author: LANIER, J.

text:
    J. Robert WOOLEY, Commissioner of Insurance for the State of Louisiana in his Capacity as Liquidator of AmCare Health Plans of Louisiana, Inc. v. Thomas S. LUCKSINGER, Michael D. Nadler, Stephen J. Nazarenus, Scott Westbrook, Michael K. Jhin, William F. Galtney, John P. Mudd, Executive Risk Indemnity, Inc., Executive Risk Management Associates, Executive Risk Specialty Insurance Company, Executive Liability Under Writers Greenwich Insurance Company, AmCareCo, and AmCare Management Inc. J. Robert Wooley, Commissioner of Insurance for the State of Louisiana, in his Capacity as Liquidator for AmCare Health Plans of Louisiana, Inc. v. Foundation Health Corporation, Foundation Health Systems, Inc., and Health Net, Inc. J. Robert Wooley, Commissioner of Insurance for the State of Louisiana, as Liquidator for AmCare Health Plans of Louisiana, Inc., in Receivership v. Pricewaterhousecoopers, LLP.
    Nos. 2006 CA 1167, 2006 CA 1168, 2006 CA 1169.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 2007.

      Edward J. Walters, Jr., Joseph E. Cul-lens, Jr., Baton Rouge, Counsel for Plaintiff — Appellee J. Robert Wooley, Commissioner of Insurance.
    Guy M. Hohmann, Austin, TX, Counsel for Plaintiff — Appellee J. Robert Wooley, Commissioner of Insurance.
    David M. Latham, Keary L. Everitt, New Orleans, Counsel for Third Party Defendant — Appellee Louisiana Department of Insurance.
    Leon Gary, James C. Percy, Brandon K. Black, David M. Kerth, Baton Rouge, Counsel for Defendant — Appellant Health Net, Inc.
    Robert B. Bieck, Jr., Sarah B. Belter, New Orleans, Counsel for Defendant — Appellant Health Net, Inc.
    Before: CIACCIO, LANIER and CLAIBORNE, JJ.

      . The Hon. Philip C. Ciaccio, Judge (retired), the Hon. Walter I. Lanier, Jr., Judge (retired), and the Hon. Ian W. Claiborne, Judge (retired), are serving as judges ad hoc by special appointment of the Louisiana Supreme Court.

   LANIER, J.

| sDefendant, Health Net, Inc. (Health Net), seeks appellate review of a judgment sustaining a peremptory exception raising the objection of no cause of action to its third party demand against the Louisiana Department of Insurance (DOI) and dismissing the third party demand with prejudice. For the following reasons, we affirm the judgment dismissing the third party demand and that portion of the judgment that dismissed the detrimental reliance cause of action with prejudice. The portion of the judgment pertaining to the third party demand for the governmental tort cause of action is amended to provide that the dismissal is without prejudice and it is ordered that the allegations contained therein are retained and considered as an affirmative defense.

PROCEDURAL FACTS

These three consolidated actions were filed by J. Robert Wooley, Commissioner of Insurance for the State of Louisiana (Commissioner) in his capacity as liquidator of AmCare Health Plans of Louisiana, Inc. (AmCare-LA). These actions as finally amended alleged corporate mismanagement and accounting negligence and sought the enforcement of contractual guarantees and damages for contract fraud and tort gross negligence. Health Net owned AmCare-LA, AmCare Health Plans of Texas, Inc. (AmCare-TX), and AmCare Health Plans of Oklahoma, Inc. (AmCare-OK). Health Net was joined as one of many defendants. The Texas and Oklahoma insurance regulators in their capacities as receivers for AmCare-TX and Am-Care-OK intervened in these actions.

Health Net answered the various petitions and filed cross claims, third party demands and reconventional demands. In particular, Health Net filed a third party demand against the State of Louisiana, by and through DOI. Health Net asserted 14that DOI “negligently enforced and/or negligently failed to enforce applicable laws and regulations,” that because of this “the AmCare HMOs were made more deeply insolvent than they might have been had they been placed in receivership [sooner], thereby resulting in greater losses to the policyholders, creditors, shareholders (like Health Net) and the general public” and prayed for indemnity, contri-button, governmental tort damages and damages for detrimental reliance.

DOI responded by filing a peremptory exception raising the objection of no cause of action to each of these claims.

At the beginning of the trial of the exception, counsel for DOI stated the following:

With respect to the claims of contribution and indemnity in Health Net’s opposition memorandum we received last week, Health Net states they do not oppose the exceptions of no cause of action on the grounds of contribution and indemnity. With that in mind, we would respectfully ask that a judgment be issued granting department of insurance’s exception of no cause of action on the grounds of contribution and indemnity.

There was no objection by Health Net and the trial court responded, “So ordered.”

The hearing then proceeded with oral argument on the causes of action for negligence and detrimental reliance. After the matter was submitted, the trial court, for oral reasons assigned, sustained the exception. In its written judgment, the trial court dismissed all of Health Net’s third party demand against DOI with prejudice.

These appeals followed.

THE OBJECTION OF NO CAUSE OF ACTION

The objection of no cause of action is raised by the peremptory exception. IfiLa. C.C.P. art. 927 A(4). An exception is a means of defense to an action, other than a denial or avoidance of the demand, used by a defendant to retard, dismiss or defeat the demand. La. C.C.P. art. 921. In particular, the function of the peremptory exception is to have the plaintiffs action declared legally nonexistent or barred by effect of law. La. C.C.P. art. 923. A civil action is a written demand filed in a court of competent jurisdiction that seeks the enforcement of a legal right (cause of action). La. C.C.P. art. 421. A civil action must state a cause of action or it will be dismissed. La. C.C.P. art. 934. A cause of action arises to permit a civil action when there has been a failure to perform an obligation and the obligation can be enforced by judicial relief. La. C.C.P. art. 423. Performance of an obligation may consist of giving, doing, or not doing something. La. C.C. art. 1756. Thus, to state a cause of action in the initial pleading in a civil action, the obligee (plaintiff) must allege facts that, if proven, would show (1) the obligation involved; (2) the breach of the obligation; and (3) judicial relief can be granted. Finally, a cause of action “has been defined as ‘an act by defendant which gives a plaintiff a right to invoke judicial interference on his behalf and as ‘the operative facts which give rise to the plaintiffs right to judicially assert the action against the defendant.” ’ (Footnotes omitted.) F. Maraist & H. Lemmon, 1 La. Civ. Law Treatise, Civil Procedure, § 6.7(2), pp. 126-27 (1999) and the cases cited therein.

No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action. La. C.C.P. art. 931. For purposes of the objection, all facts pleaded are accepted as true. Davis v. Town of St. Gabriel, 2001-0031, p. 10 (La.App. 1 Cir. 2/15/02), 809 So.2d 537, 543, writs denied, 2002-0771, 2002-0803 (La.10/14/02), 827 So.2d 420. If the law does not grant the remedy sought under the facts alleged, the objection should be sustained. Badeaux v. Southwest Computers Bureau, Inc., 2005-0612, 2005-0719, p. 7 (La.3/17/06), 929 So.2d 1211, 1217; Industrial Companies, Inc. v. Durbin, 2002-0665, pp. 6-7 (La.1/28/03), 837 So.2d 1207, 1213.

Louisiana Code of Civil Procedure article 934 provides as follows:

When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.

In Alexander and Alexander, Inc. v. State, through the Div. of Admin., 486 So.2d 95, 100 (La.1986), appears the following:

Under the provisions of La.Code of Civ. Proc. art. 934, it is mandatory that the trial judge permit an amendment to the petition when the grounds of the objection pleaded by the exception are of such a nature [as] might be removed by amendment.
As a general rule, the first ‘shall’ in La.Code of Civ.Proc. art. 931 requires that the adverse party be given an opportunity to amend where there is a conceivable possibility that a cause of action may be stated. However, the right to amend is not so absolute as to permit the same when such amendment would constitute a vain and useless act.
The judgment maintaining the exception of no cause of action in this case contains no order granting plaintiffs leave to amend their petition. We are of the opinion that, given the opportunity to amend, there is a possibility that plaintiff may be able to state a cause of action against defendants, and that the trial judge should have allowed such amendment. We will remand with the instructions that an order issue permitting plaintiffs to amend their petition, if they can, to state a cause of action, within a delay deemed reasonable by the trial court. [Citations omitted and emphasis added.]

THE FACTS ALLEGED IN THE PETITION

The following are the pertinent allegations of fact in Health Net’s restated answer and third party demand.

