author: DOWNING, J. HUGHES, J.,

text:
    STEAMSHIP MUTUAL UNDERWRITING ASSOCIATION (BERMUDA), LTD. v. SUN LIFE ASSURANCE COMPANY OF CANADA.
    No. 2006 CA 1082.
    Court of Appeal of Louisiana, First Circuit.
    June 8, 2007.
    Writ Denied Oct. 12, 2007.

      E. Wade Shows, Baton Rouge, Jeremy J.O. Harwood, New York, NY, Joseph E. Bearden, III, Andrew Struben deKlerk, New Orleans, Edward J. Gonzales, III, Baton Rouge, Counsel for Plaintiff/Appellant Steamship Mutual Underwriting Assoc.
    Richard D. Bertram, New Orleans, Eugene R. Groves, Frederick R. Tulley, Baton Rouge, Glenn G. Goodier, New Orleans, Steven C. Schwartz, New York, NY, Counsel for Defendant/Appellee Sun Life Assurance Company of Canada.
    Before: PETTIGREW, DOWNING and HUGHES, JJ.
   DOWNING, J.

IpThe Steamship Mutual Underwriting Association (Bermuda), Ltd. (“Steamship”) appeals a judgment against it that grants an exception of lack of subject matter jurisdiction and dismisses its lawsuit. For the following reasons we affirm.

At issue in this appeal is Steamship’s right to maintain a direct action against Sun Life Assurance Company of Canada (“Sun”) pursuant to La. R.S. 22:943 in light of an order issued by a Pennsylvania court approving Pennsylvania’s Insurance Commissioner as Liquidator of Reliance Insurance Company (“Reliance”) and discharging Sun from all related liabilities. As ordered by the Pennsylvania court, Sun paid sums to the Pennsylvania liquidator to settle the same reinsurance claims that are the subject of the suit Steamship filed here in Louisiana. Over Steamship’s objection, the Pennsylvania court signed an order releasing Sun from all claims under its reinsurance contracts with Reliance.

Steamship now seeks relief in Louisiana’s courts by asserting its claim against Sun under La. R.S. 22:943. Steamship argues that Louisiana has in personam jurisdiction and that its present claims are not precluded by the exclusive in rem jurisdiction granted to Pennsylvania pursuant to La. R.S. 22:757 et seq., Louisiana’s version of the Uniform Insurers Liquidation Law (UILA).

In concluding that Louisiana lacked subject matter jurisdiction, the trial court relied on the recent supreme court holding in All Star 3Advertising Agency, Inc. v. Reliance Ins. Co., 04-1544 (La.4/12/05), 898 So.2d 369. There, the supreme court observed that “[t]he issue of subject matter jurisdiction in this case turns on the reciprocity between a state, Louisiana, that has adopted the UILA, and a state, Pennsylvania, that has adopted a version of, or laws related to, the Model Act.” Id., 04-1544 at p. 1, 898 So.2d at 370. It then concluded that Pennsylvania was a “reciprocal state” pursuant to La. R.S. 22:757(7). Id., 04-1544 at p. 19, 898 So.2d at 382. On remand, the supreme court ordered this court to consider the “unaddressed contention that the Pennsylvania Commonwealth Court in the order of liquidation did not assert exclusive jurisdiction over a lawsuit such as the plaintiff brings here[.]” Id., 04-1544 at p. 20, 898 So.2d at 383.

Here, the liquidation order vested title to all Reliance’s property, assets, contracts and rights of action in the Pennsylvania Commissioner of Insurance, as Liquidator. The order asserted Pennsylvania’s in rem jurisdiction over all Reliance’s assets wherever located. Subsequently, the Pennsylvania court asserted its exclusive jurisdiction over “inter alia, the assets of the Reliance estate, including matters related to the direct payment of reinsurance to Reliance insureds by Reliance’s reinsurers .... ” Subsequently, over Steamship’s objections, the Pennsylvania court approved an agreement that discharged Sun from all liabilities under its contracts.

It is clear, then, that Pennsylvania is exerting exclusive jurisdiction over the matters at issue before us. Accordingly, we lack subject matter jurisdiction to consider them. We note that the supreme court in its order of remand in All Star determined that the test for exercise of Louisiana’s jurisdiction was not whether the claim was made in personam; rather, the test was whether Pennsylvania asserted exclusive jurisdiction over the plaintiffs in personam claims for injunctive relief. Id., 04-1544 at p. 20, 898 So.2d at 383. We believe this holding is consistent with the mandate of |4La. R.S. 22:763, which states: “This Uniform Insurers Liquidation Law (R.S. 22:757 through 22:763) shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states that enact it.”

Accordingly, we find no merit in Steamship’s assignments of error. We will affirm the judgment of the trial court.

On another matter, we consider Sun’s “Motion for Summary Disposition” and deny it. This motion was referred to this panel, to which the appeal was assigned. While we disagree with Steamship’s arguments, we conclude that they raised an unresolved point of law that needed review and discussion. “Summary disposition” as contemplated by Uniform Rules- — Courts of Appeal, Rules 2-11.3 and 2-16.2 is, therefore, inappropriate in this case.

DECREE

We affirm the judgment of the trial court granting the exception of lack of subject matter jurisdiction and dismissing the lawsuit. We deny Sun’s motion for summary disposition. Costs of this appeal are taxed to The Steamship Mutual Underwriting Association (Bermuda), Ltd.

JUDGMENT AFFIRMED; MOTION FOR SUMMARY DISPOSITION DENIED.

PETTIGREW, J., concurs.

HUGHES, J., dissents with reasons.

HUGHES, J.,

dissenting.

hi respectfully dissent. The Allstar case establishes that Pennsylvania is a reciprocal state and therefore Louisiana may lack subject matter jurisdiction for suits against Reliance.

However, the issue before us is subject matter jurisdiction over Sun.

I also disagree that direct payments from a reinsurer of Reliance to an insured of Reliance are “assets” of Reliance. “Direct payment” seems to indicate the obligation flows directly to the insured. Reliance may be entitled to a credit.

