides for termination by the customer, just as it does for the defendant.

Moreover, even if Sutton’s Steel did not offer a distinguishable background, I would consider the persuasiveness of that case prior to its application to the present matter given the texts of the federal and legislative provisions and the guidance offered by the United States Supreme Court jurisprudence. In my opinion, the clear directive of the latter sources are disposi-tive of the issues at hand.

Similarly, I do not find persuasive the plaintiffs’ contention that the arbitration clause should be found unconscionable. This determination is clear as both La.R.S. 9:4201 and 9 U.S.C. § 2 indicate that state and federal law provide a presumption of arbitrability. These expressions of legislative approval, along with Supreme Court jurisprudence, have unquestionably recognized a public policy in favor of enforceability of arbitration agreements.

Finally, I find no merit in the plaintiffs’ arguments regarding the scope of the arbitration agreement. The plaintiffs contend that the arbitration clause cannot be applied to their claim for anxiety and worry. Specifically, they point out that their petition alleges not only contractual theories of recovery, but that a theory of recovery due to conversion is also advanced. Because of the tortious nature of this claim, and | fithe inability to contract for the right to engage in illegal activity, they contend that they should be able to pursue recovery for general damages.

Although the defendants argue that general damages are not recoverable in this type of case as there is no physical injury, jurisprudence indicates the availability of general damages in conversion cases. See Quealy v. Paine, Webber, Jackson & Curtis, Inc., 475 So.2d 756 (La.1985); Broussard, Bolton, Halcomb & Vizzier v. Williams, 01-219 (La.App. 8 Cir. 10/3/01), 796 So.2d 791; Labbe v. Premier Bank, 618 So.2d 45 (La.App. 3 Cir.1993). Examination of the arbitration clause indicates that any claim for general damages, insofar as the plaintiffs may be found to be entitled to them, are not excluded from the arbitration clause. The clause provides that the parties “agree that all controversies which may arise between the parties concerning any transaction or construction, performance, or breach of this or any other agreement between us pertaining to securities and other property, whether entered into prior, on or subsequent to the date hereof, shall be determined by arbitration. ...” The face of the provision is sufficiently broad to be interpreted to pertain to a number of causes of action. While the United States Supreme Court has explained that the proarbitration policy of the FAA does not operate without consideration of the desires of the parties, “due regard must be given to the federal policy favoring arbitration, and ambiguities as to the scope of the arbitration clause itself resolved in favor of arbitration.” Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 62, 115 S.Ct. 1212, 1218, 131 L.Ed.2d 76 (1995), quoting, Volt Information Sciences, Inc. v. Board of Trustees, 489 U.S. 468, 476, 109 S.Ct. 1248, 1254, 103 L.Ed.2d 488 (1989).

After consideration of the language at issue in this case, I do not find that the contract entered into by the parties provides for any potential claims to be decided 17outside of arbitration. Insofar as the language is ambiguous, I conclude that it must be resolved in favor of arbitration.

For the above reasons, I respectfully dissent.

      . Although enacted after the creation of the agreement at issue, for reference purposes, we also point to La.Civ.Code art. 2985, which provides: "A person may represent another person in legal relations as provided by law or by juridical act. This is called representation.”


source: Caselaw Access Project

author: PATRICIA. RIVET MURRAY, Judge.

license: Public Domain

text:
    Johnny N. DIGGS, Jr. v. Richard J. PENNINGTON, Superintendent of Police, et al.
    No. 2003-CA-0057.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 4, 2003.
    Johnny N. Diggs, Jr., Angola, LA, In Proper Person Plaintiff/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY).
   PATRICIA. RIVET MURRAY, Judge.

This is a prisoner’s mandamus action seeking to compel compliance with a public records request. From a judgment dismissing the writ of mandamus, the plaintiff appeals. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Johnny Diggs, Jr., an inmate at the Louisiana State Penitentiary, is serving a sentence of life plus 567 years as a fourth felony habitual offender after being convicted of armed robbery, attempted armed robbery, first degree robbery and attempted second degree murder. This court affirmed Mr. Diggs’ conviction in an unpublished opinion. See State v. Diggs, 97-1826 (La.App. 4 Cir. 11/4/98), 731 So.2d 559 (unpublished opinion table).

On November 10, 2001, Mr. Diggs requested a specific police report from the New Orleans Police Department (the “NOPD”), which he indicated was needed to support a claim in his post-conviction relief application. His request was contained in a letter addressed to the commander in charge of public records and was for the police report and other documents that reflect the statements “concerned citizens” who identified him and placed him at the scene of the crime. In the letter, he indicated his willingness to pay the cost of the requested police j ¡report and any associated documents. He also pointed out that he did not require all the police reports associated with his case and that he was unable to pay the $309.00 cost for obtaining all the reports.

Thereafter, the NOPD sent a letter to Mr. Diggs requesting additional information; that letter is not contained in the record. On December 14, 2001, Mr. Diggs responded by letter to the commander in charge of public records, providing his full name, date of birth, and social security number.

On February 26, 2002, Mr. Diggs filed a petition for writ of mandamus against Richard J. Pennington, the NOPD superintendent. In his petition, Mr. Diggs alleged that he provided all the information requested and that he was not provided the requested documents to which he is entitled under the Public Records Act. The petition requested that the trial court order the NOPD to provide him at no charge (or a reduced charge) the police report and any associated documents reflecting the statements of “concerned citizens” who placed him at the scene of the crime. He also filed a motion to proceed in forma pauperis.