ELEVENTH AFFIRMATIVE DEFENSE
Health Net affirmatively pleads that it is entitled to setoff any recovery or award made against it in these proceedings to recover or 17apportion damages arising from the acts or omissions of Plaintiffs and/or other parties that caused in whole or in part the insolvency of Plaintiffs.
TWENTY-FIRST AFFIRMATIVE DEFENSE
Recovery, if any, by Plaintiffs should be barred or reduced by the proportionate fault of (1) Plaintiffs, (2) other defendants and/or (3) third parties to the extent said parties caused or contributed to the alleged acts, events, incidents or happenings, and the alleged injuries or damages.
TWENTY-SECOND AFFIRMATIVE DEFENSE
Health Net was entitled to and did justifiably rely on material information provided to it by Plaintiffs and/or others, including without limitation, the States of Louisiana, Texas and Oklahoma, the D & 0 Defendants, and the AmCare HMOs.
THIRTY-NINTH AFFIRMATIVE DEFENSE
Health Net further avers that, to the extent that the alleged insolvency of any of the HMOs was “deepened” by the continued operation of such HMOs, then any such resulting damage was caused by the fault of the regulatory entity in the state in which such HMO operated and Health Net is not responsible for the fault of such regulatory entity in failing to properly perform its regulatory function.
172.
Upon information and belief, prior to filing financial statements with the Louisiana Department of Insurance in 2000, AmCareCo, Lucksinger, Nadler and Na~ zarenus had knowledge of facts indicating that no reasonable basis existed for a representation that AmCare-LA was solvent, yet financial statements were filed with the Louisiana Department of Insurance falsely stating that AmCare-LA was solvent.
173.
Upon information and belief, Luck-singer, Nadler and Nazarenus made representations in the 2000 financial statements without a reasonable basis to believe that the statements were true or | saccurate, and with the intent that the statements be relied upon by the Louisiana Department of Insurance.
174.
Upon information and belief, the Louisiana Department of Insurance had constructive knowledge .of the falsity of these statements in the 2000 Statutory Annual Statement, and still continued to allow AmCare-LA to continue operating as an HMO in the state of Louisiana.
175.
Upon information and belief, Am-Care-LA, AmCareCo, and the shareholders of AmCareCo suffered losses that they would not have suffered as a result of the actions of AmCareCo, Lucksinger, Nadler, Nazarenus and the Louisiana Department of Insurance.
* * *
193.
THIRD PARTY CLAIM
Now assuming the position of third party plaintiff, Health Net joins as a defendant and asserts third party claims as follows:
194.
Named third party defendant herein is State of Louisiana, by and through the Louisiana Department of Insurance.
195.
Health Net hereby incorporates by reference all of the allegations set forth in this Amended Answer, Reconventional Demand, Cross Claim and Third Party Demand. This third party claim is asserted in the alternative in the event that Health Net is found liable for damages to the Plaintiffs and the third party defendant is also found at fault.
196.
At paragraphs 39, 47, 71, 34, 81-86 of the Plaintiffs’ petition, Plaintiffs accuse the defendants, including Health Net, of defrauding the Regulators, misleading the Regulators and making misrepresentations to the Regulators regarding the financial condition of the AmCare HMOs, the capital structure of the Am-Care HMOs, the cash payment to Health Net in consideration of the sale of the AmCare HMOs, and the termination of the Guarantee referred to in paragraph 117(a).
197.
| ¡¡Plaintiffs then allege that, if the Regulators, including the Louisiana Department of Insurance, had not been defrauded, misled and the subject of misrepresentations with respect to the financial condition of the AmCare HMOs, then the Regulators would have taken action to place the AmCare HMOs into receivership and liquidate the AmCare HMOs sooner, and thereby the deepening insolvency of the AmCare HMOs would have been avoided.
198.
The Regulators, including the Louisiana Department of Insurance, had a duty to comply with and enforce applicable law and regulations, including the Louisiana Insurance Code and applicable regulations, in monitoring the financial stability of the AmCare HMOs.
199.
Upon information and belief, both before and after the year 2000, the Regulators, including the Louisiana Department of Insurance, were aware of substantial and pervasive financial problems with the AmCare HMOs, but failed to take any steps to address and correct those financial problems and protect the policy holders, creditors, shareholders, and general public.
200.
In fact, Regulators, including the Louisiana Department of Insurance, were fully aware of the poor financial condition of the AmCare HMOs, including the millions of dollars in bogus intercompa-ny receivables recorded on the financial statement of the AmCare HMOs.
201.
Upon information and belief, after 1999, the Regulators, including the Louisiana Department of Insurance, had constructive knowledge of facts indicating that no reasonable basis existed for a representation that AmCare HMOs were solvent.
202.
Upon information and belief, the Regulators, including the Louisiana Department of Insurance, in violation of applicable law and regulations, failed to perform an investigation as to the col-lectibility of the bogus intercompany receivables. If the Regulators had performed even the most cursory of investigations during the year 2000, the Regulators would have determined that there was no basis for the intercompa-ny receivables, that the intercompany receivables were uncollectible, and that the AmCare HMOs were insolvent.
203.
ImUpon information and belief, the Regulators, including the Louisiana Department of Insurance, engaged in a pattern of stop gap measures to attempt to keep the AmCare HMOs in business, all of which allowed the continued depletion of the assets of the AmCare HMOs, which breached the duty of care and the duty to enforce the applicable law and regulations owed by the Regulators to the policyholders, creditors, general public, and shareholders.
204.
Instead, in violation of mandatory applicable law and regulations which directed the Regulators to place the Am-Care HMOs into receivership, the Regulators, including the Louisiana Department of Insurance, negligently ignored the declining financial condition of the AmCare HMOs, and negligently permitted the AmCare HMOs to continue to operate to the detriment of the shareholders (including Health Net), creditors, policyholders, and the citizens of the states of Louisiana, Oklahoma and Texas.
205.
Accordingly, the Regulators, including the Louisiana Department of Insurance, negligently enforced and/or negligently failed to enforce applicable law and regulations.
206.
Upon information and belief, the breaches of duty by the Regulators, including the Louisiana Department of Insurance, resulted in significant damages including, but not limited to, the fact the AmCare HMOs were made more deeply insolvent than they might have been had they been placed in receivership, thereby resulting in greater losses to the policyholders, creditors, shareholders (like Health Net) and the general public.
209.
Health Net relied upon the representations made by Louisiana Department of Insurance as to the solvency of Am-Care-LA to its detriment, and is therefore entitled to recovery against Louisiana Department of Insurance for any and all damage it may suffer due to its detrimental reliance.
210.
PRAYER FOR RELIEF ON THIRD PARTY CLAIM
WHEREFORE, in the event Health Net is found liable to the Plaintiffs and the Louisiana Department of Insurance is also found at fault, Health Net prays that the Louisiana Department of Insurance be Innamed herein be [sic] cited to appear and answer, and that upon a final hearing of the cause, judgment be entered for Health Net and against the Louisiana Department of Insurance for indemnity and/or contribution, for damages, for reasonable attorneys’ fees, interest at the applicable rate from the date the original demand was filed against Health Net, costs of court, and for such other and further relief to which Health Net may be entitled. [Emphasis added.]

THE CAUSES OF ACTION

In these appeals, Health Net asserts causes of action against DOI alleging governmental negligence (tort) and detrimental reliance (contract). Obligations arise from contracts or by operation of law. La. C.C. art. 1757. Tort obligations are those that arise by operation of law (without agreement). The general tort law of La. C.C. art. 2315 et seq. is located in Chapter 3 (Of Offenses and Quasi Offenses) of Title V (Obligations Arising Without Agreement) of Book III of the Civil Code. Detrimental reliance obligations arise from La. C.C. art. 1967. Article 1967 was enacted by 1984 La. Acts, No. 331, effective January 1, 1985, and is located in Chapter 5 (Cause) of Title IV (Conventional Obligations or Contracts) of Book III of the Civil Code.

INTERPRETATION OF LAWS

Louisiana Civil Code'article 1967 and Louisiana Civil Code articles 2315, et seq. are the laws (legislation) that pertain to the remaining causes of action alleged in this third party demand. A proper interpretation of these and other pertinent laws is essential to a correct disposition of Health Net’s assignments of error. The following rules of statutory construction are relevant.

La. R.S. 24:177 is entitled “Legislative intent; text, history, and other indices of intent” and provides, in pertinent part, as follows:

112A. When the meaning of a law cannot be ascertained by the application of the provisions of Chapter 2 of the Preliminary Title of the Louisiana Civil Code and Chapter 1 of Title 1 of the Louisiana Revised Statutes of 1950, the court shall consider the intent of the legislature.
B. (1) The text of a law is the best evidence of legislative intent.
C. The legislature is presumed to have enacted an article or statute in light of the preceding law involving the same subject matter and court decisions construing those article or statutes, and where the new article or statute is worded differently from the preceding law, the legislature is presumed to have intended to change the law.

Chapter 2 of the Preliminary Title of the Louisiana Civil Code is entitled “Interpretation of Laws” and is comprised of La. C.C. arts. 9 through 13. Chapter 1 of Title 1 of the Louisiana Revised Statutes is entitled “Interpretation of the Revised Statutes” and is comprised of La. R.S. 1:1 through 17. When construing a law or a constitutional provision, the word “shall” is universally considered to mean mandatory and the word “may” is universally considered to mean permissive (discretionary). La. R.S. 1:3; La. C.C.P. art. 5053; La. C. Cr. P. art. 5; La. Ch. C. art. 7.

Accordingly, the interpretation (construction) of a law or a constitutional provision must start by applying the rules found in the designated provisions of the Civil Code and the Revised Statutes to the language of the law or the constitutional provision at issue. P. Lamonica & J. Jones, 20 La. Civ. Law Treatise, Legislative Law and Procedure, § 7.4, pp. 136-38 (2004), and the authorities cited therein.

Finally, laws on the same subject matter must be interpreted in reference to each other. La. C.C. art. 13; Detillier v. Kenner Reg. Med. Cent., 2003-3259, p. 4 (La.7/6/04), 877 So.2d 100, 103.

THE DETRIMENTAL RELIANCE CAUSE OF ACTION (ASSIGNMENT OF ERROR 1)

Health Net asserts the trial court erred by sustaining DOI’s peremptory | ^exception raising the objection of no cause of action and dismissing its cause of action based on detrimental reliance.

