author: GENOVESE, Judge. COOKS, J.,

text:
    Randy James HENRY, Individually, and as Administrator of the Estates of his Minor Children, Kayla Henry, Christopher Henry and Kevin Henry, and Connie Henry v. Danny L. BARLOW, U.S. Agencies Casualty Insurance Company, Inc., and Cleco Utility Group, Inc.
    No. 2006-283.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 9, 2006.
    Rehearing Denied Sept. 27, 2006.
    Steven Broussard, Broussard & Hart, L.L.C., Lake Charles, Louisiana, for Plaintiffs/Appellees, Randy James Henry, Individually, and as Administrator of the Estates of His Minor Children, Kayla Henry, Christopher Henry and Kevin Henry, and Connie Henry.
    Albín A. Provosty, John D. Ryland, Pro-vosty, Sadler, deLaunay, Fiorenza & So-bel, Alexandria, Louisiana, for Defendant/Appellant, Cleco Utility Group, Inc.
    C. Shannon Hardy, Penny & Hardy, Lafayette, Louisiana, for Defendants/Appellants, Danny L. Barlow and U.S. Agencies Casualty Insurance Company, Inc.
    Earl Pitre, Lake Charles, Louisiana, for Defendants/Appellants, Danny L. Barlow and U.S. Agencies Casualty Insurance Company, Inc.
    G. Bruce Parkerson, Plauche ,& Parker-son, L.L.P., New Orleans, Louisiana, for Defendant/Appellant, Associated Electric and Gas Insurance Services, Limited.
    Christopher R. Philipp, Lafayette, Louisiana, for Intervenors, Town of DeQuiney and Louisiana Municipal Risk Management Agency Workers’ Compensation Fund.

      Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, JIMMIE C. PETERS, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

11 Defendant,' Cleco Utility Group, Inc., seeks supervisory writs from a judgment of the district court granting its motion to compel independent medical examinations of Plaintiff, Randy James Henry, but imposing certain restrictions on the manner in which the examinations are to be conducted, such as requiring Plaintiffs’ counsel to be present at said examinations and videotaping said examinations. For the following reasons, we grant Defendant’s writ application, make it peremptory, and reverse the judgment of the district court as to the restrictions it imposed on the independent medical examinations.

FACTS

On November 26, 2000, Plaintiff, Randy James Henry (Henry), was involved in an accident in which he suffered electrical burns to his head and feet. Henry received medical treatment for his injuries from several health care providers, including a neurologist and a clinical psychologist. Defendant, Cleco Utility Group, Inc. (CLECO), requested that Henry undergo examinations by a neurologist and psychologist of its own choosing. Henry refused to submit to the independent medical examinations (IME) unless his attorney was present and the examinations were videotaped. When the parties could not agree on the manner in which the examinations were to be conducted, CLECO filed a motion to compel the independent medical examinations.

CLECO’s motion to compel was heard on January 20, 2006. The district court granted CLECO’s motion compelling Henry to undergo the independent medical examinations, but ordered that Henry’s counsel be present during the examinations and that they be videotaped. A written judgment was signed on January 26, 2006. Lit is from this judgment that CLECO seeks supervisory writs.

ISSUE

The sole issue presented for our review is whether the district court erred in permitting CLECO to obtain independent medical examinations of Henry only on the condition that Henry’s counsel be present and that the examinations be videotaped.

LAW AND ARGUMENT

Louisiana Code of Civil Procedure Article 1464 provides as follows:

When the mental or physical condition of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in his custody or legal control, except as provided by law. In addition, the court may order the party to submit to an examination by a vocational rehabilitation expert or a licensed clinical psychologist who is not a physician, provided the party has given notice of intention to use such an expert. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.

In the instant matter, it is undisputed that CLECO is entitled to have Henry examined by a neurologist and psychologist of its choice; hence, “good cause” is not at issue. Rather, it is the “manner” and “conditions” imposed upon these ex-animations which we are called upon to resolve.

CLECO asserts that Henry failed to establish any special conditions warranting the restrictions placed on the requested independent medical examinations. Although Henry raised concerns that the examining physicians would not testify truthfully, CLECO countered that these concerns are common to every independent medical examination. Additionally, while Henry raised the issue of his suffering from a cognitive impairment which may cause communication problems, CLE-CO contends |sthat these concerns were adequately addressed by permitting Henry’s wife to attend the examinations. We agree with CLECO.

The issue of whether or not a plaintiff has the right to have his or her attorney present during an IME was considered in Simon v. Castille, 174 So.2d 660 (La.App. 3 Cir.), writ denied, 247 La. 1088, 176 So.2d 145, cert. denied, 382 U.S. 932, 86 S.Ct. 325, 15 L.Ed.2d 344 (1965). In Simon, the plaintiff asserted that this privilege was “an absolute right.” Id. at 662. To the contrary, the defendant argued that the attorney’s presence was “merely one of the ‘conditions’ within the discretion of the trial judge to specify under [La.Code Civ.P. art. 1464].Id. at 662. This court addressed the issue, stating as follows:

We note at the outset that the plain language of [La.Code Civ.P. art. 1464] does not provide for the presence of plaintiffs attorney at the examination. The article clearly gives great discretion to the trial judge. He may deny the motion unless ‘good cause’ for the examination is shown. He may ‘specify the time, place, manner, conditions, and scope of the examination [....]’ The defendant does not even have the absolute right to choose the physician, this also being left finally to the court’s discretion. Thus, the language of the statute itself appears to support defendant’s position.

Id. at 662. Recognizing that this issue was res nova in Louisiana, and after considering the jurisprudence of other states and the Federal Courts, this court, in Simon, concluded that a “plaintiff does not have an absolute right to have [his or] her attorney present at [a] medical examination requested by defendants,” and went on to address “the next question [of] whether plaintiff [had] borne her burden of showing special circumstances ... requiring [the] attorney’s presence.” Id. at 665.

Hence, in the instant matter, Henry does not have the absolute right to have his attorney present at the IME as he contends. Rather, the legal issue before this court Uis whether Henry has met his legal burden of proving the requisite special circumstances warranting the presence of counsel and videotaping at his IME. As discussed above, a court may subject the examinations to reasonable restrictions or conditions only if special circumstances are shown. In the instant case, there is insufficient evidence in the record establishing special circumstances warranting said restrictions or conditions. Henry has failed to meet his burden of proof.

The very purpose of an independent medical examination is to determine the extent of the physical or mental injuries alleged to have been sustained by Henry. Since good cause and notice are not at issue, CLECO has the right to have Henry examined by physicians of its choosing to determine the nature and extent of Henry’s injuries, including his alleged mental impairment. Henry has not alleged, nor does the record reveal, any evidence which even suggests that the physicians chosen by CLECO are not qualified to perform the examinations. Henry’s desire to avoid a “swearing match” at trial does not rise to the level of special circumstances warranting the placement of restrictions on these independent medical examinations.

There are allegations of mental injury in this case. If it is shown that Henry needs assistance at these examinations, then Henry’s wife, or a designated family representative, could be allowed to assist him. However, permitting Henry’s attorney to be present at these examinations makes the attorney himself a potential witness. Requiring the videotaping of an IME would restrict the number of physicians willing to conduct a,videotaped IME under such circumstances. If Defendant’s IME is allowed to be videotaped, then Defendant could urge that all of Plaintiffs examinations be. videotaped as well, and so forth and so on. That is neither the intent nor the spirit of La.Code Civ. P. art. 1464.

Rln this case, Henry failed to prove that “special circumstances” exist justifying the placement of these restrictions on the independent medical examinations. Accordingly, there is not a sufficient basis for the imposition of the restrictions that Henry’s counsel be present at the independent medical examinations and that said examinations be videotaped.

DECREE

For the reasons set forth above, we grant Defendant’s application for supervisory writs, make it peremptory, and reverse that portion of the district court judgment ordering that Henry’s counsel be present at the independent medical examinations and that the examinations be videotaped. We remand this matter for further proceedings consistent herewith.

Costs of this appeal are assessed against the Plaintiffs, Randy James Henry, individually, and as administrator of the estates of his minor children, Kayla Henry, Christopher Henry and Kevin Henry, and Connie Henry. ■

WRIT GRANTED AND MADE PEREMPTORY.

COOKS, J., dissents and assigns written reasons.

COOKS, J.,

dissents.

1,1 dissent from the majority’s reversal of the district court’s judgment allowing the mentally injured plaintiff to have his counsel present at the independent medical examination and allowing the examination to be videotaped. The trial judge, after reviewing the matter, granted plaintiffs request that his counsel be present at the examination, but specifically stated that the lawyer could not interfere with the examination in any way or say anything during the proceedings. The majority reverses, finding the plaintiff does not have the absolute right to have his attorney present at the IME. Unfortunately, that was not the issue presented by this case.

While it is correct a plaintiff does not have the “absolute right” to have his attorney present at a medical examination requested by a defendant, it also is true that there is no “absolute bar” to allowing the presence of the attorney. This court’s decision in Simon v. Castille, 174 So.2d 660 (La.App. 3 Cir.), writ denied, 247 La. 1088, 176 So.2d 145, cert denied, 382 U.S. 932, 86 S.Ct. 325, 15 L.Ed.2d 344 (1965), cited by the majority, makes it clear that La.Code Civ.P. art. 1464 gives great discretion to the trial judge to “specify, the time, place, manner, conditions, and scope of the examination [_]”. Id. at 662. The court in Simon, after determining that a plaintiff does not have an absolute right to have an attorney present, noted the appropriate | ¡^question is “whether plaintiff has borne [the] burden of showing special circumstances [exist], requiring [the] attorney’s presence.” In Simon, the trial court did not find any special circumstances existed and did not allow the plaintiffs request to have her attorney present at the examination. On appeal, we noted that the “only evidence in the record tending to show such [special] circumstances is an affidavit by one of plaintiffs attorneys that, in certain cases in which he was counsel for the plaintiff, the defendants’ examining physicians improperly asked the plaintiff questions which were irrelevant to the medical examination and concerned details of the accident relevant only to the question of negligence and liability.” Id. at 665. The trial court rightly concluded this was insufficient to rise to the level of special circumstances requiring the presence of plaintiffs attorney. Our court affirmed, finding the trial court did not abuse its discretion. I agree wholeheartedly with the result reached by both the trial court and our court in Simon, and find when the rationale set forth by this court in Simon is applied to the facts of this case, an affir-mance of the trial court’s judgment is also required. The record in this case establishes “special circumstances” exist for allowing the attorney to be present.

