author: ROTHSCHILD, Judge.

text:
    Geraldine OUBRE and Linda Gentry on their behalf, as well as others, similarly situated v. LOUISIANA CITIZENS FAIR PLAN.
    No. 07-CA-66.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 29, 2007.

      Desiree M. Charbonnet, Bernard Char-bonet, Attorneys at Law, Madro Bandar-ies, Attorney at Law, New Orleans, Louisiana, Anna E. Dow, Attorney at Law, Gonzales, Louisiana, Steven M. Mauterer, Attorney at Law, Gretna, Louisiana, for Plaintiff/Appellee.
    John W. Waters, Jr., David E. Walle, Gregory J. McDonald, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and GREG G. GUIDRY.
   ROTHSCHILD, Judge.

| ¡¡Defendant, Louisiana Citizens Property Insurance Corporation (“Citizens”), also referred to as Louisiana Citizens Fair Plan, appeals from a judgment of the trial court granting plaintiffs’ Motion for Class Certification. For the following reasons, we affirm the decision of the trial court.

FACTS AND PROCEDURAL HISTORY

Plaintiffs, Geraldine Oubre and Linda Gentry, filed this lawsuit on November 18, 2005 on their own behalf and on behalf of others similarly situated. Plaintiffs were insureds of Citizens on August 29, 2005 when Hurricane Katrina hit the Gulf Coast and/or on September 24, 2005 when Hurricane Rita struck. In this lawsuit, plaintiffs allege that they suffered damages to their property after Katrina and/or Rita and they notified Citizens of their losses, but Citizens failed to comply with its statutory duty under LSA-R.S. 22:658(A)(3) to initiate loss adjustment in a Rtimely and adequate manner. Therefore, plaintiffs contend that Citizens is liable for statutory penalties provided in LSA-R.S. 22:1220.

On December 21, 2005, plaintiffs filed a motion to certify this action as a class action, pursuant to LSA-C.C.P. art. 592. A hearing on the class certification issue was held over several days. At the conclusion of the hearing on July 13, 2006, the trial judge gave the parties additional time to submit post-hearing memoranda and thereafter, he took the matter under advisement.

On July 11, 2006, the trial judge rendered a judgment granting plaintiffs’ motion for class certification. On July 17, 2006, the trial judge rendered a supplemental and amended judgment in which he defined the class as follows:

All present or past insureds of Louisiana Citizens Property Insurance Corporation a/k/a LOUISIANA CITIZENS FAIR PLAN, hereinafter referred to as “LCPIC”, who, on or after August 29, 2005, provided notification of loss resulting from Hurricanes Katrina and/or Rita to LCPIC, and whose loss adjustment was not initiated within thirty (30) days after notification of loss.

In this judgment, the trial judge further decreed that Linda Gentry, Geraldine Ou-bre, Susan Hano, Sylvia Randolph, and John Macera, II would serve as the class representatives. The trial judge issued written reasons for judgment on August 8, 2006. On July 21, 2006, Citizens filed a motion for new trial, which was denied by the trial court. Citizens appeals the trial court’s judgment certifying this matter as a class action.

LAW AND DISCUSSION

In Louisiana, the class action certification procedure is governed by LSA-C.C.P. art. 591, which provides as follows:

15A. One or more members of a class may sue or be sued as representative parties on behalf of all, only if:
(1) The class is so numerous that join-der of all members is impracticable.
(2) There are questions of law or fact common to the class.
(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class.
(4) The representative parties will fairly and adequately protect the interests of the class.
(5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case.
B. An action may be maintained as a class action only if all of the prerequisites of Paragraph A of this Article are satisfied, and in addition:
(1) The prosecution of separate actions by or against individual members of the class would create a risk of:
(a) Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
(b) Adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(3) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to these findings include:
(a) The interest of the members of the class in individually controlling the prosecution or defense of separate actions;
(b) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(c) The desirability or undesirability of concentrating the litigation in the particular forum;
(d) The difficulties likely to be encountered in the management of a class action;
(e) The practical ability of individual class members to pursue their claims without class certification;
|fi(f) The extent to which the relief plausibly demanded on behalf of or against the class, including the vindication of such public policies or legal rights as may be implicated, justifies the costs and burdens of class litigation; or
(4)The parties to a settlement request certification under Subparagraph B(3) for purposes of settlement, even though the requirements of Subparagraph B(3) might not otherwise be met.
C. Certification shall not be for the purpose of adjudicating claims or defenses dependent for their resolution on proof individual to a member of the class. However, following certification, the court shall retain jurisdiction over claims or defenses dependent for their resolution on proof individual to a member of the class.

In order to obtain class certification, a plaintiff must meet all of the requirements of LSA-C.C.P. art. 591(A) and also satisfy one of the subsections of art. 591(B). Daniels v. Witco Corp., 03-1478 (La.App. 5 Cir. 6/1/04), 877 So.2d 1011, 1014, writ denied, 04-2287 (La.11/19/04), 888 So.2d 205. The burden of establishing that the statutory criteria are met falls on the party seeking to maintain the action as a class action. Id.

The standard of review for class action certifications is bifurcated. The factual findings are reviewed under the manifest error/clearly wrong standard, but the trial court’s judgment on whether or not to certify the class is reviewed by the abuse of discretion standard. Etter v. Hibernia Corporation, 06-646 (La.App. 4 Cir. 2/14/07), 952 So.2d 782; Boudreaux v. State, Dep’t of Transp. and Dev., 96-0137 (La.App. 1 Cir. 2/14/97), 690 So.2d 114, 119. A trial court has wide discretion in deciding whether or not to certify a class. Daniels v. Witco Corp., supra; Eastin v. Entergy, 97-1094 (La.App. 5 Cir. 4/15/98), 710 So.2d 835, 838. Any errors to be made in deciding class action issues should be in favor of and not against maintenance of the class action, because a class certification order is subject to modification if later developments during the course of trial so require. Johnson v. E.I. Dupont deNemours and Co., Inc., 98-229 (La.App. 5 Cir. 10/14/98), 721 So.2d 41; McCastle v. Rollins Environmental Services of Louisiana, Inc., 456 So.2d 612, 620 (La.1984).

When reviewing the trial court’s ruling regarding class certification, we do not consider whether plaintiffs’ claims state a cause of action or have substantive merit, or whether plaintiffs will ultimately prevail on the merits. Schexnayder v. Entergy Louisiana, Inc., 04-636 (La.App. 5 Cir. 3/29/05), 899 So.2d 107, 113, writ denied, 05-1255 (La.12/9/05), 916 So.2d 1058. Rather, our task is to examine plaintiffs’ legal claims and to determine only whether a class action is the appropriate procedural device in light of established Louisiana criteria. Id.

In the instant ease, the trial judge found that plaintiffs’ claims meet all of the criteria set forth in LSA-C.C.P. art. 591(A), namely numerosity, commonality, typicality, adequacy of representation, and an objectively definable class. The trial judge also found that the elements of predominance and superiority set forth in LSA-C.C.P. art. 592(B)(3) have been satisfied. On appeal, Citizens contends that the trial judge abused his discretion and was manifestly erroneous in certifying this case as a class action, and it asserts several arguments in support of its position.

Citizens argues that the trial judge erred in finding that “the class certification requirement of commonality (common questions of law and fact predominate over individual issues for purposes of class certification) has been met under La. C.C.P. art. 591(B)(3).” Citizens further argues that the trial court erred in failing to identify specific issues that could be tried class-wide and in failing to consider the many individual issues not subject to common evidence. It contends that each plaintiffs claim must be reviewed on a case-by-case basis to determine whether loss adjustment was initiated in a timely fashion. Citizens further asserts that in Defraites v. State Farm Mut. Auto. Ins. Co., 03-1081 (La.App. 5 Cir. 1/27/04), 864 So.2d 254, writ denied, 04-460 (La.4/29/05), 869 So.2d 832, this | sCourt rejected class certification in insurance “bad faith” penalty cases, because common issues are not predominant in such claims.

First, we find no merit in defendant’s argument that the Defraites decision controls the present case, because Defraites is clearly distinguishable. The Defraites case involved claims for diminution in value of vehicles due to involvement in motor vehicle accidents, and also claims for penalties for State Farm’s failure to initiate loss adjustment on claims for diminution in value within the time delays set forth in LSA-R.S. 22:658(A)(3). In that case, this Court found that there were “too many individualized variables which come into play in a claim for diminution in value of an automobile accident to make the action appropriate for certification of a class.” This Court further found that the claims for statutory penalties did not meet class certification requirements, because there was no evidence that State Farm failed or refused to initiate loss adjustment for numerous claimants for essentially the same reasons. The Court also stated that the entitlement to penalties for violations of R.S. 22:658(A) required a case-by-case analysis in that case.

The Defraites case does not stand for the proposition that claims for failure to comply with statutory obligations to initiate loss adjustment must be assessed on an individual basis in every situation. Each action involves a different set of facts and circumstances. In order to determine whether common questions of law and fact predominate over individual questions, the courts must look to each action and determine which questions predominate in that particular case. This Court did not declare a blanket rule that a class may never be certified in a situation where claimants seek statutory penalties under R.S. 22:658, without comparing the nature and number of questions individual to each claimant with those issues and questions common to the class. Accordingly, because Defraites does not preclude | Bclass certification in all claims for statutory penalties under R.S. 22:658, we must look at the facts of the present case to determine if the trial court erred in finding that common questions predominate.

The test for commonality requires only that there be at least one issue the resolution of which will affect all or a significant number of putative class members. Duhe v. Texaco, Inc., 99-2002 (La.App. 3 Cir. 2/7/01), 779 So.2d 1070, 1078, writ denied, 01-637 (La.4/27/01), 791 So.2d 637. The fact that varying degrees of damage may result from the same incident or that class members must individually prove their right to recover does not preclude class certification. Schexnayder v. Entergy Louisiana, Inc., 899 So.2d at 118; Daniels v. Witco Corp., 877 So.2d at 1014. Additionally, the fact that resolution of class actions may place added responsibilities and burden on the trial court should not be allowed to overcome the fact that a class action meeting all of the requirements will facilitate a prompt, efficient, and relatively inexpensive trial of the common issues as opposed to separate cases. Id.

