author: TERRI F. LOVE, Judge.

text:
    Bridget Marie Williams, Wife of Breck Lawrence FALCON v. Breck Lawrence FALCON.
    No. 2005-CA-0804.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 29, 2006.

      David M. Hufft, Pivach, Pivach, Hufft & Thriffiley, L.L.C., Belle Chase, Counsel for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO Jr., Judge ROLAND L. BELSOME).
   TERRI F. LOVE, Judge.

hBreck Lawrence Falcon appeals the trial court’s default judgment granting Bridget Marie Williams Falcon a divorce, child custody, child support, and the child dependency tax deduction. Mr. Falcon asserts the trial court erred by rendering a default judgment on the ancillary matters of the divorce. Post-hearing, he filed a Motion for a New Trial. The trial court denied the motion and Mr. Falcon’s timely appeal followed. We find the trial court erred in rendering the default judgment determining child custody, child support, and the child dependency tax deduction. The trial court did not conduct a hearing in open court or take evidence that substantiated a prima facie case. We affirm the divorce and remand for a hearing to procure evidence regarding child custody, child support, and the child dependency tax deduction.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Bridget Marie Williams Falcon (“Ms. Williams”) filed a Petition for Divorce on March 26, 2001, alleging separation from Breck Lawrence Falcon (“Mr.Faleon”) since June 2000. Ms. Williams also prayed for child custody, child support, and the child dependency tax deduction. Mr. Falcon received domiciliary service via his father on April 3, 2001. However, he made no court appearances or |2filed responsive pleadings. The trial court entered a preliminary default granting Ms. Williams’ divorce petition in its entirety on May 14, 2001.

On May 30, 2001, Ms. Williams filed an Affidavit in Lieu of Testimony to support and prove her divorce petition. The trial court rendered a default judgment the same day. The judgment granted Ms. Williams: 1) a divorce; 2) joint custody of the minor child, with Ms. Williams designated as the primary domiciliary parent; 3) five hundred and fifty-five dollars ($555.00) in child support per month; 4) the child dependency tax deduction; and 5) the right to return to the use of her maiden name.

Mr. Falcon averred he never received notice of the default judgment. Thus, he filed a Motion for a New Trial on July 8, 2004, alleging the trial court erred by granting child custody, child support, and the tax deduction without the presentation of any evidence, testimony, or witnesses. The trial court denied the Motion for a New Trial on March 11, 2005. Mr. Falcon devolutively appealed alleging the trial court erred by determining child custody, child support, and the child dependency tax deduction without a hearing, evidence, or testimony to support a prima facie case.

TIMELINESS OF MOTION FOR NEW TRIAL AND APPEAL

Mr. Falcon filed a Motion for a New Trial on July 8, 2004, three years after the trial court entered the default judgment in favor of Ms. Williams. This violated La. C.C.P. Art. 1974, which requires that a motion for a new trial be filed within seven (7) days of the service of the judgment. However, Mr. Falcon alleges he |snever received notice of the signing of the default judgment as required by La. C.C.P. Art.l913(B).

The record is void of evidence of personal or domiciliary service of the judgment or notice of signing the judgment on Mr. Falcon. Thus, the time delay to file a motion for a new trial or appeal never commenced. Vitrano v. Vitrano, 346 So.2d 303, 303-04 (La.App. 4 Cir.1977). Mr. Falcon’s 2004 Motion for a New Trial and devolutive appeal were timely.

STANDARD OF REVIEW

Default judgments receive the manifest error standard of review. Cornish v. Doctors Care, L.L.C., 02-0285, p. 4 (La.App. 4 Cir. 6/12/02); 819 So.2d 1158, 1161. Additionally, the trial court’s decisions regarding child custody are “entitled to great weight.” Fountain v. Waguespack, 93-1077 (La.App. 4 Cir. 7/8/94); 639 So.2d 882, 887. Thus, the judgment will not be disturbed absent an abuse of discretion. Id. Child support determinations are also entitled to the abuse of discretion standard of review. Farrar v. Farrar, 00-1487, p. 2 (La.App. 4 Cir. 7/11/01); 791 So.2d 796, 798.

DEFAULT JUDGMENT

A default judgment may be confirmed without the taking of evidence or a hearing in open court in certain situations as provided in La. C.C.P. Art. 1702 and 1702.1. The petitioner must prove a pri-ma facie case “as though each allegation j^of the petition had been denied.” Cornish, 819 So.2d at 1161. A presumption also exists that the record proves a prima facie case. Id. However, this presumption is nonexistent if “the record indicates otherwise.” Id.

DIVORCE

The trial court granted Ms. Williams a divorce pursuant to La. C.C. Art. 103(1). As noted in La. C.C.P. Art. 1702(E), a La. C.C. Art. 103(1) divorce may be granted by default judgment if there is evidence or an affidavit to prove a prima facie case. Ms. Williams’ divorce petition stated that she and Mr. Falcon had not lived together since June 2000. This separation met the time requirement of La. C.C. Art. 103(1) for living separate and apart for at least six (6) months prior to filing the divorce petition.

IeMs. Williams submitted an Affidavit in Lieu of Testimony following the preliminary default to prove a prima facie case for divorce. Based on this evidence, the trial court granted the divorce via default judgment. Ms. Williams’ affidavit provided sufficient prima facie evidence that she had not resided with Mr. Falcon for at least six (6) months prior to filing her divorce petition. Therefore, we find the trial court’s divorce by default judgment did not constitute manifest error.

ANCILLARY MATTERS TO THE DIVORCE

Ancillary matters to a divorce are not included in a default judgment without evidence to support a prima facie case, as required by La. C.C.P. Art. 1702 and 1702.1. However, the trial court has discretion whether to conduct a hearing in open court on the ancillary matters if no other Louisiana provisions are contradictory to holding a hearing. La. C.C.P. Art. 1702(E). In the case, sub judice, Louisiana law requires certain factors or guidelines to be considered and followed to determine these ancillary matters to a divorce. Thus, absent consent between the parties, child custody, child support, and the allocation of the child dependency tax deduction require evidence and testimony to prove a prima facie case.

First, Louisiana law requires that child custody be determined in accordance with the best interest of the child. La. C.C. Art. 131. Courts must consider twelve (12) factors in determining the best interest of the child. La. C.C. Art. 134. The 1 ^consideration of these factors is required in all custody awards. Dalferes v. Dalferes, 98-1233/98-1234 (La.App. 4 Cir. 11/18/98); 724 So.2d 805, 807. The record is void of evidence examining the best interest of the child.

Second, Louisiana law requires the trial court to consider the “totality of the circumstances” when determining the amount of child support. Barkemeyer v. Barkemeyer, 598 So.2d 550, 552 (La.App. 4 Cir.1992). Louisiana law provides statutory guidelines that must be used when weighing factors to determine the amount of child support. LSA-R.S. 9:315.2. However, the trial court may deviate from the guidelines with “adequate reasons.” Glorioso v. Glorioso, 99-3222, p. 9 (La.App. 4 Cir. 11/15/00); 776 So.2d 536, 540. In the present case, the trial court disregarded the guidelines and the record lacks evidence which assists in 17determining child support under Louisiana law.

Third, the child dependency tax deduction cannot be allocated without the trial court considering evidence and/or testimony unless it is by consent between the parties. Income tax law awards the deduction to the custodial parent. Rovira v. Rovira, 550 So.2d 1237, 1238 (La.App. 4 Cir.1989). The trial court may consider other factors when determining which parent should get the deduction. Id. at 1238-39. The record lacks evidence that the trial court examined evidence or testimony to select the best recipient of the deduction.

