author: GENOVESE, Judge.

text:
    Mac DUNCAN v. DOW PIPELINE COMPANY.
    No. 06-1455.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2007.
    J. Bryan Jones, III, Lake Charles, Louisiana, for Plaintiff/Appellant, Phyllis Duncan on behalf of Mac Duncan, deceased.
    Ben L. Mayeaux, Jennie P. Pellegrin, Laborde & Neuner, Lafayette, Louisiana, for Defendant/Appellee, Dow Pipeline Company.
    Richard J. Hymel, F. Douglas Ortego, Preis, Kraft & Roy, Lafayette, Louisiana, for Intervenor, Alaska National Insurance Company.
    Court composed of SYLVIA R. COOKS, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

[ -i Plaintiff, Phyllis Duncan, the surviving spouse of the deceased Plaintiff, Mac Duncan (Duncan), appeals the judgment of the trial court granting summary judgment in favor of Defendant, Dow Pipeline Company (Dow), finding that Dow was the statutory employer of Mac Duncan at the time of his personal injury and dismissing Duncan’s suit in tort against Dow. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

In February of 2002, Dow contracted with Cain’s Hydrostatic Testing, Inc. (Cain), Duncan’s employer, to repair several of its oil pipeline platforms along Dow’s Mount Belvieu Pipeline in the Atchafalaya Basin. Repairs to Dow’s platforms began soon thereafter. The repairs entailed replacing old floor boards with new, treated lumber on the platforms and the steps leading up to the platforms.

Duncan was a laborer employed directly by Cain. On March 7, 2002, in the process of repairing one of Dow’s platforms, Duncan leaned against a handrail and fell backwards when the handrail broke. Duncan reportedly “injured his lower back and suffered a head injury causing some short term memory loss” when he “fell through some handrails on the platform” owned by Dow. Duncan filed suit against Dow in district court, alleging that Dow was negligent for failing to properly maintain the handrails when it either knew or should have known that the handrails were faulty. Duncan has received workers’ compensation benefits from his direct employer, Cain. Cain’s workers’ compensation insurer, Alaska National Insurance Company, has intervened in this matter, asserting subrogation rights for the workers’ | ¡.compensation benefits it has paid on Duncan’s claims.

Dow answered Duncan’s petition raising the affirmative defense that it was Duncan’s statutory employer. Dow subsequently filed a motion for summary judgment on the basis that there are no genuine issues of material fact as to its immunity from tort liability pursuant to Louisiana’s statutory employer doctrine as stated in its written contract with Cain.

Duncan opposed Dow’s motion, asserting that summary judgment was not proper; specifically, Duncan argued that genuine issues of material fact exist relative to whether a statutory employer/employee relationship existed between Dow and Duncan. First, Duncan asserted that the contract between Dow and Cain contained both a statutory employer provision and an independent contractor provision. According to Duncan, such a conflict and contradiction in the contract should have been construed against Dow and should have then inured to the benefit of Duncan, thereby disallowing statutory employer status to Dow, and allowing Duncan to proceed in tort. Second, Duncan argued that Cain’s employees performed work not considered a part of Dow’s trade, business, or occupation as required by La.R.S. 23:1061; thus, without a valid contract binding Dow and Duncan to a statutory employer-employee relationship, Duncan is not limited to the exclusive remedy provisions of Louisiana’s Workers’ Compensation Act.

The trial court issued written reasons for judgment granting Dow’s motion for summary judgment, finding that the contractual language relative to a statutory employer-employee relationship was valid and that the work performed by Duncan was an integral part of Dow’s business as defined by the jurisprudence. Thereafter, the trial court signed a judgment dismissing Duncan’s tort claim against Dow, thereby 1 slimiting his recovery to workers’ compensation benefits. Duncan appeals.

ISSUE

In Duncan’s brief to this court, the sole issue presented is “[whether] the trial court err[ed] by holding that Dow Pipeline Company was the statutory employer of Mac Duncan when the contract entered into between Dow Pipeline Company and Mac Duncan’s direct employer, Cain’s Hydrostatic Testing, contained independent contractor language which contradicted the statutory language of the contract!.]”

STANDARD OF REVIEW

Appellate courts review summary judgments de novo using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Richard v. Hall, 03-1488 (La.4/23/04), 874 So.2d 131; Goins v. Wal-Mart Stores, Inc., 01-1136 (La.11/28/01), 800 So.2d 783. The appellate court must determine whether “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B).

Louisiana Code of Civil Procedure Article 966 charges the moving party with the burden of proving that summary judgment is appropriate. However, when the mov-ant will not bear the burden of proof at trial on the matter that is before the court, the movant’s burden on the motion does not require him to negate all of the essential elements of the adverse party’s claim, but rather to point out to the court that there is an absence of factual support for one or more of the elements essential to the adverse party’s claim. See La.Code Civ.P. art. 966(C)(2). If the adverse party fails to produce factual support to convince the court that he can carry his burden of proof at trial, | ¿there is no genuine issue of material fact and granting of the motion is mandated. Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606; Hayes v. Autin, 96-287 (La.App.3 Cir. 12/26/96), 685 So.2d 691, writ denied, 97-281 (La.3/14/97), 690 So.2d 41.