Further, the Louisiana Supreme Court in Robin v. Associated Indemnity Company, 297 So.2d 427, 480 (La.1973), set forth in plain detail the intent of article 1464:

The purpose of Code of Civil Procedure article [1464] is to expedite the search for the truth. If the physician who conducts the examination is court-appointed, and not lawyer-selected, there is more reason to expect impartiality than if the physician is selected by one of the parties as his expert. The discovery devices employed in Louisiana and elsewhere, though minimizing surprise in litigation, have not completely removed the partisan nature of a trial. Although it is difficult to understand that the presence of an attorney can ordinarily be of any assistance in the determination of the true facts with reference to the physical condition of an injured litigant, it is also difficult to find good reasons to prohibit the plaintiff from having the reassuring presence of his attorney at the medical examination. Certainly the presence of the attorney would tend to limit such abuses as those of which the plaintiff complains. There may be occasions when the presence of the attorney |smight prevent an efficient examination, or so inhibit the examination as to destroy its utility (such as psychiatric examination). However, we should not, and do not hold that an injured litigant is not entitled to have his lawyer present at an examination by a physician selected by the adverse party.

(Emphasis added.)

Although the plaintiff herein may have argued below he had an absolute right to have his attorney present, the record clearly shows the trial court did not find in plaintiffs favor based on that argument. The trial court found plaintiffs mental problems amounted to a cognitive limitation such that it constituted special circumstances justifying the presence of plaintiffs attorney and the videotaping of the examination. I am mystified that the majority states “there is insufficient evidence in the record establishing special circumstances.” The trial court noted plaintiff was alleging that his mental condition was a cognitive impairment, and specifically stated this allegation was supported by the records from the Baylor College of Medicine. The record established plaintiff was struck on the top of the head by a falling high voltage cable, causing electricity to course throughout his entire body. The trial judge examined plaintiffs head which still showed significant injuries requiring plaintiff to wear a toupee. The records from Baylor College of Medicine established plaintiffs short term memory was affected, and he had difficulty remembering “names, times, places and current events.” The records also noted plaintiff becomes “easily confused with people and a new environment.” I find this clearly amounts to the special circumstances required by La.Code Civ.P. art. 1464. Without any doubt, the trial court did not abuse its discretion in finding special circumstances in this instance.

What should be the only issue before this court is whether the trial court abused its vast discretion in reaching its conclusion. I submit it did not, and the majority’s substitution of its own opinion in place of the trial court’s is in derogation of our appellate court function. Although the majority purports to rely on the Simon case, |4it in fact strays from the obvious intent of that case, Robin and La.Code Civ.P. art. 1464, which requires that we give great discretion to the trial judge to specify, the time, place, manner, conditions, and scope of examinations. A proper reading of Robin, Simon and La.Code Civ.P. art. 1464 requires that we affirm the trial court’s rulings in this case. Therefore, I dissent from the majority’s opinion.

      . Simon cites La.Code Civ.P. art. 1493, the current text of which is presently found in La.Code Civ.P. art. 1464.


source: Caselaw Access Project

author: SAUNDERS, J.

license: Public Domain

text:
    Elizabeth W. NAQUIN, Individually and on Behalf of All Others Similarly Situated v. LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT, City of Lafayette, and Lafayette Public Utilities Authority.
    No. CA 2006-904.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 10, 2006.

      Patrick W. Pendley, Stan P. Baudin, Pendley Law Firm, Plaquemine, Louisiana, Christopher D. Shows, Pierce & Shows, A.P.L.C., Andre P. LaPlace, Baton Rouge, Louisiana, for Plaintiff/Appellant, Elizabeth W. Naquin.
    Patrick S. Ottinger, City-Parish Attorney, Michael D. Hebert, Milling, Benson, Woodward, L.L.C., Lafayette, Louisiana, G. William Jarman, Gordon D. Polozola, Kean, Miller, Hawthorne, D’Armond, McCowan & Jarman, L.L.P., Baton Rouge, Louisiana, for Defendants/Appellees, Lafayette City-Parish Consolidated Government, City of Lafayette, and Lafayette Public Utilities Authority.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and BILLY H. EZELL, Judges.
   SAUNDERS, J.

hWe have granted expedited consideration of this appeal as mandated by La. R.S. 13:5128 of the Bond Validation Law, La.R.S. 13:5121, et seq. The plaintiff-appellant, Lafayette resident, Elizabeth W. Naquin (“Naquin”) , sought to enjoin the issuance of up to $125,000,000.00 in communications system revenue bonds to be issued pursuant to Bond Ordinance, 0-053-2006. The trial court denied her motion for judgment filed against the Lafayette City-Parish Consolidated Government (“LCG”), the City of Lafayette (the “City”), and the Lafayette Public Utilities Authority (the “LPUA”) (hereinafter collectively referred to as the “defendants”), finding that the challenged Bond Ordinance does not violate the cross-subsidy prohibitions of the Local Government Fair Competition Act, La.R.S. 45:844.41-844.56 (the “Fair Competition Act”). The plaintiff seeks a reversal of this judgment and the trial court’s rulings granting, in part, the defendants’ motion to strike her supplemental memorandum in support of the motion for judgment on the basis of per-emption and its ruling sustaining the defendants’ exception of res judicata as to all issues asserted in her motion for judgment, except those challenging the amendments to the Ordinance. The plaintiff also seeks remand of this matter to the trial court and a re-institution of a stay of the motion for judgment hearing until she is able to exhaust her administrative remedies. The defendants have answered the appeal, asserting as error the trial court’s ruling on its exception of prematurity for failure to exhaust administrative remedies, alleging that the trial court improperly expanded the exception and, further, sustained the exception without dismissing the plaintiffs premature claims.

For the reasons set forth below, we affirm in part, reverse in part, and render.

I «ISSUES

1. Was the plaintiffs supplemental memorandum in support of her motion for judgment preempted?
2. Did the trial court err in reconvening the motion for judgment hearing prior to the finality of administrative proceedings before the Lafayette Public Utilities Authority?
3. Did the trial court erroneously expand the defendants’ exception of prematurity beyond its scope and err in failing to dismiss certain claims that were deemed to be prematurely before the court?
4. Did the trial court err in sustaining the defendants’ Exception of Res Ju-dicata?
5. Does Bond Ordinance 0-053-2006 violate the cross-subsidy provisions of the Fair Competition Act by unlawfully permitting the use of residual revenues from the existing utilities system and prohibited loans from the City to repay bonds that are to be issued to fund the new communications system?

FACTUAL BACKGROUND

The subject of this appeal is Bond Ordinance 0-053-2006, the amended version of Bond Ordinance 0-230-2005, which through a previous legal challenge, was found by this court to contain provisions that violated certain prohibitions and conditions legislatively mandated by the Fair Competition Act. The Bond Ordinance, in its original and current form, sets forth the scheme for the issuance of up to $125,000,000.00 in twenty-five year bonds to fund a government owned and operated, local communications network. This communications network will offer telephone, cable television, high-speed internet access, and other unnamed information and communication services to residents of the City of Lafayette. The voters approved the original bond proposition on July 16, 2005.

|sOn March 21, 2006, after the decision rendered by this court in Bellsouth, 919 So.2d 844, the Lafayette City-Parish Council, jointly with the Lafayette Public Utilities Authority, amended, supplemented, and restated Bond Ordinance 0-230-2005 as Bond Ordinance 0-053-2006, under the authority granted to those bodies in Section 12.1 thereof to make curative changes. The preamble to the amended Ordinance states that the amendments were performed specifically to comply with that decision.

On April 21, 2006, plaintiff, Naquin, who was an intervenor in the prior challenge to the 2005 Ordinance, filed a Motion for Judgment Pursuant to La.R.S. 13:5125, challenging the validity of the amended Ordinance, 0-053-2006. The motion for judgment prayed that the 2006 Ordinance be deemed contrary to law and that the defendants be enjoined from issuing the bonds for multiple reasons.

The trial court set a May 22, 2006, hearing date on the motion for judgment, and ordered that the motion for judgment and scheduled hearing date and time be published twice in the Lafayette newspaper, the Daily Advertiser, in accordance with La.R.S. 13:5125. On the second publication date, May 9, 2006, the plaintiff filed a motion for leave of court to file a supplemental memorandum in support of ■ her motion for judgment. On .May 10, 2006, the defendants objected to the filing of that supplemental memorandum on the basis of peremption and filed a motion to strike it. Thereafter, on May 16, 2006, the defendants timely filed multiple exceptions and an answer to the motion for judgment.

At the May 22, 2006, hearing on the motion for judgment, the trial court heard a number of exceptions but did not reach its merits. First, the trial court addressed the defendants’ motion to strike the plaintiffs supplemental memorandum. After ^argument, the court granted the motion, in part, stating that it was striking the supplemental memorandum to the extent it raised issues that had not been asserted in the motion for judgment.

The , trial court next heard overlapping argument from the parties on the defendants’ exceptions of res judicata, lis pen-dens, and prematurity for failure to exhaust administrative remedies. Regarding the exception of res judicata, the defendants argued that multiple claims asserted by the plaintiffs in the pending challenge to Bond Ordinance 0-053-2006 were barred because those identical claims had been decided and were final, as evidenced by this court’s opinion rendered in Bellsouth, 919 So.2d 844. Regarding the prematurity and lis pendens exceptions, the defendants argued that the plaintiffs motion for judgment asserted claims for a refund of excessive utility rate charges, even though the plaintiff had the identical claims pending before the LPUA. The defendants argued that any such utility rate claims were premature in the trial court because the LPUA was authorized by the local Home Rule Charter to decide such utility rate issues.

The court did not rule on the exception of res judicata, but it denied the exception of lis pendens and sustained the defendants’ exception of prematurity for failure to exhaust administrative remedies, finding that Section 4-07 of LCG’s Home Rule Charter gave the LPUA primary authority to decide the utility rate issues that were alleged in the motion for judgment. The trial court also found that the Home Rule Charter gave primary authority to the LPUA to hear challenges to bond issu-ances. The trial court stayed its hearing on the motion for judgment for twenty-one days to await rulings from the LPUA.