      . Louisiana Revised Statutes 22:943, entitled “Pending actions,’’ provides as follows:
      A. Whenever an insurer agrees to assume and carry out directly with the policyholder any of the policy obligations of the ceding insurer under a reinsurance agreement, any claim existing or action or proceeding pending arising out of such policy by or against the ceding insurer with respect to such obligations may be prosecuted to judgment as if such reinsurance agreement had not been made, or the assuming insurer may be substituted in place of the ceding insurer.
      B. Where two or more assuming insurers are involved in the same claim and a majority in interest elect to interpose defense to such claim, the expense shall be apportioned in accordance with the terms of the reinsurance agreement as though such expense had been incurred by the ceding insurer.


source: Caselaw Access Project

author: PARRO, J.

license: Public Domain

text:
    Kenneth W. OWENS v. Richard L. STALDER, Secretary of the Louisiana Department of Public Safety and Corrections, et al.
    No. 2006 CA 1120.
    Court of Appeal of Louisiana, First Circuit.
    June 8, 2007.
    Kenneth W. Owens, Winnfield, Plaintiff-Appellant In Proper Person.
    William L. Kline, General Counsel, Baton Rouge, for Defendants-Appellees Richard L. Stalder, Secretary of Louisiana Dept, of Public Safety and Corrections, et al.
    Before: PARRO, GUIDRY, and McClendon, jj.
   PARRO, J.

[¡¡Kenneth W. Owens, an inmate in the custody of the Department of Public Safety and Corrections (DPSC), appeals a judgment of the district court that affirmed the decision of the DPSC and dismissed his petition for judicial review. We reverse, render judgment, and remand to the DPSC with instructions.

BACKGROUND

Owens was sentenced on January 4, 1989, to serve twenty-one years with DPSC as a second felony offender, which sentence was to run consecutively with a sentence of nine years imposed the-same date for the crime of attempted manslaughter. On September 10, 2004, he filed a petition for judicial review styled as an “Emergency Writ of Habeas Corpus” in the Nineteenth Judicial District Court (19th JDC), seeking immediate release from custody on the basis that his “good time” credits had been miscalculated. He averred that if those credits had been correctly calculated, he already would have been released from custody.

Owens’ complaint stated that for part of his sentence, DPSC had improperly computed his good time credits by applying Act 665, which allowed an inmate to earn fifteen days of good time credit for every thirty days served. He claimed that this was- the wrong statute to apply to his sentence, because the law was changed, effective January 1, 1988, by Act 848, which applied to any inmate sentenced after July 1, 1982, and effectively allowed such inmates to be eligible to receive double good time credit of thirty days for every thirty days served. See former LSA-R.S. 15:571.14. Because he was sentenced on January 4,1989, Owens contended that double good time credit should be applied to his entire sentence. Louisiana Revised Statute 15:571.14 was repealed in its entirety and the substance of its provisions was amended and re-enacted |sby 1991 La. Acts, No. 138, § l, effective January 1, 1992, which reiterated that an inmate could earn thirty days of good time credit for every thirty days served. However, the provisions of Act 138 applied only prospectively to those sentenced after its effective date, and for anyone already serving a sentence, the double good time credit was to apply only to the remaining portion of the sentence.

. Owens claims that after passage of Act 138, he was offered the opportunity to choose double good time credit under its provisions. See LSA-R.S. 15:571.3. On August 24, 1992, he refused to sign the “Double Good Time Option and Approval Form” presented to him, alleging his credit should be computed retroactively to his original sentencing date, rather than prospectively from January 1, 1992. He claims that he was later informed that his double good time credit would be calculated as of the date when he was first sentenced. However, in 1997, he was again given the opportunity to select thirty days of good time credit for every thirty days served, under the provisions of LSA-R.S. 15:571.3, and he signed an approval form that stated he was eligible to receive good time credit at that rate, effective January 5,1997.

Before filing his petition in the district court, Owens presented his complaint to the DPSC by initiating a Corrections Administrative Remedy Procedure (CARP). His complaint was investigated, and his request for re-computation of his good time credit was rejected at each level of that procedure. Having exhausted his administrative remedies, Owens filed his petition in the district court. His claim and the evidence submitted in connection with it were evaluated by a commissioner, who recommended |4to the district court judge that the final agency decision of DPSC be affirmed and that Owens’ request for judicial review be dismissed with prejudice at his cost. Owens timely filed a traversal of this recommendation. On September 8, 2005, the district court judge signed a judgment affirming the DPSC decision as neither arbitrary, capricious, manifestly erroneous, nor in violation of any of Owens’ constitutional or statutory rights. His petition was dismissed, with prejudice, at his cost. This appeal followed.

APPLICABLE LAW

Louisiana Revised Statute 15:1177 provides for judicial review of an adverse decision by the DPSC. On review of the agency’s decision, the district court functions as an appellate court. Its review shall be confined to the record and shall be limited to the issues presented in the petition for review and the administrative remedy request filed at the agency level. LSA-R.S. 15:1177(A)(5). The court may affirm the decision of the agency or remand the case for further proceedings, or order that additional evidence be taken. LSA-R.S. 15:1177(A)(8). The court may reverse or modify the administrative decision only if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) in violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or (6) manifestly erroneous in view of the reliable, probative, and substantial evidence on the whole record. LSA-R.S. 15:1177(A)(9).

On review of the district court’s judgment under LSA-R.S. 15:1177, no deference is owed by the court of appeal to the factual findings or legal conclusions of the district court, just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal. McCoy v. Stalder, 99-1747 (La.App. 1st Cir.9/22/00), 770 So.2d 447, 450-51.