The trial court granted Ms. Williams child custody, child support, and the deduction, based solely on her petition and affidavit. Ms. Williams’ affidavit lacked evidence or facts relative to the three ancillary matters. The trial court did not conduct a hearing in open court to take additional evidence or testimony to substantiate or examine Ms. Williams’ requests for custody, support, and the deduction as required by Louisiana law.

Further, the trial court did not examine the factors weighing in the best interest of the child. Nor did Ms. Williams or the trial court provide information regarding the proper amount of child support. A misappropriation of child custody also interferes with the allocation of the child dependency tax deduction.

Louisiana law requires the examination of factors and guidelines when determining these ancillary matters to a divorce. In the case, sub judice, this required a hearing in open court to collect evidence and oral testimony in order to properly address the issues of child custody, child support, and the child dependency tax deduction. The affidavit substantiated a pri-ma facie case solely for the divorce in the default judgment. Therefore, the trial court failed to award child |scustody, child support, and the child dependency tax deduction according to the guidelines set forth in Louisiana law.

We find the trial court was manifestly erroneous and abused its discretion when it rendered a default judgment awarding child custody, child support, and the child dependency tax deduction without requiring a hearing in open court to acquire evidence and testimony sufficient to examine the ancillary matters and prove a pri-ma facie case.

DECREE

We affirm the divorce between Ms. Williams and Mr. Falcon. We reverse and remand the issues of child custody, child support, and the child dependency tax deduction for a hearing to consider the factors, guidelines, and evidence as required by Louisiana law.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

      . La. C.C.P. Art.1974: Delay for applying for new trial
      The delay for applying for a new trial shall be seven days, exclusive of legal holidays. The delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913.

      . La. C.C.P. Art. 1913: Notice of judgment
      B. Notice of the signing of a default judgment against a defendant on whom citation was not served personally, or on whom citation was served through the secretary of state, and who filed no exceptions or answer, shall be served on the defendant by the sheriff, by either personal or domiciliary service, or in the case of a defendant originally served through the secretary of state, by service on the secretary of state.

      . La.C.C.P. Art. 1702: Confirmation of default judgment reads in pertinent part:
      A. A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. If no answer is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of default. When a judgment of default has been entered against a party that is in default after having made an appearance of record in the case, notice of the date of the entry of the judgment of default must be sent by certified mail by the party obtaining the judgment of default to counsel of record for the party in default, or if there is no counsel of record, to the party in default, at least seven days, exclusive of holidays, before confirmation of the judgment of default.
      E. Notwithstanding any other provisions of law to the contrary, when the demand is for divorce under Civil Code Article 103(1), whether or not the demand contains a claim for relief incidental or ancillary thereto, a hearing in open court shall not be required unless the judge, in his discretion, directs that a hearing be held. The plaintiff shall submit to the court an affidavit specifically attesting to and testifying as to the truth of all of the factual allegations contained in the petition, and shall submit the original and not less than one copy of the proposed final judgment. If no answer or other pleading has been filed by the defendant, the judge shall, after two days, exclusive of holidays, of entry of a preliminary default, render and sign the judgment or direct that a hearing be held. The minutes shall reflect rendition and signing of the judgment.
      La. C.C.P. Art. 1702.1: Confirmation of default judgment without hearing in open court; required information; certifications
      A. When the plaintiff seeks to confirm a default judgment as provided in Article 1702(B)(1) and (C), along with any proof required by law, he or his attorney shall include in an itemized form with the motion and judgment a certification that the suit is on an open account, promissory note, or other negotiable instrument, on a conventional obligation, or on a check dishonored for nonsuffi-cient funds, and that the necessary invoices and affidavit, note and affidavit, or check or certified reproduction thereof are attached. If attorney fees are sought under R.S. 9:2781 or 2782, the attorney shall certify that fact and that a copy of the demand letter and if required, the return receipt showing the date received by the debtor are attached and that the number of days required by R.S. 9:2781(A) or 2782(A), respectively, have elapsed before suit was filed.
      B. The certification shall indicate the type of service made on the defendant, the date of service, and the date a preliminary default was entered, and shall also include a certification by the clerk that the record was examined by the clerk, including therein the date of the examination and a statement that no answer or other opposition has been filed.

      . La. C.C. Art. 103: Judgment of divorce; other grounds
      Except in the case of a covenant marriage, a divorce shall be granted on the petition of a spouse upon proof that:
      (1) The spouses have been living separate and apart continuously for a period of six months or more on the date the petition is filed;
      (2) The other spouse has committed adultery; or
      (3) The other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor.

      . La. C.C. Art. 131: Court to determine custody
      In a proceeding for divorce or thereafter, the court shall award custody of a child in accordance with the best interest of the child.

      . La. C.C. Art. 134: Factors in determining child's best interest
      The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
      (1) The love, affection, and other emotional ties between each party and the child.
      (2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
      (3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
      (4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
      (5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
      (6) The moral fitness of each party, insofar as it affects the welfare of the child.
      (7) The mental and physical health of each party.
      (8) The home, school, and community history of the child.
      (9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
      (10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
      (11) The distance between the respective residences of the parties.
      (12) The responsibility for the care and rearing of the child previously exercised by each party.

      . LSA-R.S. 9:315.2: Calculation of basic child support obligation
      A.Each party shall provide to the court a verified income statement showing gross income and adjusted gross income, together with documentation of current and past earnings. Spouses of the parties shall also provide any relevant information with regard to the source of payments of household expenses upon request of the court or the opposing party, provided such request is filed in a reasonable time prior to the hearing. Failure to timely file the request shall not be grounds for a continuance. Suitable documentation of current earnings shall include but not be limited to pay stubs, employer statements, or receipts and expenses if self-employed. The documentation shall include a copy of the party’s most recent federal tax return. A copy of the statement and documentation shall be provided to the other party.
      B. If a party is voluntarily unemployed or underemployed, his or her gross income shall be determined as set forth in R.S. 9:315.11.
      C. The parties shall combine the amounts of their adjusted gross incomes. Each party shall then determine by percentage his or her proportionate share of the combined amount. The amount obtained for each party is his or her percentage share of the combined adjusted gross income.
      D. The court shall determine the basic child support obligation amount from the schedule in R.S. 9:315.19 by using the combined adjusted gross income of the parties and the number of children involved in the proceeding, but in no event shall the amount of child support be less than the amount provided in R.S. 9:315.14.
      E. After the basic child support obligation has been established, the total child support obligation shall be determined as hereinafter provided in this Part.


source: Caselaw Access Project

author: MICHAEL E. KIRBY, Judge. McKAY, J.,

license: Public Domain

text:
    Hector HOWELL and Jose Sanchez v. FERRY TRANSPORTATION, INC., Denny Botman; XYZ Insurance Company & State of Louisiana Through the Department of Transportation and Development.
    No. 2004-CA-2057.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 29, 2006.
    Harold J. Lamy, Wayne W. Foley, Barker, Boudreaux, Lamy & Foley, New Orleans, Counsel for Plaintiff/Appellant.
    Rodney J. Lacoste, Jr., Guy D. Perrier, William W. Newton, Leake & Andersson, L.L.P., New Orleans, Counsel for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY).
   MICHAEL E. KIRBY, Judge.

1 plaintiffs, Hector Howell and Jose Sanchez, et al., appeal the trial court judgment granting summary judgment in favor of defendant, Lincoln General Insurance Company (“Lincoln”), and denying the motion for summary judgment filed by plaintiffs. We affirm for reasons that follow.