On May 25, 2006, the defendants filed motions to reconvene the hearing on the motion for judgment and its exceptions and to have the trial court reconsider part of | Kits prior ruling on the exception of prematurity. Defendants argued that the trial court sua sponte, and impermissibly, supplied its own exception of prematurity regarding the plaintiffs bond ordinance challenge and erroneously ruled that the bond ordinance challenge was to be decided by the LPUA. This, defendants argued, violated La.R.S. 13:5122 of the Bond Validation Law, which mandates that all challenges affecting the validity of governmental bonds are to be brought before the trial court. The trial court denied those motions when it reconvened the motion for judgment hearing on June 21, 2006, after the elapse of the twenty-one day period made available to the plaintiff to complete her proceedings before the LPUA.

At the onset of the June 21st hearing, the plaintiff advised the court that the proceedings before the LPUA were complete; however, she also advised the court that she intended to appeal the decisions of the LPUA to the trial court, in accordance with the Home Rule Charter’s rules, once the LPUA’s record was lodged with the clerk of the trial court. The court chose to proceed, and without taking further argument from council, commenced to rule on the defendants’ exception of res judicata. The court sustained the exception and stated that the only issues in the motion for judgment that were not precluded were those that addressed the validity of the amendments to the 2005 Ordinance, as set forth in Bond Ordinance 0-053-2006. After allowing argument on those issues, the trial court found that the amendments brought the Ordinance into compliance with this court’s decision in Bellsouth, 919 So.2d 844, and denied the motion for judgment. The plaintiff filed this appeal.

|fiLAW AND DISCUSSION

The Supplemental Memorandum in Support of the Motion for Judgment

The plaintiff assigns as error the trial court’s partial grant of the motion to strike her supplemental memorandum in support of her motion for judgment. The trial court, in so ruling, accepted the defendants’ assertions that the supplemental memorandum was preempted by the thirty-day time period set forth in La. Const. Art. 6, § 35(B), for the filing of challenges to bond ordinances and that the memorandum was an untimely attempt to assert new issues and to expand the scope of the motion for judgment. The trial court granted the motion to strike the supplemental memorandum, in part, orally ruling that it was striking only those portions therein that addressed issues that had not been previously asserted in the plaintiffs motion for judgment.

The plaintiff argues on appeal that the supplemental memorandum was not preempted. She claims that it addressed the same issues set forth in the motion for judgment and did not expand its scope in any manner. She contends that the trial court’s ruling constitutes reversible error because she was prevented from presenting all of her arguments in opposition to the bond ordinance. Alternatively, she argues that the ruling should be reversed because the trial court ultimately allowed argument on the purportedly stricken issues. We find no manifest error in the trial court’s ruling.

The record shows that Bond Ordinance 0-053-2006 was adopted by the Lafayette City-Parish Council and the LPUA on March 21, 2006 and was published on March 24, 2006 in the Lafayette Daily Advertiser. The plaintiff filed her motion for judgment and memorandum in support thereof challenging the Ordinance on April 21, 2006. According to La. Const. Art. 6, § 35(B), a motion for judgment challenging a bond ordinance must be filed within thirty days of its publication date. Section 1735(B) sets forth a thirty-day peremp-tive period within which any challenges to governmental bond issuances must be brought. See Cent La. Bank & Trust. Co. v. Avoyelles Parish Police Jury, 493 So.2d 1249 (La.App. 3 Cir.1986). Section 35(B) of Article 6 of the Louisiana Constitution specifically states:

(B) Contesting Ordinance or Resolution; Time Limit. Every ordinance or resolution authorizing the issuance of bonds or other debt obligation by a political subdivision shall be published at least once in the official journal of the political subdivision or, if there is none, in a newspaper having general circulation therein. For thirty days after the date of publication, any person in interest may contest the legality of the ordinance or resolution and of any provision therein made for the security and payment of the bonds. After that time, no one shall have any cause of action to test the regularity, formality, legality, or effectiveness of the ordinance or resolution, and provisions thereof for any cause whatever. Thereafter it shall be conclusively presumed that every legal requirement for the issuance of the bonds or other debt obligation, including all things pertaining to the election, if any, at which the bonds or other debt obligation were authorized, has been complied with. No court shall have authority to inquire into any of these matters after the thirty days.

(Emphasis added). Because of the per-emptive nature of this statute, it is clear that the | «right to make any legal challenges to the bond ordinance on any ground is extinguished upon the expiration of thirty days from the date the proposed ordinance is published. See Lege v. Vermilion Parish Sch. Bd., 360 So.2d 664 (La.App. 3 Cir.1978).

The record reflects that the plaintiffs motion for judgment and original memorandum in support thereof were filed within the time delay allowed by La. Const. Art. 6, § 35(B), and in accordance with the provisions of La.R.S. 13:5125. The plaintiffs supplemental memorandum was filed on May 8, 2006, two weeks after the peremptive period expired. However, because a memorandum filed in support of a motion is not a pleading, but rather is an assertion of argument and authority in support of the particular legal challenges or claims that have been properly asserted in a related pleading, we do not find that the peremptive period that governs the filing of the motion for judgment bars the filing of legal memoranda after the timely filing of a motion for judgment. The acceptance of such supplemental argument lies within the discretion of the trial court. To the extent the supplemental memorandum asserted challenges to the Bond Ordinance that were not included in the motion for judgment, those new assertions were, however, preempted. Consequently, we find no manifest error in the ruling of the trial court.

In response to the defendants’ motion to strike the supplemental memorandum that has been filed on appeal with this court, we find that the supplemental memorandum, as stricken, is properly before this court in the record, and deny the defendants’ motion.

Exhaustion of Administrative Remedies

We are next asked to consider whether the trial court prematurely reconvened the motion for judgment hearing prior to the plaintiff exhausting her administrative | [¡remedies. The plaintiff argues that the motion for judgment hearing was reconvened by the trial court before she was allowed to appeal the decisions and findings rendered by the LPUA. As a result, she contends that the judgment of the trial court on the motion for judgment should be reversed and the matter remanded, pending exhaustion of the administrative hearing process. We decline to do so.

The record reflects that the trial court stayed the motion for judgment hearing, reasoning that the LCG’s Home Rule Charter required the LPUA to first address the claims challenging utility rate charges and bond issuances. Specifically, the trial court relied upon Sections 4-07(H) and(I) of the Home Rule Charter to find that the motion for judgment was premature and any hearing on it should be stayed. The trial court then ordered the LPUA to finalize its proceedings within twenty-one days of the date of its order, stating that after this time passed, it would reconvene the motion for judgment hearing to decide any remaining issues.

In answer to the question that is before us, we find that the trial court was not manifestly erroneous in reconvening the motion for judgment hearing on June 19, 2006, because only the trial court had authority to decide the issue of the bond ordinance’s validity. Revised Statutes 13:5125 expressly mandates that all suits, actions, and proceedings of whatever nature affecting the validity of bonds of any governmental unit, are to be brought in accordance with Title 13, entitled “Courts and Judicial Procedure,” by the filing of a motion for judgment in the district court in which the governmental unit seeking to issue those bonds is located. Section 5122 of ImTitle 13 expressly states as well that “[tjhese provisions shall supersede all other acts and statutes on the subject and be controlling in all such cases notwithstanding the provisions of any other law or charter to the contrary....” Consequently, the trial court had original jurisdiction over the bond challenge.

We do recognize that the trial court erred in directing the determination of the bond ordinance’s validity to the LPUA. The trial court was correct, however, in recognizing that the LPUA possessed primary authority to hear the utility rate claims that had been also asserted in the motion for judgment. Consequently, those issues were prematurely before the trial court. Although the proper ruling on those premature claims should have been to dismiss them, without prejudice, in accordance with La.Code Civ.P. art. 423, we nevertheless find that the trial court’s error in this regard was harmless. In addition, the record does not reflect that any of the LPUA’s decisions were ever made a part of the trial court record or were considered by the trial court in reaching its decision on the merits of the bond challenge. Consequently, we find that the trial court’s actions in directing the determination of the bond ordinance’s validity to the LPUA, in this case, to have been harmless error that did not affect the lawful -determination of this matter.

Res Judicata

Plaintiff claims that the trial court committed reversible error in granting the defendants’ exception of res judica-ta, asserting that the ruling prevented her from presenting all of her arguments and issues to the trial court for adjudication. We find that the trial court erred in sustaining the exception of res judicata because the doctrine is inapplicable to the facts of this case. “Res judicata is an issue and claim preclusion device which prohibits relitigation of matters which were litigated or could have been litigated in a prior suit.” Walker v. Howell, 04-246, p. 3 (La.App. 3 Cir. 12/15/04), 896 So.2d 110, 112; La.R.S. 13:4231; see also, La. Code Civ.P. art. 425. The 2006 Ordinance constitutes a new Ordinance which, pursuant to La.R.S. 13:5122, is wholly subject to challenge by any interested person via the procedures set forth in the Bond Validation Law. Although we have found that the trial court erred in granting the exception of res judicata, we, nevertheless, find this error to have been harmless as the result of the ruling did not serve to affect the adjudication of the issues that were properly before the trial court. See State, through Dep’t of Highways v. Mims, 311 So.2d 914 (La.App. 3 Cir.1975).

Does the “Credit Event” trigger prohibited cross-subsidization?

The plaintiff argues that the trial court erred in ruling that the amended Bond Ordinance does not violate the Local Government Fair Competition Act’s prohibition against cross-subsidization. She contends that the Ordinance allows the Communications System to unlawfully use Residual Revenues generated by the LCG’s Utilities System, which have been pledged to secure the issued bonds, as a primary source of the payment of bond indebtedness without a “true default” occurring. The plaintiff challenges the legality of the “Credit Event” that opens the door for pledged resources to be accessed to pay for bonds. Although the 2006 Ordinance defines the “Credit Event” as an event of default, the plaintiff argues that the “Credit Event” occurrence is a self-declared event that occurs in anticipation of a default. This scheme, she argues, allows the Communications System to use funds other than those constituting its own generated “Net Revenues,” as a primary source of satisfying bond payment obligations in violation of the Fair Competition Act. We agree.