In his reasons for judgment, the trial judge stated that commonality in this case is based on Citizens’ alleged failure to initiate loss adjustment within the statutory thirty (30) days and that plaintiffs’ allegations are common to all members of the proposed class. The court further noted that trial of plaintiffs’ claims would conclude the dispute for all parties and that Citizens’ defenses to plaintiffs’ claims would likely be the same, thus obtaining res judicata effect on all common issues. After finding that plaintiffs met their burden of proving commonality and the other prerequisites of LSA-C.C.P. art. 591(A), the trial judge found that the questions of law or fact common to the members of the class predominate over questions affecting individual class members. We agree with the trial court.

| mPlaintiffs in this matter are individuals who suffered damage as a result of Hurricanes Katrina and/or Rita and who contend that Citizens failed to timely initiate loss adjustment after receiving notification of loss. At the class certification hearing, Linda Gentry, Susan Hano, Sylvia Randolph, and John Macera, II, who were proposed class representatives, testified regarding the facts and circumstances of their individual claims. Terry Lisotta, CEO of Citizens, and several individuals involved in claims adjustment for Citizens testified regarding their difficulties in adjusting claims after Hurricane Katrina, such as difficulties in obtaining access to the properties.

The testimony at the certification hearing revealed that all of plaintiffs’ claims against Citizens arise from damages caused by the same catastrophic events, i.e. Hurricanes Katrina and/or Rita, allege the same wrongful conduct, i.e. failure to timely initiate loss adjustment, and seek the same type of damages, i.e. penalties for violation of LSA-R.S. 22:658(A)(3). Considering the testimony and evidence regarding these and other common issues, we cannot say that the trial judge erred in finding that common questions of law and fact predominate over individual issues for purposes of class certification. We further see no merit in defendant’s argument that the trial judge failed to set forth the class-wide issues or to consider the individual issues not subject to common evidence.

Next, Citizens asserts that the trial judge erred in finding that the class certification requirement of numerosity has been met, where the number of class members is highly speculative. It argues that plaintiffs relate the total number of claimants with the total number of Citizens policies or with those who made claims following Hurricanes Katrina and/or Rita. They state that the fact that a great number of people made claims after the hurricanes does not establish how many people allegedly experienced untimely initiation of loss adjustment.

|^Generally, a class action is appropriate whenever the interested parties appear to be so numerous that separate suits would unduly burden the courts, and a class action would clearly be more useful and judicially expedient than other available procedures. Galjour v. Bank One Equity Investors-Bidco, Inc., 05-1360 (La.App. 4 Cir. 6/21/06), 935 So.2d 716. Determination of whether this requirement has been fulfilled depends on the facts and circumstances of each individual case. Dumas v. Angus Chemical Co., 25,632, (La.App. 2 Cir. 3/30/94), 635 So.2d 446, 450. No set number of putative plaintiffs has been established in order to fulfill the numerosity requirement for a class action. Id. The determination of numerosity in part is based upon the number of putative class members, but is also based upon considerations of judicial economy in avoiding a multiplicity of lawsuits, financial resources of class members, and the size of the individual claims. Davis v. Jazz Casino Co., L.L.C., 03-5 (La.App. 4 Cir. 1/14/04), 864 So.2d 880, 888, writ denied, 04-572 (La.4/23/04), 870 So.2d 304.

At the class certification hearing, Terry Lisotta testified that Citizens received approximately 65,000 claims following Hurricane Katrina and about 12,000 claims after Hurricane Rita. At a hearing on December 1, 2005, Mr. Lisotta testified that Citizens had 59,000 claims as of that date and that 80% of the claims were still outstanding. In its brief on appeal, Citizens agreed that there were approximately 65,000 Katrina claims and 12,000 Rita claims and stated that, with a $5,000 penalty for each claim under R.S. 22:658, the “worst case scenario” would be a $385,000 tab for the citizens of Louisiana to pay. Although Citizens may not have failed to comply with LSA-R.S. 22:658(A)(3) for many of the claims outstanding at that time, the evidence at the certification hearing was sufficient to fulfill the numerosity requirement. Accordingly, we find no error in the trial court’s determination that the numerosity requirement has been met in this case.

| ¶ Next, Citizens argues that the trial judge erred in certifying a class where judicial economy is not served by class certification. It contends that certifying the class will do nothing to improve judicial efficiency, because each plaintiff will have to prove his individual claims. We find this argument unpersuasive.

The class action is a procedural mechanism with the fundamental objective of securing economies of time, effort, expense for the court and the parties. Bourgeois v. A.P. Green Industries, Inc., 06-87 (La.App. 5 Cir. 7/28/06), 939 So.2d 478, 486. The purpose and intent of the class action procedure is to adjudicate and obtain res judicata effect on all common issues applicable not only to' the class representatives who bring the action, but to all others who are similarly situated, provided they are given adequate notice of the pending class action and do not timely exercise their option of exclusion. Id.; Doerr v. Mobil Oil Corp., 01-775 (La.App. 4 Cir. 2/27/02), 811 So.2d 1135, 1141, writs denied, 02-920, 02-938 (La.5/31/02), 817 So.2d 105, 106. The Court must consider whether there are different rights, remedies, and defenses among the parties in order to determine whether it would be more judicially efficient to try the matter as a class action. Stoute v. Wagner and Brown, 93-1207 (La.App. 1 Cir. 5/20/94), 637 So.2d 1199, 1200, writ denied, 94-1665 (La.10/7/94), 644 So.2d 638.

Considering the testimony and evidence, as well as our determination above that the trial judge did not err in finding that common issues predominate over individual issues, we find no merit in Citizens’ argument that judicial economy is not served by class certification.

Next, Citizens contends that the trial judge erred in finding that the class certification requirement of superiority has been met, pursuant to LSA-C.C.P. art. 591(B)(3). It contends that plaintiffs failed to provide any evidence that a class action is a superior procedural device for handling plaintiffs’ R.S. 22:658(A)(3) | ^claims. Plaintiffs respond that the class action procedure is superior because the prosecution of separate actions would risk inconsistent adjudications and could be dispositive of the interests of members of the class who are not parties to this suit, thereby substantially impairing the ability for them to pursue just adjudication.

When a common character of rights exists, a class action is superior to other available adjudicatory methods for the purpose of promoting the basic goals of a procedural device: 1) implementing the substantive law at issue in the case; 2) providing judicial efficiency in carrying out the substantive law; and 3) insuring individual fairness to all parties involved. Mire v. EatelCorp Inc., 02-1705 (La.App. 1 Cir. 5/9/03), 849 So.2d 608, 614, writ denied, 03-1590 (La.10/3/03), 855 So.2d 317. If the superiority of a class action is disputed, the trial court must inquire into the aspects of the case and decide whether some other procedural device would better serve these goals. Id.

In the present case, each plaintiffs claim involves whether or not Citizens failed to timely initiate loss adjustment under the provisions of LSA-R.S. 22:658(A)(3). There should be uniformity in the application of this law and in consideration of Citizens’ defenses, such as difficulty in accessing areas affected by the hurricanes. This uniformity can only be obtained by utilizing the class action procedure. Further, the class action procedure is a superior method under these circumstances to ensure individual fairness and to promote judicial efficiency.

The trial judge apparently believed that the superiority element set forth in LSA-C.C.P. art. 591(B)(3) has been met in this case. Considering the record before us, we cannot say that the trial judge erred in finding that a class action is the superior procedural device in this controversy.

|14In its final argument on appeal, Citizens asserts that the trial judge erred in adopting a class definition that is vague, indeterminate, and overly broad with regard to who will be in the class. It argues that the class definition in this case is not “precise, objective and presently ascertainable,” so the putative class members will not be able to determine if they are class members. Plaintiffs respond that the class definition is clear, concise, and objectively defined.

As stated earlier, the trial judge defined the class as follows:

All present or past insureds of Louisiana Citizens Property Insurance Corporation a/k/a LOUISIANA CITIZENS FAIR PLAN, hereinafter referred to as “LCPIC”, who, on or after August 29, 2005, provided notification of loss resulting from Hurricanes Katrina and/or Rita to LCPIC, and whose loss adjustment was not initiated within thirty (30) days after notification of loss.

LSA-C.C.P. art. 591(A)(5) requires that the class be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case. The parties seeking certification must be able to establish a definable group of aggrieved persons based on objective criteria derived from the operative facts of the case. Pulver v. 1st Lake Properties, Inc., 98-248 (La.App. 5 Cir. 9/18/96), 681 So.2d 965, 968.

Our review in this case reveals that the class has been defined by objective, ascertainable criteria, and that the Court will be able to determine the constituency of the class in order to make any judgment rendered in this case conclusive. Accordingly, we find no merit in Citizens’ argument that the class definition is vague, indeterminate, or overbroad.

In conclusion, we find no manifest error in the trial court’s factual findings and no abuse of discretion in the trial judge’s determination that this case meets all of the requirements of LSA-C.C.P. art. 591 for certification of this matter as a class action. However, we note that the trial court can re-visit or modify its decision | ^regarding class certification if later developments during the course of trial so require. See Johnson v. E.I. Dupont deNemours and Co., 721 So.2d at 44.

DECREE

For the foregoing reasons, we affirm the trial court’s judgment, granting plaintiffs’ motion for class certification, defining the class, and naming Geraldine Oubre, Linda Gentry, Susan Hano, Sylvia Randolph, and John Macera, II, as class representatives.

AFFIRMED.

      . The petition was subsequently amended to add additional named plaintiffs who also sought to be named as class representatives.