[.ANALYSIS

The commissioner’s recommendation to the district court indicates that he reviewed the record of the CARP procedure conducted by DPSC in reaching his conclusion that the DPSC decision was correct. The commissioner observed that the CARP second step response form stated that Owens had rejected double good time eligibility on August 24, 1992, and that Owens had acknowledged this at the initial hearing in the matter. We note that Owens also provided this information in his original pleading in the district court. The commissioner further stated that the DPSC regulations provided that an inmate could not be deemed eligible for double good time credit until he signed an approval form. Since Owens did not sign such a form until January 17, 1997, the commissioner concluded that DPSC did not err in deeming him eligible to earn double good time only from January 5, 1997, rather than from his initial sentencing date of January 4, 1989. Therefore, according to the commissioner, the computation of his good time credit at the rate of only fifteen days for every thirty days served from his sentencing date of January 4, 1989, until January 5, 1997, and at thirty days for every thirty days served after that date, was correct. The district court judgment reflects this conclusion.

However, this conclusion is contrary to this court’s judgment in Cox v. Whitley, 612 So.2d 158, 159-60 (La.App. 1st Cir. 1992), writ denied, 613 So.2d 1001 (La.1993). In that case, the inmate had been sentenced on December 14, 1983, to serve twenty-one years in prison for manslaughter. This court noted that when Act 848 was enacted, it provided that inmates sentenced to the custody of DPSC on or after July 1, 1982, who were otherwise eligible for diminution of sentence, would be eligible to receive increased diminution of sentence in the amount of thirty days for each thirty days served. “Since Cox had been sentenced after July 1, 1982, he was then eligible for double good time.” Cox, 612 So.2d at 159. However, he did not execute an approval form for double good time until December 29, 1987. That form stated |fibeneath his signature that he was approved for double good time effective August 30, 1986. Like Owens, Cox had exhausted his administrative remedies and his petition for judicial review to the district court had been dismissed. This court found “that the [district] court committed legal error in finding Cox was not entitled to double good time retroactive to ... his date of sentencing.” Id. This court further stated that subsequent amendments of the statutes limiting credit for double good time could not be applied retroactively to divest Cox of his vested right to credit for double good time between his sentencing date and the date he was deemed eligible after signing the approval form. See Cox, 612 So.2d at 160.

Our decision in this case is controlled by Cox. Even though DPSC regulations may have required Owens to sign an approval form in order to be eligible for double good time credits, DPSC presented no evidence that it ever offered Owens the opportunity to sign a form that stated and recognized the correct effective date. And just as in the Cox case, Owens’ right cannot be limited by his signature on an approval form reflecting the application of a subsequent amendment to the statute and providing a later effective date for his double good time credit. Therefore, the judgment of the district court constituted legal error and must be reversed.

CONCLUSION

We hereby reverse the judgment of the district court dismissing Owens’ suit and render judgment in favor of Kenneth W. Owens and against the DPSC. It is hereby ordered that this matter be remanded to the DPSC to amend the records of Kenneth W. Owens, including his Master Prison Record, to reflect appropriate credit for double good time earned from the date of imposition of sentence, January 4, 1989. Total costs of this appeal, in the amount of $261.38, are assessed against DPSC.

REVERSED, RENDERED, AND REMANDED TO DPSC WITH INSTRUCTIONS.

      . This law was enacted by 1977 La. Acts, No. 665, § 1, and was codified at that time as LSA-R.S. 15:571.4(C). Act 665 provided that for convictions after September 9, 1977, an inmate could earn fifteen days of good time credit for every thirty days served.

      . This law was enacted by 1987 La. Acts, No. 848, § 1, and was codified at that time as LSA-R.S. 15:571.14(8).

      . See LSA-R.S. 15:571.3(A) and (B)(1).

      . See LSA-R.S. 15:1171, et seq. Louisiana Revised Statute 15:1171(B) grants authority to the DPSC to adopt administrative remedy procedures in compliance with federal law to receive, hear, and dispose of all offender complaints and grievances. The statute further provides that such complaints and grievances include actions pertaining to time computations, "even though urged as a writ of habeas corpus,” and that such administrative remedy procedures are to provide the exclusive remedy to the offender for complaints governed thereby. See Madison v. Ward, 00-2842 (La.App. 1st Cir.7/3/02), 825 So.2d 1245, 1251-52 (en banc).

      .A prisoner alleging an error in time computation must pursue his claim through CARP, with appellate review first at the district court and then with this court. Madison, 825 So.2d at 1255.

      . The office of commissioner of the 19th JDC was created by LSA-R.S. 13:711 to hear and recommend disposition of criminal and civil proceedings arising out of the incarceration of state prisoners. The commissioner’s written findings and recommendations are submitted to a district court judge, who may accept, reject, or modify them. LSA-R.S. 13:713(0(5).

      . LSA-R.S. 15:1177 provides that an aggrieved party may appeal a final judgment of the district court to the appropriate court of appeal.

      . The form presented to Owens in 1992 was not in the record. However, the DPSC stated in its second step response, "Our record indicates that you refused to sign the option form on August 24, 1992, later signing the form on January 17, 1997, effective January 5, 1997.”

      . Although Owens named a number of other persons employed in various capacities by DPSC, his claims against them all involved the calculation of his good time credit, which is ultimately the responsibility of DPSC. By our action in this case, those allegations are moot.


author: WHIPPLE, J.

text:
    Deborah BATSON, Eula Maye Batson and Billy M. Batson v. SOUTH LOUISIANA MEDICAL CENTER and State of Louisiana, Through the Department of Health and Human Resources.
    No. 2006 CA 1998.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 2007.
    See also 858 So.2d 653.

      Stephen S. Stipelcovich, Michael J. Sa-manie, Houma, Counsel for Plaintiffs/Ap-pellees, Deborah Batson, Eula Maye Bat-son, and Billy M. Batson.
    Gregory C. Weiss, Mandeville, Counsel for Defendants/Appellants, South Louisiana Medical Center and State of Louisiana, through the Department of Health and Human Resources.
    Before: CARTER, C.J., WHIPPLE and McDonald, jj.
   WHIPPLE, J.