According to the Local Government Fair Competition Act, a governing authority that chooses to engage in the business of providing telecommunications services, advanced services, and cable television services (“covered services”) “may not cross-$ubsidize19 its covered services with tax dollars, income from other local government or utility services, below-market rate loans from the local government or any other means.” La.R.S. 45:844.43(6); La.R.S. 45:844.53(2). To “cross-subsidize” means to “pay a cost included in the direct costs of or indirect costs of providing a covered service that is not accounted for in the full cost of accounting of providing the service, other than the payment of start-up costs.” La.R.S. 45:844.43(7).

The Fair Competition Act does, however, allow local governments engaging in a telecommunications venture to finance the capital costs for facilities necessary to provide covered services through the issuance of bonds “secured and paid for solely from the revenues generated by the local government from providing the covered services.” La.R.S. 45:844.52(C)(1). Section 45:844.52(0(2) and (3) of the Fair Competition Act set forth the following additional restrictions regarding the payment of any bonds issued:

(2) A local government may not pay the origination, financing, or other carrying costs associated with one or more bonds issued under this Section from the general funds or other enterprise funds of the local government. Nothing in this Section shall preclude a local government from using the general funds or other enterprise funds to advance funds for the feasibility study prescribed under R.S. 45:844.49 or for start-up costs for the proposed venture, provided that any such funds advanced are repaid by the enterprise fund established under R.S. 45:844.51 at interest rates and on terms and conditions available to private enterprises in the open market.
(3) Nothing in this Chapter shall preclude a local government that owns and operates electric, water, gas, sewer and other utilities from pledging the resources of such utilities to obtain the best available interest rates, terms and conditions for the bonds necessary to finance the facilities used to provide the proposed covered services.

In sum, the Fair Competition Act expressly prohibits a local government from paying the costs associated with the issuance of any such bonds with money from its general fund or from the funds generated by its other enterprises. La.R.S. 45:844.52(0(2). The local government is, however, allowed to use its general funds 113or funds from one of its other enterprises to provide for the feasibility study required for a communications system venture or for start-up costs of the venture, as long as those funds are repaid to the local government from the communications system’s enterprise fund at market rates. Id. The local government is also allowed under the Fair Competition Act to pledge the resources of its existing utilities to gain the best terms for the communications system bonds to be issued. La.R.S. 45:844.52(0(3).

Now turning to the specific provisions of the 2006 Bond Ordinance that provide for the issuance of bonds to fund the LCG’s communications system, it proposes to meet bond payment obligations in the following manner:

ARTICLE IV
SOURCE OF PAYMENT OF BONDS
SECTION 4.1. Bonds not to be Indebtedness of the Issuer. The Bonds shall not be or constitute géneral obligations or indebtedness of the Issuer within the meaning of the Constitution of Louisiana, but shall be payable first, from the net income and Revenues of the Communications System and second, to the amount necessary, from a secondary or subordinate pledge of the revenues of the Utilities System....

We find, initially, that Section 4.1 complies with the Fair Competition Act’s mandate that bonds issued are to be paid for with funds generated from the communications system enterprise. See La.R.S. 45:844.52(0(1). The LCG’s pledge of revenues from its existing Utilities System as security for the bonds is also permissible under the Fair Competition Act. See id.

In Section 4.2 of the Ordinance, the LCG explains that the bonds will be secured by a superior lien on the “Net Revenues” of the Communications System and, secondarily, by “Residual Revenues” of the Utilities System should there be 1 ^insufficient funds available in “Net Revenues” to meet bond obligations:

SECTION 4.2. Security for Bonds. The payment of the principal of, premium, if any, and interest on the Bonds shall be secured forthwith equally and ratably by an irrevocable lien on the Net Revenues, all in the manner and to the extent provided herein, prior and superi- or to all other liens or encumbrances on the Net Revenues, except as otherwise provided herein, and the Issuer does hereby irrevocably pledge and set aside the Net Revenues to the payment of the principal of, premium, if any, and interest on the Bonds and, upon the occurrence of a Credit Event, to the extent of the insufficiency, the Residual Revenues, before their use for any other purpose set forth in Section 5.1(e)(iv)(C) of the Utilities Bond Ordinance.

As stated in Bellsouth, 919 So.2d 844, pledged resources are not seizable until there has been an event of default. The specific events of default provided for in the 2006 Ordinance are set forth in more detail in Article XI thereof, which states, in relevant part:

ARTICLE XI

EVENTS OF DEFAULT; REMEDIES

SECTION 11.1. Events of Default. Each of the following events is hereby declared an “event of default,” that is to say if:
(a) the occurrence of a Credit Event as described in Section 6.1(c) hereof; or
(b) payment of principal and/or any installment of interest of any Obligations shall not be made when the same shall become due; either at maturity (whether by acceleration or otherwise) or on required payment dates by proceedings for redemption or otherwise; and any owed administrative fee shall not be made when the same shall become due and payable;....
Upon such a default as described in clause (a) or (b), the Issuer shall be required to pay any insufficiency from Residual Revenues without any judicial proceedings whatsoever, the necessity of such judicial proceedings being hereby expressly waived. In such case, the Issuer shall proceed to discontinue its provision of Covered Services, as soon as reasonably practicable, taking into consideration minimizing the disinterruption of services to the existing users of such Covered Services |1fiand the efficient wind down of the Communications System.

Section 11.1(b) of this Ordinance provides that if the communications division does not make timely payment on the bonds, the bonds are in default. It is at that point that pledged assets, categorized as “Residual Revenues” from other existing utilities, may be accessed to pay any bond obligations. Moreover, the Ordinance provides in this section that should this occur, the City must proceed to discontinue its provision of the communication’s systems services, as soon as reasonably practicable. This provision, we find, does not invoke prohibited cross-subsidization, in that it does not provide for the use of revenues generated by other utilities of the local government as a primary source of paying the origination, financing or other carrying costs associated with the bonds issued. See La.R.S. 45:844.52(0(2). A true default occurs prior to using pledged resources to meet bond obligations and the City will discontinue its provision of the services being offered by the communications system because of its insolvency.

However, we do find that Section 11.1(a) improperly categorizes the occurrence of a “Credit Event,” described in Section 6.1(c), as an event of default that allows access to Residual Revenues from the Utilities System to pay bond obligations. The “Credit Event,” according to the Ordinance, occurs when the City fails to transfer an amount equal to the interest and principal due on the issued bonds from the Debt Service Account of the communications system enterprise fund, to the Paying Agent, by the 24th of the month preceding the payment due date (the interest payment dates are May 1 and November 1 of each year and the principal payment date is November 1 of each year, according to Section 1.1 of the Ordinance). We find that this “Credit Event” occurs in anticipation of a default and, as such, would allow prohibited access to resources generated by another division of the local government to serve as a primary 1 ^source of payment for the bonds. See La.R.S. 45:844.52(0(1), (8). This is prohibited cross-subsidization.

Does the Ordinance impermissibly allow the local government to provide loans to the communications system to pay for the bonds issued?

Article V of the 2006 Ordinance states the following in regards to loans obtained by the communications system:

ARTICLE V

OTHER RIGHTS AND OBLIGATIONS OF THE COMMUNICATIONS SYSTEM AND THE ISSUER

SECTION 5.1. Loans. The Communications System may obtain loans from any source (including the City) for purposes of providing Covered Services and for any other purpose consistent with Applicable Law. Said loans must be repaid and are subject to audit as required by Applicable Law.
SECTION 5.2. Special Obligations of the Utilities System. The Bonds are Subordinated Indebtedness. As such, the Residual Revenues of the Utilities System are hereby pledged as security for the payment of the principal of, premium, if any, and interest on the Bonds....

As this court stated in the Bell-South, 919 So.2d 844, decision, market-rate loans that are made by the local government, or other sources, to the communications system to provide covered services are not prohibited by the Fair Competition Act. See La.R.S. 45:844.53(2). The Fair Competition Act simply prohibits the use of “below-market rate loans” from the local government to provide any covered services. See La.R.S. 45:844.53(2). Regarding whether local government loans, under the Ordinance, are being improperly used as sources of payment of future bond obligations, we first must clarify that the “provision of covered services” contemplated by the Fair Competition Act does not include the “payment of bond obligations.” Although the communications system may obtain market-rate loans from outside sources, as well as the local government, to provide covered services, or to advance funds for its required | ^feasibility study or its start-up costs, the Fair Competition Act does not permit the communications system to obtain loans from any sources to pay for bonds that have been issued. See La.R.S. 45:844.52(0(2); La.R.S. 45:844.53(2). Only “revenues generated by the local government from providing the covered services” may be used to pay for bonds that have been issued. La.R.S. 45:844.52(0(1).

In other words, the Fair Competition Act requires bond obligations to be satisfied with revenues generated by the communications system. Accordingly, as currently presented, Sections 5.1 and 5.2 simply provide for the communications system to obtain loans, in accordance with law, for the purpose of providing covered services and make no provision for obtaining loans for the purpose of paying bonds. Accordingly, we find no manifest error in the ruling of the trial court, finding that this portion of the Ordinance does not violate the cross-subsidy prohibition of the Fair Competition Act.

CONCLUSION

The judgment of the trial court is, accordingly, affirmed in part, reversed in part, and rendered. The bond issuance pursuant to Bond Ordinance 0-053-2006 is enjoined, pending compliance with this opinion. Costs of this appeal, in the amount of $3;009.95, are assessed equally to the parties. Plaintiff-appellant, Elizabeth W. Naquin, is ordered to pay one-half of the total appeal costs, and defendants-appellees, the Lafayette City-Parish Consolidated Government, the City of Lafayette, and the Lafayette Public Utilities Authority, are ordered to pay one-half of the total appeal costs.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

      . Matthew B. Eastin, originally participated as a plaintiff in the trial court proceedings and in the lodging of this appeal; however, he has been voluntarily dismissed from the appeal.

      . See Bellsouth Telecommunications, Inc., et al. v. City of Lafayette & Lafayette Pub. Util. Auth., et al., 05-1478, 05-1505 (La.App. 3 Cir. 1/5/06), 919 So.2d 844.

      . La.R.S. 13:5125 is the statute that sets forth the mandated procedure for contesting the issuance of governmental bonds.