On April 14, 2005, this Court ordered plaintiffs to provide documentation that Lincoln was the only remaining defendant in this litigation, or show cause why this appeal should not be dismissed as a non-final interlocutory judgment that was not properly designated by the trial court as a final judgment for the purpose of an immediate appeal. This order was issued because the record showed that Lincoln and its insured, Ferry Transportation, Inc., were not the only defendants named in this lawsuit, and we could not determine from the record designated on appeal whether or not additional parties remain in this case. Because this lawsuit was filed prior to the 1999 amendment to La. C.C.P. art. 1915, if additional parties remain, then the judgment sought to be appealed would be a partial summary | ¡judgment that is not immediately appealable because the trial court did not certify the judgment as final.

In response to a motion for extension of time filed by plaintiffs, this Court issued another order on April 22, 2005 extending the time allowed to plaintiffs to file either documentation confirming the dismissals of all defendants other than Lincoln or a joint stipulation by counsel for plaintiffs and Lincoln, confirming that Lincoln is the only remaining defendant in this litigation. The parties filed a joint stipulation on April 25, 2005, confirming that plaintiffs and Lincoln, as the Comprehensive General Liability (“CGL”) carrier of Ferry Transportation, Inc. are the sole remaining parties in this case, and that all other parties to this litigation have been dismissed. Thus, the judgment appealed from is a final, appealable judgment.

This case arises from a tragic accident that occurred on November 25, 1999 on Interstate 10 in New Orleans when a tractor/trailer owned by Ferry Transportation, Inc. and operated by Bennie Botman struck the rear of one of two vehicles occupied by several members of the Padilla family and their friends. This collision forced the Padilla vehicle that was struck by the tractor/trailer to collide with the second Padilla vehicle. As a result of this accident, seven members of the Padilla family were killed and four other members of the Padilla family and two of their friends traveling in those vehicles sustained serious injuries. Immediately following the accident, Mr. Botman submitted a urine sample, which tested positive for marijuana.

| sSuit was filed individually by the injured parties and on behalf of those killed in the accident. The defendants included Ferry Transportation, Inc., the owner of the tractor/trailer; Mr. Bennie Botman, the driver of the tractor/trailer; Lincoln, the insurer of Ferry Transportation; and the State of Louisiana Through the Department of Transportation and Development. As stated above, only plaintiffs and Lincoln remained as parties at the time the motions for summary judgment at issue were filed.

Plaintiffs filed a motion for summary judgment, arguing that Lincoln’s CGL policy provided coverage for Ferry’s allegedly negligent hiring practices and/or negligent supervision of its employee, Mr. Botman. Lincoln also filed a motion for summary judgment, arguing that the automobile exclusion contained in its CGL policy precluded coverage to plaintiffs for this accident. On March 16, 2004, the trial court rendered judgment, denying plaintiffs’ motion for summary judgment and granting Lincoln’s motion for summary judgment. Plaintiffs now appeal, arguing that the trial court erred in concluding that the CGL policy issued by Lincoln to Ferry did not provide coverage for the accident at issue.

In denying plaintiffs’ motion for summary judgment and granting Lincoln’s motion for summary judgment, the trial court concluded that the CGL policy issued to Ferry by Lincoln does not provide coverage for this accident. The main issue before us in this appeal is whether the trial court’s conclusion was correct.

The CGL policy contains the following exclusion clause, in pertinent part:

This insurance does not apply to:
|/‘Bodily injury” or “property damage” arising out of the ownership, maintenance, use or entrustment to others of any aircraft, “auto” or watercraft owned or operated by or rented or loaned to any insured. Use includes operation and “loading or unloading.”

Plaintiffs argue that this clause is ambiguous and that, as a result, the insurance contract should be construed in favor of coverage. They further contend that the use of an automobile was only one cause of plaintiffs’ injuries, and that Ferry’s allegedly negligent hiring practices and negligent supervision of its employee, Mr. Bot-man, are independent sources of liability, separate and apart from Mr. Botman’s use of an automobile. Plaintiffs noted that the CGL policy does not contain exclusions for negligent hiring and negligent supervision. Plaintiffs further argue that because the CGL policy includes other exclusions, e.g. for abuse or molestation, this shows that Lincoln could have specifically excluded liability for negligent hiring and supervision if it wanted those items excluded but failed to do so. Thus, they claim that because the policy does not specifically exclude liability for negligent hiring and supervision, coverage should be provided in this case.

Lincoln argues that the exclusion clause is clear and unambiguous, and that this identical exclusion was found by this Court to exclude coverage in an earlier case involving a claim for negligent hiring and supervision. In the case of Calvin v. Janbar Enterprises, Inc., 2003-0382 (La.App. 4 Cir. 9/24/03), 856 So.2d 88, the parents of a minor child who was seriously injured when he was struck by a truck after exiting a bus sued the owner of the truck along with the owner’s automobile insurer and its CGL insurer. The CGL carrier filed a motion for summary judgment, arguing that the policy specifically excluded coverage for accidents or injuries arising out of the use or entrustment of a motor vehicle. The plaintiffs | .¡opposed the motion, arguing that their cause of action against the owner of the truck was for negligent hiring, retaining and supervision, and was covered by the CGL policy. The trial court granted the CGL insurer’s motion for summary judgment, and this Court affirmed, finding that the automobile exclusion provision of the policy excluded coverage because the use of the motor vehicle was an essential element to the plaintiffs’ theory of liability, that the owner of the truck negligently hired, supervised and retained the driver despite knowledge of his frequent drug use. This Court reasoned that “[w]ithout the motor vehicle, this accident, as tragic as it was, would not have occurred.”

We find no merit in plaintiffs’ argument that the automobile exclusion in the Lincoln CGL policy is ambiguous. The automobile exclusion in the instant case is identical to the one in the Calvin case, and this Court upheld a trial court summary judgment in favor of defendants, precluding coverage based on that exclusion. As in Calvin, the use of the motor vehicle in the instant case was an essential element to the plaintiffs’ theory of liability, that Ferry was negligent in its hiring and supervision of Mr. Botman, given his history of illegal drug use. The automobile exclusion in the CGL policy issued to Ferry by Lincoln precludes coverage to plaintiffs for the accident that is the subject of this lawsuit. We find that the trial court correctly granted summary judgment in favor of Lincoln, and denied the motion for summary judgment filed by plaintiffs.

The plaintiffs did not address the Calvin case in their appeal brief, but instead rely on Smith v. USAA Casualty Insurance Co., 532 So.2d 1171 (La.App. 4 Cir.1988), in support of their position that the CGL policy should provide coverage for this accident. In the Smith case, this Court affirmed a trial court judgment allowing coverage under a homeowners’ policy for injuries incurred by | Bthree minors while riding four-wheel vehicles on property covered under the policy. The Smith Court reasoned that the negligence asserted against the property owners was their failure to supervise the minors who were operating the recreational vehicles on their property, not the negligent operation of the vehicles.

We find that this Court’s holding in the Smith case is inconsistent with the Louisiana Supreme Court case of Picou v. Ferrara, 412 So.2d 1297 (La.1982). The Picou case involved a claim brought by a motorcyclist against the employer of the driver of an automobile that struck him. The plaintiffs claim against the other driver’s employer was based on theories of vicarious liability and negligent entrustment. The employer filed a third party demand against its general liability insurer.