In brief, Health Net asserts the following:

Health Net’s Third Party Claim alleged numerous facts which establish that LDIs [DOI] actions represented to Health Net that it was permissible to sell the Louisiana HMO to AmCareCo, and that the cash payment that Health Net received in conjunction with the sale was legal. Based on this reliance, Health Net sold the Louisiana HMO to AmCareCo, and was paid monies from the Louisiana HMO as part of the cash payment. Later, Health Net was sued by AmCare-LA claiming both that Health Net should not have sold the Louisiana HMO and that the cash payment was improper.
LDI represented, through its conduct of approving all aspects of the financial transactions of the Louisiana HMO, that the transactions were legally permissible (including that the HMO was indeed statutorily solvent). Health Net was entitled to rely on LDI as the regulatory agency responsible for ensuring that insurance companies doing business in Louisiana comply with all applicable laws. Because actions taken by Health Net were approved by LDI, Health Net was entitled to rely on that approval, and to seek damages arising from LDI’s failure to properly perform its regulatory functions. Because approval by LDI served as an indication that the financial transactions involving the Louisiana HMO were lawful under Louisiana law, Health Net’s allegations of justifiable reliance are sufficient. Health Net sold the Louisiana HMO based on the approval by LDI that everything was proper. Now, because of the sale of the Louisiana HMO, Health Net has been found liable for damages that were allegedly caused by the sale. (Citations to the record deleted.)
DOI has responded in brief, in pertinent part, as follows:
The Louisiana codal article which provides for detrimental reliance is La. C.C. art. 1967, which is found in the section of the Louisiana Civil Code governing contractual obligations. As such, a claim of detrimental reliance can only be brought where there was either a contractual or quasi — contractual relationship of some sort.
There is no contractual or quasi-contractual relationship between Health Net and DOI, or indeed any privity between these two entities, as La. C.C. Art. 1967 and the two cases cited by Appellant require. Thus, there is no basis for Health Net to contend that its supposed reliance on any representations made by DOI officials was justified.

The cause of action for detrimental reliance is provided for in La. C.C. art. 1967 as follows:

Art. 1967. Cause defined; detrimental reliance
_L^Cause is the reason why a party obligates himself.
A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying. Recovery may be limited to the expenses incurred or the damages suffered as a result of the promisee’s reliance on the promise. Reliance on a gratuitous promise made without required formalities is not reasonable.

The following are the elements of this cause of action:

(1) the defendant (promisor) made a promise to the plaintiff (promisee);
(2) the defendant knew or should have known that the promise would induce the plaintiff to rely on it to his detriment;
(3) the plaintiff relied on the promise to his detriment;
(4) the plaintiff was reasonable in relying on the promise; and
(5) the quantum of the damages sustained if specific performance is not selected as a remedy.

For an excellent review of the jurisprudential cause of action for detrimental reliance that existed prior to the enactment of Article 1967 see Morris v. Friedman, 94-2808 (La.11/27/95), 663 So.2d 19. The elements of the jurisprudential cause of action were (1) a representation by conduct or work; (2) justifiable reliance thereon; and (3) a change of position to one’s detriment because of the reliance. This language and these elements are substantially different from those of Article 1967. Thus, by analogy, and pursuant to La. R.S. 24:177 C, it must be presumed that the legislature intended to change the “law” with the enactment of Article 1967.

The first element of proof of the Article 1967 detrimental reliance cause of [^action is that a promise was given by the defendant to the plaintiff.

Pursuant to La. C.C. art. 11 “[t]he words of a law must be given their generally prevailing meaning.” (Emphasis added.) Pursuant to La. R.S. 1:3 “[w]ords and phrases shall be read with their context and shall be construed according to the common and approved usage of the language.” (Emphasis added.)

In BLACK’S LAW DICTIONARY 1228-29 (7th ed.1999), the noun “promise” is defined as “[t]he manifestation of an intention to act or refrain from acting in a specified manner, conveyed in such a way that another is justified in understanding that a commitment has been made; a person’s assurance that the person will or will not do something. A binding promise— one that the law will enforce — is the essence of a contract.” (Emphasis added.) In MIRIAM-WEBSTER’S COLLEGIATE DICTIONARY 933 (10th ed.1993), the noun “promise” is defined as “1 a: a declaration that one will do or refrain from doing something specified b: a legally binding declaration that gives the person to whom it is made a right to expect or to claim the performance or forbearance of a specified act.” (Emphasis added.) In H. Johnson, 18 La. Civ. Law Treatise 2d, Civil Jury Instructions, § 19.08, p. 401 (2001), a promise is defined as follows:

A promise is a declaration which binds the person who makes it, either in conscience or law, to do a specific thing, which then gives to the other person a right to expect or claim the performance of that thing. Another definition of a promise is that it is an offer which is definite and certain and which the prom-isor intends to be binding. A promise must be clear and unambiguous in order to be enforceable. The mere expression of an intention is not a promise. (Emphasis added.)

Pursuant to La. C.C. art. 9 “[w]hen a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” (Emphasis added.) Pursuant to La. R.S. 1:4 “[w]hen the.wording of a | ^Section is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit.” (Emphasis added.) The meaning of the noun “promise” in the context it is used in Article 1967 is clear and unambiguous. As a matter of law, the actions and declarations of DOI in following, applying and executing its statutory powers and regulatory functions are not promises for Article 1967 detrimental reliance and public contract purposes. Because there is no promise by DOI in favor of Health Net as a matter of law, Health Net’s claim for detrimental reliance is legally nonexistent. La. C.C.P. art. 923; cf. Oliver v. Cent. Bank, 26,932, pp. 11-12 (La.App. 2 Cir. 5/10/95), 658 So.2d 1316, 1323, writ denied, 95-1469 (La.9/22/95), 660 So.2d 477; Carter v. Humber & Heard, Inc., 95-0142, pp. 3-4 (La.App. 3 Cir. 5/31/95), 657 So.2d 409, 411-12.

This assignment of error is without merit.

THE RIGHT TO A THIRD PARTY DEMAND FOR THE GOVERNMENTAL TORT CAUSE OF ACTION

(ASSIGNMENT OF ERROR 1)

Health Net asserts the trial court erred by sustaining DOI’s peremptory exception raising the objection of no cause of action and dismissing its cause of action based on governmental tort.

In its original brief, Health Net asserts the following:

Health Net’s allegations in the Third Party Demand, which had to be accepted as true in considering the exception of no cause of action, were that LDI [DOI] breached all of these duties by failing to comply with and properly enforce the Louisiana Insurance Code when it failed to adequately monitor the financial stability of the AmCare HMOs. To prove these allegations, Health Net had evidence that LDI failed to take action when AmCare-LA failed to provide CPA audited reports as required by La. R.S. 22:2008(3) for the years 2000 and 2001; LDI failed to take action when the CPA audited report for 1999 warned LDI that AmCare-LA’s was in such poor financial condition it may go out of business in less than 12 months; LDI failed to require AmCare-LA to maintain a minimum of $4 million of capital and surplus; LDI failed to make an examination of the financial affairs of AmCare-LA at least once every three years; LDI failed to suspend or revoke the certificate of authority of AmCare-LA during the years 2000 and 2001 — in spite of the impaired financial condition of the HMO; LDI failed to determine the collectibility of and write down | ^intercompany loans and receivables.
⅜ * *
Similarly, LDI breached its duty through negligent enforcement of the policies and provisions of the Louisiana Insurance Code by failing to adequately monitor the financial state of AmCare-LA. Thus, Health Net’s third party demand stated a cause of action in negligence against LDI, and the trial court erred in sustaining the exception.
Analysis of policy considerations bolsters the finding of a duty here under Louisiana’s duty-risk analysis. Imposing a duty would likely (1) diminish the number of suits filed against LDI, (2) diminish the number of failed insurance companies, and (3) diminish the number of claims by creditors, providers and policyholders if HMOs are timely placed in receivership. By forcing LDI to properly administer the insurance code, insurance companies will be more closely scrutinized, resulting in the protection of policyholders and creditors from financially unstable HMOs that are unable to pay claims, and protecting the general public from the negligent monitoring of the financial condition of Louisiana insurance companies in the future.
⅝ * ⅛
In summary, Health Net pled the following: (1) LDI had a duty to comply with and enforce applicable law and regulations in monitoring the financial stability of the AmCare HMOs; (2) LDI was aware of the financial problems with the AmCare HMOs, but failed to take any steps to correct those problems; (3) LDI was aware of millions of dollars of bogus intercompany receivables recorded on the financial statements of the AmCare HMOs; (4) LDI had constructive knowledge that the AmCare HMOs were insolvent; (5) contrary to law, LDI failed to perform an investigation as to the collectibility of the bogus intercom-pany receivables; (6) LDI permitted the AmCare HMOs to stay in business in violation of the Insurance Code and regulations, thereby allowing the assets of the AmCare HMOs to be depleted; (7) LDI negligently failed to enforce applicable laws and regulations; and (8) the breaches of duty by LDI caused the AmCare HMOs to be more deeply insolvent than they might have been had they been placed in receivership at an earlier date. (Footnotes and references to the record deleted. Emphasis added.)

In a supplemental memorandum Health Net asserts that in its third party demand it has “... sought damages from LDI [DOI] based on negligence and detrimental reliance ... ”, that its “... third party demand clearly stated a cause of action for negligence and detrimental reliance ...” and that it “... does have a right of action to pursue the claims for negligent regulation and detrimental reliance ... 11s(Emphasis added.)