      . LSA-R.S. 22:658(A)(3) provides in pertinent part:
      .... In the case of catastrophic loss, the insurer shall initiate loss adjustment of a property damage claim within thirty days after notification of loss by the claimant. Failure to comply with the provisions of this Paragraph shall subject the insurer to the penalties provided in R.S. 22:1220.

      . The class certification hearing started on May 2, 2006, but it was stopped the next day when the trial judge recused herself because she and some of her staff realized that they were insured by Citizens. The case wás reassigned to three other judges, who also recused themselves, before the case was assigned to the trial judge who rendered the judgment at issue in this appeal.


source: Caselaw Access Project

author: WICKER, Judge.

license: Public Domain

text:
    Jamie-Lynn Brondum, Wife of and Stephen R. BRONDUM v. Suzanne FRITTS, Wyeth Laboratories Lobrano, and Kemper Insurance Company.
    No. 07-CA-24.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 29, 2007.

      W. Chad Stelly, Blake G. Arata, Jr., C. Perrin Rome, III, Attorneys at Law, New Orleans, Louisiana, for Plaintiffs/Appellants.
    Mindy B. Patron, Sarah M. Bleichner, Attorneys at Law, New Orleans, Louisiana, for Defendants/Appellees.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   WICKER, Judge.

| pThe judgment on review in this appeal is one that granted exceptions of insufficiency of service and prescription, and dismissed all claims by plaintiffs, Jamie-Lynn and Stephen Brondum, against defendants, Suzanne Fritts and Wyeth Laboratories Lobrano(Wyeth) . For the reasons that follow, we affirm.

Plaintiffs, Jamie-Lynn Brondum and her husband, Stephen R. Brondum, filed this action against Suzanne Fritts, her employer, Wyeth, and their insurer, Kemper Insurance Company (Kemper), for damages sustained by Mr. Brondum when his vehicle was struck from behind by one driven by Ms. Fritts and owned by Wyeth.

The accident occurred in Jefferson Parish on December 16, 2002. The suit was filed in Orleans Parish Civil District Court on December 3, 2003. Kemper 1¡¡was served on December 15, 2003. The other two defendants were not served. Based on allegations in the petition that the accident occurred in Jefferson Parish and Ms. Fritts is a resident of St. Tammany Parish, Kemper filed an exception of improper venue. The trial court in Orleans Parish ordered a limited deposition of Ms. Fritts for the purposes of determining proper venue. After reviewing the deposition, the trial court granted the exception and found that the matter should be transferred to Jefferson Parish.

The matter was transferred to the 24th Judicial Court for the Parish of Jefferson on September 13, 2004. The only defendant timely served with the lawsuit, Kem-per, answered the petition on October 25, 2004. The remaining two defendants, Suzanne Fritts and Wyeth, filed exceptions of insufficiency of service of process and prescription on the same day. Those exceptions were granted and the claims against Suzanne Fritts and Wyeth were dismissed with prejudice. It is from that judgment that plaintiffs appeal.

It is clear from the record that service was never perfected on either Ms. Fritts or Wyeth because of incorrect addresses. The sheriffs returns show that Ms. Fritts had moved and that the address for Wyeth was incorrect. It is also clear that the lawsuit was timely filed in an improper venue, and that Kemper was timely served with notice of the action. In brief to this court, plaintiffs acknowledge these facts. However, plaintiffs maintain that timely service on Kemper is sufficient to defeat the exceptions of insufficient service of process and prescription on Fritts and Wyeth because they are joint tortfeasors. Plaintiffs also allege the failure of defendants to provide regulatory authorities, the accident investigation officer or plaintiffs with their correct addresses precludes the grant of the exceptions of improper service and prescription.

^Plaintiffs further argue that an exception of no right of action filed by Kemper subsequent to the judgment at issue herein warrants a reversal of the trial court’s judgment on the exception of prescription and insufficient service of process. However, because this court is one of record we cannot consider that argument. See: Hover v. Farber, 05-613 (La.App. 5 Cir. 1/31/06), 922 So.2d 637. The decision of this court cannot stand premised on the conclusions drawn from facts and pleadings stated or filed after the case was appealed. An appellate court can only consider a case in the situation presented by the record for, to do otherwise, would be assuming original jurisdiction on appeal. Board of Com’rs for Atehafalaya Basin Levee Dist. v. St. Landry Parish School Bd., 242 La. 285, 136 So.2d 44 (La.1961). Accordingly, we cannot consider that portion of plaintiffs’ argument that relates to pleadings filed by Kemper after the judgment before us was rendered.

Our discussion of plaintiffs’ argument is limited to whether service on Kemper is sufficient to meet the requirements of service on joint tortfeasors, and whether failure of defendants to provide a correct address to regulatory authorities, the accident investigation officer and plaintiffs precludes the grant of the exceptions.

Delictual actions are subject to a liberative prescription of one year, which commences to run from the day injury or damage is sustained. La. C.C. art. 3492. Under the Direct Action Statute, the insurer is liable to the claimant in solido with its insured. La R.S. 22:655; Shaw v. New York Fire & Marine Underwriters, Inc., 252 La. 653, 212 So.2d 416 (La 1968). Interruption of prescription as to one joint tortfeasor is effective as to all joint tortfea-sors. La. C.C. art. 2324. However, La. C.C. Art. 3462 provides as follows:

| ^Prescription is interrupted when the owner commences action against the possessor, or when the obligee commences action against the obligor, in a court of competent jurisdiction and venue. If action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period.

Thus, in the matter before us the service of Kemper in an improper venue does not interrupt prescription as to Ms. Fritts or Wyeth. Accordingly, we find the trial court correctly granted the exception of prescription.

In support of plaintiffs’ argument with regard to the exception of insufficient service of process, plaintiffs assert that the actions of Ms. Fritts prevented them from discovering the correct addresses for service of process for Ms. Fritts and her employer. We find no factual support in the record for that assertion.

In her deposition, Ms. Fritts stated that on the date of the accident in December of 2002, she was living at 23219 Kilgore Street in Mandeville, Louisiana, the address reflected on her driver’s license. However, she sold that home in August of 2003 and purchased a new home at 70239 Gulch Street in Abita Springs, where she is currently living.

Ms. Fritts also testified that she is employed with Wyeth Laboratories as a sales representative for various drugs manufactured by Wyeth. Wyeth had no locations in the New Orleans Metropolitan area. The regional office is in Irving, Texas. Ms. Fritts explained that Wyeth provides her with a car through Deals on Wheels. She was not certain who actually owned the car. The car came into her possession in December of 2001. She stated that the address on the title of the car, 2717 Audubon Street, New Orleans, was an old address she had given Wyeth when she originally went to work for the company several years ago. Ms. Fritts stated that she gave Wyeth all of her current addresses and could not explain why the | ^company did not change the address on the records when it secured the car for her use.

The record contains a copy of the police report of the accident. It correctly lists Ms. Fritts’ address as 23219 Kilgore Street Mandeville and gives a telephone number for her. It lists the owner as “Wyeth Laboratories Lobrano” at 2717 Audubon Street New Orleans. It is clear from the deposition that Lobrano was Ms. Fritts’ maiden name. It appears that Ms. Fritts was single when she began her employment with Wyeth and living at the Audubon Street address. Apparently, the title of the vehicle purchased for her business use reflected both the name of Wyeth and Ms. Fritts as provided by Wyeth.

Contrary to plaintiffs’ argument, Ms. Fritts did give her correct address to the investigating officer at the time of the accident. There is no suggestion by plaintiffs that they attempted to locate Ms. Fritts even though the address on her license plate was correct at the time of the accident and a telephone number was given. Nor is there a suggestion by plaintiffs that they made any attempt to locate Wyeth. Given the facts of this matter, and the lack of due diligence on plaintiff to locate and serve these defendants as required, we find the trial court was correct in granting the exception of insufficient service.

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

AFFIRMED.

      . Wyeth Laboratories was incorrectly named as Wyeth Laboratories-Lobrano in the lawsuit. Apparently plaintiffs took this name from the listing on the automobile lessee agreement which listed both Wyeth Laboratories and Suzanne Lobrano (now Fritts) as lessees.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Abron J. MICKEL.
    No. 07-KA-47.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 29, 2007.

      Paul D. Connick, Jr. District Attorney, Terry M. Boudreaux, Thomas J. Butler, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Bertha M. Hillman, Louisiana Appellate Project, Thibodaux, LA, for DefendanVAp-pellant.
    Panel composed of Judges CLARENCE E. McMANUS, FREDERICKA HOMBERG WICKER, and GREG G. GUIDRY.
   FREDERICKA HOMBERG WICKER, Judge.

Lin this criminal matter defendant, Abron J. Mickel, appeals his conviction on a charge of armed robbery in violation of La. R.S. 14:64, and his conviction and sentence as a multiple offender. For the reasons that follow, we affirm.

The defendant was originally charged by bill of information with armed robbery. After he entered a plea of not guilty, he was tried by a jury and found to be guilty as charged. The trial court denied defense motions for judgment of acquittal and for a new trial, and in due course defendant was sentenced to serve sixty years at hard labor.

Subsequently, the State filed a multiple offender bill of information, alleging that the defendant entered guilty pleas tó charges of distribution of cocaine in 1993 and 1995, and was convicted in 1998 for being a convicted felon in possession of a firearm. The defendant denied the allegations in the multiple offender bill and I allied a motion to quash that was denied by the trial court. Subsequently, the defendant made an oral motion to quash the multiple offender bill of information as it related to the conviction of being a convicted felon in possession of a firearm in violation of La. R.S. 14:95.1. In response to that motion, the State agreed to dismiss that part of'the multiple offender bill of information, and amended it accordingly. After a hearing on the multiple offender bill of information, the trial court adjudicated the defendant to be a third felony offender. The trial court vacated the original sentence and re-sentenced the defendant to serve life imprisonment without the benefit of parole, probation or suspension of sentence. The defendant filed a timely motion for appeal which was granted.