On June 3, 2002, Chief Pennington was served with the petition. On August 9, 2002, Mr. Diggs appeared before the trial court; however, neither Chief Pennington nor a representative of the NOPD appeared. Nor did Chief Pennington file an answer. After hearing argument by Mr. Diggs, the trial court dismissed the petition. This timely appeal followed.

IJHSCUSSION

Mr. Diggs asserts three assignments of error. First, he argues that the trial court erred in its interpretation of the public records laws. He argues that the requested police report was subject to disclosure under the public records laws because his criminal litigation is final. It is clear from the record that Mr. Diggs is a person entitled to the requested police report because he is an individual in custody after sentence following a felony conviction, who has exhausted his appellate remedies, and the request was limited to grounds raised in his application for post conviction relief. La. R.S. 44:31.1. Mr. Diggs’ right to receive the report and associated documents, however, was not disputed by the NOPD. Nor did the trial court deny Mr. Diggs’ petition on that basis. Hence, there is no evidence that the trial court misinterpreted Mr. Diggs’ right to access the requested police report under the public records laws.

Second, Mr. Diggs argues that he is entitled to the specific police report and any associated documents at no charge (or a reduced charge) because he is indigent and that the trial court erred when it found that it lacked jurisdiction to order the NOPD to provide the requested report. He argues that the only remedy is for the NOPD to provide all the police reports at no charge or at a reduced charge because he cannot afford to pay the $309.00 fee for all the police reports in his case and cannot provide the specific item number for the specific police report he needs.

The applicable statutory provision, La. R.S. 44:32 C(l)(a), employs the permissive “may,” as opposed to the mandatory “shall.” Construing a similar | ¿provision, 44:32 C(2), which also uses the permissive “may,” we found it was within the district attorney’s discretion to furnish copies free, or at a reduced rate, to indigents and that it was error for the trial court to order the district attorney to furnish free copies. Carmona v. Wallace, 94-0885, p. 2 (La.App. 4 Cir. 11/17/94), 645 So.2d 1300. Similarly, in Ceasear v. Pennington, 2000-2787 (La.App. 4 Cir. 1/31/01), 778 So.2d 1222, we noted that a defendant seeking post-conviction relief “has an opportunity to obtain, as opposed to a right to obtain, a free copy of the police report.” 2000-2787 p. 2, 778 So.2d at 1223.

Although Mr. Diggs filed an application for post-conviction relief and articulated a need for the police report, that articulation merely gave him the opportunity, not the right, to receive a free copy of the police report. The NOPD may, in its discretion, furnish free (or reduced rate) copies of the police report, but there is no requirement that it do so. The trial court thus did not err in refusing Mr. Diggs’ request to order the NOPD to furnish him with free or reduced cost copies.

Mr. Diggs also argues that the trial court erred in finding that it lacked jurisdiction. This argument is based on the following statement by the trial court at the hearing on the petition:

I would like to help you, Mr. Diggs, but I can’t order the police department to drop their fee. I can’t order the police department to take an hour to go through all the police reports that they have and that you have the item numbers to see which one you would like_ I think it’s well without my— well beyond my jurisdiction to order the New Orleans Police Department to do any of what you’re asking me to do.

Contrary to Mr. Diggs’ contention, the trial court did not err in finding it lacked the power to compel the NOPD to provide a free report or to sift through all the reports Ism this case. Neither of these actions is a “ministerial duty” for which a writ of mandamus may be issued under La. C.C.P. art. 3863.

Lastly, Mr. Diggs argues that the trial court erred in shifting the burden to him during the hearing when the custodian of the records failed to appear. La. R.S. 44:31(B)(2) provides that the burden of proving that a public record is not subject to inspection, copying, or reproduction shall rest with the custodian. The issue at the hearing in the instant case, however, was not whether the requested police reports were subject to inspection, copying, or reproduction; rather, the issue was the cost. The trial court fully explored the issue of cost, Mr. Diggs’ inability to pay for the set of police reports, and his inability to provide a specific item number for the one police report he needs. The trial court went further and suggested to Mr. Diggs that perhaps one of the local law school clinics could assist him. The trial court did not impermissibly shift the burden to Mr. Diggs at the hearing.

DECREE

For the above reasons, we affirm the judgment of the trial court.

AFFIRMED.

      . On August 16, 2002, Mr. Diggs filed a petition for appeal and extension of time, which the trial court granted on August 21, 2002. October 2, 2002, he filed an assignment of error and designation of the record. The trial court set the return date as October 18, 2002. On December 6, 2002, the trial court vacated its order granting Mr. Diggs a devolutive appeal because the record did not contain a judgment that could be appealed. On the same day, the trial court signed a judgment denying Mr. Diggs’ petition for a writ of mandamus against Chief Pennington. By letter dated December 19, 2002, the trial court notified Mr. Diggs that his first motion for appeal had been granted in error, as there was no judgment signed and placed in the record from which he could appeal. The trial court pointed out that a judgment had been filed in the record and requested that Mr. Diggs file another motion for appeal. On December 30, 2002, Mr. Diggs filed a new petition for appeal and extension of time, which the trial court granted on January 8, 2003.