I ¡¿This matter is again before us on appeal from a judgment of the trial court: (1) finding and declaring that South Louisiana Medical Center (SLMC) and the State of Louisiana, through the Department of Health and Human Resources (collectively referred to as “the State”), defendants herein, had not satisfied the trial court’s April 15, 1997 judgment in this matter; and (2) ordering the State to pay $322,169.05 awarded in the April 15, 1997 judgment for medical expenses for flexion contracture injuries suffered by the decedent, Deborah Batson, with judicial interest from July 21, 1991, until paid. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

This protracted litigation arose from a medical malpractice suit for injuries suffered by Deborah Batson while hospitalized in 1990 and 1991, at SLMC in Houma, Louisiana. At the original trial of this matter, the trial court found that Batson had suffered three separate and unrelated injuries resulting from independent acts of negligence. Those three separate injuries were: (1) sepsis and related injuries; (2) flexion contractures; and (3) decubitus ulcers. Having found three separate and unrelated injuries, the trial court further determined that a separate $500,000.00 cap on damages as set forth in LSA-R.S. 40:1299.39(F) of the Malpractice Liability for State Services Act (MLSSA) applied to each independent act of negligence causing a separate and independent injury. In its April 15, 1997 judgment, the trial court awarded plaintiffs three separate $500,000.00 caps for Batson’s injuries and also awarded medical expenses for each of the threejjjinjuries.

In its initial appeal of the April 15, 1997 judgment, the State challenged the trial court’s finding that multiple statutory caps applied pursuant to LSA-R.S. 40:1299.39(F). Additionally, the State argued that the trial court erred in awarding Batson an amount of future medical expenses. With regard to the medical expenses awarded, this court found no merit to the State’s argument, noting that LSA-R.S. 40:1299.39(F)(1) specifically stated that the court’s judgment “shall include a recitation that the patient is or is not in need of future medical care and related benefits and the amount thereof.” Batson v. South Louisiana Medical Center, 98-0038 (La.App. 1st Cir.12/28/98), 727 So.2d 613, 619, rev’d in part on other grounds, 99-0232 (La.11/19/99), 750 So.2d 949. The State never challenged the past medical expenses awarded, and it also made no further challenge to the future medical expenses awarded.

Instead, the State’s appeal primarily challenged the trial court’s holding that multiple caps applied. With regard to the issue of multiple caps, the Louisiana Supreme Court ultimately affirmed the trial court’s finding that Batson was entitled to three separate $500,000.00 caps for her separate and independent injuries, holding that the MLSSA does not prohibit multiple statutory caps for multiple acts of negligence that produce separate and independent damages. Batson v. South Louisiana Medical Center (Batson I), 99-0232, p. 11 (La.11/19/99), 750 So.2d 949, 957. The Supreme Court then remanded the matter to this court with instructions to “review quantum under each cap.” Batson I, 99-0232 at p. 11, 750 So.2d at 957.

|4On remand, this court affirmed the damages that had been awarded under each cap, finding no abuse of the trial court’s discretion in its awards. Batson v. South Louisiana Medical Center (Batson II), 98-0038R, pp. 27-28 (La.App. 1st Cir.12/22/00), 778 So.2d 54, 68-69, writ denied, 2001-0960 (La.5/11/01), 792 So.2d 740. However, on remand to this court, the State raised the issue that it was entitled to judgment in its favor setting forth that it owed plaintiffs nothing, because the judgment purportedly had been fully satisfied by virtue of the settlement between plaintiffs and Robert Rowe, Leah Angelito and Medforce Physical Therapy Services, Inc. (“the physical therapy defendants”). Batson II, 98-0038R at pp. 23-24, 778 So.2d at 66. The State contended that the physical therapy defendants were qualified state health care providers and that Bat-son was only entitled to recover $1,500,000.00 in total damages from all qualified state health care providers, representing one cap for each claim. Thus, it contended, because the amount paid in settlement by the physical therapy defendants exceeded all three caps to which Batson was entitled, the State had no further liability to plaintiffs. Batson II, 98-0038R at pp. 23-24, 778 So.2d at 66.

Noting that the settlement by the physical therapy defendants involved Batson’s flexion contractures claim only, this court ruled that, as a matter of law, there was no basis for granting the State a credit from these settlement proceeds against any obligation for the remaining two malpractice claims (ie., the claim for sepsis and related injuries and the claim for decubitus ulcers). Batson II, 98-0038R at p. 24, 778 So.2d at 66-67. However, with regard to the State’s liability to plaintiffs for Bat-son’s flexion contractures claim, this court found that the trial court had never actually made a ^determination as to whether the physical therapy defendants were in fact qualified state health care providers who were covered by the MLSSA for the instant claim and that this determination could be made only following an evidentia-ry hearing at the trial court level. Batson II, 98-0038R at pp. 26-27, 778 So.2d at 6768. Thus, the matter was remanded to the trial court for the limited purpose of determining whether the State was entitled to a credit on the flexion contractures claim. Batson II, 98-0038R at p. 27, 778 So.2d at 68.

The Louisiana Supreme Court then denied the State’s application for writs of certiorari and review of this court’s opinion in Batson II. Batson v. South Louisiana Medical Center, 2001-0960 (La.5/11/01), 792 So.2d 740. Because the trial court’s April 15, 1997 judgment became final and definitive as to the damages awarded for the sepsis and related injuries claim and the decubitus ulcer claim upon the denial of the State’s writ application, the State paid the damages caps awarded in the judgment for those two injuries, with interest, and also paid the amounts plaintiffs had paid in satisfaction of the Medicare and Medicaid liens, for a total payment of $2,103,389.71.

Plaintiffs then executed a Partial Satisfaction of Judgment, acknowledging this payment from the State, but specifically recognizing that | fi“[t]his partial satisfaction of judgment does not in any way discharge the State of Louisiana from the estate’s claim for flexion contractures and the damages awarded by this court on April 15, 1997” and that “[t]he portion of the judgment pertaining to the flexion contracture damages hereby remains in full force and effect and is not affected by this judgment [sic].”

On remand from this court to the trial court on the issue of whether the State was entitled to a credit on the flexion contracture claims, the trial court concluded that the physical therapy defendants were not state qualified health care providers under the MLSSA. Additionally, the court held that the physical therapy defendants had committed gross negligence and/or willful or wanton acts and that such acts excluded coverage under LSA-R.S. 40:1299.39(A)(l)(a)(iv)(cc). Thus, the trial court rendered judgment, finding that the State was not entitled to any credit against its liability to plaintiffs for the settlement between plaintiffs and other non-state parties.