Subsequently in the supplemental memorandum Health Net stated the following:

Furthermore, Health Net’s third party demand against LDI does not involve any actions by LDI in its role as liquidator of AmCare Health Plans of Louisiana, Inc. (“AmCare-LA”). Rather, Health Net’s third-party demand relates to actions that LDI took — or in this case failed to take — prior to the rehabilitation and liquidation of AmCare-LA. Health Net is not objecting to the actions of the Commissioner purportedly in furtherance of the liquidation order. Instead, all of the actions complained of by Health Net occurred prior to the liquidation order. Consequently, the statutory scheme for the rehabilitation and liquidation of insurers does not prohibit Health Net from asserting its claims for damages that occurred prior to the liquidation of AmCare-LA.

The Legal Relations Between Health Net and DOI

These consolidated actions (principal demands) were brought by the Commissioner in his capacity as the liquidator of AmCare-LA. The amended petitions asserted causes of action in tort and contract. Health Net was named one of many parties-defendant. For the governmental tort cause of action AmCare-LA is the plaintiff-obligee and Health Net is a defendant-obligor.

Health Net filed this third party demand against DOI asserting causes of action for governmental tort, detrimental reliance, indemnity and contribution. For these causes of action Health Net is the plaintiff-obligee and DOI is the defendant-obligor.

As previously indicated, during the trial of DOI’s peremptory exception, Health Net conceded that its claims for indemnity and contribution were not valid. These causes of action were dismissed with prejudice in the trial court’s written judgment that dismissed the entire third party demand. Health Net has not assigned or briefed error concerning these two components of the trial court judgment. Uniform Rules-Courts of Appeal, Rule 1-3 and Rule 2-12.4. These judgments are definitive. Cf. La. C.C.P. arts. 2166 and 2167.

liflA third party demand is an incidental demand provided for in La. C.C.P. arts. 1111, et seq. Article 1111 provides, in pertinent part, that “(t)he defendant in a principal action by petition may bring in any person ... who is or may be liable to him for all or part of the principal demand.” (Emphasis added.) Thus, Health Net, as a third party plaintiff-obligee, must allege that DOI, as a third party defendant-obligor, is liable to it (Health Net) for all or part of the principal demand by AmCare-LA against it (Health Net). In this procedural posture, Health Net must allege that as a matter of fact and law DOI and it are co-obligors of AmCare-LA and DOI is liable to it because of this legal relationship. If DOI is not liable to Health Net for all or part of the principal demand as a matter of law, then Health Net has no cause of action for the third party demand.

Obligations with Multiple Persons in General

When an obligation binds more than one obligor to one obligee, the obligation may be several, joint or solidary. La. C.C. art. 1786. When different obligors owe together just one performance to one obligee, but neither is bound for the whole, the obligation is joint for the obligors. La. C.C. art. 1788. When a joint obligation is divi sible, each joint obligor is bound to perform only his portion. La. C.C. arts. 1789 and 1815. An obligation is solidary for the obligors when each obligor is liable for the whole performance. La. C.C. art. 1794. Among solidary obligors, each is liable for his virile portion, and, if the obligation arises from an offense or quasi-offense, a virile portion is proportionate to the fault of each obligor. La. C.C. art. 1804. La. C.C. art. 1805 provides as follows:

A party sued on an obligation that would be solidary if it exists may seek to enforce contribution against any soli-dary co-obligor by making him a third party defendant according to the rules of procedure, whether or not that third party has been initially sued, and whether the party seeking to enforce contribution admits or denies liability on the obligation alleged by plaintiff. (Emphasis added.)

The third party action is customarily used to enforce solidary obligations Lnarising from contribution and indemnity. W. Crawford, 12 La. Civ. Law Treatise, Tort Law, § 8.3, pp. 135-36 (2000). See generally S. Litvinoff, 5 La. Civ. Law Treatise, Obligations, §§ 7.23, 7.61, 7.66 and 7.78, pp. 127-28, 142-43, 140-50 and 165-66 (2001).

Obligations with Multiple Tort Obligors

In paragraph 195 of its third party demand, Health Net avers that the third party demand-“is asserted in the alternative in the event that Health Net is found liable for damages to the Plaintiffs and the third party defendant is also found at fault.” Subsequent allegations assert that DOI “negligently enforced and/or negligently failed to enforce applicable law and regulations,” this negligent conduct “resulted in significant damages including, but not limited to, the fact the AmCare HMOs were made more deeply insolvent than they might have been had they been placed in receivership, thereby resulting in greater losses to” Health Net and prayed that “in the event Health Net is found liable to the Plaintiffs and the Louisiana Department of Insurance is also found at fault judgment be entered for Health Net and against the Louisiana Department of Insurance for ... damages.” The essence of these pleadings is that the negligence of DOI aggravated the damages caused by the alleged fault of Health Net and DOI and Health Net are co-obligors for purposes of the third party demand.

The legal relations between DOI and Health Net as co-obligors for governmental tort liability are provided for in La. C.C. arts. 2323 and 2324. La. C.C. art. 2323 provides as follows:

A. In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person’s insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person’s identity is not known or reasonably ascertainable. If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.
B. The provisions of Paragraph A shall apply to any claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability.
C. Notwithstanding the provisions of Paragraphs A and B, if a person suffers injury, death, or loss as a result partly of his own negligence and partly as a result of the fault of an intentional tort-feasor, his claim for recovery of damages shall not be reduced. (Emphasis added.)

Louisiana Civil Code article 2324 provides as follows:

A. He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.
B. If liability is not solidary pursuant to Paragraph A, then liability for damages caused by two or more persons shall be a joint and divisible obligation. A joint tortfeasor shall not be liable for more than his degree of fault and shall not be solidarity liable with any other person for damages attributable to the fault of such other person, including the person suffering injury, death, or loss, regardless of such other person’s insolvency, ability to pay, degree of fault, immunity by statute or otherwise, including but not limited to immunity as provided in R.S. 23:1032, or that the other person’s identity is not known or reasonably ascertainable.
C.Interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors. (Emphasis added.)

In Dumas v. State, Dep’t of Culture, Recreation & Tourism, 2002-0563 (La.10/15/02), 828 So.2d 530, the decedent received a large laceration to his scalp when he hit a pothole and crashed on a park road while riding his bicycle. He went to a local hospital where he received medical treatment but died several hours later. His wife and children filed wrongful death and survival actions against the State asserting governmental tort negligence. The State filed an answer which included \^gn affirmative defense alleging that the fault of third parties at the hospital was a cause of the decedent’s death for which the State was not jointly liable. At Dumas, 2002-0563, pp. 11-12 and 15, 828 So.2d at 537 and 539, the Louisiana Supreme Court construed La. C.C. arts. 2323 and 2324 and defined the legal relations of the State and the third party co-obligor hospital as follows:

We find the language of Articles 2323 and 2324(B), as amended by Act 3, is clear, unambiguous, and does not lead to absurd consequences. Article 2323 provides that “[i]n any action for damages ..., the degree of percentage of fault of all persons causing or contributing to the injury, death or loss shall be determined, regardless of whether the person is a party to the action or a nonparty.... The [foregoing] provisions ... shall apply to any claim ... asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability.” (Emphasis added.) Thus, this article clearly requires that the fault of every person responsible for a plaintiffs injuries be compared, whether or not they are parties, regardless of the legal theory of liability asserted against each person.
Likewise, the language of Article 2324(B) is equally clear. It provides that in non-intentional cases, liability for damages caused by two or more persons shall be a joint and divisible obligation. Each joint tortfeasor shall not be liable for more than his degree of fault and shall not be solidarily liable with any other person for damages attributable to the fault of that other person. This provision abolishes solidarity among non-intentional tortfeasors, and makes each non-intentional tortfeasor liable only for his own share of the fault, which must be quantified pursuant to Article 2323.
The factfinder in the instant case is required to determine the percentage of fault of all persons causing injury to plaintiffs. ' If the factfinder concludes that plaintiffs’ damages were caused by more than one person, then each joint tortfeasor is only liable for his degree of fault and cannot be held solidarily liable with another tortfeasor for damages attributable to that other tortfeasor’s fault. The State in this case is therefore entitled to present, as an affirmative defense, evidence relating to the fault of another person it believes caused injury to plaintiffs. Consequently, we find that plaintiffs’ motion to strike the State’s amended answer on the basis that it is immaterial, irrelevant, and insufficient should be denied. (Footnotes deleted. Emphasis added.)

See also Hamway v. Braud, 2001-2364 (La.App. 1 Cir. 11/8/02), 838 So.2d 803. The liability for damages of negligent co-obligors is joint and divisible. Pursuant to La. C.C. art. 2324 B, such co-obligors are not liable in solido with anyone and | ^each pays only in accordance with the share of fault attributed to him. H. McMahon & A. Rubin, 10 Code of Civil Procedure — Pleadings and Judicial Forms Annotated (1996), 2007 Cumulative Annual Pocket Part, W. Crawford, Commentary (preceding Form 311); The Revision of Tort Law by the Extraordinary Session of 1996, pp. 20-21 (2006); H. Johnson, 18 La. Civ: Law Treatise, Civil Jury Instructions, §§ 15.01 and 15.02, pp. 330-34 (2d ed.2001).

Pursuant to La. C.C.P. art. 1111, a third party plaintiff must allege and prove that a third party defendant is liable to him for all or part of the principal demand to be successful.