The employer filed a motion for summary judgment seeking a declaratory judgment that the insurer’s general liability policy provided coverage for this accident. The insurer filed a cross motion for summary judgment seeking dismissal of the third party demand based on the policy’s automobile exclusion. The trial court denied the insurer’s motion, granted the employer’s motion and declared that there was coverage under the policy for claims based on the employer’s negligence in hiring an incompetent driver. The court of appeal affirmed.

The Supreme Court reversed the lower court’s rulings, and granted summary judgment in favor of the employer’s insurer. The Supreme Court held that there was no coverage under the general liability policy because of the automobile exclusion in that policy. The Court reasoned that use of the vehicle was an essential element in the plaintiffs theories of liability against the defendant driver’s employer.

|7The Smith case did not discuss the Picou case, but instead relied on the cases of Frazier v. State Farm Mutual Automobile Insurance Company, 347 So.2d 1275 (La.App. 1 Cir.1977), and LeJeune v. Allstate Insurance Company, 365 So.2d 471 (La.1978). The Frazier case involved a child who was struck by a vehicle driven by the defendants’ minor daughter while the defendants were babysitting the child. The child’s parents sued the defendants’ automobile insurer and homeowner’s insurer, alleging two theories of liability: the defendants’ vicarious liability for the negligent operation of the vehicle by the defendants’ daughter and the defendants’ failure to properly supervise the injured child while babysitting. The trial court granted the homeowner’s insurer’s exception of no cause of action, which was based on the allegation that the policy precluded coverage because of an automobile use exclusion. The appellate court reversed the trial court, holding that the homeowner’s insurer could be found liable for the alleged negligence of defendants in failing to supervise the child, even though under the exclusionary clause it did not afford coverage for the operation of the motor vehicle.

The LeJeune case involved an intersec-tional collision that killed a passenger riding in a funeral hearse. The decedent’s widow and children filed suit against the sheriffs office and its general liability insurer alleging that the deputy sheriff who was assigned to escort the funeral procession was negligent in failing to secure the intersection. The insurer denied coverage based on an automobile use exclusion in the policy. The Louisiana Supreme Court held that the exclusion did not preclude coverage because the basis of the deputy’s liability was not his negligent use of his vehicle, but rather his negligence in failing to secure the intersection so as to alert approaching traffic of the danger involved.

lsWe conclude that the circumstances in the Frazier and LeJeune cases were distinguishable from those in the Smith case. Unlike the situations in Frazier and Le-Jeune, in Smith there was no separate duty breached that did not involve the use of the vehicle. This distinction was discussed in 15 William Shelby McKenzie & H. Alston Johnson, III, Louisiana Civil Law Treatise § 72 (1996) as follows:

The Court’s reliance on Frazier and Le-Jeune in reaching this conclusion was misplaced. The child being supervised by the insureds in Frazier was not using the automobile; the child’s only relationship to the auto was being struck by it. In Smith, the children were using the recreational vehicles, and any breach of duty by the insureds clearly arose solely out of their failure to supervise such use. Use of the vehicle was essential to the theory of liability. Likewise, the duty breached by the deputy sheriff in Le-Jeune related to stopping traffic on an intersecting highway, not to the use of his police vehicle. Thus, the duty to protect the intersection existed independently of any duty with respect to the use of that police vehicle. In Smith, however, the only relevant duty allegedly breached by the insureds was their failure to supervise children who were actually using the vehicles. Such breach of duty is analogous to the negligent entrustment discussed in Picou in which the Supreme Court found that the breach arose out of use because the vehicle was essential to the theory of liability.

This Court has considered en banc the opposite results reached by different panels of this Court in Smith v. USAA Casualty Insurance Co., 532 So.2d 1171 (La.App. 4 Cir.1988), and Calvin v. Janbar Enterprises, Inc., 2003-0382 (La.App. 4 Cir. 9/24/03), 856 So.2d 88. The issue presented in those cases is the same as that presented in the' instant case. A majority of the judges of this Court have determined that the case of Smith v. USAA Casualty Insurance Co., 532 So.2d 1171 (La.App. 4 Cir.1988) should be overruled.

|aIn the instant case, the use of the vehicle was essential to the plaintiffs theory of liability, that Ferry was negligent in its hiring and supervision of Mr. Botman, given his history of illegal drug use. Having overruled the case of Smith v. USAA Casualty Insurance Co., 532 So.2d 1171 (La.App. 4 Cir.1988), we hereby follow the case of Calvin v. Janbar Enterprises, Inc., 2003-0382 (La.App. 4 Cir. 9/24/03), 856 So.2d 88, and affirm the trial court’s granting of summary judgment in favor of defendant, Lincoln General Insurance Company.

For the reasons stated above, we affirm the trial court judgment. The case of Smith v. USAA Casualty Insurance Co., 532 So.2d 1171 (La.App. 4 Cir.1988) is expressly overruled.

AFFIRMED

McKAY, J., dissents.

McKAY, J.,

Dissenting.

ItI respectfully dissent from the majority’s decision to affirm the judgment of the trial court. I believe genuine issues of material fact exist concerning coverage by the CGL policy. I am also troubled by the decision by a majority of this Court to overrule Smith v. USAA Casualty Insurance Co., 532 So.2d 1171 (La.App. 4 Cir.1988).

      . The CGL policy issued to Ferry by Lincoln is separate and distinct from the automobile liability policy issued to Ferry by Lincoln. The instant appeal involves only the CGL policy..

      . Both parties also argue that this case presents a conflict of law issue as to whether Louisiana or Mississippi law applies. We find that the conflict in this case is a false one. On the main issue presented, whether the automobile exclusion provision excludes coverage in this case, the law is the same in Louisiana and Mississippi.

      . This issue was submitted to the Court en banc, and a majority of the judges voted to overrule the case of Smith v. USAA Casualty Insurance Co., 532 So.2d 1171 (La.App. 4 Cir.1988). The following judges voted to overrule Smith v. USAA Casualty Insurance Co., 532 So.2d 1171 (La.App. 4 Cir.1988): J. Jones, J. Bagneris, J. Kirby, J. Love, J. Tobias, J. Gorbaty, J. Lombard and J. Cannizzaro. The following judges voted to overrule Calvin v. Janbar Enterprises, Inc., 2003-0382 (La.App. 4 Cir. 9/24/03), 856 So.2d 88: J. McKay and J. Belsome. C.J. Armstrong and J. Murray voted that it is unnecessary to overrule either the Smith case or the Calvin case.


author:
MAX N. TOBIAS, Jr., Judge.
      LOVE, J.,

text:
    Roland and Linda WHITE v. ROBINSON LUMBER COMPANY.
    No. 2005-CA-0923.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 29, 2006.

      Gregory S. Unger, Workers’ Compensation, L.L.C., Metairie, Counsel for Plaintiff/Appellant.
    Jeffrey J. Warrens, Johnson, Stiltner & Rahman, Baton Rouge, Counsel for Defendant/Appellee.
    (Court Composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, Jr., and Judge EDWIN A. LOMBARD).
   MAX N. TOBIAS, Jr., Judge.

| -, Linda and Roland White, Sr., the plaintiffs/appellants, appeal from a judgment of the Office of Workers’ Compensation Administration (“OWC”) that granted the defendants’ motion for summary judgment. After reviewing the record on appeal and applicable law, we affirm the judgment of the OWC.