FACTS

The victim, Charles Williams, testified at trial. He stated that in July of 2003, he was employed as a certified nursing assistant at Jo Ellen Smith Convalescent Center. On July 4th, after he received his paycheck, Mr. Williams and a co-worker, Danita Coleman, went together to a nearby ‘store to cash their checks. Mr. Williams put his cash in a wallet in his car. Mr. Williams wanted to get a haircut, but because it- was the Fourth of July, the barbershop was closed. Instead Mr. Williams went to Ms. Coleman’s house where her boyfriend, Torian Maryland, agreed to cut Mr. Williams’ hair. After the haircut, Mr. Williams remained at Ms. Coleman’s apartment, passing the time by watching T.V. and playing cards.

|4Later that evening, Mr. Williams went with Mr. Maryland to meet his cousin, a meeting that had been arranged by Ms. Coleman a few weeks earlier. When the two men got into the car, Mr. Williams took his wallet from the back seat and paid Mr. Maryland ten dollars for the haircut. Mr. Williams drove to another apartment complex. When they arrived at the apartment building, Mr. Maryland borrowed Mr. Williams’ cell phone to call his cousin. Mr. Williams waited in his car. A man came out of the complex and was introduced to Mr. Williams as “Bop.” Bop was about six feet tall, had tattoos on his left arm, and was dressed in a camouflage outfit. Bop got into the car and began a conversation with Mr. Williams. Mr. Williams assumed that Bop was Mr. Maryland’s cousin with whom Ms. Coleman had set up the meeting. About five minutes later, Mr. Maryland came back to the car, knocked on the window and asked to speak to Bop. Bop got out of the car and had a conversation with Mr. Maryland out of Mr. Williams’ earshot. Bop got back into the car. Mr. Maryland and another man came up to the car and Bop told the man to get in. The man got in the back seat and pointed a gun at Mr. Williams and asked, “What you got?” Mr. Williams replied that he had nothing. Bop went through Mr. Williams’ pockets, but found nothing. Mr. Williams gave the man with the gun two rings and a watch, but no money. The gunman continued to ask for money, which Mr. Williams denied having. However, the gunman found Mr. Williams’ wallet under the seat and took $485.00. The gunman instructed Mr. Williams not to look at him, and he and Bop got out of the car and ran away together. Mr. Williams drove to a nearby gas station where he spotted a police car. He reported the robbery to police at that time.

Mr. Williams admitted that he was reluctant to tell police officers that he was gay, so he simply told them he was at the apartment complex to meet a friend. |sMr. Williams stated that the report to officers was accurate in every other detail. Subsequently, Mr. Williams identified Mr. Maryland and the defendant from photo lineups. Further, Mr. Williams identified the defendant at trial as being the gunman.

Torrian Maryland, who at the time of trial was serving a two-year sentence in St. Charles Parish for theft, testified as a hostile witness to the State. He testified that in July of 2003 he was dating Danita Coleman who worked with Charles Williams. On the Fourth of July, he was with Mr. Williams at Ms. Coleman’s apartment. Mr. Maryland testified that he and Mr. Williams got into Mr. Williams car and drove to an apartment building on Manhattan Street on the West Bank. However, Mr. Maryland denied that he was to introduce Mr. Williams to anyone. Mr. Maryland’s version was that he needed a ride to his mother’s home. On the way the two men stopped at a nearby apartment building on Manhattan because Mr. Maryland wanted to buy a “bag of weed.” Mr. Maryland got out of the car. He stated that there were several individuals around the car including a man named “Black” who wanted to sell Mr. Williams drugs. Mr. Maryland also testified that Black has been known to commit robberies in that area. Black got in the car and Mr. Maryland went to a nearby store. When Mr. Maryland returned a short time later, Mr. Williams had driven away.

Mr. Maryland admitted knowing the defendant and knew that his nickname was “Bop,” but denied introducing him to Mr. Williams. Mr. Maryland further testified that Black is now deceased.

The court heard testimony from Detective John Carroll of the Jefferson Parish Sheriffs Office who investigated the armed robbery of Mr. Williams. In the course of his investigation Detective Carroll interviewed both Mr. Williams and Mr. Maryland. After the interview with Mr. Maryland, the investigation [fifocused on the defendant as the likely perpetrator. Subsequently, Mr. Williams was shown two photo lineups. In one he identified Mr. Maryland, and in the second he identified the defendant as the man who robbed him at gunpoint. An arrest warrant was obtained for the defendant and he was prosecuted for the crime. Detective Carroll and his investigating team was unable to find any further evidence such as DNA, fingerprints, fibers, hair samples or a gun.

Two other police officers who participated in the investigation also testified at trial. The officers verified that the defendant came up to them to report the robbery, and that interviews with Mr. Maryland and the defendant were conducted. Further, the officers testified concerning the identifications by the photo lineups.

Bernice Mickel, the defendant’s sister, testified that on July 4, 2003 she was at a family gathering at 1013 Pailet Street in Harvey. She further testified that the defendant was also at the party and was still there when she left at about 3:30 or 4:00 that afternoon. Ms. Mickel stated that she knew “Black” whose real name is Tyrone Gilmore. She identified a photo of Black at trial, and informed the court that Black is now deceased. Upon further examination, Ms. Mickel admitted that the defendant lived at the apartment complex where the robbery took place and that she was not with him at the time the robbery took place.

Edith Mickel, another sister of the defendant, also téstified at trial. At the time of the robbery, she was living with the defendant in an apartment in the West Chase complex on Manhattan Boulevard in Harvey. On the Fourth of July, 2003 she went with the defendant and their mother to a family party at her grandmother’s home on Pailet Street in Harvey. They arrived at about 3 pm and stayed until 8:00 or 8:30 that evening. At that time they drove home to get the defendant’s clothes because he was leaving on a trip to visit his girlfriend in Texas.

|7Antonio Payne, who was incarcerated at the time of the trial, testified that on July 4, 2003 he was at the West Chase Apartments “hanging out” and “selling drugs.” Mr. Payne also admitted using drugs and testified that he was on heroin, “crack” and “weed” that day.

A man named “Autory” asked Mr. Payne if he wished to meet someone and indicated a man sitting in a car parked in the parking lot. Mr. Payne walked over to the car, got into the passenger’s seat and had a- conversation with the driver, who was gay, about exchanging sexual activity for money. At that point a man Mr. Payne knew slightly came over to the car and asked Mr. Payne if he still had “anything.” Mr. Payne responded that he had some drugs and could “take care” of him. Mr. Payne identified the man as “Pooh” or “Black,” but stated that his real name was Terrell Gilmore. Black got into the back seat, grabbed Mr. Payne from behind and put a gun to his head. Mr. Payne gave Black all of the money and drugs he had. Black then robbed the driver and ran out of the car. Mr. Payne returned to his sister’s house nearby.

Mr. Payne explained that he did not come forward earlier because he was afraid of retribution by Black. He indicated that he had perpetrated robberies and done drugs with Black before and knew that he was dangerous. Mr.' Payne left town for a while, but returned when he learned that Black was dead. Mr. Payne further testified that he knew the defendant from the neighborhood, although they were not really friends.

The victim again took the stand. He testified that he was certain it was the defendant who robbed him and he did not recognize photos of Black.

LAW

|sIn brief to this Court, the defendant assigns two errors for our review. In the first he asserts the trial court erred in denying his challenges for cause relating to potential jurors, Rick Moore, Albert Roux and Eddie Chan.

To preserve a denial of a challenge for cause for review on appeal, a defendant must first show that he objected at the time the trial court refused to sustain the challenge. State v. Lindsey, 06-255 (La.1/17/07), 948 So.2d 105. Further, by law, a defendant has twelve peremptory challenges in a trial for an offense punishable by imprisonment at hard labor. La. Const, art 1, § 17: La.C.Cr.P. Art. 799. It is essential that a defendant show that he has exhausted all of his peremptory challenges and that the trial court erroneously denied a challenge for cause to prove an error warranting reversal of both the conviction and sentence. The defendant has met that requirement.

Prejudice is presumed when a district court erroneously denies a challenge for cause and the defendant ultimately exhausts his peremptory challenges. A district court’s erroneous ruling which deprives a defendant of a peremptory challenge substantially violates that defendant’s rights and constitutes reversible error. State v. Lindsey, supra 948 So.2d at 107 (citations omitted)

Under La.C.Cr.P. art. 797, a defendant may challenge a juror for cause if:

(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
(4) The juror will not accept the law as given to him by the court....
As explained by our Supreme Court;
When a juror expresses a predisposition as to the outcome of a trial, a challenge for cause should be granted. Yet, if after subsequent questioning, or rehabilitation, the juror exhibits the ability to disregard |sprevious views and make a decision based on the evidence presented at trial, the challenge is properly denied. Id. When assessing whether a challenge for cause should be granted, the district judge must look at the juror’s responses during his or her entire testimony, not just “correct” isolated answers or, for that matter, “incorrect,” isolated answers.
(citations omitted)
State v. Lindsey, supra 948 So.2d at 107, 108.

A trial judge is afforded great discretion in determining whether cause has been shown to reject a prospective juror. This court is reviewing the matter on a transcript in a record and does not have the benefit of observing the potential jurors in person to assess the facial expressions and intonations in voice as they answer questions. See; State v. Bozeman, 03-897 (La.App. 5 Cir. 1/27/04), 866 So.2d 1029, 1032, writ denied, 04-0497 (La.7/2/04), 877 So.2d 141. Therefore, this court will not disturb such a decision by the trial judge unless a review of the voir dire as a whole indicates an abuse of discretion. State v. Williams, 02-1188 (La.App. 5 Cir. 4/8/03), 846 So.2d 22.

In the matter before us, the defendant argues his challenge for cause of potential juror Rick Moore should have been granted. The defendant asserts that Mr. Moore demonstrated bias in favor of the prosecution, and that his views towards defendant’s failure to testify at trial suggested an inability to render judgment according to law. Further, the defendant maintains that Mr. Moore did not afford the defendant a presumption of innocence.