Health Net alleges that DOI is liable to it for damages for the non-intentional fault of negligence. Pursuant to Louisiana Civil Code articles 2323 and 2324 and the jurisprudence interpreting them, this claim is without conceptual foundation as a matter of law. Each co-obligor in a joint and divisible obligation involving negligence only pays that portion of the plaintiffs damages which corresponds to the percentage of negligence attributed to that co-obligor. If a co-obligor is not a party to the principal demand, as in the instant case, the percentage of negligence of the co-obligors who are parties to the principal demand will be reduced by the amount of negligence assigned to the non-party co-obligor; no damage award can be paid directly to a co-obligor like Health Net when the obligation is joint and divisible.

Very simply, based on the facts alleged DOI is not liable to Health Net for all or part of the principal demand as a matter of law, and accordingly, Health Net has alleged no cause of action for the third party demand.

The Affirmative Defense of Division

An obligation is divisible when the object of the performance is susceptible to division. La C.C. arts. 1815 and 1817. The remedy (plea) of division requires the obligee to divide his claim against obligors and collect it as if each of the |24obligors was liable only for his virile portion., Central Bank v. Winn Farmers Co-Operative, 299 So.2d 442, 445 (La.App. 2 Cir.1974), writ refused, 302 So.2d 310 (La.1974). Division is an affirmative defense provided for in La. C.C.P. art. 1005. Pursuant to La. C.C.P. art. 1003, the defendant’s answer “shall set forth all affirmative defenses as required by Article 1005.” The Du-ma s case recognized that the division as provided for in La. C.C. art. 2324 B properly can be set forth as an affirmative defense.

Health Net’s twenty-first affirmative defense in its answer provides as follows:

Recovery, if any, by Plaintiffs should be barred or reduced by the proportionate fault of (1) Plaintiffs, (2) other defendants and/or (3) third parties to the extent said parties caused or contributed to the alleged acts, events, incidents or happenings, and the alleged injuries or damages..

See also affirmative defenses eleven and thirty-nine. These pleadings are pleas for division.

Finally, La. C.C.P. art. 1005 provides, in pertinent part, that, “(i)f a party has mistakenly designated an affirmative defense as an incidental demand, ... the court, on such terms as it may prescribe,. shall treat the pleading as if there had been a proper designation.” A third party demand is an incidental demand. La. C.C.P. art. 1031. Pursuant to the authority of Article 1005, we shall treat the allegations of Health Net’s third party demand as a plea for division and order its consideration referred to the merits.

Although the trial court correctly dismissed this pleading as a third party demand, it committed error by failing to comply with Article 1005 by not designating the allegations of governmental tort as an affirmative defense. Accordingly, the judgment dismissing the third party demand for governmental tort with prejudice is amended to provide that the dismissal is without prejudice.

| ^REMAND TO ALLOW AMENDMENT (ASSIGNMENT OF ERROR 2)

Health Net asserts “[t]he trial court erred in not allowing Health Net a period of time to amend its third party demand against the Louisiana Department of Insurance to state a cause of action for damages based on negligence and detrimental reliance” citing La. C.C.P. art. 934 and the jurisprudence construing it.

The judgment of the trial court sustaining the objection of no cause of action to the detrimental reliance claim has been affirmed because “[•ajs a matter of law, the actions and declarations of DOI in following, applying and executing its powers and regulatory functions are not promises for Article 1967 detrimental reliance and public contract purposes.” Accordingly, pursuant to La. C.C.P. art. 934, the ground for the objection cannot be removed by amendment and this claim was properly dismissed.

In the third party demand for governmental tort, Health Net asserts that DOI was negligent. In this factual posture, the legal relationship between them as co-obli-gors is provided for in La. C.C. art. 2324 B and it is a joint and divisible obligation.

Pursuant to La. C.C. art. 2324 A, if an intentional or willful tort is committed involving co-obligors, the legal relationship between them is a solidary obligation. When there is a solidary obligation, each co-obligor is liable for the whole performance and for his virile share and each co-obligor may enforce contribution from other co-obligors in a third party demand. La. C.C. arts. 1804 and 1805. In this procedural posture, the third party defendant co-obligor is liable to the third party plaintiff co-obligor for the purposes of a third party demand.

In the instant case, Health Net conceded that it was not entitled to contribution for third party demand purposes. Implicit in this concession is that the legal relationship between it and DOI as co-obligors does not involve a solidary \ ^obligation. If the relationship does not involve a soli-dary obligation for co-obligors, it is not based on an intentional or willful act as provided for in La. C.C. art. 2324 A.

The judgment that dismissed the contribution claim extinguished “all causes of action existing at the time of final judgment arising out of the transaction or occurrence that [was] the subject matter” of the contribution cause of action alleged in the petition of the third party demand. La. R.S. 13:4231(2). This judgment extinguished the claim for an intentional or willful governmental tort cause of action and it is now definitive. Accordingly, as a matter of law the petition for the governmental tort cause of action against DOI in the third party demand can not be amended to state a cause of action by alleging a willful or intentional act.

This assignment is without merit.

DECREE

For the foregoing reasons, the judgment of the trial court dismissing the third party demand asserting the detrimental reliance cause of action with prejudice is affirmed; the judgment of the trial court dismissing the third party demand asserting the governmental tort cause of action with prejudice is amended to provide that the dismissal is without prejudice, and, as amended, is affirmed; and it is ordered that the allegations of Health Net’s third party demand petition insofar as they pertain to a governmental tort cause of action shall be retained as an affirmative defense and construed as a plea for division to be considered on the merits.

Health Net is cast for the cost of this appeal.

AFFIRMED AS AMENDED WITH ORDER.

      . AmCare-LA and the other AmCare entities were health maintenance organizations (HMOs) licensed in their respective states.

      .In brief, Health Net stated that “Health Net conceded that, under the law as it presently exists, it had no claims of indemnity and contribution....” No assignment of error has been asserted concerning the indemnity and contribution rulings. This judicial confession constitutes full proof against Health Net as to these claims. La. C.C. art. 1853; F. Maraist, 19 La. Civ. Law Treatise, Evidence and Proof, § 4.5, pp. 61-62 (1999).

      . See F. Maraist & H. Lemmon, J La. Civ. Law Treatise, Civil Procedure, § 6.7(2), pp. 122-27 (1999).

      . The objection of no cause of action does not address (1) who may assert the cause of action (no right of action), La. C.C.P. art. 927 A(5); (2) whether the cause of action has accrued (prematurity), La. C.C.P. arts. 423 and 926 A(l); or (3) whether the cause of action has been extinguished by an affirmative defense, La. C.C.P. art. 1005.

      . Paragraphs 207 and 208 of the third party demand pertaining to the indemnity and contribution causes of action have been omitted.

      . The 'D & O Defendants’ refers to certain individuals who served as directors and/or owners of the HMOs and who were named as defendants in the petition in one of the consolidated actions. No claims as to these individuals are at issue in this appeal.

      . These persons were- named as defendants in the petition filed in one of the consolidated actions. No claims as to these individuals are at issue in this appeal.

      . The general effects of an obligation are provided for in La. C.C. art. 1758.

      . The sources of law are legislation and custom. La. C.C. art. 1. Legislation is a solemn expression of legislative will. La. C.C. art. 2. (It is not the solemn expression of executive or judicial will.) Custom may not abrogate legislation. La. C.C. art. 3. A court may proceed according to equity only when no rule for a particular situation can be derived from legislation or custom. La. C.C. art. 4; Morris v. Friedman, 94-2808, p. 8 (La.11/27/95), 663 So.2d 19, 26.

      . La. C.C. art. 1967 Revision Comments— 1984 (e). Magic Moments Pizza v. Louisiana Rest. Assoc., 2002-0160, p. 4 (La.App. 5 Cir. 5/29/02), 819 So.2d 1146, 1149; Dugas v. Guillory, 97-0398, pp. 9-11 (La.App. 3 Cir. 10/7/98), 719 So.2d 719, 724-725; Schell v. NK Enters., Inc., 96-0362, pp. 3-4 (La.App. 5 Cir. 1/15/97), 688 So.2d 68, 71; Academy Mortgage Co. v. Barker, Boudreaux, Lamy, & Foley, 96-0053, pp. 3-4 (La.App. 4 Cir. 4/24/96), 673 So.2d 1209, 1211-12; Morris v. People’s Bank & Trust Co. of Natchitoches, 580 So.2d 1029, 1036 (La.App. 3 Cir.1991), writ denied, 588 So.2d 101, 102 (La.1991); H. Johnson, 18 La. Civ. Law Treatise 2d, Civil Jury Instructions, § 1908, pp. 400-02 (2001); S. Herman, Detrimental Reliance in Louisiana Law — Past, Present and Future (?): The Code Drafter’s Perspective, 58 TUL. L. REV. 707, 717-21 (1984).

      . The various statutes and regulations cited by Health Net refer to the Commissioner who is not a party to the third party demand; the statutes and regulations do not refer to DOI who is a party to this third party demand. DOI is a body corporate with the power to sue or be sued. La. R.S. 36:681 A. Accordingly, it is an entity to which the law attributes personality and is a juridical person within the purview of La. C.C. art. 24. See also Revision Comments — 1987(c) and (d) for Article 24. The existence of DOI as a juridical person is separate and distinct from that of the Commissioner as a natural person (a human being) who has a private capacity and a public capacity. This does not affect Health Net’s cause of action because pursuant to La. R.S. 36:681 B DOI “shall be responsible for performing the functions of the commissioner of insurance and such other functions as are provided by law.”