      . Revised Statutes La.R.S. 13:5125 states:
      § 5125. Contesting issuance of bonds or action taken with respect to source of payment therefor; notice and hearing; service on member of governing body
      Any person, corporation or association desiring to contest or enjoin the issuance of any such bonds or action taken providing for a new or different source of payment for outstanding bonds shall proceed by motion for judgment brought in the court having jurisdiction as provided in R.S. 13:5123. Upon the filing of any such motion for judgment, the court shall enter an order within five days following the publication of the motion in some newspaper published in or having general circulation in such governmental unit two times within a period of fifteen consecutive calendar days from the date of the issuance of the order specifying the dates for publication thereof, with the first publication as hereinabove provided to be not later than eight days from and after the date of the issuance of the order, and at the same time fix a time and place for hearing the proceeding, which time and place shall be published with the motion for judgment. The date fixed for the hearing shall be at least ten days, but not more than thirteen days, after the second publication of such motion for judgment. In addition to such publication, the plaintiff must secure personal service at least five days prior to the second publication of the motion for judgment on at least one member of the governing body of the governmental unit whose actions or proceedings are sought to be contested or enjoined.

      . Sections 4-07(H) and (I) state:
      H. The authority [LPUA] shall fix rates, incur indebtedness, approve the utility budget, and approve proposals for the improvement and extension of the utilities.
      I. A person residing in an area served by the utility department may appeal to the authority any proposed rate increases or issuance of bonds. The decision of the authority shall be final, subject to appeal to the appropriate courts.

      . “Net Revenues” is defined in Section 1.1 of the 2006 Bond Ordinance as "the amount of Revenues less the Cost of Operation and Maintenance of the Communications System

      . "Residual Revenues” is defined in Section 1.1 of the 2006 Bond Ordinance as "revenues from the Utilities System deposited in the Capital Additions Fund, established and maintained under the Utilities Bond Ordinance, and available for payment on Subordinated Indebtedness."

      . The “Utilities Bond Ordinance” is defined ^ the 2006 Bon? Ordinance in Section 1.1 thsrsoi as ⅛ General Utilities Revenue Bond Ordinance No. 0-122-2004, adopted by ^e Governing Authority on June 29, 2004.

      . Section 6.1(c) of the Ordinance provides that the "Paying Agent” holds the interest and principal payments on bonds in trust for the benefit of the bondholders and disburses those payments on their due dates.


author: SULLIVAN, Judge.

text:
    Larry L. FINDLEY, Jr. v. Billie FINDLEY.
    No. CW 2006-266.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 16, 2006.

      Yul D. Lorio, Richard D. Moreno, Dou-cet, Lorio & Moreno, L.L.C., Lake Charles, Louisiana, for Applicant Sister Diane Depwe.
    Evelyn M. Oubre, Lake Charles, Louisiana, for Defendant/Respondent. Billie Findley.
    Lee W. Boyer, Stockwell, Sievert, Vic-cellio, Clements, & Shaddock, L.L.P., Lake Charles, Louisiana, for Plaintiff/Respondent Larry L. Findley, Jr.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   SULLIVAN, Judge.

pin this custody matter, a health care provider seeks review of the denial of a motion to quash a subpoena duces tecum for deposition which sought the disclosure of medical records of the parties and their children who are her patients. For- the following reasons, the writ is denied.

Facts and Procedural History

On January 16, 2004, Larry Findley, Jr. filed a petition for divorce from his wife, Billie Findley, and for custody of his four children. He alleged that Billie had mental health problems, had abused the children, and could not take medication prescribed for her mental health problems because she was pregnant with another child. Larry, Billie, and all four children were receiving psychological counseling from Sister Diane Depwe. Shortly after the petition was filed, Billie subpoenaed all of the Findleys’ records maintained by Sister Depwe. Sister Depwe did not comply with the subpoena or take any legal -action to quash the subpoena; however, the parties later stipulated for production of the subpoenaed records to counsel for both parties.

Subsequently, the trial court ordered all the Findleys to be evaluated by another health care professional. In connection with this court-ordered evaluation, Sister Depwe was deposed on March 31, 2004. During her deposition, she admitted that she had not provided a copy of the previously subpoenaed documents to Billie’s attorney; however, she explained that she believed Larry’s attorney had provided the records to Billie’s attorney.

Trial began in this matter on December 20, 2004, and Sister Depwe testified at length that day and the next. Thereafter, testimony was taken in the matter on | ¡June 14 and July 14, 2005. On January 23, 2006, the trial resumed again. The trial court issued another order for a psychological evaluation of the parties and the children. Because the parties and the children had continued treatment with Sister Depwe after the inception of this litigation, Billie’s attorney scheduled her deposition for February 8, 2006, and subpoenaed the Findleys’ records for production at her deposition. Sister Depwe did not appear for the deposition and did not produce the subpoenaed records. Instead, she filed a motion to quash the subpoena because she “has serious concerns regarding production of the requested documents and information. Specifically this healthcare professional/counselor is concerned that production may be detrimental to the health, welfare and status of her client, the minor child.” The trial court denied the motion to quash. On February 9, 2006, Sister Depwe filed a notice of her intention to seek writs.

On February 13, 2006, Billie’s attorney filed a subpoena duces tecum, directing Sister Depwe to produce her records to the court-appointed health care professional. Sister Depwe received the subpoena on February 22, 2006. She filed another motion to quash, which the trial court denied. Thereafter, she filed another notice of intention to seek writs. The two writ applications were consolidated on the motion of Sister Depwe.

Issues Presented

1) Does this court have jurisdiction to review Sister Depwe’s refusal to produce her records except as provided in 45 C.F.R. §§ 160 and 164?

2) Is Sister Depwe’s refusal to produce the records at issue justified by 45 C.F.R. § 164.524?

3) Does the Health Insurance Portability and Accountability Act (HIPAA), 42 U.S.C. 1320a-1320d-8, preempt Louisiana law?

1 aDiscussion

Jurisdiction

Sister Depwe asserts that this court does not have jurisdiction to consider her objection to producing the Findleys’ subpoenaed medical records. She cites 45 C.F.R. §§ 160 and 164 in support of her claim but does not direct our attention to any provision in either of these sections which supports this contention. In Johnson v. Parker Hughes Clinics, 2005 WL 102968 (D.Minn.2005) (not reported in F.Supp.2d), the court noted that a state court does have jurisdiction to determine the relationship between state law and HI-PAA. See also O’Donnell v. Blue Cross Blue Shield of Wyo. (D.Wyo.2001), 173 F.Supp.2d 1176. Accordingly, we find that this court does have jurisdiction to address the issues presented herein.

HIPAA

Pursuant to Louisiana law, medical records are subject to the health care provider-patient privilege, which mandates that a health care provider not release a patient’s records to anyone other than the patient without his consent. La.Code Evid. art. 510. Article 510 governs testimonial privileges, exceptions, and waivers with respect to communications between a health care provider and a patient in noncriminal proceedings. La.R.S. 13:3734(B); Moss v. State, 05-1963 (La.4/4/06), 916 So.2d 121.

Louisiana Code of Evidence Article 510 provides, in relevant part:

B. (1) General rule of privilege in civil proceedings. In a non-criminal proceeding, a patient has a privilege to refuse to disclose and to prevent another person from disclosing a confidential communication made for the purpose of advice, diagnosis or treatment of his health condition between or among himself or his representative, his health care provider, or their representatives.
|4(2) Exceptions. There is no privilege under this Article in a noncriminal proceeding as to a communication:
(d) When the communication relates to the health condition of a patient when the patient is a party to a proceeding for custody or visitation of a child and the condition has a substantial bearing on the fitness of the person claiming custody or visitation, or when the patient is a child who is the subject of a custody or visitation proceeding.

Pursuant to Article 510, Sister Depwe’s records of her treatment of the Findleys are excepted from Louisiana’s health care provider-patient privilege and are discoverable under Louisiana law. Sister Depwe does not dispute this, but she claims that pursuant to HIPAA she is obligated to protect the privacy of the Findleys’ medical records. Her motion to quash is based on 45 C.F.R. § 164.524, which she claims precludes her from producing the Findleys’ records. She also claims that HIPAA preempts Louisiana law which would require her to produce the records.

HIPAA provides a uniform reporting system for health service facilities and organizations and was designed, in part, to maintain control over federal dollars spent for medical services. In addition to establishing a reporting system, HIPAA required the Secretary of Health and Human Services to promulgate regulations to protect the “privacy” of private health information of individuals. 42 U.S.C. §§ 1320d—1(d), 1320d—3(a)(b), 1320d-4(b); see also U.S. ex rel. Stewart v. Louisiana Clinic, 2002 WL 31819130 (E.D.La.2002) (not reported in F.Supp.2d). There was no federal common law health care provider-patient privilege prior to the enactment of HIPAA, and while. HIPAA regulates the disclosure of medical information by health care | .^providers, it did not create a privilege. Northwestern Mem’l Hosp. v. Ashcroft, 362 F.3d 923 (7th Cir.2004). Accordingly, we must determine whether HI-PAA’s privacy regulations preclude the disclosure of the medical information at issue here. We find that they do not.

The basis of Sister Depwe’s objection to producing the subpoenaed records is 45 C.F.R. § 164.524. This provision governs an individual’s access to “protected health information about the individual.” 45 C.F.R. § 164.524(a) (emphasis added). By its clear terms, § 164.524 cannot serve as the basis for Sister Depwe’s refusal to produce anyone’s records other than Billie’s.

HIPAA preempts any “contrary” state law, unless the state law is “more stringent” than the HIPAA requirements. 45 C.F.R. § 160.203. A state law is “contrary” to HIPAA if a health care provider would find it impossible to comply with both the state and federal provisions regarding disclosure or the state law is an obstacle to the accomplishment of the purposes of HIPAA. 45 C.F.R. § 160.202. However, there is no preemption if a “contrary” state law is “more stringent” than HIPAA. 45 C.F.R. § 160.203(b).

Louisiana law allows an individual complete access to all of her medical records, but 45 C.F.R. § 164.524(a) limits an individual’s access to her medical records. Therefore, Louisiana law is contrary to HIPAA, as a health care provider would find it impossible to comply with Louisiana law, which does not restrict the release of an individual’s medical records to that individual, and HIPAA, which does restrict the release of an individual’s medical records to the individual in certain circumstances. 45 C.F.R. § 160.202. Thus, HIPAA preempts Louisiana law on this issue, unless Louisiana law is more stringent. 45 C.F.R. § 160.203. Louisiana law 14s more stringent with regard to an individual's rights to her medical records because it “permits [an individual] greater rights of access or amendment” to her records than § 164.524 does. 45 C.F.R. § 160.202. Consequently, HIPAA does not preempt Louisiana law, and Sister Depwe’s refusal to produce the subpoenaed medical records is not justified.