On 10 December 2002, Roland White, Jr. sustained a torn rotator cuff injury during the course and scope of his employment with Robinson Lumber Company, Inc. His claim for compensation was accepted as compensable and Robinson Lumber Company, Inc.’s insurer, Louisiana Workers’ Compensation Corporation (hereinafter collectively referred to as the “defendants”) paid workers’ compensation benefits. On 14 May 2004, Roland White, Jr. and the defendants submitted a petition for approval of compromise settlement to the OWC for judicial approval. On 17 May 2004, an order of approval was signed by the OWC, approving an amount of $30,000.00 to settle Roland White Jr.’s claim for benefits.

On 22 May 2004, Roland White, Jr. died. Although the appellate record does not contain a death certificate, the record reflects that “claimant died secondary to pain medication.”

|2On 23 July 2004, the plaintiffs, parents of Roland White, Jr., filed a disputed claim for compensation with the OWC, asserting a claim for workers’ compensation death benefits pursuant to La. R.S. 23:1231. The defendants filed a motion for summary judgment, arguing that Roland White Jr.’s settlement of his own claim for workers’ compensation benefits precluded the claim of his parents for death benefits. The trial court granted the motion, dismissing the claim with prejudice.

The sole issue presented on appeal is whether the settlement agreement between Roland White, Jr. and the defendants precludes his parents’ own claim for workers’ compensation death benefits. Phrased another way, the question is whether the plaintiffs’ claim for death benefits is derivative of the workers’ compensation claim of their son.

We first examine the language of the settlement documents, which contain the following declarations:

1. Employer and Insurer dispute the nature and extent of any disability suffered by the employee.
2. Employee waives all claims to any and all past, present and/or future medical, rehabilitative, indemnity and workers’ compensation benefits, penalties, attorney’s fees or benefits of any kind as it relates to any and all ladaims against Employer and Insurer as a result of said accident.
3. Employee understands that with this payment Employer and Insurer are relieved of any further obligations to provide past, present or future worker’s [sic] compensation benefits of any type.
4. Employer and Insurer shall be forever released and relieved from any and all past, present and/or future liability to and claims of Employee of whatever nature and kind, arising heretofore, or which may hereafter arise under said statute, growing out of the accident or injuries described hereinabove or any other accident or injury occurring prior to this date.
5. Appearer further declares that for and in consideration of the receipt of said payment of THIRTY THOUSAND AND NO/lOO ($30,000.00) DOLLARS, he does hereby release, acquit and forever discharge Robinson Lumber Company, Inc. and Louisiana Worker’s [sic] Compensation Corporation, their employees, officers, directors, stockholders, agents and representatives and any and all other persons, firms, corporations (including, but not in any way limiting the same thereto, the officers, directors and stockholders of said corporations), partnerships and parties whomsoever, from any and all past, present and future claims, demands, compensation, medical expenses, costs, expenses, penalties, attorney’s fees, damages and any and all causes and rights of action, whatsoever, which she may or might have and to which he may be entitled, known and unknown, anticipated and unanticipated, under the workers’ compensation laws of the State of Louisiana, the tort laws, and any and all other laws whatsoever, in any way resulting from and/or to result from the incident which occurred on or about December 10, 2002 or at any time while in the course and scope of his employment with Robinson Lumber Company, Inc.

The Order of Approval submitted by the parties to OWC, was signed by the trial court on 17 May 2004, and contains the following declaration:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that upon said payment of THIRTY THOUSAND AND NO/100 ($30,000.00) DOLLARS Employer and Insurer, shall be forever released and relieved from all past, present, and future medical | ¿expenses, rehabilitative expenses, workers’ compensation benefits, and any and all claims of whatsoever nature and kind, arising heretofore or which may hereafter arise under Title 23, Chapter 10, Revised Statutes of Louisiana, growing out of any accident or injury occurring prior to the date of this agreement, including any right arising out of the chiropractic treatment rendered by Dr. Brandtmeier.

We note that the issue presented herein is res nova in this circuit and the Supreme Court has not spoken on it. However, both the Third and Fifth Circuit Courts of Appeal have addressed the subject. In Condoll v. Johns-Manville Sale Corp., 448 So.2d 169 (La.App. 5 Cir.1984), James Condolí filed a workers’ compensation suit against the defendant/employer, alleging that he contracted a debilitating lung disease from his employment. The parties entered into a court approved settlement whereby Mr. Condolí settled all claims against the defendant for $25,000.00, releasing it from all further liability., Less than one month later, Mr. Condolí died.

His wife filed a claim for death benefits, alleging that her husband died as a direct result of his occupational disease. The defendant filed a motion for summary judgment, which was granted by the trial court. An appeal followed.

The sole issue on appeal was whether a compromise settlement of an injured worker’s disability claim simultaneously compromises and settles the dependent spouse’s claim for death benefits under La. R.S. 23:1061, when the dependent was neither a party 'to the settlement nor received any compensation.

The appellate court stated:

The purpose of LSA-R.S. 23:1231 is to provide for death benefits to the dependents of an injured worker where the injured worker reaches his untimely demise prior to any compromise or adjudication of the of the compensation claim.
| fiThere is no provision in the Workmen’s Compensation Act for the dependent spouse to be a party of a pre-death settlement.

Id. at 172.

In rejecting the plaintiffs appeal, the court held:

Under LSA-R.S. 23:1271, an injured employee or his dependents have the right to compromise a Workmen’s Compensation claim. However, while the injured claimant is alive and has control of his mental faculties, payments are made only to him and in certain specific amounts set out under the Act. It is only upon death of the employee that the “Dependents” are capable of instituting a compensation claim.
While the rights to receive compensation are different for the employee and the dependents, each is based upon the same cause of action, namely, the employee having sustained a compensable injury. Both rights are dependent upon an original interrelationship of employer and employee and must be the result of the contraction of an occupational disease or injury arising out of and in the course of the employment.' The dependent’s right to compensation death benefits and the employee’s right to compensation are so closely related that the parties have a community of interest. Until it is shown that the employee suffered a compensable injury, neither the employee nor the dependent is entitled to compensation. However, when it is established that the employee has suffered a compensable injury, the right to compensation for the injury or disease accrues to the employee and if he dies of such injury or occupational disease, it is in effect continued in favor of his dependents.
The fact that the compensation which the dependent thereby becomes entitled to receive is not new compensation for the death, but continuing compensation for the injury is evident from LSA-R.S. 23:1236 which provides:
Where payments of compensation have been made to the employee -before his death, the compensation for dependents as provided for in this Subpart shall begin on the date of the last of such payments.
| fiIt logically follows that if the dependent’s compensation benefits can be diminished or eliminated, then a dependent should not be allowed to recover death benefits after the injured worker compromised and judicially settled his compensation claim, thereby releasing his employer from all further liability. The Workmen’s Compensation law of this State does not allow a double recovery.

Id. at 172-73.

In Price v. Johns-Manville Sales Corp., 450 So.2d 758 (La.App. 5 Cir.1984), the Fifth Circuit, faced with virtually identical facts as those found in Condolí, stated:

In the Condolí case, this court concluded the purpose of LSA-R.S. 23:1231 was to provide for death benefits to the dependents of an injured employee where the injured employee died prior to any compromise or adjudication of the compensation claim. The dependent’s right is to have the employer continue making to him the compensation being paid to the injured employee at the time of his death rather than a right to establish new compensation benefits for the dependent. Therefore, although the dependent’s right to have the compensation benefits continue is separate from the employee’s right to establish compensation benefits for an injury, the compromise of the employee’s claim forecloses future benefits to the dependent. Hence, following a settlement, there is no longer a right to compensation benefits by either the employee or the dependent unless the compromise judgment can be set aside for fraud, misrepresentation or failure to comply with the compromise procedures of the act. See Smith v. Cajun Insulation, Inc., 392 So.2d 398 (La.1980).