In response to all of the defendant’s allegations regarding the trial court’s denials of challenges for cause, the State asserts that a review of the entire voir dire reveals that the potential jurors demonstrated their ability and willingness to decide the case impartially according to the law and evidence.

A complete reading of the voir dire of Mr. Moore shows that he was a victim of crime and had several friends who were either prosecutors or police officers. He |inadmitted his bias toward the State. However, when questioned by the trial judge, Mr. Moore stated that he would do his best to give the defendant his day in court and weigh the evidence in a fair and impartial way. Mr. Moore also stated that he understood that the State had the burden to prove the defendant’s guilt beyond a reasonable doubt.

A charge of bias may be removed by the rehabilitation of the prospective juror. State v. Chapman, 410 So.2d 689, 695 (La.1981) (citations omitted). A trial judge’s refusal to excuse a prospective juror on the ground that he is not impartial is not an abuse of discretion where, on further inquiry or instruction, the juror has demonstrated the willingness and the ability to decide the case impartially according to the law and evidence. State v. Scott, 04-1312 (La.1/19/06), 921 So.2d 904, 921, cert. denied, — U.S. -, 127 S.Ct. 137, 166 L.Ed.2d 100 (2006) (citation omitted).

We find that Mr. Moore, although exhibiting a pro-prosecution bias, demonstrated his willingness and ability to be impartial in reviewing the evidence and deciding the case.

The defendant also asserts that Mr. Moore should have been . dismissed for cause because of his bias against the defendant should he chose not to testify at trial. We do not find merit in the defendant’s argument. Considering the entire voir dire, it is clear that Mr. Moore understood the law, the burden ,of the State to prove guilt, and the defendant’s right not to testify. Mr. Moore did admit that there could be a “little seed of doubt” that could remain in the “back of his mind” if the defendant did not testify. However, when asked if he would find defendant guilty because he did not testify, Mr. Moore stated affirmatively, “No, no, I certainly wouldn’t — just because the defendant chose not to testify, I would not take that as I’ve got to find him guilty, no.”

InWe note that in the voir dire, the trial judge explained to all of the potential jurors that the defendant could rely on his presumption of innocence, had a right not to testify and that no inference of any kind could be drawn from the fact that the defendant does not testify. The trial court asked the jury pool if there was anyone who could not conscientiously apply the law or give both the State and the defendant a fair trial. None of the jurors indicated that they could not properly serve.

Accordingly, we find no abuse of the trial court’s discretion in denying the challenge for cause as to Mr. Moore.

Albert Roux, also was a subject of a defense challenge for cause, which was denied. In brief to this court, the defendant argues that Mr. Roux repeatedly indicated he could not be fair, showed a bias toward the prosecution, and shifted the burden of proof to the defendant, and would hold a failure to testify against the defendant.

During the exchange between the trial judge and Mr. Roux, it was revealed that Mr. Roux had a friend who was a police officer and a victim of a crime. Mr. Roux stated that because of that, he “would probably have, subconsciously, am biased toward the prosecution.... ” Mr. Roux also stated that he would listen to the defendant’s case and “(i)f they had compelling argument that the gentleman was innocent, compelling, I could be impartial.” At this point the trial judge explained the presumption of innocence and the State’s burden of proof, and asked Mr. Roux if he understood and specifically if he would require the defendant to prove his innocence. Mr. Roux responded, “I would— again, I would do what the law states. I would consciously acknowledge that he’s innocent until proven guilty. But again, subconsciously, whether it would be a bias or not, there’s a possibility.”

| ii>The discussion between the trial judge and Mr. Roux continued with the trial judge explaining the law and Mr. Roux making general comments on the criminal justice system. However, in the end Mr. Roux- told the trial judge that he can follow the law if he sat on the jury.

The presumption of innocence is the foundation of our criminal justice system and the unwillingness of a prospective juror to apply the presumption of innocence is a serious matter. When a prospective juror clearly asserts that he could not or probably would not apply the presumption of innocence that juror, unless rehabilitated, should be struck for cause. The trial judge’s failure to grant such a challenge is reversible error. State v. Gant, 06-232 (La.App. 5 Cir. 9/26/06), 942 So.2d 1099, 1114 (citation omitted). As we explained in Grant;

An important part of a voir dire examination is to discover any prospective juror who may have difficulty understanding the defendant’s right to the presumption of innocence, as well as to discover a juror who may hold it against a defendant who exercises his right. A prospective juror’s declaration of fairness and neutrality does not assure an understanding of the constitutional principle of the presumption of innocence. When a prospective juror clearly asserts that he could not or probably would not apply the presumption of innocence that juror should be struck for cause unless rehabilitated. The failure of the trial judge to grant such a challenge is reversible error. A prospective juror’s responses indicating a lack of understanding of the law, i.e. self-defense, rather than bias is not grounds for cause because a juror is not expected to be familiar with legal terms or to understand jurisprudential distinctions given in an abstract context. A trial judge does not abuse the broad discretion vested in him in denying a challenge for cause of a juror who expressed a need for the defendant to produce some evidence on his own behalf in order to find him not guilty when the juror’s response was caused more from a lack of understanding of the law than bias.
(citations omitted)
State v. Gant, 942 So.2d at 1114

We believe Mr. Roux’s initial response was caused more from a lack of understanding of the law, than bias. We also find that the continued discussion and explanation of the law by the trial judge and the ultimate acknowledgement that he | i.qcould apply the law substantiates the trial court’s decision to deny the challenge for cause as to Mr. Roux.

The defendant’s objection to Eddie Chan concerns his lack of understanding of the defendant’s Fifth Amendment right not to testify and his confusion by the entire proceeding. We find, as we did with Mr. Roux, that Mr. Chan’s initial responses were due to a lack of understanding of the law. A review of the entire voir dire in this case shows that the trial judge carefully explained the law on every issue related to the presumption of innocence and the burden of the State to prove the defendant guilty beyond a reasonable doubt. At the end of the discussion, Mr. Chan’s responses show that the defendant “would not lose points” if he did not testify at trial. He also stated that he did not “believe any innocent person should go to jail.”

Given these responses and the careful, deliberate and detailed explanation of the law by the trial court, we cannot find an abuse of discretion in the denial of the challenge for cause as to Mr. Chan.

In the second assignment of error, the defendant asks this Court to vacate his adjudication as a multiple offender, and the enhanced sentence resulting from that adjudication. Defendant asserts the multiple offender proceedings are invalid because neither the underlying offense of armed robbery, nor the subsequent multiple offender allegation was charged by grand jury indictment. Consequently, the defendant argues the court was without jurisdiction to impose a life sentence.

The State counters that jurisprudence is clear that, although La. Const. Art. 1 § 15 requires the use of grand jury indictments to institute prosecution when the penalty is either a death sentence or life imprisonment, that requirement is not applicable to multiple offender proceedings. The defendant acknowledges that line of jurisprudence, but asks this Court to revisit the issue.

I uLa. Const. Art. 1 § 15 provides in part:

Prosecution of a felony shall be initiated by indictment or information, but no person shall be held to answer for a capital crime or a crime punishable by life imprisonment except on indictment by a grand jury.
La.C.Cr.C. Art. 382(A) provides in pertinent part that;
A prosecution for an offense punishable by death, or for an offense punishable by life imprisonment, shall be instituted by indictment by a grand jury. Other criminal prosecutions in a district court shall be instituted by indictment or by information.

Our Supreme Court in State v. Alexander, 325 So.2d 777, 778-779 (La.1976) has made it clear that the constitutional requirement of a grand jury indictment in capital cases or cases punishable by life imprisonment does not apply to the institution of enhanced-penalty proceedings under La. R.S. 15:529.1. Id. The grand jury’s function is to inquire into an offense and to indict for an offense if the evidence so indicates. Id. at 779. The Alexander court explained that the classification of felonies for initiation of prosecution is “founded upon the general penalty applicable to the substantive crime charged ... not upon any enhanced penalty to which any particular individual might be subject because of his prior convictions” . Post-conviction enhanced-penalty proceedings have no functional relationship to the innocence or guilt of the crime for which prosecution is initiated either by grand jury indictment or by information. Id.

This court has previously considered a defense argument that the State should have re-instituted proceedings against a defendant by Grand Jury Indictment in State v. Collins, 44-1443 (La.App. 5 Cir. 7/26/05), 910 So.2d 454. In rejecting the defendant’s argument that a grand jury indictment was required, this court followed the law in State v. Alexander, supra, stating;

The jurisprudence is clear that the classification of felonies for initiation of prosecution is based on the penalty applicable to the substantive crime and not the enhanced penalty to which a defendant might be subjected. In the present case, defendant was charged with 11sarmed robbery and first degree robbery, neither of which requires a life sentence. La. R.S.14:64 and 14:64.1. Therefore, initiation of prosecution is either by indictment or by bill of information. State v. Collins, 910 So.2d at 463-464

The defendant argues this court should reconsider State v. Alexander, which is a Louisiana Supreme Court decision, due to more recent jurisprudence, including U.S. v. Booker, 543 U.S. 220, 238, 125 S.Ct. 738, 752, 160 L.Ed.2d 621 (2005) which noted “[t]he Framers would not have thought it too much to demand that, before depriving a man of [ten] more years of his liberty, the State should suffer the modest inconvenience of submitting its accusation to ‘the unanimous suffrage of twelve of his equals and neighbours,’ rather than a lone employee of the State.” (citing Blakely v. Washington, 542 U.S. 296, 313-314, 124 S.Ct. 2531, 2543, 159 L.Ed.2d 403 (2004)).

Defendant contends this Court should reconsider whether the true intent of the legislature was to require a grand jury decision on cases in which a defendant might be punishable by death or life imprisonment, noting that the constitution is clear that a single district attorney or his assistant should not be making this decision alone. He argues to the extent that La. R.S. 15:529.1 allows the district attorney to subject a defendant to a life sentence by multiple offender bill of information, it is in conflict with the constitution and that portion of the statute should be declared unconstitutional.