Disposition

The trial court’s denial of the motion to quash is affirmed. Costs of these writ applications are assessed to Sister Diane Depwe.

WRIT DENIED.

      . Larry and Billie had three children at that time; Larry’s child from another marriage resided with them.

      . The regulations adopted by the Secretary of Health and Human Services are contained in the Code of Federal Regulations; therefore, references throughout the remainder of this opinion are to the Code of Federal Regulations only, not HIPAA, as enacted in Title 42 of the United States Code.


text:
    Clark A. GUNDERSON, M.D., et al. v. F.A. RICHARD & ASSOCIATES, INC., et al.
    No. CW05-917.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 23, 2006.

      Thomas A. Filo Cox, Cox, Filo, Camel & Wilson, L.L.P., Lake Charles, Stephen B. Murray, Arthur M. Murray, Nicole A. Iey-oub, The Murray Law Firm, New Orleans, John S. Bradford, William B. Monk, Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P., Lake Charles, for Plaintiffs/Applicants/Appellees, Beutler-Eng-land Clinic, Dr. Clark Gunderson, Dr. Frank W. Lopez.
    Charles S. McCowan, Jr., Todd A. Ros-si, Terrence D. McCay, Charles S. McCowan, III, Louis V. Gregoire, Jr., Kean, Miller, Hawthorne, D’Armond, McCowan & Jarman, LLP, Baton Rouge, Michael Kendall, Lauren M. Papenhausen, Jennifer S. Geetter, McDermott Will & Emery, LLP, Boston, Massachusetts, for DefendanVRespondent/Appellant, Focus Healthcare Management, Inc.
    Gustave A. Fritchie, III, David W. O’Quinn, Douglas J. Moore, Irwin, Frit-chie, et al., New Orleans, Louisiana, for Defendant, Cambridge Integrated Services, Inc.
    John E. Galloway, Galloway, Johnson, Tompkins, Burr & Smith, Kimberly G. Anderson, Attorney at Law, New Orleans, Louisiana, for Defendant, F.A. Richard & Associates, Inc.
    Perry R. Staub, Jr., Larry E. Demmons Taggart, Morton, Ogden, Straub, Rougelot & O’Brien, New Orleans, Steve M. Sikich, The Sikich Law Firm, Lake Charles, LA, for Defendant, First Health Group Corporation.
    Janice B. Unland, Robert T. Lorio, Paul Eric Harrison, Rabalais, Unland & Lorio, Covington, for Defendant, National Loss Control Management, Inc.
    E. Paige Sensenbrenner, John B. Davis, Rusty John Savoie, Andrew C. Kolb, Adams & Reese, New Orleans, Theodore Robert Scarborough, Attorney at Law, Chicago, IL, for Defendant, AIG Claims Service, Inc.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   SULLIVAN, Judge.

b The issues presented by this consolidated writ application and appeal concern whether the trial court was correct in ordering some, but not all, of Plaintiffs’ claims to proceed to arbitration. Finding no error in the trial court’s rulings, we deny the writ and affirm the judgment, as more fully explained below.

Procedural History

Plaintiffs, four medical providers, filed this class action suit against six named Defendants who are identified as preferred provider organizations, third-party administrators, or other intermediaries “who have contracted with various health care providers in the State of Louisiana to pay less than the amount mandated by LA R.S. 23:1203(B) in workers’ compensation cases without providing prior notice to the healthcare providers as required by LA R.S. 40:2203.1.” As a result of Defendants’ alleged violations of La.R.S. 40:2203.1(B), Plaintiffs sought damages and attorney fees under La.R.S. 40:2203.1(G), as well as injunctive relief. One of the named Defendants, Focus Healthcare Management, Inc. (“Focus”), filed a motion to stay pending arbitration based upon arbitration clauses in several preferred provider organization (PPO) contracts, but before that motion was heard, Defendants removed the case to federal district court. Upon remand of the case to state court, several other Defendants filed motions to stay as well; however, only Focus’ motion is presently before this court.

| gAfter a lengthy hearing, the trial court granted Focus’ motion as to the claims of Beutler-England Chiropractic Clinic (“Beutler-England”) and Frank W. Lopez, M.D. (A Medical Corporation) (“Dr.Lopez”). The trial court also granted Focus’ motion as to some of the claims of Clark A. Gunderson, M.D. (A Medical Corporation) (“Dr.Gunderson”), but denied the motion as to other claims of Dr. Gunderson. The writ application filed by Dr. Gunderson, Beutler-England, and Dr. Lopez seeking to overturn the ruling in favor of Focus was consolidated in this court with Focus’ appeal of the partial ruling in favor of Dr. Gunderson.

Opinion

As the supreme court explained in Collins v. Prudential Insurance Co. of America, 99-1423, pp. 9-10 (La.1/19/00), 752 So.2d 825, 831: “Before a district court may compel arbitration, the trial judge must make two preliminary determinations. First, the trial judge must ensure that a valid arbitration agreement between the parties exists. Second, the judge must decide whether the dispute at issue falls within the scope of the agreement.”

State law principles govern the first question, while federal substantive law governs the second, if the case is subject to the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (“FAA”). Collins, 752 So.2d 825. “[T]he substantive provisions of the [FAA] preempt state law and govern all written arbitration agreements in contracts connected to transactions involving interstate commerce.” Id. at 827. “Furthermore,- the Supreme Court has concluded that Congress intended to exercise its commerce powers to the fullest in legislating in favor of arbitration.” Aguillard v. Auction Mgmt. Corp., 04-2804, p. 8 (La.6/29/05), 908 So.2d 1, 8 (citing Allied-Bruce Terminix Cos., Inc. v. Dobson, 513 U.S. 265, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995)).

In the present case, the parties agree that Focus is a Tennessee corporation, and in some of the contracts at issue, Focus represents that it “contracts with providers and facilities in the various states to offer FOCUS’ Clients with access to providers.”. (Emphasis added.) Thus, at first glance, it would appear that the FAA 'governs this dispute. However, without going into further analysis, we note that the FAA is considered to be virtually identical to the Louisiana Arbitration Law, 9:4201^217 (“LAL”); therefore, Louisiana courts have recognized that “determinations regarding the viability and scope of an arbitration clause would be the same under either law, and federal jurisprudence interpreting the FAA may be considered in construing the LAL. Shroyer v. Foster, 01-385, p. 6 (La.App. 1 Cir. 3/28/02), 814 So.2d 83, 87. As the supreme court recognized in Aguillard, 908 So.2d at 8, both Louisiana and federal law favor arbitration such that “any doubt concerning the scope of arbitrable issues should be resolved in favor of arbitration.”

Dr. Gunderson — Writ Application

On June 5, 2003, Dr. Gunderson signed a “Preferred Provider Physician Agreement” with American Lifecare Networks (“American Lifecare”), which is not a Defendant herein. Under that agreement, American Lifecare identified itself as an entity that “enters into agreements with hospitals, physicians, and other provider members” to provide covered services to individuals with whom it directly or indirectly contracts. One of American Life-care’s duties under that agreement was to “negotiate with Plan(s) for payment to [Dr. Gunderson]” for the medical services he provided to covered individuals. In furtherance of this goal, Dr. Gunderson ^authorized American Lifecare “to negotiate agreements for payment ... by Plan for delivery of Covered Services to Covered Individuals pursuant to this Agreement.” One of the agreements that American Lifecare negotiated on behalf of Dr. Gunderson was with Focus, an organization that discounts, but does not pay, workers’ compensation medical bills for its network members. Both the Gunderson-American Lifecare agreement and the American Lifecare-Focus agreement contain similar clauses requiring the parties to arbitrate “any dispute or claim arising under this Agreement.”

Dr. Gunderson argues that the trial court erred in finding that a valid arbitration agreement exists between him and Focus, given that he did not sign any contract with Focus, nor did he expressly authorize American Lifecare to bind him to an arbitration agreement as required by La.Civ.Code art. 2997.

Because arbitration is a matter of contract, “a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” Lakeland Anesthesia, Inc. v. CIGNA Healthcare Group of La., Inc., 01-1059, p. 4 (La.App. 4 Cir. 2/6/02), 812 So.2d 695, 698 (quoting AT & T Techs., Inc. v. Communications Workers of Am., 475 U.S. 643, 648, 106 S.Ct. 1415, 1418, 89 L.Ed.2d 648 (1986)). Nonetheless, “a non-signatory to an agreement containing an arbitration provision may be bound by that provision under accepted theories of agency or contract law....” Lakeland Anesthesia, Inc. v. United Healthcare of La., Inc., 03-1662, p. 18 (La.App. 4 Cir. 3/17/04), 871 So.2d 380, 393, writs denied, 04-969, 04-972 (La.6/25/04), 876 So.2d 834.

Focus argues that Dr. Gunderson authorized American Lifecare to negotiate agreements such as the one between American Lifecare and Focus on his behalf. Therefore, according to Focus, Dr. Gunderson is bound by all provisions of the American Lifecare-Focus agreement, including its arbitration clause. Focus further argues that Dr. Gunderson cannot object to the arbitration clause in the Focus contract because that clause is virtually identical to the one in the contract that he signed with American Lifecare, with the only distinction between the two being the designation of the place of arbitration.

In Landis Construction Co., Inc. v. Health Education Authority, 367 So.2d 330 (La.1979), the board of directors of a public, agency passed a resolution authorizing its chairman to execute a construction contract with the plaintiff, who had submitted the lowest bid for the building of a parking garage; the resolution further provided that the contract was to be approved in advance by the agency’s architect and general counsel. After a lien dispute arose, the construction company sued the agency, seeking to compel arbitration as provided in the construction contract, and the agency responded by arguing that the signatories to the contract were without authority to stipulate for arbitration. The supreme court enforced the arbitration provision, finding that the agency’s authorization for its chairman to execute the specific construction contract “included the authority to bind [the agency] to each and every provision of the contract, including the stipulation for arbitration.” Id. at 332. The court also noted that the arbitration clause in the contract had been seen by the agency’s general counsel and architect.