On appeal, this court affirmed the trial court’s finding that the physical therapy defendants were not qualified state health care providers, as defined in LSA-R.S. 40:1299.39(A). Consequently, this court also affirmed the trial court’s conclusion that the State was not entitled to any credit against its liability to plaintiffs by virtue of the settlement between plaintiffs and the physical therapy defendants. Batson v. South Louisiana Medical Center (Batson III), 2002-2381 (La.App. 1st Cir.6/27/03), 858 So.2d 653, 660-661. Thereafter, on November 5, 2003, the Louisiana Supreme Court denied the State’s application for writ of certiorari. Batson v. South Louisiana Medical Center, 2003-2077 (La.11/5/03), 857 So.2d 490. The April 15, 1997 judgment therefore became final and definitive as of November 5, 2003, when the Louisiana Supreme Court denied the State further review of the last remaining issue in the State’s appeal.

|7However, the State thereafter refused to pay the $322,169.95 amount awarded for past medical expenses related to the flex-ion contractures claim, contending that no further medical expenses were due. Because of the State’s continuing refusal to pay the medical expenses awarded in the April 15, 1997 judgment related to the flexion contractures claim, plaintiffs filed a motion for declaratory judgment, requesting that the trial court render a judicial declaration of the proper amounts that remained due by the State pursuant to the April 15,1997 judgment.

The State opposed the motion, contending that based on its payment of certain negotiated amounts for the Medicare and Medicaid liens for Batson’s medical treatment, plaintiffs were no longer entitled to the amounts awarded for medical expenses for the flexion contractures claim in the April 15, 1997 judgment. Specifically, the State contended that although Batson’s entire medical expenses, including expenses for the flexion contractures claim, totaled approximately $1,009,932.22, the State had satisfied a Medicare lien by payment in the amount of $78,616.43 and a Medicaid lien by payment in the amount of $184,204.87 and that all other amounts of medical expenses had been “written off’ or “contractually adjusted” by the health care provider pursuant to the Medicare and Medicaid programs. Thus, the State contended, despite the final judgment previously rendered, plaintiffs were not entitled to recover as damages those portions of the medical expenses “contractually adjusted” or “written off.”

Additionally, the State contended that in the Partial Satisfaction of Judgment, plaintiffs acknowledged that all medical liens had been satisfied and represented to the court that “there are no other outstanding liens pending in any way related to her claim for damages for decubitus ulcers, sepsis and flexion contractures.” Based on this statement, the State |scontended, the Partial Satisfaction of Judgment constituted a compromise agreement between the parties, through which plaintiffs’ claims for all medical expenses were extinguished.

Following a hearing on plaintiffs’ motion for declaratory judgment, the trial court rejected the State’s arguments, stating that the issue of medical expenses due plaintiffs had been addressed in the court’s final judgment and that the State would not be allowed to now relitigate the issue or to again assert the collateral source rule. The trial court noted that the only issue before it was a determination of the precise sum plaintiffs were still owed under the court’s final judgment. Thus, the court granted plaintiffs’ motion for declaratory judgment and rendered judgment in plaintiffs’ favor, declaring that the State had not fully satisfied its obligations under the court’s April 15, 1997 final judgment and ordering that the State pay plaintiffs the $322,169.05 amount awarded in the April 15, 1997 judgment, which had become final.

From this judgment, the State appeals, contending that the trial court erred in: (1) failing to rule that the State’s payment of Batson’s adjusted Medicaid and Medicare liens fully satisfied the April 15, 1997 judgment, awarding plaintiffs $322,169.05 in medical expenses; and (2) failing to order that plaintiffs’ acceptance of full payment of the Medicaid and Medicare liens in partial satisfaction of judgment for medical expenses related to Batson’s sepsis-related injuries, decubitus ulcers and flex-ion contractures constituted a waiver of any claim for medical expenses.

DISCUSSION

In its first assignment of error, the State contends that the trial court erred in ruling that the portion of the April 15, 1997 judgment awarding medical expenses for the flexion contractures claim had not been satisfied by | spayment of the Medicaid and Medicare liens, asserting that, generally, a plaintiff may not recover as damages that portion of medical expenses “contractually adjusted” or “written off’ by a health care provider pursuant to the requirements of the Medicaid and Medicare programs. In support of its position, the State relies upon Terrell v. Nanda, 33,242 (La.App. 2nd Cir.5/10/00), 759 So.2d 1026, and Suhor v. Lagasse, 2000-1628 (La.App. 4th Cir.9/13/00), 770 So.2d 422. We conclude, however, that the State is precluded from now raising a substantive challenge to the April 15, 1997 judgment, which has been final and definitive for many years.

Res judicata bars relitigation of a subject matter arising from the same transaction or occurrence of a previous suit. LSA-R.S. 13:4231. It promotes judicial efficiency and final resolution of disputes. Avenue Plaza, L.L.C. v. Falgoust, 96-0173 (La.7/2/96), 676 So.2d 1077, 1079. The doctrine of res judicata is not discretionary and mandates the effect to be given final judgments. Leon v. Moore, 98-1792 (La.App. 1st Cir.4/1/99), 731 So.2d 502, 505, writ denied, 99-1294 (La.7/2/99), 747 So.2d 20.

ln>A judgment that decides the merits of the.case in whole or in part is a final judgment. LSA-C.C.P. art. 1841; Tolis v. Board of Supervisors of Louisiana State University, 95-1529 (La.10/16/95), 660 So.2d 1206. A final judgment is conclusive between the parties except on direct review. LSA-R.S. 13:4231; Avenue Plaza, L.L.C., 676 So.2d at 1079. Moreover, a final judgment becomes final and definitive and acquires the authority of the thing adjudged if no further review is sought within the time fixed by law, if the Supreme Court denies an application for cer-tiorari, or if the judgment is confirmed on further review. LSA-C.C.P. arts. 2166(E) & 2167; Avenue Plaza, L.L.C., 676 So.2d at 1079; Tolis, 660 So.2d at 1206. Once a final judgment becomes final and definitive and acquires the authority of the thing adjudged, no court has jurisdiction, in the sense of power and authority, to modify, revise or reverse the judgment, regardless of the magnitude of the error in the final judgment. Avenue Plaza, L.L.C., 676 So.2d at 1079; Tolis, 660 So.2d at 1206.