The constitutionality of a statute cannot be raised for the first time on appeal. An attack upon the constitutionality of a statute must first be presented in the trial court. Williams v. State, Dept. of Health and Hospitals, 95-0713 (La.1/26/96), 671 So.2d 899, 901. A party contesting the constitutionality of a statute has a three-tier burden. The presentation must be made in the trial court, the unconstitutionality must be specially pleaded, and the grounds for the claim particularized. Id.

|1fiIn the instant case, the defendant filed a motion to quash based on the failure of the State to present the matter to a grand jury. The defendant also maintained that the multiple bill proceedings denied him due process of law since it denied him a jury trial and the requirement of proof beyond a reasonable doubt. We find that insufficient to meet the three-tier burden set forth in Williams. There is no specific assertion that La. R.S. 15:529.1 is unconstitutional, and there are no specific, particularized grounds for the assertion. Accordingly, the constitutionality of La. R.S. 15:529.1 is not properly before this Court and will not be addressed.

We find the jurisprudence in State v. Alexander, supra and State v. Collins, supra is controlling in this matter and we find no merit in the defendant’s assignment of error.

The record was reviewed for errors patent, according to La.-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). We note that the initial bill of information charging the underlying offense of armed robbery indicated incorrectly that the offense was committed on July 14. When the bill was read at trial, the State realized the date was incorrect and amended the bill to allege the offense was committed on July 4. The defendant request for a re-arraignment was denied. We find no error in that decision.

Although the bill of information was amended after trial began, the amendment of the date of the offense related to a defect of form. This Court has recognized when the date is not an essential element of the offense charged, a mistake respecting the date on which the offense occurred is only a defect as to form, which may be corrected at any time without leave of court. State v. Jackson, 04-306 (La.App. 5 Cir. 8/31/04), 882 So.2d 613, 618. Accordingly, we find the trial court did not err in refusing the defendant’s request for re-arraignment.

We have found a second error which requires correction. We note that the minute entry of this hearing states that the defendant was found guilty “under R.S. 15:529.1 on count 1”, and found to be a multiple offender, the transcript clearly indicates that the trial court found the defendant to be a “triple felony offender” based on his two pleas of guilty on the possession of cocaine charges. When there is a discrepancy between the minute entry and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732 (La.1983). We hereby order the trial court to correct the minute entry to conform with the transcript.

For the reasons assigned herein, we affirm the defendant’s conviction and sentence. The matter is remanded to the trial court with an order to correct the minute entry of the conviction and sentence on the multiple offender bill in accordance with the opinion.

AFFIRMED; REMANDED WITH ORDER.

      . The bill of information was amended to correct the date of the offense before the trial began. See: errors patent discussion.

      . We note that the minute entry of this hearing states that the defendant was found guilty "under R.S. 15:529.1 on count 1”, and found to be a multiple offender, the transcript clearly indicates that the trial court found the defendant to be a "triple felony offender” based on his two pleas of guilty on the possession of cocaine charges. When there is a discrepancy between the minute entry and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732 (La.1983). See: errors patent discussion.

      .Mr. Williams did not mention Torian’s last name in his testimony. Torian’s full name was gleaned from other evidence contained in the record.

      . Rick Moore is also referred to as “Billy Moore.”

      . It is noted that a writ, no. 06-2529 was filed in this case with the Louisiana Supreme Court on October 20, 2006 (postmarked October 19, 2006).


text:
    Donna COLWART v. ENCOMPASS INDEMNITY COMPANY.
    No. 07-CA-79.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 29, 2007.

      Ivan A. Orihuela, Attorney at Law, New Orleans, Louisiana, for PlaintiffiAppellant.
    James A. Stapp, Attorney at Law, New Orleans, Louisiana, for Defendant/Appel-lee.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

| ¡.Plaintiff, Donna Colwart, appeals a judgment of the trial court that denied her motion for summary judgment, granted a defense motion for summary judgment, and dismissed the lawsuit with prejudice. We affirm.

The underlying action was filed by Ms. Colwart for damages sustained in an automobile accident that occurred in Jefferson Parish on January 28, 2004. According to the allegations in the petition, Ms. Colwart was stopped for traffic when her vehicle was struck in the rear as she became the first car in a three-car chain accident on Eastbound I — 10. Ms. Colwart asserts the driver of the third vehicle, Patrick Hayden who is at fault in the accident, is underin-sured and unable to cover the damages and injuries sustained by Ms. Colwart. Ms. Colwart’s insurer, Encompass Indemnity Company (Encompass), tendered a payment of $10,000.00 under the Uninsured/Underinsured motorist (UM) section of the policy. Subsequently, Ms. Colwart filed this action against Encompass asserting that the limits of coverage under the UM portion of the policy were equal to the bodily | sinjury liability limits of $100,000.00 per person, and not restricted to the $10,000.00 lower limit selection made in the original policy.

The parties filed cross motions for summary judgment on the issue of the amount of coverage. Encompass contends the limits of coverage are $10,000.00 per person because it has a valid selection of the lower limits. Ms. Colwart maintains the limits are $100,000.00 per person, an amount equal to the limits of the Bodily Injury Liability coverage of the policy. Ms. Col-wart’s argument is that the selection of lower limits relied on by Encompass does not apply to this policy. The trial court denied Ms. Colwart’s motion and granted the motion filed by Encompass. It is that judgment which is before this court on review.

The sole purpose for the motion for summary judgment is to determine in advance of trial whether a genuine issue of material fact exists between the litigants. Genusa v. B & B Steel Metal & Roofing, 95-318 (La.App. 5 Cir. 10/18/95), 663 So.2d 788; writ denied, 95-2718 (La.1/26/96), 666 So.2d 672. A summary judgment is proper only if pleadings, depositions, answers to interrogatories, admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact, and mover is entitled to judgment as matter of law. La. C.C.P. art. 966. Our review of a summary judgment is de novo. Lee v. Naquin, 05-606 (La. 5 Cir. 2/3/06), 924 So.2d 250. The issue of whether an insurance policy, as a matter of law, provides or precludes coverage is a dispute that can be resolved properly within the framework of a motion for summary judgment. Johnson v. Allstate Ins. Co., 95-1953 (La.App. 1st Cir.5/10/96), 673 So.2d 345, 347, writ denied, 96-1292 (La.6/28/96), 675 So.2d 1126.

The material facts are not in dispute. Ms. Colwart was involved in the accident, and at that time was covered by Encompass which provided UM coverage to Ms. Colwart and Eric Morgan. The relevant automobile insurance | ¿policy issued to Ms. Colwart and Mr. Morgan by Encompass provides limits of bodily injury liability coverage in the amount of $100,000.00 per person/$300,000.00 per accident. The only selection of lower limits produced by Encompass is signed by Mr. Morgan prior to the effective dates of the Encompass policy and identifies a policy issued by Kansas City Fire and Marine Insurance Company (Kansas City), but with the same policy number as that of the Encompass policy.

The sole issue presented for our review is whether the selection of lower limits of UM coverage, reducing the limit of coverage to $10,000.00 in the original Kansas City policy is valid as to the subsequent Encompass policy, thereby entitling Encompass to a summary judgment as a matter of law. We believe that it does.

In support of its motion for summary judgment, Encompass attached its automobile insurance policy # 262021301, showing a policy period of November 26, 2003 to November 26, 2004. The policy is entitled, “USP Deluxe-Package Renewal Policy Coverage Summary”, and lists Eric Morgan & Donna Colwart as policyholders. Limits include $100,000.00/300,000.00 Bodily Injury Liability and $10,000.00/20,000 UM coverage. Encompass also attached a document showing that on November 26, 2002, Eric Morgan selected the lower limits of UM coverage. This form lists the same two named insureds and has the same policy number as the Encompass policy; however, the company name is listed as Kansas City.

Encompass also provided an affidavit from Kenneth J. Ujezo, who stated that he is a regional underwriting manager who is in control of all policy records insured by Encompass and “its affiliates including Kansas City and Marine Insurance Company and who reside in Louisiana....” He further stated that these | ^policies are “in his care, custody and control.” Mr. Ujezo attested to the fact that the Encompass policy issued to Mr. Morgan and Ms. Col-wart in effect from November 26, 2003 to November 26, 2004 bearing policy # 0262021301 is a renewal of a policy bearing the same policy number originally issued on November 26, 2002 by Kansas City. Mr. Ujezo’s affidavit also establishes that the Uninsured/ Underinsured Motorist Bodily Injury Coverage Form executed by Mr. Morgan on November 26, 2002 is the only form on record for policy # 0262021301, and that no insured under the policy had made a written request to make a change in either the UM or the Bodily Injury coverage.

When a motion for summary judgment is made and supported by documentation, an adverse party may not rest on the mere allegations or denials of his pleading. The adverse party must respond, by affidavits or as otherwise provided by law, and must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. La. C.C.P. art. 967 B.

Ms. Colwart did not present any evidence to either support her motion for summary judgment or to oppose that filed by Encompass. She argues that the affidavit presented by Encompass is concluso-ry and should not be considered by the court.

It is well settled that affidavits with conclusory allegations of fact which are devoid of specific facts will not be considered sufficient to defeat a summary judgment. La. C.C.P. arts. 966 and 967, National Gypsum Co. v. Ace Wholesale, Inc., 96-215 (La.App. 5 Cir. 11/26/96), 685 So.2d 306, 309, and cases cited therein; writ denied, 96-3055 (La.2/17/97), 688 So.2d 502. We do not find Ms. Colwart’s argument that the affidavit is conclusory to be convincing. La. C.C.P. art 967 A provides in part that, “(s)upporting and opposing affidavits shall be made | fion personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” The affidavit establishes that the affiant is a person with actual, personal knowledge of the affiliation of Encompass and Kansas City, and is responsible for the policies written in this case. We find that the affidavit of Mr. Ujezo satisfies the requirements of C.C.P. Art. 967 A and can support the summary judgment.