      . Particularly, the statute states:
      For all public records, except public records of state agencies, it shall be the duty of the custodian of such public records to provide copies to persons so requesting. The custodian may establish and collect reasonable fees for making copies of public records. Copies of records may be furnished without charge or at a reduced charge to indigent citizens of this state. La. R.S. 44:32C(l)(a).


author: EDWIN A. LOMBARD, Judge.

text:
    Lertrina RHEA v. WINN DIXIE MARKET PLACE STORE and its XYZ Insurance Company, Inc.
    No. 2002-CA-2181.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 4, 2003.

      Pius A. Obioha, New Orleans, LA, for Plaintiff/Appellant.
    Mary C. Ehret, Robert E. Peyton, Christovich & Kearney, L.L.P., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS SR., Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

The plaintiff, Lertrina Rhea, filed suit against defendants, Winn Dixie Market Place Store and its insurer, for injuries allegedly sustained in a slip and fall accident which occurred on March 5, 2001. The plaintiff alleged that she slipped on a broken jar of baby food and injured her ankle, leg and back. The defendants filed an answer denying plaintiffs allegations and subsequently filed a motion for summary judgment arguing that the plaintiff could not meet her burden of proof. After a hearing on August 16, 2002, the trial court rendered a written judgment on August 21, 2002, granting defendants’ motion for summary judgment and dismissing plaintiffs case. On appeal, the plaintiff argues that the trial court erred when it granted the defendants’ motion for summary judgment.

Summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. Art. 966. Article 966 was amended in 1996, but the burden of proof remains with the mover to show that no genuine issue of material fact exists. If, as here, the mover will not bear the burden of proof at trial, his or her burden on the motion does not require him or her to ^negate all essential elements of the plaintiffs claim, but rather to point out that there is an absence of factual support for one or more elements essential to the claim. La. C.C. art. 966 C(2); Fairbanks v. Tulane University, 98-1228 (La.App. 4 Cir. 3/31/99), 731 So.2d 983. After the mover has met its initial burden of proof, the burden shifts to the non-moving party to produce factual support sufficient to establish that he or she will be able to satisfy his evidentiary burden at trial. La. C.C.P. art. 966 C(2); Smith v. General Motors Corp., 31-258 (La.App. 2 Cir. 12/9/98), 722 So.2d 348. If the non-moving party fails to meet this burden, there is no genuine issue of material fact and the mover is entitled to summary judgment. La. C.C.P. art. 966; Schwarz v. Administrators of Tulane Educational Fund, 97-0222 (La.App. 4 Cir. 9/10/97), 699 So.2d 895. Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate.

The governing substantive law in this case is La. R.S. 9:2800.6, which sets a heavy burden of proof for plaintiffs in slip- and-fall claims against merchants. The statute provides in pertinent part:

B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, and in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition, which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.
IsC. Definitions:
(1) “Constructive notice” means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.

In White v. Wal-Mart Stores, Inc., 97-393 (La.9/9/97), 699 So.2d 1081, the Louisiana Supreme Court held that a claimant relying upon constructive notice under this statute must come forward with positive evidence showing not only that the damage-causing condition existed for some period of time, but also that the time period was sufficient to place the merchant defendant on notice of the condition’s existence. 699 So.2d at 1082. Thus, the claimant must make “a positive showing of the existence of the condition prior to the fall,” but “a defendant merchant does not have to make a positive showing of the absence of the existence of the condition prior to the fall.” 699 So.2d at 1084. “A claimant who simply shows that the condition existed without an additional showing that the condition existed for some time before the fall has not carried the burden of proving constructive notice as mandated by the statute.” 699 So.2d at 1084-85.

In the present case, the defendants supported their motion for summary judgment with the plaintiffs deposition in which she testified that she did not know how the broken baby food jar got on the floor. The plaintiff stated that she did not see the baby food on the floor until after she started to slip. She testified that it “looked like someone had just dropped it” and that the baby food “looked to be fresh.” She stated that she could not say how long the food was on the floor. She acknowledged that no one saw her accident. She reported the slip and fall to the cashier when she walked to the front of the grocery. The plaintiff did not 14produce any documents, affidavits or depositions in opposition to the defendants’ motion for summary judgment. She did not produce any evidence to show that she would be able to meet her burden of proof that the defendants had actual or constructive notice of the broken jar of baby food. Thus, the trial court did not err when it granted the defendants’ motion for summary judgment.

On appeal, the plaintiff contends that the trial court erred in considering the motion of summary judgment prior to the completion of discovery. The record reveals that the plaintiff had more than enough time to complete discovery prior to the motion of summary judgment but failed to do so. The plaintiff filed her petition on July 21, 2001, and defendants answered the petition on November 30, 2001. The defendants took plaintiffs deposition on March 20, 2002, after several attempts to schedule the deposition. In fact, the defendants filed a motion to compel deposition and sanctions on February 6, 2002. The trial court, on March 11, 2002, ordered the plaintiff to appear for her deposition within thirty days of the order or her case would be dismissed. In April and May of 2002, the defendants sent plaintiff correspondence seeking information on plaintiffs intent to take any additional discovery. Defendants did not file their motion for summary judgment until July 10, 2002. The trial court conducted a hearing on the motion for summary judgment on August 16, 2002.