The issue of Batson’s entitlement to medical expenses related to the flexion contractures claim was conclusively adjudicated in the April 15, 1997 judgment, wherein plaintiffs were awarded $322,169.95 for past medical expenses for Batson’s flexion contractures. On November 5, 2003, the trial court’s April 15, 1997 judgment on the merits became final and definitive as to all portions of the judgment, when the Supreme Court denied writs with regard to the final issue on appeal regarding the flexion contractures claim. Thus, as of November 5, 2003, the April 15, 1997 judgment acquired the authority of a thing adjudged and was not subject to modification, revision or reversal on this issue, or any other issue.

The State may not now raise the issue of the propriety of the past medical expense award, where it failed to do so in the many years that this |nmatter was pending on appeal and where the judgment has become final and definitive and acquired the authority of a thing adjudged. This assignment of error lacks merit.

In its second assignment of error, the State argues that the trial court erred in failing to find that plaintiffs’ acceptance of payment of the Medicaid and Medicare liens in the Partial Satisfaction of Judgment amounted to a waiver of its claims for additional payments of medical expenses. In support of its argument, the State relies upon the statement in the Satisfaction of Judgment that all Medicaid and Medicare liens had been paid. That portion of the Satisfaction of Judgment states, as follows:

Plaintiffs herein aver and represent to this court and the State of Louisiana that all Medicaid and Medicare liens have been extinguished and there are no other outstanding liens pending in any way related to her claim for damages for decubitus ulcers, sepsis, and flexion contractures made by Deborah Batson arising out of or related to her hospitalization at the former South Louisiana Medical Center. In the event that there are any such liens outstanding, Teresa Batson Hensley, as representative of the estate of Deborah L. Batson, agrees to defend and hold the State of Louisiana harmless for any such claims and obligations in consideration of the payment referenced herein. (Emphasis added.)

We find no merit to the State’s attempted interpretation of the above language. Clearly, by this language, plaintiffs acknowledged only that the Medicare and Medicaid liens had been satisfied. In no way does this language suggest or support a finding that plaintiffs waived their rights to collect the additional sums awarded or owed under the judgment. See generally Martin v. Elmwood Medical Center, 97-826 (La.App. 5th Cir.1/27/98), 707 So.2d 1287, 1292, (wherein the court held that a release agreement clearly stated that the amount tendered was in satisfaction of the judgment and did not compromise any further claim the plaintiff had against the defendant).

|T ¡.Indeed, in the partial satisfaction of judgment, plaintiffs specifically requested that the clerk of court for the Thirty-second Judicial District Court be directed to enter a partial cancellation of the April 15, 1997 judgment, but only as it pertained to the satisfaction of the statutory caps on damages for sepsis and decubitus ulcers. Moreover, plaintiffs further stated in the Partial Satisfaction of Judgment as follows:

This partial satisfaction of judgment does not in any way discharge the State of Louisiana from the estate’s claim for flexion contractures and the damages awarded by this court on April 15, 1997. The portion of the judgment pertaining to the flexion contracture damages hereby remains in full force and effect and is not affected by this judgment. (Emphasis in original).

For these reasons, we also find no merit to the State’s contention that plaintiffs’ “acceptance” of payment of sums to satisfy the Medicare and Medicaid liens and execution of the Partial Satisfaction of Judgment somehow constituted a waiver of plaintiffs’ rights to collect the sums awarded for Batson’s flexion contractures claim in the April 15, 1997 final and definitive judgment.

In rejecting these arguments, we further note that we are troubled by the fact that the State has continuously resisted payment of the sums awarded to plaintiffs herein in this tragic case, despite judicial pronouncement of its obligation to plaintiffs. With regard to enforcement of judgments rendered against the State, we recognize that LSA-Const. art. XII, § 10(C) governs and limits a private citizen’s ability to collect a judgment against the State. Indeed, this constitutional provision provides that no judgment against the State shall be payable except from funds appropriated therefor by the legislature. LSA-Const. art. XII, § 10(C). Nonetheless, “[i]n effect, section 10(C) is aimed at protecting the public fisc and seeks to avoid governmental priorities being upset by the payment of substantial money 1 ^judgments. It is not aimed at limiting the courts in a general manner in dealing with the [Sítate.” Lee Hargrave, “Statutory” and “Hortatory” Provisions of the Louisiana Constitution of 197k, 43 La. Law Rev. 647, 655 (1983) (emphasis added). We further observe that this constitutional scheme for payment of judgments against the State was not designed to allow the paying authority to challenge before the legislature the legal correctness of sums provided for in a final and definitive judgment of the courts of this state. To hold otherwise would render judgments against the State meaningless.

Accordingly, the State’s second assignment of error also lacks merit.

CONCLUSION

For the above and foregoing reasons, the April 22, 2005 judgment of the trial court, declaring that South Louisiana Medical Center and the State of Louisiana, through the Department of Health and Human Resources had not satisfied the court’s April 15, 1997 judgment and that the defendants owe the amount of $322,169.05 as awarded in the April 15, 1997 judgment for medical expenses related to the flexion contractures claim, is affirmed. Costs of this appeal in the amount of $6,687.50 are assessed equally against South Louisiana Medical Center and the State of Louisiana, through the Department of Health and Human Resources.

AFFIRMED.

McDONALD, J., concurs.

      . The plaintiffs named in the judgment were Batson and her parents, Billy M. Batson and Eula Maye Batson. Subsequently, Batson died as a result of her injuries, and her father, Billy M. Batson, was substituted as party plaintiff. Batson v. South Louisiana Medical Center, 98-0038R (La.App. 1st Cir. 12/22/00), 778 So.2d 54, 56 n. 1, writ denied, 2001-0960 (La.5/11/01), 792 So.2d 740.