      . Articles 2323 and 2324 are implemented by La. C.C.P. art. 1812 C.


source: Caselaw Access Project

author: CARTER, C.J. McDONALD, J.,

license: Public Domain

text:
    Jamie Michele PINEGAR v. Bradley Falcon HARRIS.
    No. 2006 CU 2489.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 2007.
    Dissenting Opinion of Justice McDonald, May 16, 2007.
    Rehearing Denied July 17, 2007.

      David R. Paddison, Yvonne Chalker, Covington, La., for Plaintiffi'Appellee, Jamie Michele Pinegar.
    Deborah P. Gibbs, Baton Rouge, La., Margaret H. Kern, Covington, La., for Defendant/Appellant, Bradley Falcon Harris.
    Before: CARTER, C.J., WHIPPLE and MCDONALD, JJ.
   CARTER, C.J.

12This is a child custody dispute. The father, Bradley Falcon Harris, appeals the Twenty-Second Judicial District Court judgment of September 12, 2006, maintaining joint custody of the minor child but modifying the custody schedule and designating the mother, Jamie Michelle Pine-gar, as the domiciliary parent. Ms. Pine-gar answers the appeal. We affirm.

Appellate Motions

Mr. Harris sought leave of this court to attach to his appellate brief items filed into evidence during the present proceeding, as well as matters filed ih the matter of “Jamie Michele Pinegar v. Bradley Falcon Harris,” Nineteenth Judicial District Court, docket number 145,715. Ms. Pinegar filed a motion to strike the exhibits and references thereto within Mr. Harris’s brief.

Pursuant to LSA-C.C.P. art. 2164, an appellate court must render its judgment upon the record on appeal. An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. Guedry v. Fromenthal, 633 So.2d 287, 289 (La.App. 1 Cir.1993). For this reason, an appellate court cannot consider exhibits attached to an appellate brief that were not filed into evidence at trial. United General Title Insurance Co. v. Casey Title, Ltd., 01-600 (La.App. 5 Cir. 10/30/01), 800 So.2d 1061, 1065.

This court also is precluded from taking judicial notice of a suit record from another court. Union Planters Bank v. Commercial Capital Holding Corp., 04-0871 (La.App. 1 Cir. 3/24/05), 907 So.2d 129, 130. Louisiana Code of Evidence article 202 provides for mandatory judicial notice of federal and state laws and certain ordinances. Article 202 also provides for notice of various legal matters, when requested by a party and with proper documentation. ' Although a court may take judicial notice of its Own proceedings, Article 202 does not allow courts to take judicial notice of other courts’ proceedings. Documentation of other courts’ proceedings must be offered into evidence in the usual manner. United General, 800 So.2d at 1065.

For the above-stated reasons, the motion to attach exhibits to Mr. Harris’s appellate brief is denied. Exhibits A-C, FK, M, and O-R arise from litigation in a separate suit record, number 145,715 in the Nineteenth Judicial District Court. The remaining exhibits (D, E, L, and N) are part of the present appellate record, making their attachment as exhibits unnecessary. To the extent Mr. Harris’s brief references items not part of the record on appeal, the motion to strike filed by Ms. Pinegar is granted.

Facts and Procedural History

Mr. Harris and Ms. Pinegar are the parents of a preschool age daughter. The couple never married. Offered and accepted into evidence during the hearing on the rule to modify custody were three earlier consent judgments entered in the Nineteenth Judicial District Court, East Baton LRouge Parish, under docket number 145,715. The judgments were signed September 2, 2003; May 16, 2005; and April 26, 2006. The consent judgments reflect that the parents have shared physical custody of the child, in alternating weeks, since her birth. Neither parent is named as the domiciliary parent.

Ms. Pinegar and her child live alone in St. Tammany Parish. Before that, the two resided in New Orleans. In the fall of 2006, Ms. Pinegar was beginning her second year of teaching in the St. Tammany Parish School System. While with her mother in St. Tammany Parish, the child attends St. Michael’s Episcopal School prekindergarten. The child’s pediatrician and therapist also are located in St. Tammany Parish. Mr. Harris does not know the name of the child’s pediatrician, and he has never visited the child’s classroom or met her teacher in St. Tammany Parish.

When with her father in Baton Rouge, the child resides with her father and his brother. Prior to the fall of 2006, when with her father, the child attended a part-time preschool program in Baton Rouge. Her paternal grandmother was primarily responsible for getting her to and from her Baton Rouge preschool and for staying with the child while her father was at work. In the spring of 2006, Mr. Harris registered the child for a full-time preschool program in Baton Rouge. Mr. Harris registered the child without Ms. Pinegar’s consent and knowing that Ms. Pinegar objected to his actions. When Ms. Pinegar spoke with the teacher in her daughter’s new school, she learned that, although listed as the child’s mother, her contact information had not been provided to the school.

|5On May 26, 2006, Ms. Pinegar filed the present rule to modify custody and support in St. Tammany Parish. The rule was set for a hearing on July 25, 2006. On July 20, 2006, Mr. Harris moved to continue the hearing. That same date, Mr. Harris filed an exception raising the objections of insufficiency of service of process, improper venue, res judicata, and no cause of action. A hearing on the exception and the rule to modify custody was held on August 22, 2006.

During the hearing, the court heard testimony from Mr. Harris, Mr. Lawrence Harris (the paternal grandfather), and Ms. Pinegar. The court overruled all of the objections raised in Mr. Harris’s exception. In particular, the district court ruled that venue was proper in St. Tammany Parish. Following the ruling on the exception, Mr. Harris indicated his desire to seek supervisory review of the district court’s denial of his exception raising an objection to venue. Mr. Harris would not agree to an interim order regarding custody pending the resolution of the writ application. Mr. Harris also would not agree to a custody evaluation under LSA-R.S. 9:331.

Accordingly, at the end of the hearing on the rule to modify custody, the trial court rendered its judgment. Although the parents would continue to share joint custody, the alternating week schedule was discontinued. Mr. Harris would enjoy custody of his child every other weekend, from Thursday through Sunday until the child started kindergarten, and a holiday schedule also was put in place. Ms. Pine-gar was named as the domiciliary parent. A written judgment was signed on September 12, 2006.

[ judgment of September 12, 2006

Venue

Following the denial of his declina-tory exception raising an objection to venue in St. Tammany Parish, Mr. Harris immediately sought supervisory review with this court. On October 20, 2006, this court denied writs, making the following statement: “St. Tammany Parish is a parish of proper venue pursuant to the provision of La. C.C.P. art. 74.2 B, as there has been no designation of domiciliary status and both parties have custody.” One judge dissented, noting “[t]he only proper venue for this ongoing litigation is in the East Baton Rouge Parish Family Court.” Pinegar v. Harris, 06-2035 (La.App. 1 Cir. 10/20/06) (not designated for publication), writ denied, 06-2749 (La.11/21/06), 942 So.2d 544. On appeal, Mr., Harris asks this court to evaluate whether St. Tammany Parish was a proper venue for Ms. Pinegar’s rule to modify custody.

A proceeding for change of custody may be brought in the parish where the person awarded custody is domiciled or in the parish where the custody decree was rendered. LSA-C.C.P. art. 74.2 B. Comment (c) of the 1983 comments to Article 74.2 provides: “Venue for a proceeding for change of custody would be the parish where the person awarded custody is domiciled or where the original decree was rendered because both courts would be familiar with the circumstances of the case and could rule in the best interest of the minor.”

17At the time Ms. Pinegar filed her rule to modify custody, the parents had been awarded joint custody, and neither parent was declared to be the domiciliary parent. A plain reading of LSA-C.C.P. art. 74.2 B shows that, under the facts of this case, venue was proper in either East Baton Rouge Parish or in St. Tammany Parish.

Louisiana Code of Civil Procedure article 74.2 E provides a defendant with a procedure to challenge venue. In evaluating such a challenge, the district court has great discretion to decide which of the several proper venues is more appropriate when considering the convenience of the parties and the witnesses and the interest of justice. See Addington v. McGehee, 29,729 (La.App. 2 Cir. 8/20/97), 698 So.2d 702, 705. When exercising its discretion, the court always should be mindful of whether it has access to the relevant information pertinent to a determination of the overriding concern in all child custody disputes — the best interest of the child.

Under the facts of this case, we find no error in the trial court’s conclusion that St. Tammany Parish was a proper venue for Ms. Pinegar’s rule to modify custody. We further find the trial court did not abuse its vast discretion in declining to transfer the custody proceeding to East Baton Rouge Parish.

Is No Cause of Action

When a custody decree is, as herein, a stipulated or consensual judg-merit, a party seeking modification of custody must prove that there has been a material change in circumstances since the decree, as well as prove that the proposed modification is in the best interest of the child. Shaffer v. Shaffer, 00-1251 (La.App. 1 Cir. 9/13/00), 808 So.2d 354, 356-357, writ denied, 00-2838 (La.11/13/00), 774 So.2d 151. Mr. Harris maintains Ms. Pinegar’s rule to modify custody and support failed to state a cause of action in that the petition fails to allege a change in circumstances materially affecting the welfare of the child.

In her rule to modify custody, Ms. Pine-gar stated that since the previous custody decree was rendered in East Baton Rouge Parish, Hurricane Katrina had caused chaos and destruction. She and the child had been residing in St. Tammany Parish for over six months, and she had obtained employment with the St. Tammany Parish School System. Ms. Pinegar alleged that she and Mr. Harris had been unable to discuss or amicably resolve custody issues, in particular regarding Mr. Harris’s demands that she and the child return to East Baton Rouge Parish. Ms. Pinegar stated that Mr. Harris rarely effectuates visitation by himself, as his parents usually assist him. Finally, Ms. Pinegar indicated that the child and Mr. Harris are seeing a therapist in St. Tammany Parish.