It is the province of the trial court to control the progress of discovery. Where, as here, the plaintiff had adequate time since the filing of the complaint to secure discovery and was given the opportunity for discovery, there was no abuse of the trial court’s wide discretion in discovery matters. See Orillion v. Alton Ochsner Med. Found., 97-115 (La.App. 5 Cir. 5/28/97), 695 So.2d 1063; Oliva v. Winn-Dixie Louisiana, Inc., 99-831 (La.App. 5 Cir. 1/4/2000), 756 So.2d 444. The trial court did not commit error in its decision to entertain the motion for summary judgment.

Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.


author: MAX N. TOBIAS, JR., Judge.

text:
    STATE FARM FIRE AND CASUALTY COMPANY as Subrogee to the Rights of HH & K Realty Louisiana Partnership v. M.L.T. CONSTRUCTION COMPANY, INC., Hibernia Roofing & Metal Work, Inc., a/k/a Hibernia Roofing and/or Hibernia Roofing & Siding, Hermitage Insurance Company, Charles Iglesias, and Iglesias & Associates. Tracy J. Bouma and Ty G. Bouma, Individually and on Behalf of their Minor Children, Adam L. Bouma, Zachary R. Bouma, And Eva L. Bouma v. H.H. & K. Realty, A Louisiana Partnership, M.L.T. Construction Company, Hibernia Roofing & Metal Work, Inc., Charles Iglesias, Iglesias and Associates, Hermitage Insurance Company, ABC Insurance Company and DEF Insurance Company.
    Nos. 2002-CA-1811, 2002-CA-1812.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 4, 2003.

      Rockne L. Moseley, Moseley & Associates PLC, New Orleans, LA, for Plaintiff/Appellee.

      James Ryan, III, J.. Michael Monsour Sessions, Fishman & Nathan, LLP, New Orleans, LA, for Defendani/Appellant.
    (Court Composed of Judge Charles R. Jones, Judge James F. McKay III, Judge and Max N. Tobias, Jr.).
   MAX N. TOBIAS, JR., Judge.

This appeal involves a suit filed by Tracy Bouma and her husband, Ty Bouma, stemming from personal injuries suffered by Ms. Bouma, consisting of an aggravated allergic reaction to mold, mildew, and other allergens allegedly introduced into her work environment by an influx of water at the HH & K building, where Ms. Bouma was working and employed as a legal secretary.

FACTUAL BACKGROUND

Tracy Bouma began her job as a legal secretary for the law firm of Herman, Herman, Katz & Cotlar (“the Herman firm”) on or about 27 March 1996 and left its employ on or about 1 April 1997. Prior to and during her employment by the Herman firm, the office of the Herman firm was located in the HH & K building at 820 O’Keefe Avenue in New Orleans. Prior to the commencement of her employment, the HH & K building had sustained water intrusion as a result of its leaking roof.

Less than two months after Ms. Bouma was employed by the Herman firm, HH & K Realty, A Louisiana Partnership (“HH & K Realty”), the owner of the HH & K building, retained MLT Construction Company, Inc. (“MLT | ^Construction”) d/b/a Hibernia Roofing (“Hibernia”) to re-roof the building. Charles J. Iglesias and his architectural firm, Iglesias & Associates, An Architectural Corporation (“Iglesias & Associates”), were retained to design the new roof and subsequently acted. as an intermediary between HH & K Realty and the roofing company.

Hibernia began working on the roofing project on 21 May 1996 and completed the roofing job on or about 18 June 1996. During the re-roofing process, rainwater entered the HH & K building during heavy rainstorms, causing damage to the building’s interior, ceiling tile, wallboard, wall coverings, and carpet. Diane Share, the office administrator for the Herman firm, recounted the flooding events in a memorandum prepared on or about 18 July 1996:

On Sunday June 2, 1996, we had the first very significant rain storm which caused extensive damage inside the building. The rain poured down the walls in the library in such volume as three staff members mopped for 4 hours straight. The water was still coming down with over]é inch of water on the floor in those areas after 4 hours. Additional staff people were called to help wipe up these areas. Three people went on the roof and used brooms to push the water off the roof. On this roof above the library, there was 3 inches of standing water fueling the leak below.
On Monday June 3, 1996, Munters (a dehumidifying and cleaning company) was called to assist in the clean up and set up of dehumidifiers and fans to get the moisture from the building. A carpenter was sent by our contractor, Mr. Velez, to remove the mirrored panels covering the sheet rock that was soaking wet. Later a cleaning crew was called in to try to disinfect the area and to try to kill mildew and mold growing on the sheet rock and surfaces in the hall and library. Wallpaper bubbled from trapped water and became stained and soiled. Ceiling tiles were heavily damaged, as well as carpeting in some areas of the building.
A meeting was held June 3, 1996 with Charles Iglesias, our architect, and Cynthia Salerno of Hibernia Roofing regarding the water in the hbuilding and how to prevent additional leaks. Discussion was held regarding the use of sump pumps, the consideration of the use of a huge tarp and visqueen tarps to protect the furnishings and people below. We were assured this was the end of the leaking.
On June 13, 1996, the accounting area received rain water like a waterfall, particularly in the front comer. The back of the accounting area received water as well. On June 14, 1996, water was leaking into the office of Steve Lane in front of the building and, luckily, the Yankee memorabilia there was able to be moved from his office without damage. Water was pouring like a waterfall from the ceiling of the main hallway. All the furniture had to be moved to protect the items as much as possible. Munters delivered additional equipment to remove the humidity.
On June 17, 1996, the office of the administrator and the accounting area again got soaked. At first, it was thought the water was coming in from the air conditioners. After the roof construction crew left the premises, a crack in a vent cover was found by our architect which caused this problem. This crack was a result of faulty construction and was replaced by Hibernia.