Ms. Colwart does not question the validity of the form signed opting for the lower limits of UM coverage, or its application to the Kansas City policy. Nor does she suggest that any attempt was made to rescind the selection of the lower limits when the Encompass policy was issued. Ms. Colwart’s argument is that the form selecting lower limits executed at the time the first policy was issued by Kansas City was invalidated on the anniversary date, when the policy was replaced with one from Encompass. She argues that, because the second policy was issued by a different company it is a new policy, not a renewal policy. Accordingly, a new selection of lower limits form should have been executed.

At the time the selection of lower limits was made in this policy the applicable law was La. R.S. 22:1406 D(l)(a)(ii) which read in pertinent part as follows:

. The form signed by the insured or his legal representative which initially rejects coverage, selects lower limits, or selects economic-only coverage shall remain valid for the life of the policy and shall not require the completion of a new selection form when a renewal, reinstatement, substitute, or amended policy is issued to the same named insured by the same insurer or any of its affiliates. (Emphasis ours)

In the matter before us, the affidavit in support of the motion for summary judgment filed by Encompass supports its argument that the policy |7in effect at the time of the accident was a renewal policy provided by an affiliate of the original insurance company. The policy numbers are the same, the effective dates, named insured and coverages are the same. The affidavit also states that Kansas City is an affiliate of Encompass. No documents to contradict these assertions were offered by Ms. Colwart. Therefore, in our de novo review, we find the Encompass policy is a renewal policy written by an affiliate as provided for in the above cited law. Accordingly, the selection of lower limits executed for the first policy is valid as to the Encompass policy.

For the forgoing reasons, we find the trial court was correct in its judgment and we affirm it as rendered.

AFFIRMED.

      . La. R.S. 22:1406 was re-designated as La. R.S. 22:680 by Acts 2003, No. 456, § 3. However, the text is the same.


author: EZELL, Judge.

text:
    Mary Lu Doucet HARDEE v. CITY OF JENNINGS.
    No. WCA 07-242.
    Court of Appeal of Louisiana, Third Circuit.
    May 30, 2007.
    Rehearing Denied Aug. 8, 2007.

      Michael Benny Miller, Miller & Miller, Crowley, LA, for Plaintifl/Appellee Mary Lu Doucet Hardee.
    Lisa Eve Mayer, Borne, Wilkes & Brady, LLP, Lafayette, LA, for Defendant/Appellant City of Jennings.
    Court composed of MICHAEL G. SULLIVAN, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   EZELL, Judge.

|, The City of Jennings appeals a workers’ compensation judgment finding that Mary Lu Doucet Hardee had shown a change in circumstances entitling her to total disability benefits. The City also requests a credit for an overpayment of supplemental earnings benefits.

FACTS

Ms. Hardee was injured in the course and scope of her employment as a police officer with the City in January 1993. She was attempting to restrain a prisoner when she injured her stomach and back. In 2004, this court rendered an opinion affirming, the judgment of the Office of Workers’ Compensation that Ms. Hardee was capable of working twenty hours a week at $5.50 an hour. City of Jennings v. Doucet, 03-1099 (La.App. 3 Cir. 2/4/04), 865 So.2d 1056.

In 2004, the City filed a motion for summary judgment seeking a judgment that it was entitled to terminate her benefits since it had paid a total of 520 weeks in weekly compensation. On August 3, 2004, a judgment was signed declaring that the City was entitled to terminate SEB as of November 30, 2003.

Meanwhile, on July 23, 2004, Ms. Har-dee filed a motion to modify the previous judgment pursuant to La.R.S. 23:1310.8, alleging that there had been a change of conditions since the trial in August and September 2002. A hearing on the matter was held on August 14, 2006. The trial court found that the doctors who had repeatedly examined and treated Ms. Har-dee were clear that Ms. Hardee is no longer medically capable of gainful employment. Based on this evidence and Ms. Hardee’s testimony, the workers’ compensation judge found that Ms. Hardee had shown a change of circumstances and is now totally disabled. He ruled that she was entitled to benefits in the amount of $269.09 per week beginning September 1, 2004. The |aCity appealed the judgment.

CHANGE IN CIRCUMSTANCES

The City first claims that the workers’ compensation judge was manifestly erroneous in relying on the testimony of Ms. Hardee’s treating physicians because they were confused about the standard to be applied in determining total disability. During the course of events, Ms. Hardee had moved to Everett, Washington. There she sought treatment from new doctors for her condition.

During his deposition testimony, Dr. Marco Wen was asked about Ms. Hardee’s ability to return to work. He explained that he sometimes gets confused with the ability to work standard in Washington which requires that a worker have the ability to work full time. Dr. Wen inquired about the Louisiana standard concerning part-time work. After clarification, he proceeded to answer the question about whether she could return to work. We find that Dr. Wen’s testimony establishes that he clarified the Louisiana standard before proceeding to answer the question about Ms. Hardee’s ability to return to work. We also find no confusion in Dr. Jaime Nováis’ testimony concerning the standard. Dr. Nováis was the first doctor to treat Ms. Hardee after she moved to Washington. Therefore, we find no merit to this assignment of error.

The City also claims as error the workers’ compensation judge’s finding that Ms. Hardee proved there was a change in circumstances since the last trial and that she is totally disabled from working. It claims that the evidence presented by Ms. Hardee was not clear and convincing.

Pursuant to La.R.S. 23:1310.8(B), a party may re-open a workers’ compensation case and the workers’ compensation judge may modify an award on the grounds of a change in condition. “A party who seeks a modification of a worker’s | ¡¡compensation judgment must prove by a preponderance of the evidence that the worker’s disability has increased or diminished.” Lormand v. Rossclaire Constr., 01-515, p. 2 (La.App. 3 Cir. 12/12/01), 801 So.2d 675, 676. A claimant seeking total disability benefits must prove by clear and convincing objective medical evidence that she is physically unable to engage in any employment. La.R.S. 23:1221. The factual finding of a workers’ compensation judge that the claimant has demonstrated a change in condition is entitled to great weight and will not be disturbed unless clearly wrong. Lormand, 801 So.2d 675.

Ms. Hardee first saw Dr. Jaime Nováis who is board certified in internal medicine and geriatric medicine. He saw Ms. Har-dee on July 1, 2002, when she sought treatment for her condition after she moved to Washington. He began seeing her monthly. He observed that she had chronic pain and difficulty walking. He noted that she was going to need ongoing pain management and psychiatric care. At that time, he opined that Ms. Hardee was capable of returning to some type of employment because she was attending college classes.

In December 2002, Dr. Nováis referred Ms. Hardee to Dr. Wen, a physical medicine rehabilitation doctor with a sub-specialty in pain medicine. He ordered lumbar facet injections. There was an immediate reduction in pain thereafter but a lack of therapeutic response about five or six hours after the injection. On April 4, 2003, Ms. Hardee fell down a short flight of stairs which triggered lumbar pain. Ms. Hardee had reported to Dr. Nováis in 2002 that her leg had given out causing her to fall. Dr. Wen explained that if the weakness in her leg is what was causing her to fall, it brought up the possibility of nerve root compression or nerve root irritation.

Dr. Wen continued with the injections. On July 3, 2003, he performed a lumbar facet rhizotomy. This procedure utilizes radio frequency energy, which heats |4the nerve and basically kills it or oblates it so there is long-term pain relief. At that time, Ms. Hardee had excellent pain reduction on her left side, with some residual pain on her right side.

Dr. Wen ordered an MRI, which indicated a lateral disc protrusion at L3^1. As of November 2003, Ms. Hardee was experiencing consistent pain on both sides. Dr. Wen ordered a bone scan, which indicated a right facet problem at Ll-2, L2-3, and L3-4. Dr. Wen continued administering the injections, which did not seem to be providing any pain relief.

During the course of treatment, Dr. Wen referred Ms. Hardee to Dr. Suzanne Lacross because Ms. Hardee alluded to being very depressed. Dr. Lacross is a psychologist specializing in behavioral medicine and chronic pain management. Dr. Lacross commented that Ms. Hardee was very depressed when she saw her. She believed that Ms. Hardee wanted to be out of pain and resume her life as she once knew it. She knew of no intellectual reason why Ms. Hardee could not return to work but observed that she had been in a pain situation for ten years, which is significant.

Dr. Nováis also noted that Ms. Hardee began to have more problems and became more psychiatric unstable. Both Doctors Nováis and Wen were of the opinion that a combination of the physical and emotional factors prevented Ms. Hardee from working. Dr. Nováis commented that if Ms. Hardee had back pain only, then she would be able to work a job that had no physical demands. Dr. Nováis explained that the waxing and waning of Ms. Hardee’s condition caused an increase in psychiatric problems. Dr. Nováis testified that chronic pain will exacerbate a previous mental problem. Dr. Nováis explained that after Ms. Hardee began having more problems and became more mentally unstable, she was unable to work. He stated that her back condition was very serious and that she could not hold a job. Dr. |BWen also opined that Ms. Hardee would not be able to engage in any type of gainful employment.

Additionally, both doctors were concerned with Ms. Hardee’s cognitive abilities. Since her injury, she has been on numerous medications which have affected her.

We cannot say the workers’ compensation judge was clearly wrong in concluding that Ms. Hardee had proven a change in circumstances. Both Dr. Nováis and Dr. Wen were clear that she was unable to now work with her increasing psychiatric problems caused by her continuing back problems. We agree with the workers’ compensation judge’s conclusion that she is now totally disabled.

CREDIT

On April 21, 2003, a judgment of the Office of Workers’ Compensation was signed which held that Ms. Hardee was capable of working twenty hours a week at minimum wage of $5.50 an hour. While that decision was on appeal, the City claims it continued to pay the full amount of SEB of $1,122.69 to Ms. Hardee, when it only owed $813.59. The City claims that the total overpayment during this time was $2,163.70.