Because the peremptory exception raising the objection of no cause of action raises a question of law and the trial court’s decision is based only on the sufficiency of the petition, an appellate court conducts de novo review. Ramey v. DeCaire, 03-1299 (La.3/19/04), 869 So.2d 114, 119. The only Rissue at the trial of the peremptory exception raising the objection of no cause of action is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Well-pleaded allegations of fact are accepted as true. See Ramey, 869 So.2d at 118. After a novo review and accepting the facts pled in the petition as true, we conclude that the trial court correctly denied the peremptory exception raising the objection of no cause of action. Ms. Pinegar’s rule to modify custody and support states a cause of action.

Custody and Domiciliary Parent Status

Every child custody case must be reviewed within its own peculiar set of facts and circumstances. R.J. v. M.J., 03-2676 (La.App. 1 Cir. 5/14/04), 880 So.2d 20, 23. The trial court’s factual determinations cannot be set-aside in the absence of manifest error or unless those findings are clearly wrong. See Elliott v. Elliott, 05-0181 (La.App. 1 Cir. 5/11/05), 916 So.2d 221, 226-227, writ denied, 05-1547 (La.7/12/05), 905 So.2d 293. Furthermore, the trial court’s determination of custody is entitled to great weight and will not be reversed on appeal unless an abuse of discretion is clearly shown. R.J., 880 So.2d at 23.

We find no abuse of discretion in the trial court’s judgment modifying custody and designating Ms. Pinegar as the domiciliary parent.

Conclusion

Following a thorough review, we conclude the record does not demonstrate that the judgment of the trial court is legally incorrect or clearly wrong, or that the trial court abused its discretion in resolving these matters. The judgment of the district court is affirmed, and all costs associated with this appeal are assessed to appellant, Bradley Falcon Harris. This | mmemorandum opinion is issued in accordance with Uniform Rules — Courts of Appeal, Rule 2-16.1 B.

MOTION TO ATTACH EXHIBITS TO APPELLATE BRIEF DENIED; MOTION TO STRIKE GRANTED; ANSWER TO APPEAL DISMISSED; JUDGMENT AFFIRMED.

MCDONALD, J., agrees in part and dissents in part and will assign reasons.

McDONALD, J.,

Agreeing in part and dissenting in part.

hi agree with the majority in denying the motion to attach exhibits to the appellate brief, granting the motion to strike, and dismissing the answer to the appeal. However, I disagree with the majority’s opinion to affirm the judgment. I believe that the case of St. Amant v. St. Amant, is not distinguishable from the facts of this case and is controlling. Thus, venue was not proper in St. Tammany Parish. In interpreting La.Code Civ. P. art. 74.2 the St. Amant court addressed the exact same joint custody situation as found here.

“We note at least the possibility of an argument that Article 74.2 speaks of “the person awarded custody,” and that in a joint custody situation either parent could claim custody for venue purposes. We dismiss the merits of such an argument because Article 74.2 in speaking of venue uses the singular in referring to “the parish where the person awarded custody is domiciled.” The legislature obviously meant one parish and one person. The one person in a joint custody circumstance would obviously be the domiciliary parent, as is Mrs. St. Amant.” St. Amant v. St. Amant at 1315.

Thus, in the present situation, where there is joint custody but no domiciliary parent, there would only be one appropriate venue, the parish where the custody decree was rendered. That would be East Baton Rouge Parish rather than St. Tammany Parish.

For these reasons I respectfully dissent as to that part of the opinion affirming the judgment.

      . Although Ms. Pinegar answered the appeaf no relief was requested, and no assignment of error was briefed. Therefore, the answer to the appeal is dismissed.

      . Clearly, counsel for Mr. Harris recognizes certain exhibits are not part of the record. In the motion to attach the exhibits, counsel states: "The issue of proper venue ... requires a review of the history of this proceeding in the Family Court of East Baton Rouge Parish, which is not part of this record.” And in the appellant’s brief, there is the following statement: "The statement of this case must include the history of the case in Baton Rouge, which, although not a part of the record in this case, is essential to Appellant's claim of error.”

      . The judgment signed May 16, 2005, reduces to writing a judgment rendered September 17, 2004. The delay in the signing of the written judgment is unexplained.

      . It is undisputed that Ms. Pinegar is domiciled in St. Tammany Parish.

      . As originally drafted, the "custody decree” referenced in LSA-C.C.P. art. 74.2 B was limited to the "original” custody decree. The qualifier "original” was deleted from Article 74:2 B by 1987 La. Acts No. 417, § 1.

      . This case is clearly distinguishable from the holding in St. Amant v. St. Amant, 564 So.2d 1312 (La.App. 1 Cir.1990), writ denied, 567 So.2d 622 (La.1990). St. Amant stands for the proposition that when there is joint custody and a domiciliary parent has been named, the parish of the domiciliary parent and the parish of the custody decree are proper venues under LSA-C.C.P. art. 74.2 B. We decline to extend that holding beyond the situation presented in St. Amant. Unlike St. Amant, at the time Ms. Pinegar filed her rule to modify custody, although the parties shared joint custody, neither parent was named as domiciliary parent. Moreover, the existing custody decree herein was not incidental to a divorce proceeding, as the couple was never married.


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    Monica Ray FRANQUES, Wife of/and Gene Harold Franques v. Larry JONES, Gulf States Intermodal, Inc., Boasso America Corporation, Reliance National Indemnity Company, Victor Hogan, National Union Fire Insurance Company of Louisiana, and State Farm Mutual Automobile Insurance Co.
    Nos. 2006-CA-1177, 2006-C-0694.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 9, 2007.

      Jerome M. Volk, Jr., Michael E. Escudier, D’Aquila, Volk, Mullins & Contreras, Kenner, LA, for Plaintiffs/Appellants Monica Ray Franques, Wife of/and Gene Harold Franques.
    Michael J. Remondet, Jr., Jeansonne & Remondet, Lafayette, LA, for TIG Insurance Company.
    Valerie T. Schexnayder, Stephanie L. Cook, deLaup Schexnayder & Miranda, LLC, Metairie, LA, for Defendant/Appel-lee, Lumbermens Mutual Casualty Insurance Company.
    Shelley Hammond Provosty, Montgomery, Barnett, Brown, Read, Hammond & Mintz, L.L.P., New Orleans, LA, for Defendant/Appellants, Larry Jones, Gulf States Intermodal, Inc., Boasso America Corporation, Reliance National Indemnity Company and Louisiana Insurance Guaranty Association.
    Paula M. Wellons, Desiree W. Adams, Taylor, Wellons, Politz & Duhe, APLC, New Orleans, LA, for Defendant/Appellant’s Larry Jones, Gulf States Intermodal, Inc. and Boasso America Corporation.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY and Judge EDWIN A. LOMBARD).
   JOAN BERNARD ARMSTRONG, Chief Judge.

| T Defendants/appellants, Larry Jones, Gulf States Intermodal, Inc. (“Gulf States”), Boasso America Corp. (“Boasso”), TIG Insurance Company (“TIG”), Reliance National Indemnity Co. (In Receivership) (“Reliance”), and the Louisiana Insurance Guaranty Association (“LIGA”), appeal the May 8, 2006, granting of a summary judgment in favor of Lumbermens Mutual Insurance Company (“Lumbermens”) finding that the commercial automobile policy issued by Lumbermens to Burger King Corporation (“Burger King”) did not provide uninsured motorist coverage for an accident in which the plaintiff, Gene Franques, was injured while riding as a passenger in a vehicle owned and driven by Victor Hogan.

The appellants claim that the Lumber-mens policy provides uninsured motorist coverage for the accident. At the time of the accident, Franques was employed by Burger King and in connection with that employment he was training | aemployees of a Burger King franchise owned by RST Investments (“RST”) and was taking part in a training session with Victor Hogan, an employee of RST. At the time of the accident, plaintiff was a guest passenger. in Hogan’s vehicle for the purpose of traveling from one RST Franchise to another for training sessions. It is undisputed that the plaintiff, Franques, was in the course and scope of his employment with Burger King at the time of the accident.

The accident occurred when the Hogan vehicle collided with a truck driven by Larry Jones while in the course and scope of Jones’ employment with Gulf States. Gulf states is owned by Boasso. Reliance was the liability insurer for Gulf States and Boasso and by extension, Larry Jones. TIG is the . excess insurer for Gulf States/Boasso and by extension, Jones. Hogan’s vehicle in which Franques was riding as a passenger was insured by National Union. Franques had personal uninsured/underinsured coverage with State Farm Mutual Automobile Company.

The aforementioned May 8, 2006 judgment also denied cross motions for summary judgment filed by the appellants, Larry Jones, Gulf States, Boasso and LIGA. TIG filed a brief in support of the appeal of Larry Jones, Gulf States, Boasso and Reliance.

Although the overarching question raised in this appeal is whether the Lum-bermens policy is required to provide UM coverage to the plaintiffs in connection with this accident, the threshold question before this Court is whether Burger King executed a valid Uninsured Motorist rejection form in connection | swith the commercial automobile policy issued by Lumber-mens to Burger King. For the reasons hereinafter set forth we find that it does.