[Jn People’s Federal Savings & Loan Ass’n v. Mortgage Government Securities, Inc., 87-3859, 1988 WL 59729 (E.D.La.5/4/88), the federal district court relied on Landis, 367 So.2d 330, to enforce an arbitration provision in a securities account “customer agreement.” The agreement was executed by a savings and loan association’s chief executive officer who had been authorized by.the association’s executive committee to sell certain securities as needed. After finding that the officer was given express authority to sell the securities, the court concluded that that authority encompassed executing the customer agreement as necessary or incidental to the sale, as well as binding the association “to each provision of the contract, including the provision for arbitration of claims.” Id. at p. 4.

The purpose of the Gunderson-American Lifecare agreement was for American Lifecare to negotiate on behalf of Dr. Gunderson with other entities that would increase his patient base in exchange for a payment at a negotiated rate. Thus, notwithstanding contractual language that the parties’ only relationship shall be “independent entities contracting with each other,” the contract clearly contemplates that American Lifecare will act as Dr. Gunderson’s representative at least for the limited purpose of accessing patients through agreements with other entities. Dr. Gunderson’s access to those patients from the Focus network, or from any other network, was dependent upon an agreement between American Lifecare and that other entity. Additionally, Dr. Gun-derson’s recovery from Focus for noncompliance with La.R.S. 40:2203.1(B) concerns the conditions under which the “alternative rates of payment” contained in a “preferred provider organization agreement” are enforceable. Accordingly, we find under Landis and People’s, that Dr. Gunder-son’s authorization for American Lifecare to contract for access to patients in various 17networks included the authority to bind him to all provisions of' those contracts, particularly where the American Lifecare agreement contained almost the same arbitration clause as the Focus agreement. We further note that to allow Dr. Gunder-son to benefit from those agreements or to rely on them in pursuit of a statutory claim without enforcing their arbitration clauses would amount to allowing the prohibited situation described in Aguillard, 908 So.2d 1, namely, that a state may not “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.” Id. at 8 (quoting Allied-Bruce Terminix Cos., Inc., 513 U.S. at 281, 115 S.Ct. at 843).

Dr. Gunderson also argues that this dispute does not fall within the scope of the arbitration agreements at issue because the contract he signed did not give American Lifecare authority to negotiate with Focus, an organization that is not a “pay- or” and because the object of this suit, a claim for statutory damages and attorney fees, is not one “arising under” any of the contracts at issue, as required by both arbitration agreements.

Concerning the scope of an arbitration agreement, the supreme court stated in Aguillard, 908 So.2d at 18:

[E]ven when the scope of an arbitration clause is fairly debatable or reasonably in doubt, the court should decide the question of construction in favor of arbitration. The weight of this presumption is heavy and arbitration should not be denied unless it can be said with positive assurance that an arbitration clause is not susceptible of an interpretation that could cover the dispute at issue. Therefore, even if some legitimate doubt could be hypothesized, this Court, in conjunction with the [United States] Supreme Court, requires resolution of the doubt in favor of arbitration.

As noted above, the statute under which Dr. Gunderson seeks relief depends upon the existence of a “preferred provider organization agreement” and concerns ^whether the “alternative rates of payment” in such agreements are enforceable. Additionally, the named Plaintiffs seek class certification of all medical providers whose workers’ compensation charges have been discounted “pursuant to a preferred provider agreement.” Thus, the PPO agreements are central to defining the purported class of plaintiffs and to the statutory claims asserted. Given both the federal and state policies favoring arbitration, we decline to exercise our supervisory jurisdiction to overturn the trial court’s order of arbitration.

Dr. Gunderson — Appeal

In March of 1998, Dr. Gunderson, as member of the Lake Charles Physician Hospital Organization (“LCPHO”), agreed to accept the terms of a contract that LCPHO negotiated on behalf of its members with Guardian Resources, Inc., later known as Evolutions Healthcare Systems, Inc. (“Evolutions”). Under that contract, Evolutions was identified as a “non-risk bearing Network that intends to contract with Payors with respect to the rendering of Hospital’s services for the benefit of such Payor groups who contract with [Evolutions],” and LCPHO indicated that it “wishes to enter into an agreement with [Evolutions] to participate in the Network established by [Evolutions].” On the form that Dr. Gunderson completed to indicate his acceptance of the LCPHO-Evolutions agreement, he checked that he wished to accept both commercial insurance and workers’ compensation payors through the Evolutions-LCPHO contract. However, an appendix to the contract provided that the workers’ compensation reimbursement rate “shall be paid at one hundred percent (100%) of the Louisiana Workers’ Compensation fee schedule.”

On May 1, 2002, Evolutions executed a “Provider Organization Agreement” to become part of Focus’ network. Although the LCPHO-Evolutions agreement did |9not contain an arbitration clause, the Evolutions-Focus agreement did. The trial court found there was no mandate from Dr. Gunderson to contract for arbitration given the absence of an arbitration clause in the LCPHO-Evolutions agreement. We also note the presence of an additional intermediary in this set of contracts, as LCPHO, and not Dr. Gunderson, was the party that negotiated the initial Evolutions agreement. Under these circumstances, we find no error in the trial court’s refusal to order arbitration of Dr. Gunderson’s claims against Focus based upon the Evolutions agreement.

Beutler-England

Dr. Carol Beutler and Dr. Don England, the current members of the Beutler-Eng-land partnership, were previously partners in another entity, the England-Masse Chiropractic Clinic (England-Masse). An order appointing a liquidator for England-Masse was signed on January 9, 2003, and partnership articles for the Beutler-Eng-land partnership were executed on October 23, 2003.

While they were members of the England-Masse partnership, Drs. Beutler and England each executed “Medical Provider Participation Agreement[s]” with Focus effective June 27, 2000. Both provider agreements listed “England-Masse” as the “Provider/Group Name” and included England-Masse’s federal tax identification number. Each doctor signed as “Partner,” and above each signature appeared the notation: “By signing hereunder on behalf of a corporation, partnership, facility, group practice or other legal entity, I certify that I have full authority to bind each individual member of such entity identified above [England-Masse].” Each doctor also signed a separate appendix that provided for workers’ compensation health services to be reimbursed at “the lessor [sic] of 80% of the: Usual and Customary |inRate; Medical Provider’s billed charge; or Maximum fee schedule amount established by applicable law.”

On February 27, 2003, after the liquidator had been appointed to dissolve England-Masse, Beutler-England faxed a “Provider Update” form to Focus with a cover sheet referencing “Changes made to our Company.” ■ On the form, the name “England-Masse Chiropractic” is crossed-out and is replaced with “Beutler-England Chiropractic,” and new tax identification and telephone numbers are provided. The form also indicates that two chiropractors, Dr. Violet Long and Dr. John C. Masse, are “no longer with us.” The form is signed by “Amanda Lorenz,” whom Dr. Beutler identified as a Beutler-England employee with the authority to execute such a document.

The contracts that Drs. Beutler and England signed while partners in England-Masse included a clause that required the parties to arbitrate any dispute that “arises out of or is related to this Agreement.” Focus based its motion to compel arbitration on these clauses, arguing that the subsequent correspondence from Beutler-England evidences its intent to ratify the England-Masse contracts. Beutler-England responded by arguing that it could not be bound by an agreement confected by a separate legal entity, the England-Masse partnership. In ordering that Beutler-England arbitrate its claims against Focus, the trial found that “Beutler-England had every intention of continuing the contract that both parties had previously entered into, [and] they actively, consciously pursued that agreement, .... ”

In support of its opposition to arbitration, Beutler-England cites Kincade v. Midroc Oil Co., 33,858 (La.App. 2 Cir. 9/27/00), 769 So.2d 813, writ denied, 00-3243 (La.2/16/01), 786 So.2d 98, a case that we find distinguishable. In Kincade, the court refused to enforce an agreement con-fected during the existence of a partnership against a corporation that was formed after the partnership’s termination, notwithstanding that many of the former partners were investors in the new entity, citing La.Civ.Code art. 2828, which provides: ‘TVhen a partnership terminates, the business of the partnership ends except for the purposes of liquidation.” However, the court in Kincade, 769 So.2d at 818, recognized a jurisprudential exception that may have applied, had the plaintiff been able to prove that “the subsequent corporation merely carried on the business” begun by the partnership. Additionally, the Kincade court was not presented with evidence that the subsequently-formed corporation intended to ratify the contract executed by the original partnership.

At trial, Dr. Beutler testified that England-Masse stopped doing business on a Friday in October of 2002, and on the following Monday, she and Dr. England began operating as Beutler-Eng-land, with the only change in the partnership being that Dr. England was no longer a partner. In February of 2003, Beutler-England notified Focus of the change in the company’s name, its new tax identification number, and that two chiropractors were no longer practicing with the company. This information was faxed on a “Provider Update” form generated by Focus indicating that it listed the information on each provider as contained in Focus’ computer system and that any corrections to that information should be made in the space provided. At least five times on the form faxed to Focus, the name “England-Masse” is crossed out and is replaced with “Beut-ler-England.”

BlaCK’s Law Dictionary (4th ed.1968) defines “ratification” as “[i]n a broad sense, the confirmation of a previous act done either by the party himself or by 112another; confirmation of a voidable act.” The definition continues to include: “The adoption by one, as binding upon himself, of an act done for his benefit, although done under such circumstances as would not bind him except for his subsequent assent.” We can only conclude that Beut-ler-England’s purpose in completing the “Provider Update” form was to continue the participation in the Focus network that England-Masse had begun in 2000. Beut-ler-England informed Focus that its name should be substituted for England-Masse’s in its computer provider listing, and the basis of that listing was the England-Masse contract. As such, we decline to disturb the trial court’s ruling ordering arbitration of Beutler-England’s claims based upon the England-Masse contract.

Another issue presented is whether Beutler-England’s claims for statutory damages under La.R.S. 40:2203.1(G) is beyond the scope of the arbitration clauses in the contracts executed by Drs. Beutler and England because those clauses, unlike the contracts pertaining to Dr. Gunderson, provide that “the arbitrators will have no authority to award any punitive or exemplary damages,.... ” (Emphasis added.)