The City also claims that it overpaid Ms. Hardee during another time period. In its brief, the City explains that the decision of this court was not rendered until February 2004 and as of November 30, 2003, Ms. Hardee had received 520 weeks of SEB. The City began initiating proceedings to terminate her benefits in January |fi2004. The hearing was held on August 4, 2004. Ms. Hardee was paid the full SEB rate of $1,122.69 through August 31, 2004. The City claims that the total overpayment during this time was $10,104.21 (nine months of payments, December 2003 through August 2004, at the rate of $1,122.69 per month). The City introduced a print-out in the record substantiating these payments.

The City claims it is entitled to a credit for these overpayments of SEB to Ms. Hardee. The total overpayment the City is claiming is $12,267.91.

Ms. Hardee does not dispute the calculations themselves. Ms. Hardee alleges that the evidence indicated that she had a fall on April 3, 2003, which aggravated and worsened her condition. She argues that as of April 3, 2003, she was entitled to total disability benefits at the rate of $261.09 a week or $1,122.69 a month, so she has been receiving the correct amount of benefits as of April 3, 2003.

Louisiana Revised Statutes 23:1206 provides that an employer is entitled to deduct any voluntary payment or unearned wages which were not due from compensation payments. Both parties agree that the workers’ compensation judgment was silent as to the credit issue, so it is deemed a rejection of the relief requested by the City. Chesne v. Elevated Tank Applicators, 04-46 (La.App. 3 Cir. 5/12/04), 874 So.2d 333, writ denied, 04-1439 (La.9/24/04), 882 So.2d 1141.

The reasons for judgment make clear that the workers’ compensation judge was aware that Ms. Hardee was claiming she was entitled to total benefits retroactive to 2003. Obviously, the workers’ compensation judgment also rejected this claim as the reasons and the judgment itself are clear that she is entitled to total disability benefits as of September 1, 2004. Therefore, we find that the City was entitled to a credit for the overpayment of benefits in the amount of $12,267.91.

|7For the foregoing reasons, the judgment of the trial court finding that Ms. Hardee is now totally disabled and entitled to total disability, benefits is affirmed. However, the judgment is amended to give the City a credit of $12,267.91.

AFFIRMED AS AMENDED.

      . The City offered the following calculation pursuant to La.R.S. 23:1221(3)(a) to explain the amount of overpayment: Ms. Hardee's average weekly wage is $391.63 (260.09 -s-2/3). $391.63 x 52 + 12 = $1,697.06 average monthly wages at the time of the injury. The amount Ms. Hardee was found to be capable of earning is $110.00 per week (20 hours per week at $5.50). Ms. Hardee’s average monthly wage is $476.67 ($110.00 x 52 * 12). $1,697.06 - $476.67 = $1,220.39 x 2/3 = $813.59. The City claims that Ms. Hardee was overpaid $309.11 each month ($1,122.69, amount actually paid, - $813.59, amount owed) for seven months (May through November, 2003). Total overpayment of $2,163.70.


author: BELSOME. J. MURRAY, J.,

text:
    W. Earl HARKLESS, D.D.S. v. Paul SYLVESTER, Jr. and Colony Insurance Company.
    No. 2006-CA-1221.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 30, 2007.

      George R. Blue, Jr., George R. Blue, Jr., LLC, New Orleans, LA, for Plaintiff/Appellant.
    Shelley H. Provosty, Montgomery Barnett LLP, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge ROLAND L. BELSOME).
   BELSOME. J.

| Appellant, W. Earl Harkless, D.D.S. (“Dr. Harkless”) appeals the trial court’s granting of summary judgment in favor of Appellee, Colony Insurance Company (“Colony”).

Dr. Harkless filed suit against Paul Sylvester and Colony asserting claims of negligence on the part of Mr. Sylvester, which ultimately caused the destruction of Dr. Harkless’ dental office located at 1939 St. Claude Avenue. Mr. Sylvester is the owner of a jazz lounge known as Sweet Lorraine’s located at 1931 St. Claude Avenue, New Orleans. On or about June 24, 2002, Sylvester purchased property adjacent to his business bearing the municipal address of 1108-1110 Touro Street (“Touro Property”). On July 24, 2002, a fire started at the Touro Property and spread to Dr. Harkless’ building.

Dr. Harkless contends that Mr. Sylvester’s negligence in securing the abandoned dilapidated building from vagrants caused the fire. Further, since Mr. Sylvester bought the Touro Property in furtherance of his business, Sweet Lorraine’s, the Commercial General Liability (CGL) policy written by Colony on Sweet Lorraine’s should provide coverage for such negligence. Colony | ¿filed a motion for summary judgment on the issue of coverage claiming that the Sweet Lorraine’s policy did not cover the Touro Property. The trial court agreed and granted the summary judgment in Colony’s favor.

On appeal Dr. Harkless argues that the trial court erred in its interpretation of the “Designated Premises Endorsement” and the “Designated Operations Endorsement”. He also maintains that the trial court erred in its finding that there were no genuine issues of material fact presented to prevent the granting of summary judgment.

In determining whether summary judgment was properly granted, this court reviews the record de novo, using the same criteria as the trial court. Reynolds v. Select Properties, Ltd., (La.4/11/94), 634 So.2d 1180, 1183. If the record contains no genuine issues of material fact to overcome the granting of summary judgment, the trial court must be affirmed.

Colony issued a CGL to Sweet Lorraine’s. The CGL policy contains a premises endorsement, or “Limitation of Coverage to Designated Premises or Project.” The endorsement reads:

This insurance applies to ‘bodily injury’, ‘property damage’, ‘personal injury’, ‘advertising injury’, and ‘medical expense’ arising only out of the ownership, maintenance or use of the premises shown in the schedule or the project shown in the schedule.

The schedule of premises or projects list only one premises, 1931 St. Claude Avenue, New Orleans, Louisiana 70117.

Additionally, the policy contained a “Limitation of Coverage to Designated Operations” endorsement that provided that:

We will only pay sums that insured becomes obligated to pay as damages because of ‘bodily injury’, ‘property damage’, ‘personal injury’ and ‘advertising injury’ to which this |3msurance applies arising out of the operations of the business described below.
Business Description:
JAZZ LOUNGE

The trial court’s reasons for judgment stated that:

... plain terms of the designated premises endorsement of the Colony policy is clear and unambiguous by limiting its liability only to cover damages ‘arising only out of the ownership maintenance, or use’ of the property located at 1931 St. Claude Avenue, Sweet Lorraine’s.

We agree. Additionally the trial court noted that a causal connection between the occurrence in question and the designated premises listed in the policy must exist to be considered as arising out of the use of the designated premises. American Guarantee and Liability Insurance Company v. The 1906 Corporation, 129 F.3d 802, 807 (5th Cir.1997). In the instant case no such causal connection existed.

Although Dr. Harkless presented speculation as to the future use of the Touro Property, that alone is not enough to establish coverage. “An insurance contract ... should not be interpreted in an unreasonable or strained manner under the guise of contractual interpretation to enlarge or to restrict its provisions beyond what is reasonably contemplated by unambiguous terms.... ” Carrier v. Reliance Inx. Co., 99-2573, p. 11 (La.4/11/00), 759 So.2d 37, 43 (citing Louisiana Ins. Guar. Ass’n v. Interstate Fire & Casualty Co., 630 So.2d 759, 763 (La.1/14/94)).

For these reasons, we find the trial court did not err in granting Colony’s motion for summary judgment.

AFFIRMED.

MURRAY, J., dissents and assigns reasons.

MURRAY, J.,

dissenting.

LI respectfully dissent from the majority’s affirmation because I find there exists a genuine issue of material fact that precludes summary judgment. The reasons for judgment issued by the trial court do not reflect that the court appreciated the difference between a Commercial General Liability (“CGL”) policy, which is involved in the instant case, and an Owner’s Landlord and Tenant (“OLT”) policy. In general, a CGL policy affords protection to a business owner from liability arising out of his activity in operating the business; whereas an OLT policy affords protection to a property owner from liability arising from the condition or use of the property. See American Guarantee and Liability Insurance Company v. The 1906 Company, 129 F.3d 802, 808 (5th Cir.1997).

In the instant case, the determination of whether the facts presented herein fall within the ambit of coverage limited by the “designated premises” and “designated operations” endorsements of the policy is not entirely a legal issue, but rather a mixed question of law and fact, requiring that factual inferences be drawn from the evidence. Under Louisiana law, despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion. Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257, pp. 16-17 (La. 2/29/00), 755 So.2d 226, 236. In addition, it is well established that any ambiguity in an insurance policy should be construed to afford coverage rather than to deny it. See: La. C.C. art.2056; Peterson v. Schimek, 98-1712 (La.3/2/99), 729 So.2d 1024, 1029; Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. Accordingly, the Louisiana Supreme Court has held that summary judgments declaring a lack of coverage under an insurance policy should not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Reynolds v. Select Properties, Ltd., supra, 634 So.2d at 1183 (citing Westerfield v. LaFleur, 493 So.2d 600, 605 (La.1986)). Considering the evidence, I do not believe Colony met its burden of proof on the motion for summary judgment.

In the instant case, Mr. Sylvester testified that he purchased the Touro property to protect his interest in Sweet Lorraine’s, the jazz lounge he operated next door, and that at the time the fire occurred, he had applied for city permits to use the Touro property in connection with the operation of the lounge but had not yet received any permits. Plaintiff alleges his injury occurred because Mr. Sylvester neglected the Touro property in the interim. In light of this testimony, I find there is a genuine issue of fact remaining as to whether the fire arose “out of the operations of the business” of the jazz lounge within the terms of the policy endorsement. I would therefore reverse the trial court’s granting of summary judgment on this basis.

Accordingly, I respectfully dissent.