We review summary judgments de novo. Whether an insurance policy provides or precludes coverage, as a matter of law, can be resolved within the framework of a Motion for Summary Judgment. Gautreaux v. Dufrene, 04-970 (La.App. 5 Cir. 1/11/05), 894 So.2d 385. If the rejection of UM coverage is unambiguous, but not in proper form, it is ineffective. Dibos v. Bill Watson Ford, 622 So.2d 677 (La.App. 4 Cir.1993); Moyles v. Cruz, 96-0307 (La.App. 4 Cir. 10/16/96), 682 So.2d 326, 329. The defendants take the position that the expression of the intent to reject UM coverage must meet certain formal requirements which were not met in the instant case. Dyess v. American Nat. Property and Cas. Co., 03-1971, p. 8 (La.App. 1 Cir. 6/25/04), 886 So.2d 448, 453; Richardson v. Lott, 03-0189 at p. 8 (La.App. 1 Cir. 11/7/03), 868 So.2d 64, 71. See also Cohn v. State Farm Mut. Auto. Ins. Co., 03-2820 (La.App. 1 Cir. 2/11/05), 895 So.2d 600, 602; Lee v. Naquin, 05-606 (La.App. 5 Cir. 2/3/06), 924 So.2d 250, 253.

The appellants contend that the UM rejection form is invalid because it fails to provide accurate information regarding the selection of lower limits, and in particular it fails to specifically list the lowest legally permissible amount of coverage of $10,000.00 per person as well as failing to note a $20,000 minimum per occurrence. The appellants argue that Burger Bang could not make an informed decision on rejecting coverage in the absence of this information. They base this contention on that portion of the Lumber-mens/Burger King UM rejection form which states that:

|4The available limits for Uninsured Motorist Coverage Bodily Injury Liability (including Underinsured Motorist Insurance) are as follows:
$25,000
$50,000
$100,000
$250,000
$350,000
$550,000
$1,000,000 THESE LIMITS ALSO APPLY TO HIRED AND NON-OWNED AUTOMOBILES IF APPLICABLE

However, immediately preceding this portion of the form in compliance with the statutory requirement is the statement:

As required by Louisiana law your policy has been issued with Uninsured Motorists Coverage at limits equal to your bodily injury liability limits. You may choose to select lower or higher limits.

This UM rejection form was signed by the Burger King representative and dated July 1, 1998.

Additionally, the Lumbermens policy contains “UNINSURED AND UNDER-INSURED MOTORIST COVERAGE AMENDATORY ENDORSEMENT # 4”, which provides that:

For all states, where permitted to do so, the Insured has elected to reject Uninsured and/or Underinsured Motorists Coverage. In those states where the rejection of coverage is not permitted, the lowest permissible coverage limit applies.

| ¿Kathleen Davies, the Burger King Director of Insurance and Claims at the time the UM rejection form was executed, testified in her deposition that it had always been the policy of Burger King to reject UM coverage.

Robert Roark, the current Burger King Director of Insurance and Claims testified to the same effect.

The binder which anticipated the Lum-bermens policy in question stated that:

For all states where permitted to do so, the Insured has elected to reject uninsured and/or underinsured motorists coverage.

The defendants do not dispute Lumber-mens’ contention that Burger King intended to reject UM coverage. Indeed, in the face of the evidence described above it is difficult to see any basis to argue otherwise. Instead, as we read the defendants’ arguments they are contending that the failure of the Burger King UM rejection to meet certain technical formalities is fatal to the rejection, regardless of the intentions of either Lumbermens or Burger King. Specifically, the defendants argue that because the above quoted UM rejection form does not include an option to select minimal coverage in the amount of $10,000.00, the minimum allowed by statute, then the form of the rejection is defective, citing La. R.S. 22:680.

The defendants focus on language from the Louisiana Supreme Court in Tugwell v. State Farm Ins. Co., 609 So.2d 195, 199 (La.1992) to the effect that the rejection form must be devised in such a manner as to make it, “apparent to the reasonable person that he has the option of selecting any lower limit he chooses.” The defendants contend that the Lumbermens form is defective in not providing Burger King with the option of selecting any lower limits it chooses; rather it limits Burger King to only those dollar amount specifically listed.

Lin Esteve v. U.S. Agencies Cas. Ins. Co., Inc., 01-1009, p. 8 (La.App. 1 Cir. 5/10/02), 818 So.2d 998, 1004, the Court interpreted Tugwell to mean that

Granted, it is understood that an insured cannot select an option that he does not know exists or select an option of which he is not informed. Tugwell, 609 So.2d at 199.

As applied to the instant case, the defendants contend that by presenting the limited list of dollar option lower limits in its UM rejection form, Lumbermens failed to inform Burger King of its option under the law to select $10,000.00.

Unlike in Esteve and Tugwell, the policy-holder and the insurer in the instant case are in agreement that that UM coverage was intended to be rejected. Moreover, unlike the situation in Esteve and Tugwell, in the instant case it is the tort-feasor who claims coverage under the Burger King/Lumbermens policy.

In Gautreaux v. Dufrene, 04-970 (La. App. 5 Cir. 1/11/05), 894 So.2d 385, the court found that the failure of the UM rejection form to provide for the selection of “economic-only coverage” rendered the rejection form fatally defective. LSA-R.S. 22:680 gives the requirements for a valid UM selection/rejection form. It states in pertinent part:

(l)(a)(i) No automobile liability insurance ... shall be delivered or issued for delivery in this state ... unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance ... the coverage required under this Section is not applicable when any insured named in the policy either rejects coverage, selects lower limits, or selects economic-only coverage....

Gautreaux is distinguishable from the instant case because in Gautreaux there is no indication that the policy-holder intended to reject “economic-only coverage” or that the policy holder was even aware of such an option. Moreover, | ^Gautreaux placed greatest weight on the fact that La. R.S. 22:680 (l)(a)(ii) required the rejection or selection of lower limits, etc., “be made only on a form prescribed by the commissioner of insurance,” a requirement the rejection form failed to meet. However, this requirement was not in effect at any time relevant to the facts of the instant case:

[T]he provisions of LSA-R.S. 22:1406(D) were substantially amended by the 1997 Louisiana Act No. 1476, § 3 (Act 1476) effective September 6, 1998. [FN3 omitted.] Before the 1997 amendment, the selection/rejection choices were to be made “only on a form designed by each insured”; after the effective date of Act. 1476, those choices were to be made “only on a form prescribed by the commissioner of insurance.”
The law now makes clear that selection/rejections shall “be on a form prescribed by the commissioner.”

Gautreaux, supra, 04-970, p. 7, 894 So.2d at 389.

We fully agree with the principle expressed in these cases, but find that nothing in the facts of those cases indicates that the UM rejection form and other expressions of intent in this case are in any way insufficient. We find no cases to the contrary. The case with facts most closely resembling those of the instant case is Croker v. Reliance National Indemnity 00-0474 (La.App. 1 Cir. 5/11/01), 800 So.2d 4. Croker was decided by a divided court in another circuit. The rejection evidence is not as strong as it is in the instant case. Crocker appears to involve an individual policy-holder complaining about the rejection form. In the instant case, the policyholder is a national corporation clearly making an informed decision on a national basis to reject UM coverage completely wherever possible. The Croker case represents the outer limits of the jurisprudence on this issue and this Court |Rdeclines to extend it to the facts of this case. Based on the particular facts of this case as set forth in this opinion, we find no public policy to be served by reversing the judgment of the trial court based on the UM rejection form.

The appellants make the additional argument that Burger King cannot prove that the form was properly executed. However, we find that the deposition testimony of Kathleen Davies, Burger King’s Director of Insurance and Claims is sufficient to establish that the form was executed and sent back. She also testified that had the UM rejection form not been sent back, representatives of the insurer would have “hounded” her until she did. John Knoebel, a longtime Lumbermens employee, confirmed in his deposition testimony that there was a follow-up procedure to request UM rejection forms when they were not returned promptly. Mr. Knoebel also testified that many of the company files were destroyed in the 9/11 disaster. The appellants have not countered with any evidence tending to prove that the UM rejection form was not properly executed and returned.

For the foregoing reasons, we find the UM rejection form to be valid and properly executed. As this finding is dispositive of the entire case, it is not necessary to consider the other issues raised by the appellants. Therefore, we affirm the judgment of the trial court.

AFFIRMED.

      . On June 6, 2006, the appellants filed an application for supervisory writ with this Court raising the same issues as those argued in this appeal. 2006-C-0695. On September 15, 2006, this Court issued an order consolidating that writ application with this appeal.

      . The plaintiffs filed a brief adopting all of the arguments put forth by the appellants with the exception of the statements by the appellants to the effect that the plaintiffs must first exhaust their remedies against other insurers before seeking recovery from LIGA and Boas-so, and that LIGA and Boasso are entitled to a credit of $1,000,000.00, in consequence of which the plaintiffs’ claims against LIGA and Boasso should be dismissed.
      The plaintiffs call to this Court’s attention the fact that they entered into a stipulation filed of record on January 25, 2005, to the effect that the appellants would be "liable for any and all injuries and/or damages sustained by” the plaintiffs arising out of the collision underlying this litigation.” No one has questioned this assertion made by the plaintiffs.

      . The historical and statutory notes for LSA-R.S. 22:680, 2004 Main Volume, states that subsection D of LSA-R.S. 22:1406 was amended by Acts 2003, No. 456, §§ 1 and 2, and redesignated as LSA-R.S. 22:680 by § 3 of Acts 2003, No. 456.