Id. at 759.

The defendants urge the court to follow Condolí and Price, arguing that Roland White, Jr. settled any and all claims arising out of the accident or injury that occurred prior to the date of the settlement, including any right arising out of the chiropractic treatment rendered by Dr. Brandtmeier. The settlement agreement is clear and unequivocal that the defendants were being “relieved of any |7further obligations to provide past, present or future workers’ compensation benefits of any type.”

The plaintiffs rely on a Third Circuit case, Bouy v. Teche Electric Cooperative, Inc., 03-355 (La.App. 3 Cir. 11/26/03), 861 So.2d 712, wherein the court found that the settlement agreement did not extinguish a dependent’s right of action to claim death benefits under the Workers’ Compensation Act. In that case, Mr. Bouy was injured in the course and scope of his employment with the defendant in 1970. He lost one of his legs and settled his compensation claims against his employer and its insurer in 1973. Mrs. Bouy filed a disputed claim for death benefits against Teche following her husband’s death in 2000, alleging that he contracted Hepatitis C from some of the blood transfusions he had while being treated for his injuries and that the Hepatitis C led to his subsequent death.

The court stated:
Mrs. Bouy’s claim for death benefits is not covered in this compromise because we may not presume that a general forfeiture of all claims, no matter how broad, includes claims arising from the party’s death, rather than the injury. La.R.S. 23:1231 gave Mrs. Bouy a right of action upon Mr. Bouy’s death.
We are mindful that the fifth circuit has held that an employee can compromise the rights his dependent has for death benefits because the dependent’s right is derivative of the employee’s claims. These cases considered the employee’s compromise of his own claims to extinguish his or her dependent’s claim for death benefits, viewing the right to death benefits as a continuation of the injured employee’s right to benefits, rather than as a separate and distinct right, arising in the dependent’s favor. However, subsequent to these cases, regarding a similar cause of action, our supreme court has held that a wrongful death tort claim, under La.Civ.Code art. 2315.2, is not derivative of the tort victim’s claim for his or her injuries but, rather, is a separate and distinct action, arising in the beneficiary’s | Rfavor. Thus, we question whether the fifth circuit cases continue to have any validity.
Specifically, even recognizing the possible distinctions between claims for death benefits under the Workers’ Compensation Act and tort claims for wrongful death under La.Civ.Code art. 2315.2, the supreme court’s guidance in evaluating whether a settlement agreement or compromise includes death claims, is instructive in either instance. While our supreme court has held that a pre-death release of a claim, arising from a person’s death, is not against public policy, it has also found that the parties’ intent to include such a release in the settlement agreement must be unequivocally reflected within the document, leaving no question that the parties contemplated such a claim.
In the instant case, the compromise is extremely broad but, also, extremely general in expressing the terms of the claims that the parties intended to compromise. Allegedly, Mr. Bouy’s Hepatitis C resulted from blood transfusions he received when he was treated for the injury to his legs in 1970. The compromise includes only rights and causes of action, arising from direct injuries to his legs. It does not purport to include injuries, arising out of treatment for the injuries. Furthermore, the parties were unaware that he had contracted Hepatitis C when they compromised the claim for his injuries; therefore, they could not have contemplated the inclusion of claims associated with it. Additionally, there is nothing within the compromise agreement’s language which indicates that they contemplated that Mr. Bouy’s injuries would cause his death.
Accordingly, we cannot find that the settlement agreement extinguishes Mrs. Bouy’s right of action to claim death benefits under the Workers’ Compensation Act. Thus, we reverse the WCJ’s grant of Teehe’s exception of no right of action and remand for further proceedings.

Id. at pp. 2-4, 861 So.2d at 714-15 (footnotes omitted).

Because of the Third Circuit’s reliance on two Supreme Court wrongful death cases, we briefly examine them. In Brown v. Drillers, Inc., 93-1019 (La.1/14/94), 630 So.2d 741, a deceased worker’s widow brought a wrongful death faction on her own behalf and on the behalf of her minor child. In response, the defendant moved for entry of summary judgment based on the predeath release executed by the decedent. The trial court held that the surviving spouse could not have compromised her claim for wrongful death before her husband’s death. The First Circuit reversed and the Supreme Court granted the widow’s application for a writ of certiorari.

The Court stated:
To place our analysis of the issue of contractual interpretation presented here in context, we begin by setting forth a basic distinction between the tort victim’s personal injury action and his or her beneficiaries’ wrongful death action under LSA-C.C. Art. 2315.2. Our jurisprudence, as Plaintiff correctly points out, holds that these are legally separate and distinct actions. Taylor v. Giddens, 618 So.2d 834, 840 (La.1993); Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1383, 1387 (La.1993); Guidry v. Theriot, 377 So.2d 319 (La.1979). Although both of these actions stem from a common tort, and thus from common factual allegations, under Louisiana law, “the rights arising in instances of this nature are not a single right of action but two separate and distinct actions.” Guidry, 377 So.2d at 322. Indeed, these actions arise at different times and compensate different parties for different injuries.
The tort victim’s personal injury action arises simultaneously with the claimed tortious occurrence and compensates for those injuries wfiich are peculiar and personal to the tort victim. Guidry, supra; Knight v. Samuel, 447 So.2d 587 (La.App. 3d Cir.), writ denied, 449 So.2d 1349 (La.1984). In stark contrast, the beneficiaries’ wrongful death action, by definition, comes into existence upon the tort victim’s death and “serves to compensate a legislatively created class of persons for the loss occasioned by the wrongful killing of the decedent.” Knight, 447 So.2d at 593-94; Daigle, 613 So.2d at 623 (citing Guidry, supra). The beneficiaries’ action encompasses their damages suffered from the moment of the tort victim’s death and thereafter. Taylor, 618 So.2d at 840; Guidry, 377 So.2d at 322. The beneficiaries’ action compensates them for their own personal losses, both economic and emotional, suffered |10as a result of the tort victim’s death. Williams, 611 So.2d at 1387.
In Guidry, supra, we recognized that a necessary corollary of this basis distinction is that the tort victim lacks the power to compromise the beneficiaries’ potential wrongful death action because that action “never existed or arose in favor of the victim.” 377 So.2d at 326. A contrary rule, we explained, would have the following effect:
If the actions are deemed but one cause of action giving rise to recovery by different individuals it would follow that in the event the victim compromised his claim and then died the wrongful death action would be lost to the beneficiary. We do not believe the legislature intended such a result.
Id. at 322.
The rule in Louisiana, however, has long been established: “It was rather early recognized [in Louisiana] that the victim’s compromise of his action and release of the defendant does not bar a wrongful death action by the beneficiaries against the same defendant on the same issues.” H. Johnson, Death on the Callais Coach: The Mystery of Louisiana Wrongful Death and Survival Actions, 37 La.L.Rev. 1, 47 (1976); Johnson v. Sundbery, 150 So. 299 (La.App. 1st Cir.1933); Gilmore v. Southern Railway Co., 229 F.Supp. 198 (E.D.La.1964); see also Guillory v. Petroleum Helicopters, Inc., 436 So.2d 1280 (La.App. 1st Cir.), writ denied, 441 So.2d 1220 (La.1983) (noting “grave doubts” as to whether indemnity agreement by tort victim was enforceable against wrongful death beneficiaries). Moreover, for almost two decades pre-Daigle, Louisiana jurisprudence held — albeit based on a single appellate court decision incorrectly construing the codal provisions regarding contracting in future rights— that beneficiaries, like tort victims, lacked the power to compromise their wrongful death claims before the tort victim’s death. Schiffman [v. Service Truck Lines, Inc., 308 So.2d 824 (La.App. 4th Cir.1974)], supra. During that period, the release instrument in question was executed; hence, when the release instrument was executed, Louisiana jurisprudence was to the effect that neither the tort victim, Buel Brown, nor his beneficiaries, Ruth and Kimberly Brown, could compromise the future wrongful death claims asserted in this case.