        . Plaintiffs were paid $1,636,949.91 pursuant to their settlement agreement with these defendants. Batson II, 98-0038R at p. 23 n. 6, 778 So.2d at 66 n. 6.

      . This court also held that if, in fact, the trial court determined that the physical therapy defendants were state health care providers, then the State would be relieved of its liability to plaintiffs for the flexion contractures claim alone, as Batson would have already received the statutory cap for that claim from a qualified state health care provider. However, we further recognized that if the physical therapy defendants were found not to be qualified state health care providers, no reduction would be warranted. This finding was based on the trial court's indication in the record that it had specifically held that, even after reducing the flexion contractures award by the percentage of fault attributable to the settling physical therapy defendants, the portion of Batson’s general damages for which SLMC and the State would be liable exceeded $500,000.00. Thus, the trial court had already taken into consideration a reduction of the State’s liability to plaintiffs by the proportionate share of fault of the physical therapy defendants in specifying the amounts it was awarding. Batson II, 98-0038R at p. 27 n. 8, 778 So.2d at 68 n. 8.

      . As the State correctly notes, in Terrell, the Second Circuit Court of Appeal held that a plaintiff in a personal injury action may not recover as damages the amounts written off or contractually adjusted under the Medicaid program because neither the plaintiff nor Medicaid had incurred those expenses that were written off. Terrell, 759 So.2d at 1031. Additionally, in Suhor, the Fourth Circuit Court of Appeal held that, because the plaintiff could not be allowed to recover a nonexistent debt and because recovery would be a ‘'windfall” to the plaintiff, the plaintiff's claim for medical expenses classified as Medicare write-offs was properly dismissed. Suhor, 770 So.2d at 427.
      Moreover, as the State acknowledges in its appellate brief, the Louisiana Supreme Court in Bozeman v. State, 2003-1016 (La.7/2/04), 879 So.2d 692, 704-705, has now specifically held that a plaintiff is unable to recover Medicaid write-off amounts, in that no consideration is given by a patient to obtain Medicaid benefits. However, noting that Medicare is financed by compulsory payroll taxes, the Supreme Court recognized therein that a plaintiff is entitled to recover the “write-off” amount where the plaintiff's patrimony has been diminished in some way in order to obtain the collateral source benefits. Notably, the State concedes in its brief that vis-á-vis Medicare write-offs, given the holding in Bozeman, "it is arguable that [plaintiffs] may have been entitled to the difference between the $177,832.20, which represents the full amount of the Medicare lien and the $78,616.43 that the State paid in satisfaction of that lien.” (Emphasis added). Nonetheless, the State continues to argue that the trial court erred in ruling that it had failed to satisfy the April 15, 1997 judgment, arguing that it had satisfied its obligation for the medical expenses award at least with regard to the amount of the Medicaid lien.

      . However, we are unable to consider an award of sanctions in this matter because plaintiffs did not answer the appeal or request sanctions.


author: GUIDRY, J. McCLENDON, J.,

text:
    Jerome Michael ELLENDER v. NEFF RENTAL, INC., ABC Insurance Company, David A. Levingston, and State Farm Mutual Automobile Insurance Company.
    No. 2006 CA 2005.
    Court of Appeal of Louisiana, First Circuit.
    June 15, 2007.

      Michael J. Samanie, Stephen S. Stipelco-vich, Houma, Counsel for PlaintiffAppel-lee Jerome Michael Ellender.
    Robert I. Siegel, Daniel G. Rauh, New Orleans, Counsel for Defendant/Appellant Neff Rental, Inc.
    John M. Crosby, Metairie, Counsel for Defendant/Appellee David A. Levingston.
    Before: PARRO, GUIDRY, and McClendon, jj.
   GUIDRY, J.

| ¡.Defendant, Neff Rental, Inc., appeals a partial summary judgment finding that its employee and co-defendant, David Leving-ston, was acting within the course and scope of his employment at the time he was involved in an automobile accident. Neff Rental also has filed a motion to supplement the appellate record with one pleading and two orders filed into the record several months after the foregoing motion for partial summary judgment was granted. For the reasons that follow, we deny the motion to supplement the record and affirm the partial summary judgment.

FACTUAL AND PROCEDURAL HISTORY

In 2005, Mr. Levingston was employed as a regional sales manager with Neff Rental. His territory included several offices in various Louisiana cities. Because of his position, Mr. Levingston was required to travel a great deal. Neff Rental paid Mr. Levingston $600 per month to compensate him for the use of his personal vehicle in performing his job duties and provided him' with a company credit card to purchase all his fuel.

To further aid Mr. Levingston in performing his job duties, Neff Rental provided him with a cellular telephone (cell phone). Mr. Levingston regularly conducted business on behalf of Neff Rental via cell phone while driving or eating lunch. According to Mr. Levingston, Neff Rental never prohibited him from talking on his cell phone while driving, nor did it have any policies or procedures forbidding such actions.

On January 6, 2005, Mr. Levingston was driving to lunch when he was called by another Neff Rental employee seeking certain pricing information from him. When Mr. Levingston diverted his attention from the road to search for the documentation in order to answer the question, he collided into the rear of an automobile being operated by Dr. Jerome | sEllender.

Dr. Ellender filed suit against Mr. Levingston and Neff Rental and their respective insurers seeking damages for the injuries he sustained as a result of the accident. In April 2006, Dr. Ellender filed a motion for partial summary judgment, seeking to establish Mr. Leving-ston’s sole fault in causing the accident and that Mr. Levingston was acting in the course and scope of his employment, thereby rendering Neff Rental vicariously liable. Following a hearing in May 2006, the trial court rendered a judgment, finding Mr. Levingston to be 100 percent at fault for the accident, and further finding that he was acting within the course and scope of his employment with Neff Rental when the accident occurred. At the request of Neff Rental, the trial court designated the judgment as final for purposes of immediate appeal. This appeal by Neff Rental followed.