After the roofing project was completed, the interior of the building underwent extensive renovations that continued for one year, until April 1997.

Ms. Bouma experienced a series of chronic colds, headaches, and respiratory problems following the 2 June 1996 water intrusion. Her symptoms escalated, and the plaintiff sought medical treatment from Rory J. Duffour, M.D., who prescribed medications to ease her respiratory complaints. She visited Dr. Duffour approximately five (6) times between June 1996 and April 1997. Ms. Bouma’s medical records do not reflect that Dr. Duffour was of the opinion that Ms. Bouma’s ailments were caused by her work environment. Ms. Bouma continued to suffer from respiratory difficulties while working at the Herman firm.

On 28 April 1997, Ms. Bouma was evaluated by Hans Schuller, M.D., a pulmonologist, who opined that her condition was related to the conditions at her workplace. He stated that she suffered from “some underlying asthmatic |4predisposition which is aggravated by the dusty and dirty work environment.” Over the course of her treatment, Ms. Bouma was determined to be highly allergic to some types of mold spores and dust mites, and more mildly allergic to cat and dog dander. The record reflects that Ms. Bouma had suffered from pneumonia three times prior to her employment at the Herman firm and had a history of respiratory problems.

In April 1998, Ms. Bouma began seeing Andrew Rogness, M.D., a pulmonologist, who testified in his deposition that she suffers from asthma. According to Dr. Rogness, asthma was, in Ms. Bouma’s case, a pre-existing condition. It can remain non-symptomatic in a patient until triggered by a significant exposure to an allergen, which is known as a “heralding event.” The plaintiffs maintain that Ms. Bouma’s “heralding event” was exposure to mold at the Herman firm resulting from the influx of water during the roofing project at the HH & K building.

On 1 April 1998, Ms. Bouma and her family filed suit alleging personal injuries caused by her exposure to hazardous, poisonous, and injurious substances, which existed in and as a part of the HH & K building. The Herman firm, HH & K Realty, MLT Construction, Hibernia Roofing & Metal Work, Inc., Charles Iglesias, Iglesias & Associates, and Hermitage Insurance Company (“Hermitage”), which had issued a general liability policy insuring Hibernia, were all named as parties defendant. In particular, the Boumas alleged that Hibernia was negligent for exposing Ms. Bouma to contamination, ruin, vice, defects, dangerous conditions, and materials existing therein and brought in by the re-roofing work. State Farm & Casualty Company (“State Farm”), the insurer for the Herman firm who had subro-gated to the rights of the firm by virtue of payment of the claim, Rfiled suit against MLT Construction, Charles Iglesias, Igle-sias & Associates, Hibernia, and Hermitage, seeking damages for property damage and other losses associated with the water damage to the HH & K building.

On 18 August 2000, the Boumas dismissed with prejudice all claims made on behalf of their minor children, leaving only their claims for personal injury and loss of consortium. On 1 September 2000, the Boumas dismissed all claims filed against HH & K Realty, Charles Iglesias and Igle-sias and Associates, leaving only their claims against Hibernia, Hermitage, and MLT Construction. All proceedings against Hibernia and MLT Construction were stayed because they were found to be insolvent by the bankruptcy courts.

The trial of this matter began on 18 December 2001 and proceeded as a bench trial. The trial court rendered judgment in favor of the plaintiffs and against Hermitage and awarded Tracy Bouma $25,000.00 in general damages and Ty Bouma $5,000.00 for loss of consortium. State Farm, as subrogee to the rights of HH & K Realty, was awarded $28,141.67 for its property damage claims against Hermitage. In its reasons for judgment, the trial court found that Hibernia was negligent in its handling of the roofing project and that its negligence had allowed “massive amounts” of rainwater to enter the building. The court noted that the plaintiffs never contested Hermitage’s assertion that rainwater had entered the building before the roofing work began; however, the trial court found that the plaintiffs established by a preponderance of the evidence that the rainwater intrusions prior to the re-roofing work were minimal when compared to the rainwater intrusions that occurred during the roofing work performed by Hibernia.

| fiWith regard to Ms. Bouma’s medical condition and its cause(s), the trial court found that the evidence preponderated to show that although Ms. Bouma testified that she had never been diagnosed with asthma prior to the roofing work, she did have asthma prior to the summer of 1996, but that the roofing project and the resulting influx of water exacerbated her disease.

Prior to the trial on the merits, Hermitage had filed and set for hearing an exception of prescription on the grounds that although Ms. Bouma claimed exposure to mold and contaminants introduced to the HH & K building by the rainwater intrusions which ended after the roofing job concluded in June 1996, she and her husband did not file suit until 1 April 1998, almost two years later. The exception of prescription was overruled, and Hermitage filed an application for a writ of certiorari with this court on the denial of the exception; the writ was denied on the grounds that prior to April 1997, the plaintiff did not know what was causing her ailments. This court further found that the plaintiff did not act unreasonably or negligently with regard to determining the cause of her ailment or in seeking treatment for her ailment.