In Id. at pp. 11-13, 630 So.2d at 751-52 (footnotes omitted).

In the second case cited by the Bouy court, Walls v. American Optical Corp., 98-0455 (La.9/8/99), 740 So.2d 1262, the Supreme Court again held:

The plaintiffs urge this Court to find that the wrongful death action is a derivative action “deriving from the wrongful act and injury to the victim whose eventual death results in further injury to the survivors.” The plaintiffs argue that the right to recover, or the “right of action,” arises with the wrongful conduct under La. C.C. art. 2315 that provides: “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” It is the “act” that causes the injury and gives rise to the right to recover damages, and the wrongful death is derivative of the victim’s underlying injury. Thus, the argument continues, the wrongful death plaintiffs “right of action” arises at the time of injury to the victim and is thus governed under the same law as that which governs the victim’s action. The law in effect on the date of the tortious conduct applies in both the tort victim’s action and the wrongful death claim because La. C.C. art. 2315 “regulates conduct” by holding people accountable for their “acts causing damage.”
* * *
We do not consider the wrongful death action to be a derivative cause of action. Rather, the wrongful death action is an independent and distinct action that arises even in the absence of a viable personal injury action by the direct tort victim and compensates the beneficiaries for their own individual injury arising out of the victim’s death. Taylor v. Giddens, 618 So.2d [834] at 840 [ (La.1993) ]. In Callais v. Allstate Ins. Co., 334 So.2d 692, 700 (La.1976) this court discussed the “nature” of the wrongful death action.
In the context of Article 2315, it is evident that Wrongful [sic] death is a relational concept. It embraces conduct that causes the death of another. It is bilateral in the sense that two parties are involved: the actor, who causes death, and the victim, whose death gives rise to the cause of action.
LaGiven this relational or causative origin, one could be mislead into viewing the wrongful death action as derivative. However, in Taylor v. Giddens, 618 So.2d at 840, this Court left no doubt that the wrongful death action is an independent and separate cause of action. In cataloging the distinctions between the wrongful death action and the survival action we found,
Although both actions arise from a common tort, survival and wrongful death actions are separate and distinct. Each right arises at a different time and addresses itself to the recovery of damages for totally different injuries and losses....
... [T]he survival action, which is a[sic] derivative of the malpractice victim’s action, is linked to the inception of the tortious act, omission or neglect. The action is based upon the victim’s right to recovery being transferred by operation of law to the beneficiary. The action is dependent upon the victim having a viable malpractice action on the date of death....
Taylor v. Giddens, 618 So.2d at 840 (emphasis added).
Likewise we characterized the consortium claim as derivative of a primary victim’s injury in Ferrell v. Fireman’s Fund Ins. Co., 96-3028, p. 8 (La.7/1/97), 696 So.2d 569, 574. In that case we explained that “the derivative claim does not come into existence until someone else is injured,” and noted that a derivative claim, “may be regarded as a secondary layer of tort liability to the primary victim.” Id. (emphasis added). As we made clear in our discussion earlier, as well as in Taylor, the wrongful death claim compensates the beneficiaries for their own injuries, separate and distinct from the victim’s injuries, which are compensated through the derivative survival action. The wrongful death cause of action, therefore, could not “be regarded as a secondary layer of tort liability to the primary victim.” Id. The wrongful death cause of action is not a derivative cause of action and plaintiffs’ arguments founded on this concept are also without merit.

Id. at pp. 14-16, 740 So.2d at 1273-74.

| ^Against that backdrop, we turn to the issue presented on appeal: whether the claim for workers’ compensation death benefits is a derivative cause of action. Based on the Supreme Court’s analysis in Broum and Walls and that of the Fifth Circuit in Condolí, we find that it is derivative. A claim for death benefits is not separate and apart from a claim for workers’ compensation. The claim does not come into existence until someone is injured on the job and subsequently dies of those injuries while collecting workers’ compensation benefits. As stated in Con-doll, the compensation which the dependent becomes entitled to is not new compensation for the death but continuing compensation for the injury, as evidenced from La. R.S. 23:1236, infra.

In addition, we find that the settlement agreement entered into by Roland White, Jr., waived all claims “arising heretofore or which may hereafter arise under Title 23, Chapter 10, Revised States [sic] of Louisiana, growing our of any accident or injury occurring prior to the date of this agreement, including any right arising out of the chiropractic treatment rendered by Dr. Brandtmeier.” This agreement encompasses the claim asserted by his parents for death benefits under La. R.S. 23:1231, as well as all claims arising out of the injuries sustained by him in the accident of 10 December 2002. Roland White, Jr. was taking pain medication as the result of the injuries to his left shoulder. Regardless of whether or not his death was accidental, we find that Roland White, Jr. waived his parents’ claim for death benefits when he settled his own claim with the defendants.

Based on the foregoing, we affirm the judgment of the Office of Workers’ Compensation Administration.

AFFIRMED.

LOVE, J., concurs with reasons.

LOVE, J.,

Concurring.

U respectfully concur with the majority. I write separately to further distinguish the Louisiana Supreme Court cases discussed by the Third Circuit case, which granted a right of action for workers’ compensation death benefits to a widow whose husband’s compromise settlement contained the exact contractual language as Mr. White’s. The plaintiffs relied upon, Bouy v. Teche Electric Cooperative, Inc., 03-355 (La.App. 3 Cir. 11/26/03), 861 So.2d 712, which based its opinion on the analysis contained in Brown v. Drillers, Inc., 93-1019 (La.1/14/94), 630 So.2d 741 and Walls v. American Optical Corp., 98-0455 (La.9/8/99), 740 So.2d 1262. However, Broum and Walls discussed the derivative nature of the wrongful death action, pursuant to LSA-C.C. Art. 2315.2, and its relation to the workers’ compensation compromise settlement. Both Brown and Walls held that a wrongful death claim is not a derivative cause of action, but is separate and distinct. Brown, 630 So.2d at 751; Walls, 740 So.2d at 1274. Therefore, the plaintiffs’ reliance is misplaced. First, Bouy did not entitle the widow to workers’ compensation death benefits. The Third Circuit held that she possessed a cause of action, which is a right to pursue the death benefits. Bouy, 861 So.2d at 715. Second, the Louisiana Supreme Court cases relied upon in Bouy discussed wrongful death actions, not the workers’ compensation death benefits sought in the case sub judi-ce. Workers’ compensation death benefits are 1 ^considered derivative actions because of the characterization as continuing compensation from the original injury, as provided by Louisiana’s workers’ compensation laws.

      . La. R.S. 23:1231 provides in pertinent part:
      A. For injury causing death within two years after the last treatment resulting from the accident, there shall be paid to the legal dependent of the employee, actually and wholly dependent upon his earnings for support at the time of the accident and death, a weekly sum as provided in this Subpart.