In PacifiCare Health Systems, Inc. v. Book, 538 U.S. 401, 402, 123 S.Ct. 1531, 1533, 155 L.Ed.2d 578 (2003), the United States Supreme Court considered a similar argument in deciding whether claims for treble damages under the Racketeer Influenced and l1sCorrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq., should be submitted to arbitration “notwithstanding the fact the parties’ arbitration agreements may be construed to limit the arbitrator’s authority to award damages under that statute.” The arbitration agreements in PacifiCare Health Systems, Inc., 538 U.S. at 405, 123 S.Ct. at 1535 (alteration in original), included language that “punitive damages shall not be awarded [in arbitration]”; that “[t]he arbitrators ... shall have no authority to award any punitive or exemplary damages”; and that “[t]he arbitrators ... shall have no authority to award extra contractual damages of any kind, including punitive or exemplary damages -” The plaintiffs argued that these provisions precluded an award of treble damages in arbitration, but the Supreme Court found that was not yet clear, given various jurisprudential definitions of treble damages and “the ambiguous terms of the contracts” at issue. Id. Noting, first, those cases in which treble damages under RICO were held to have compensatory and remedial purposes in addition to punitive objectives and, second, “the uncertainty surrounding the parties’ intent with respect to the contractual term ‘punitive,’ ” the Supreme Court concluded it could not yet determine how the arbitrators would construe the remedial limitations in the arbitration clauses. Id. at 406; 123 S.Ct. at 1535. Accordingly, it held that the proper course was to compel arbitration.

Failure to comply with the provisions of Subsection A, B, C, D, or F of this Section shall subject a group purchaser to damages payable to the provider of double the fair market value of the medical services provided, but in no event less than the greater of fifty dollars per day of noncompliance or two thousand dollars, together with attorney fees to be determined by the court. A provider may institute this action in any court of competent jurisdiction.

We find the Supreme Court’s reasoning in PacifiCare Health Systems, Inc. to be persuasive here. The arbitration agreements signed by Drs. Beutler, England, and Lopez are substantially similar to those found by the Supreme Court to be ambiguous and reflective’ of the parties’ uncertain intent as to the meaning of “punitive,” and | uthere is yet no jurisprudence discussing whether the “double damages” of La.R.S. 40:2203.1(G) would fall within a contractual provision prohibiting- “punitive damages.” As in PacifiCare, these uncertainties require these questions to be arbitrated, given the presumption in favor of arbitration. Accordingly, we decline to exercise our supervisory jurisdiction as to the claims of Beutler-England and to those of Dr. Lopez relating to this issue.

Dr. Lopez

In September of 2001, Dr. Lopez executed a “Provider Group Participation Agreement” with an entity known as Metra-Comp, Inc. (“MetraComp”) in which he agreed to arbitrate “any disputes arising out of or which is related to their business relationship.” That agreement also contains the following paragraph:

9.2 Assignment. METRACOMP may assign all or any of its rights and responsibilities under this Agreement to any entity controlling, controlled by or ■ under common control with METRA-COMP. GROUP [Dr. Lopez] may not assign any of its rights and responsibilities under this agreement to any person or entity without prior unitten consent of METRACOMP, which consent shall not be unreasonably withheld.

(Emphasis added.)

In November of 2001, the parent companies of Focus and MetraComp merged. According to the affidavit of Virginia Ross, ■Focus’ director of provider relations, Focus immediately began to phase out Me-traComp as an independent entity and to integrate its provider network with that of Focus. In January of 2004, MetraComp was dissolved as a Louisiana corporation.

|1sDr. Lopez' does not dispute that Me-traComp had the right to assign its interest in the contract, nor does he argue that the trial court’s conclusion that a valid assignment occurred is manifestly erroneous. Rather, he contends that the trial court erred in ordering him to arbitrate with Focus based upon the Lopez-Metra-Comp agreement when he never received notification that MetraComp assigned its rights under the contract to Focus.

In ordering the parties to proceed to arbitration, the trial court gave several reasons in rejecting Dr. Lopez’s argument regarding lack of notice. First, the trial court found that the authority cited by Dr. Lopez requiring notice of assignment in certain instances did not apply to the present case, which does not involve a monetary debt, a security interest, or a lessor-lessee relationship. Second, the trial court concluded that the contract provided for a waiver of any such notice. Finally, the trial court considered that Dr. Lopez had been dealing with Focus throughout much of the time that the contract had been in effect since 2001.

We find no error in the trial court’s analysis. The contract permits MetraComp to assign its interest therein to certain entities, while at the same time requires Dr. Lopez to obtain MetraComp’s consent should he wish to assign his contractual rights to another. When these provisions are read together, they clearly permit MetraComp to assign the contract without notice under certain circumstances. Even if Dr. Lopez had cited legal authority that such notice is non-waivable, and we are not convinced that he has, his ongoing relationship with Focus, as evidenced by his receipt of Explanations of Benefits (EOB) referencing the Focus network dated as early as 2002, indicates that such notice was given. We decline to disturb the trial 11Bcourt’s ruling ordering the arbitration of Dr. Lopez’s claims against Focus based upon the MetraComp contract.

Decree

For the above reasons, the writ application filed by Dr. Gunderson, Beutler-Eng-land, and Dr. Lopez is denied, and the judgment appealed from is affirmed. Costs of the appeal in 05-1129 are assessed to Defendant/Appellant, Focus Healthcare Management, Inc.

WRIT DENIED; JUDGMENT AFFIRMED.

      . The four named Plaintiffs, Clark A. Gunder-son, M.D. (A Medical Corporation), Beutler-England Chiropractic Clinic, Frank W. Lopez, M.D. (A Professional Medical Corporation), and Southwest Louisiana Hospital Association d/b/a Lake Charles Memorial Hospital, sought class certification on behalf of all medical providers whose charges for services provided to workers’ compensation patients have allegedly been discounted pursuant to a preferred provider agreement "without a benefit card being issued or 30 day written notice being supplied pursuant to LA R.S. 40:2203.1(B).” (Emphasis added.) Plaintiffs also sought certification of a "Group Purchaser Defendant Class” that would include the six named Defendants, F.A. Richard & Associates, Inc., First Health Group Corp., Focus Healthcare Management, Inc., Cambridge Integrated Services Group, Inc., National Loss Control Management, Inc., and AIG Claim Services, Inc.

      . The parties agreed that Focus’ motion to stay and compel arbitration pertaining to the claims of another Plaintiff, Southwest Louisiana Hospital Association d/b/a Lake Charles Memorial Hospital, would be taken up at a later date.

      . Dr. Lopez also signed an agreement with American Lifecare that is substantially similar to the one signed by Dr. Gunderson. Accordingly, this discussion also applies to the claims of Dr. Lopez based upon his contract with American Lifecare.

      . Louisiana Civil Code Article 2997 provides in part: “Authority also must be given expressly to: ... (5) Enter into a compromise or refer a matter to arbitration.”

      .Under La.R.S. 40:2203.1(G) (emphasis added):

      . The arbitration clause in the contract signed by Dr. Lopez, whose claims are discussed below, provides that the arbitrators "shall have no authority to award any punitive damages,....” Because of the similarity in language in both sets of agreements, the discussion of this issue as to Beutler-England applies to Dr. Lopez as well.

      . In so holding, the Supreme Court stated: "Given our presumption in favor of arbitration, we think the preliminary question whether the remedial limitations at issue here prohibit an award of RICO treble damages is not a question of arbitrability.” PacifiCare Health Systems, Inc., 538 U.S. at 407, 123 S.Ct. at 1536, n. 2 (citation omitted).

      . In its opposition to supervisory writs, Focus contends that these arbitration clauses (Beut-ler-England and Dr. Lopez) amount to a waiver of punitive damages in any forum. However, given the Supreme Court’s characterization of similar language as ambiguous, this, too, is unclear and is a question to be decided by the arbitrators.


text:
    Clark A. GUNDERSON, M.D., et al. v. F.A. RICHARD & ASSOCIATES, INC., et al.
    No. 05-1129.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 23, 2006.
    Thomas A. Filo Cox, Cox, Filo, Camel & Wilson, L.L.P., Lake Charles, Stephen B. Murray, Arthur M. Murray, Nicole A. Iey-oub, The Murray Law Firm, New Orleans, John S. Bradford, William B. Monk, Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P., Lake Charles, for Plaintiffs/Applicants/Appellees, Beutler-Eng-land Clinic, Dr. Clark Gunderson, Dr. Frank W. Lopez.
    Charles S. McCowan, Jr., Todd A. Ros-si, Terrence D. McCay, Charles S. McCowan, III, Louis V. Gregoire, Jr., Kean, Miller, Hawthorne, D’Armond, McCowan & Jarman, LLP, Baton Rouge, Michael Kendall, Lauren M. Papenhausen, Jennifer S. Geetter, McDermott Will & Emery, LLP, Boston, Massachusetts, for Defendant/RespondenVAppellant, Focus Healthcare Management, Inc.
    Gustave A. Fritchie, III, David W. O’Quinn, Douglas J. Moore, Irwin, Frit-chie, et al, New Orleans, for Defendant, Cambridge Integrated Services, Inc.
    John E. Galloway, Galloway, Johnson, Tompkins, Burr & Smith, Kimberly G. Anderson, Attorney at Law, New Orleans, for Defendant, F.A. Richard & Associates, Inc.
    Perry R. Staub, Jr., Larry E. Demmons, Taggart, Morton, Ogden, Straub, Rougelot & O’Brien, New Orleans, Steve M. Sikich, The Sikich Law Firm, Lake Charles, for Defendant, First Health Group Corporation.
    Janice B. Unland, Robert T. Lorio, Paul Eric Harrison, Rabalais, Unland & Lorio, Covington, for Defendant, National Loss Control Management, Inc.
    E. Paige Sensenbrenner, John B. Davis, Rusty John Savoie, Andrew C. Kolb, Adams & Reese, New Orleans, Theodore Robert Scarborough, Attorney at Law, Chicago, Ill., for Defendant, AIG Claims Service, Inc.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   SULLIVAN, Judge.

For the reasons assigned in Gunderson v. F.A. Richard & Associates, Inc., CW05-917 (La.App. 3 Cir. 8/23/06), 937 So.2d 916, 2006 WL 2422872, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Defendant/Appellant, Focus Healthcare Management, Inc.

AFFIRMED.