DISCUSSION

On appeal, Neff Rental asserts that the partial summary judgment was improperly designated as final. On February 7, 20Ó7, Neff Rental filed a motion to supplement the record to buttress its assertion. Therein, Neff Rental stated that the original plaintiff, Dr. Ellender, had committed suicide on November 3, 2006, and that his surviving spouse and children had since filed a supplemental petition claiming that the suicide was the direct result of the injuries Dr. Ellender sustained in the accident and asserting wrongful death, survival, and bystander claims. Neff Rental sought to supplement the record with the pleading and orders substantiating these facts. Considering these newly added claims, Neff Rental argues that liability is still an issue 14to be tried, and therefore, the partial summary judgment is not final for purposes of immediate appeal.

Initially, we note that the pleading and orders sought to be added were filed after the partial summary judgment was rendered. Moreover, given the allegations made by Neff Rental in its motion to supplement, it is obvious that they have no bearing on the issues that were actually adjudicated by the trial court, i.e., Mr. Levingston’s fault in causing the accident and whether Mr. Levingston was in the course and scope of his employment with Neff Rental at the time the accident occurred. Accordingly, we deny the motion to supplement.

Even were we to grant the motion, we would nonetheless find that the judgment was properly designated as final. When a trial court fails to articulate its particular reasons for certifying a judgment as final, a reviewing court may still find the certification justified if its propriety is apparent from the record. See R.J. Messinger, Inc. v. Rosenblum, 2004-1664, pp. 13-14 (La.3/2/05), 894 So.2d 1113, 1122. It is well-settled that the issues of liability and damages are often bifurcated. While the subsequently filed pleading in the instant matter adds new claims, those claims either are derivative (survival action) or address additional types of damages allegedly caused by the accident that remain to be proven at trial (wrongful death and bystander claims). Thus, they are clearly distinct from the root issues of Mr. Lev-ingston’s fault in causing the accident and whether Mr. Levingston was in the course and scope of his employment at the time, thereby rendering Neff Rental vicariously liable. Accordingly, we find no merit in Neff Rental’s argument that the certification it specifically requested was improper.

^Alternatively, Neff Rental argues that the trial court erred in ruling that Mr. Levingston was acting in the course and scope of his employment at the time the accident occurred. We respectfully disagree.

The principle of vicarious liability in this case is derived from LSA-C.C. art. 2320, which provides in part, “[mjasters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.” Under LSA-C.C. art. 2320, an employer can be held liable for an employee’s tortious conduct only if the injuring employee is acting within the course and scope of his employment. Spears v. Jones, 2000-2799, p. 4 (La.App. 1 Cir: 2/15/02), 807 So.2d 1182, 1185, writs denied, 2002-0663 and 2002-0767 (La.5/3/02), 815 So.2d 106 and 826.

Generally, courts consider four factors when assessing vicarious liability, including whether the tortious act: (1) was primarily employment-rooted; (2) was reasonably incidental to performance of employment duties; (3) occurred during working hours; and (4) occurred on the employer’s premises. See LeBrane v. Lewis, 292 So.2d 216, 218 (La.1974). It is not necessary that each factor is present in each case, and each case must be decided on its own merits. Baumeister v. Plunkett, 95-2270, p. 4 (La.5/21/96), 673 So.2d 994, 997.

Under the LeBrane test, the determinative question is whether the employee’s tortious conduct was so closely connected in time, place and causation to his employment duties as to be regarded as a risk of harm fairly attributable to the employer’s business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer’s interest. Richard v. Hall, 2003-1488, p. 8 (La.4/23/04), 874 So.2d 131, 139. In a negligence case, as distinguished from an intentional tort case, the |ficourt need only determine whether the servant’s general activities at the time of the tort were within the scope of employment. Id.

If the purpose of serving the master’s business actuates the servant to' any appreciable extent, the master is subject to liability if the act is otherwise within the service. The scope of risks attributable to an employer increases with the amount of authority and freedom of action granted to the servant in performing his assigned tasks. Richard, 2003-1488 at pp. 6-7, 874 So.2d at 138.

Considering the foregoing precepts and the particular facts in this case, we conclude that Mr. Levingston was acting within the course and scope of his employment at the time the accident occurred. In the instant matter, it is undisputed that: Neff Rental provided Mr. Lev-ingston with a cell phone; Mr. Levingston regularly conducted business for Neff Rental on that cell phone while driving; Mr. Levingston was conducting business on behalf of Neff Rental on the cell phone at the time the accident occurred; and, this activity directly contributed to the accident in question.

The affidavit submitted by Neff Rental in opposing the motion for partial summary judgment failed to contradict Mr. Levingston’s deposition testimony establishing the foregoing and, thus, failed to create a genuine issue of material fact. Upon careful examination, it is clear that the affidavit generally attests to Neff Rental’s subconscious expectations or intentions, ie., that it did not expect or intend for its employees to talk on cell phones while driving, but provides no factual information that such expectations or intentions were conveyed to its employees or enforced in any fashion whatsoever. Thus, although Neff Rental may not have expressly authorized 17conducting business on a cell phone while driving, it certainly did not prohibit it.

CONCLUSION

For the foregoing reasons, the motion to supplement the record is denied and the trial court judgment granting partial summary judgment is hereby affirmed. All costs of this appeal are assessed to Neff Rental, Inc.

MOTION TO SUPPLEMENT DENIED; JUDGMENT AFFIRMED.

McCLENDON, J., concurs and assigns reasons.

McCLENDON, J.,

concurs, and assigns reasons.

leased on the specific facts of this case, I concur with the result reached by the majority.

      . The 'portion of the judgment finding Mr. Levingston to be 100 percent at fault in causing the accident was. not included in Neff Rental’s sole assignment of error.

      . Although the issue of liability as to the cause of the accident is no longer before the court, we agree that the issue of liability with respect to damages is still a viable .issue. See Dumas v. State ex rel. Dept. of Culture, Recreation & Tourism, 2002-0563 (La. 10/15/02), 828 So.2d 530.

      . This was so despite Mr. Levingston's testimony that "everybody does it" and that he regularly did so.