Finally, the trial court further found that rainwater is not a pollutant or contaminant and, as a result, the total pollution exclusion contained in the Hermitage policy does not apply to the plaintiffs’ claims.

Hermitage appeals the trial court’s judgment in favor of the plaintiffs, asserting three assignments of error. First, Hermitage asserts that the trial court erred in finding that the plaintiffs’ damages were caused by Hermitage’s insured’s conduct or fault and further erred in failing to assign any degree of fault to other tortfea-sors, as required by the comparative fault system that governs Louisiana tort law. Second, Hermitage argues that the trial court erred in ruling that the insurance 17policy issued by Hermitage provided coverage for the injuries sustained by the plaintiffs. Third, Hermitage asserts that the trial court erred in applying the legal doctrine of contra non valentem agere nul-la currit praescripto to the facts of this matter and finding that the claims of the plaintiffs had not prescribed as a matter of law.

Hermitage’s Assignment of Error Number One

As its first assignment of error, Hermitage asserts that the trial court erred in finding that any conduct of Hermitage’s insured caused or was related to Ms. Bou-ma’s alleged illness and further erred in failing to assign fault to all tortfeasors as required by Louisiana’s comparative fault-based tort system. Hermitage further argues that the plaintiff was contributorily negligent in aggravating her asthma.

Hermitage asserts that the evidence presented at trial clearly showed that Ms. Bouma began suffering from respiratory problems before the roofing work began at the HH & K building. Further, Ms. Bou-ma testified that the ceiling above her desk was leaking before the roofing project began and that the ceiling tiles above her desk fell and ruined items on her desk before Hibernia began work on the roof. Diane Share, the office manager, testified at trial that on at least one occasion, workers from the office had to go on the roof to push water off the old section of the flat roof during a rainstorm because the interi- or of the office was taking in substantial amounts of water. She testified that the section of the roof that was leaking was not being worked on by Hibernia and had not been re-designed by Charles Iglesias. Co-workers of Ms. Bouma confirmed that prior to the roofing project, plastic pails and trash cans were used to collect water dripping or leaking from the ceiling. Hermitage argues that the evidence presented at trial established, at the very least, the fault of the HH & K building owners.

I «Hermitage further asserts that the maintenance crews working at the HH & K building during the renovation of the offices were negligent. Testimony at trial indicates that during the renovation project, carpets and other materials damaged by the leaking roof were allowed to remain in the office space and were not immediately discarded. With regard to Ms. Bouma herself, Hermitage maintains that she was negligent in failing to mitigate her damages, as she testified that she has smoked a few cigarettes during her illness due to stress associated with her father’s health problems. Further, although Ms. Bouma was found to be allergic to cat and dog dander, Ms. Bouma testified that her family had dogs and cats that were kept outside of the house. Hermitage also points out that Ms. Bouma failed to tell Dr. Duffour about her work environment, and failed to put any thought into why she was sick, waiting “until the last minute” to see Dr. Duffour.

It is well-settled that a trial court’s findings of fact will not be disturbed unless the record establishes that a factual, reasonable basis does not exist and the finding is clearly wrong or manifestly erroneous. Syrie v. Schilhab, 96-1027, p. 4 (La.5/20/97), 693 So.2d 1173, 1176. Thus, in order to reverse a trial court’s findings of facts, an appellate court must first determine, after reviewing the record in its entirety, that a reasonable factual basis does not exist for the finding and that the record establishes that it is clearly wrong. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987).

We find no manifest error with the trial court’s finding that Ms. Bouma was not contributorily negligent. As discussed below with regard to the third assignment of error, we do not find that Ms. Bouma acted unreasonably or negligently in the investigation or treatment of her illness. We similarly do not 19find that the evidence in the record supports a finding that any negligence on her part actually caused her illness.

In the present case, although we might have evaluated the evidence such that a percentage of fault could be attributed to other tortfeasors in this matter, we find no manifest error on the part of the trial court in reaching the conclusion that Hermitage should be held liable for 100% of the damages proven at trial. The nature of Ms. Bouma’s illness is such that it is difficult, if not impossible, to determine precisely its cause. As noted in the reasons for judgment, the trial court took into consideration the potential fault of the building owners and other potential tort-feasors, but concluded after reviewing the evidence that Hibernia’s negligence had more likely than not caused the plaintiffs’ damages, as the water intrusions into the building prior to the roofing job were found to be minor in comparison with the amount of damage caused by Hibernia’s roofing work. Although, under the evidence presented at trial, it is conceivable that other parties might have been found liable for the Boumas’ damages, we find no manifest error in the trial court’s evaluation of the evidence before it and conclusions regarding allocation of fault.