      B. (2) However, if the employee leaves no legal dependents entitled to benefits under any state or federal compensation system, the sum of seventy-five thousand dollars shall be paid to each surviving parent of the deceased employee, in a lump sum, which shall constitute the sole and exclusive compensation in such cases.


author: THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. Calvin WARE.
    No. 05-1451.
    Court of Appeal of Louisiana, Third Circuit.
    April 12, 2006.
    Rehearing Denied June 7, 2006.

      James Edward Beal, Louisiana Appellate Project, Jonesboro, LA, for Defendant/Appellant-Calvin Ware.
    Christopher Brent Coreil, District Attorney-13th Judicial District Court, Yille Platte, LA, Raymond J. LeJeune, Mamou, LA, for PlaintiffAppellee-State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JAMES T. GENOVESE, Judges.
   THIBODEAUX, Chief Judge.

L Defendant, Calvin Ware, appeals his jury conviction of attempted forcible rape on the basis that the evidence was insufficient to sustain a conviction of attempted forcible rape or any other responsive verdict. We agree. We reverse his conviction and order that a judgment of acquittal be entered.

INSUFFICIENCY OF THE EVIDENCE

The elements of forcible rape are set forth in La.R.S. 14:42.1, which provides, in pertinent part:

A. Forcible rape is rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.
Attempt is defined in La.R.S. 14:27 as:
A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
C. An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt.

The analysis for a claim of insufficient evidence is well-settled:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could Uhave found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367; 1371.

In State v. Bernard, 98-994 (La.App. 3 Cir. 2/3/99), 734 So.2d 687, 691, this court stated:

It is well settled in Louisiana law that a jury may rely on a single witness’s testimony to establish a factual element required to prove guilt, provided there is no internal contradiction or irreconcilable conflict with, physical evidence. State v. Henry, 95-428 (La.App. 3 Cir. 10/4/95); 663 So.2d 309, writ denied, 96-0681 (La.5/16/97); 693 So.2d 793. According to State v. Jeansonne, 580 So.2d 1010 (La.App. 3 Cir.), writ denied, 584 So.2d 1170 (La.1991), the trier of fact may accept or reject, in whole or in part, any portion of a witness’s testimony.... The testimony of one witness, if believed by the trier of fact, is sufficient to support the requisite factual conclusion in the absence of internal contradictions or irreconcilable conflict with the physical evidence. State v. Henry, 95-428 (La.App. 3 Cir. 10/4/95); 663 So.2d 309, writ denied, 96-0681 (La.5/16/97); 693 So.2d 793. The fact that the record contains evidence which conflicts with the testimony accepted by the trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Tompkins, 403 So.2d 644 (La.1981), appeal after remand, 429 So.2d 1385 (La.1982).

The victim testified about the events from which the charge against the Defendant arose. She was a passenger in the Defendant’s car. Accompanying them were the victim’s minor son and the Defendant’s daughter and her boyfriend, whom | athey drove to their residence at Chicot. After dropping off the Defendant’s daughter, the remaining occupants of the car were the Defendant, the victim, and the victim’s nine-year-old son. Shortly after leaving the Chicot area, the victim realized that the Defendant was drinking from a bottle he had underneath his seat. The Defendant allowed the victim to drive, but he later resumed driving the vehicle.

The victim eventually fell asleep while the Defendant was driving in the back roads of Oakdale, a rural area. She awoke when she felt the passenger door of the vehicle being opened by the Defendant. She attempted to exit the vehicle but the Defendant, according to the victim’s testimony, shoved her back into the car. As she attempted to exit from the driver’s side, the Defendant grabbed her leg and began to pull her jeans off as she was “fighting and trying to get away” from the Defendant. Eventually, her jeans were pulled from one leg only. The Defendant, she claims, managed to pull down her underwear as she “was struggling with him” and while she was screaming during this ordeal.

The victim further testified that she attempted to kick and push the Defendant away from her. The Defendant, however, “slammed [her] down into the car seat,” pinned her down, and held his forearm against her throat. He then penetrated her vaginally. She later managed to escape from the car with her son who was asleep in the back seat during this occurrence.

The victim’s son was nine years old at the time of the incident and ten years old at the time of his testimony at the trial. He testified that he was awakened during this confrontation and heard his grandfather, the Defendant, “hollering” at his mother, the victim. He did not see or hear anything else. After hearing this, he again fell asleep in the back seat of the vehicle until his mother awoke him sometime later.

At trial, the responding law enforcement officers testified that they were dispatched to the scene of a sexual assault. Upon their arrival, and through their 1 interaction with the victim, they did not think that a rape had occurred. Deputy Michael Kevin Fontenot testified that the victim told him the Defendant had asked her to have sex with him, but that she had refused. He also stated that he asked the victim if she had been raped. She told him she had not; she had just been choked and struck by the Defendant. Deputy Fontenot concluded that the offense was simple battery.

Deputy Anthony Reed testified that when he asked the victim whether she had been raped, she responded that “it’s not that he didn’t try.” During an evidentiary hearing held on March 18, 2004, Deputy Reed testified that the victim told him she had not been raped. Deputy Reed did not observe signs of any visible marks on the victim’s neck.

Detective Robert Bryce Fontenot testified that at approximately 3:40 a.m. on the morning of November 22, 2003, he was called by the 911 dispatch operator to investigate a rape. However, Detective Fontenot stated that before he was dressed and able to leave his home, he received a second call advising him that he was no longer needed because the perpetrator was being arrested for battery. Later that same morning, Fontenot called the victim in order to get a statement from her. The victim then came to the sheriffs department, met with Detective Fontenot and with Detective Keith Dupre, and tearfully reported that she had been raped by the Defendant. Following her statement, the victim was taken to a hospital for a rape examination.

Bernard W. Steele, an emergency room physician who was in his third year of residency at Ville Platte Medical Center, testified that the victim’s “mood and affect” was consistent with that of a rape victim. She was “mildly distressed.” His medical report noted “no abrasion, bruising, hematoma, or laceration” on the victim’s body. The victim testified that the Defendant pinned his forearm against her throat. | fiHowever, Dr. Steele’s examination detected no bruises to the neck area nor any pain or tenderness in that area. There was no evidence of physical trauma, nor was there evidence of trauma to the pelvic area. Moreover, his examination did not detect evidence of a hematoma between her anus and vagina. Her vaginal area appeared to be normal.

According to Dr. Steele, a rape kit was performed on the victim. This involves obtaining DNA samples to determine the presence of semen and fluids other than the victim’s. The test was negative. Dr. Steele concluded that “there was no definite test that showed she [the victim] had been rape[d].”

This court is well aware that the testimony of a victim alone may be sufficient to establish the elements of a sexual offense “provided there is no internal contradiction or irreconcilable conflict with physical evidence.” State v. Bernard, 734 So.2d at 691. When faced with the overwhelming physical evidence which militates against the finding of a sexual offense, the testimony of the investigating officers, the testimony of the victim’s ten-year-old son who was present in the back seat during this occurrence, and the medical evidence submitted through the testimony of Dr. Steele, we are convinced that a fair reading of the whole record leads us to the inescapable conclusion that a rationale trier of fact could not have found the Defendant guilty beyond a reasonable doubt.

CONCLUSION

The evidence in this record is insufficient to sustain the Defendant’s conviction for attempted forcible rape or for any responsive verdict. We, therefore, reverse the Defendant’s conviction and order an acquittal be entered and that the Defendant’s sentence be vacated and set aside.

J^CONVICTION REVERSED; ACQUITTAL ENTERED; SENTENCE SET ASIDE AND VACATED.