Hermitage’s Assignment of Error Number Two

Hermitage argues that the policy issued to MLT Construction d/b/a Hibernia Roofing did not provide coverage for the plaintiffs’ injuries because the policy contained a total pollution exclusion endorsement. The endorsement in question provides that:

This insurance does not apply to:
mf. (1) “Bodily injury” or “property damage” which would not have occurred in whole or part but for the actual, alleged, or threatened discharge, dispersal, seepage, migration, release or escape of pollutants at any time. “Pollutant” means any solid, liquid, gaseous, or thermal irritant or contaminant including smoke, vapor, soot, fumes, acid, alkalis, chemicals and waste. Waste includes material to be recycled, reconditioned or reclaimed.

This total pollution exclusion is identical to the pollution exclusion clause dealt with in Ducote v. Koch Pipeline Co., 98-0942 (La.1/20/99), 730 So.2d 432, which Hermitage cites as controlling authority with regard to interpretation of pollution exclusion clauses. However, the Louisiana Supreme Court has overruled the Ducote decision and the current law on interpretation of these clauses is set forth in Doerr v. Mobil Oil Corporation, 2000-0947 (La.12/19/00), 774 So.2d 119. In Doerr, the Supreme Court described the history of pollution exclusion clauses insurance policies and noted that the policy considerations underlying the inclusion of pollution exclusion clauses involved forcing environmental polluters to pay for damages caused by their polluting activities by removing those losses from coverage by their general liability insurance, and thereby discouraging polluting activity. Id.

The Doerr court observed that “the total pollution exclusion was neither designed nor intended to be read strictly to exclude coverage for all interactions with irritants or contaminants of any kind” and held that whether a pollution exclusion clause applies to a loss turns on the following factors: (1) whether the insured is a “polluter” within the meaning of the exclusion; (2) whether the injury-causing substance is a “pollutant” within the meaning of the exclusion; and (3) whether there was a “discharge, dispersal, seepage, migration, release or escape” of |1Ta pollutant by the insured within the meaning of the policy. Doerr, 774 So.2d at 135.

Whether an insured is a “polluter” is a factual issue that should “encompass consideration of a wide variety of factors.” Id. at 136. Specifically, the Court noted that the trier of fact should take into consideration the type of business in which the insured is engaged and whether that business presents a risk of pollution; whether the disputed claims are covered by any other policy; whether the insured should have known from a reading of the policy that a separate policy covering pollution damages would be necessary for the business; who the insurer typically insures; any other claims made under the policy; and any other factor the trier of fact deems relevant to the inquiry. Id.

Whether a substance is a “pollutant” is similarly a fact-intensive question. As the Supreme Court noted in Doerr, there are a variety of substances that could fall within the broad definition of irritants and contaminants that are found in total pollution exclusion clauses as in the policy in question. The Doerr court held that a trier of fact should consider:

the nature of the injury-causing substance, its typical usage, the quantity of the discharge, whether the substance was being used for its intended purpose when the injury took place, whether the substance is one that would be viewed as a pollutant as the term is generally understood, and any other factor that the trier of fact deems relevant to that conclusion.

Id. at 135.

In the present matter, the complained-of pollutant was rainwater and, arguably, the mold and mildew that allegedly resulted from the influx of that rainwater. Using the factors enunciated by the Supreme Court, we note that rainwater is not a substance that is usually viewed as a pollutant. Further, | ^although a roofing contractor may in the course of his business use many different chemicals and/or materials that could be considered pollutants, it was not the utilization or dispersal of dangerous materials by Hibernia that is alleged to have caused the plaintiffs’ damages; rather, it was the failure to prevent rainwater from invading the office space of the Herman firm that is alleged to be the proximate cause of the plaintiffs’ damages.

Finally, determination of whether there was a “discharge, dispersal, seepage, migration, release or escape” is a fact-based inquiry that takes into account all relevant circumstances. Specifically, the trier of fact should consider whether the pollutant was intentionally or negligently discharged, the amount of the injury-causing substance discharged, whether the actions of the alleged polluter were active or passive, and any other facts relevant to the inquiry.

Although Hermitage relies upon the broad reading of the pollution exclusion clause in Ducote, the Supreme Court has made it clear that the Ducote decision was a departure from a fairly consistent line of jurisprudence in Louisiana. Cases preceding Ducote established the premise that “pollution exclusions are intended to exclude coverage for active industrial polluters, when businesses knowingly emitted pollutants over extended periods of time.” Thompson v. Temple, 580 So.2d 1133, 1134 (La.App. 4 Cir.1991). In West v. Board of Commissioners, 591 So.2d 1358 (La.App. 4 Cir.1991), this court refused to extend a pollution exclusion clause to deny coverage for injuries sustained by an investigator who was injured when he inhaled pesticide fumes that had leaked from damaged storage containers at his work, noting that a pollution exclusion clause is | ^inapplicable when an insured only incidentally possesses a pollutant in the course of their business. As the plaintiffs note, the clear purposes of the pollution exclusion clauses are to prevent businesses from escaping responsibility for polluting behavior by procuring insurance to cover such losses and further to encourage businesses to curb polluting activities.

It is clear that the facts of this case are not appropriate to trigger the total pollution exclusion in the Hermitage policy and, as such, the Boumas’ claims are not precluded from coverage under the general liability policy.

Hermitage’s Assignment of Error Number Three

Hermitage finally asserts that the trial court erred in failing to find that the plaintiffs’ claims were prescribed as of 1 April 1998, when the petition for damages was filed.

The prescriptive period for del-ictual actions is one year, which commences to run from the day injury or damage is sustained. La. C.C. art. 3492. The statutes governing prescription are strictly construed against prescription in favor of the obligation sought to be extinguished. Williams v. Lafayette Ins. Co., 98-2855 (La.App. 4 Cir. 5/19/99), 740 So.2d 183, 185. Ordinarily, the party pleading an exception of prescription bears the burden of proof. Niklaus v. Bellina, 96-2411 (La.App. 4 Cir. 5/21/97), 696 So.2d 120, 122. However, where the face of the petition shows prescription has run, the burden of proof shifts to the plaintiff to show prescription has not run. Lima v. Schmidt, 595 So.2d 624, 628 (La.1992); Niklaus, supra.

Because of the strict construction of prescription statutes, Louisiana courts recognize the doctrine of contra non va-lentem agere nulla currit praescripto {“contra non valentem”). Renfroe v. State ex rel. Department of Transportation and Development, 2001-1646, pp. 8-9 (La.2/26/02), 809 So.2d 947, 953. Under the doctrine of contra non valentem, the running of prescription is suspended during the period in which the cause of action was not known by or reasonably knowable by the plaintiff. Bergeron v. Pan American Assur. Co., 98-2421, p. 9 (La.App. 4 Cir. 4/7/99), 731 So.2d 1037, 1042.

In Wimberly v. Gatch, 93-2361 (La.4/11/94), 635 So.2d 206, 211, the Supreme Court set forth four categories in which prescription is usually suspended under the doctrine of contra non valen-tem:

(1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action;
(2) where there was some condition coupled with a contract or connected with the proceedings which prevented the creditor from suing or acting;
(3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; and
(4) where some cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant.

See also, Bergeron v. Pan American Assur. Co., supra.

Although the first three categories are not relevant to this case, the plaintiffs’ assertions fall squarely in the fourth: Ms. Bouma claims that she did not know, prior to April 1997, what was causing her ailments. Application of the fourth category of contra non valentem on a cause of action is dependent upon a finding that a plaintiffs ignorance of his or her rights and potential cause of action was not willful, negligent, or unreasonable. Id. Ms. Bouma maintains that as soon as she began to experience difficulties, she attempted to treat her symptoms with overHthe-counter15 medications and sought medical assistance from Dr. Duffour. During her many consultations with Dr. Duffour, neither she nor Dr. Duffour ever concluded that her difficulties could be linked to her work environment. In fact, Dr. Duffour, in his deposition, stated that during one of Ms. Bouma’s office visits, he ruled out the possibility that her asthma was related to any one specific cause.

Hermitage cites In re: Asbestos Plaintiffs v. Borden, Inc., 2001-1379 (La.App. 4 Cir. 8/14/02), 826 So.2d 581 as support for its assertion that plaintiffs’ claims are prescribed. In Borden, one of the plaintiffs made a claim for, among other things, occupational asthma, which he contended he contracted while working at a number of shipyards over a twenty-year period. The trial court sustained an exception of prescription filed on the grounds that, although the plaintiff in question had suffered from symptoms related to his asthma as early as the mid-1970s, he did not file suit until October 1991. The plaintiff asserted that because he was not diagnosed with occupational asthma until 1991, prescription had not yet tolled on his claims. Hermitage asserts that, likewise, Ms. Bouma’s manifestation of symptoms well prior to April 1997 and the ease of association between her symptoms and work environment are identical to the issues before the court in Borden.

Borden, however, is distinguishable on its facts. Although the plaintiff in Borden had manifested symptoms years before and finally being diagnosed with occupational asthma, there is nothing to suggest that he had suffered from any ongoing respiratory problems prior to his employment by the shipyards- that might have confounded his ability to discern an onset of occupational asthma. Ms. Bouma, on the other hand, had suffered from pneumonia three times by the age of thirty-one and had a history of respiratory difficulties. It is not unreasonable for hfiher to have failed to associate the exacerbation of her illness with her work environment and not as a worsening of an already-present condition, which she had described as similar to an ongoing cold.

We conclude that the record and evidence presented at trial support the finding of the trial court that Ms. Bouma did not know of the cause of her illness until April 1997. Further, based upon the actions of Ms. Bouma, we do not find that she acted unreasonably or negligently. She tried to treat her symptoms, but to no avail. Thus, the argument proffered by Hermitage that Ms. Bouma was unreasonable is simply without merit. The plaintiffs’ petition for damages was timely filed pursuant to the doctrine of contra non valentón.

CONCLUSION

After reviewing the record and evidence submitted at the trial of this matter, we find that the trial court did not err in assigning 100% liability to Hermitage, finding that the pollution exclusion clause contained in the Hermitage policy does not apply to the facts of this case, or in determining that the plaintiffs’ claims are not prescribed.

AFFIRMED.

JONES, J., concurs in the result.

      . Our findings in this case are based upon the record on appeal. See La. C.C.P. art. 2128. It is apparent that certain pleadings and other filings in these consolidated cases were not made a part of the record on appeal.

      . The statement that MLT Construction was doing business as Hibernia Roofing is based upon the Hermitage Insurance Company's brief to this court. Hermitage issued their policy of insurance to MLT Construction doing business as Hibernia Roofing.

      . No assignment of error has been asserted with respect to any claim made by State Farm in this litigation.