The threshold question in reviewing a trial court’s granting of summary judgment is whether a genuine issue of material fact remains. Kumpe v. State, 97-386 (La.App. 3 Cir. 10/8/97), 701 So.2d 498, writ denied, 98-50 (La.3/13/98), 712 So.2d 882. Thereafter, we must determine whether reasonable minds could conclude, based on the facts presented, that the mover is entitled to judgment. Id. Thus, summary judgment is appropriate when all relevant facts are brought before the court, the relevant facts are undisputed, and the sole remaining issue relates to the legal conclusion to be drawn from the facts. Id.

“Facts are material if they determine the outcome of the legal dispute.” Soileau v. D & J Tire, Inc., 97-318, p. 3 (La.App. 3 Cir. 10/8/97), 702 So.2d 818, 821, writ denied, 97-2737 (La.1/16/98), 706 So.2d 979. The determination of the materiality of a particular fact must be made in light of the relevant substantive law. Id.

DISCUSSION

According to La.R.S. 23:1032(A)(l)(a), the rights and remedies granted to an employee under Louisiana’s Workers’ Compensation Act are exclusive to all other rights, remedies, and claims for damages, except for intentional acts, against any principal. Principal is defined “as any person who undertakes to execute any work which is a part of his trade, business, or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any | ^person for the execution thereof.” La.R.S. 23:1032(A)(2). Louisiana Revised Statutes 23:1061 provides, in pertinent part:

[W]hen any “principal” ... undertakes to execute any work, which is a part of his trade, business, or occupation and contracts with any person, in this Section referred to as the “contractor”, for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal, as a statutory employer, shall be granted the exclusive remedy protections of [La.] R.S. 23:1032 and shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed. For purposes of this Section, work shall be considered part of the principal’s trade, business, or occupation if it is an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.
(2) A statutory employer relationship shall exist whenever the services or work provided by the immediate employer is contemplated by or included in a contract between the principal and any person or entity other than the employee’s immediate employer.
(3) Except in those instances covered by Paragraph (2) of this Subsection, a statutory employer relationship shall not exist between the principal and the contractor’s employees, whether they are direct employees or statutory employees, unless there is a written contract between the principal and a contractor which is the employee’s immediate employer or his statutory employer, which recognizes the principal as a statutory employer. When the contract recognizes a statutory employer relationship, there shall be a rebuttable presumption of a statutory employer relationship between the principal and the contractor’s employees, whether direct or statutory employees. This presumption may be overcome only by showing that the work is not an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.
B. When the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this Section would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor.

| fiIn this matter, Dow included and introduced into evidence, with its motion for summary judgment, five exhibits: (1) the affidavit of Paul Russo, the Activity Leader for Dow; (2) the affidavit of Beverly Bruno-James, the Administrative Specialist for Dow; (3) the purchase order/contract between Dow and Cain; (4) excerpts of Mac Duncan’s deposition testimony; and (5) a copy of Duncan’s petition for damages against Dow. The relevant provision of the contract at issue herein provides:

STATUTORY EMPLOYEE DOW (AS PRINCIPAL EMPLOYER) AND THE CONTRACTOR (AS DIRECT EMPLOYER) MUTUALLY AGREE
THAT IT IS THEIR INTENTION TO RECOGNIZE DOW AS THE STATUTORY EMPLOYER OF THE CONTRACTOR’S EMPLOYEES, WHETHER DIRECT EMPLOYEES OR STATUTORY EMPLOYEES

In response to Dow’s motion and exhibits, Duncan submitted no evidence showing the existence of specific facts which would establish a genuine issue of material fact, only argument. In her brief, Duncan argues a purported contractual provision that is not found in the note of evidence in the record of this summary judgment proceeding; therefore, we find Duncan’s assertions to be purely speculative and without merit for lack of both testamentary or evidentiary support. Duncan contends that the trial court erred because it did not consider the independent contractor language found in the contract entered into by Dow and Cain. However, we find that there was no such contractual provision properly introduced into the record of these proceedings; therefore, there is no independent contractor provision before this court for us to review on appeal.

The written contract between Dow and Cain clearly establishes a statutory relationship whereby Dow is the statutory employer of Cain’s employees. Pursuant to La.R.S. 23:1061(A)(3), once it is found that a written contract creates a statutory employer relationship, there is a rebuttable presumption which can only be overcome |7by Duncan proving that the work he was performing at the time he sustained his injuries was not an integral part of or essential to Dow’s ability to generate its goods, products, or services. Again, we find the record devoid of competent evidence of Duncan overcoming this presumption.

Our review of the record reveals that the trial court relied upon Dow’s affidavit of Paul Russo and the holding in Becker v. Chevron Chemical Company, 983 F.2d 44 (5th Cir.1993), to support its finding that the work Duncan was performing at the time he sustained his injuries was an integral part of Dow’s business under La.R.S. 23:1061(A)(3). In Becker, the Fifth Circuit held that the replacement of overhead walkways, which were used daily at Chevron’s storage facility to access hatches above storage tanks, was an integral part of Chevron’s business, such that Chevron was the statutory employer of the contractor’s employees who were hired to replace said walkways, regardless of whether the job might be considered extraordinary construction work.

In its written reasons for judgment in the case sub judice, the trial court concluded:

Duncan removed old deck boards and sills from Dow’s platform and replaced] them with treated lumber. Dow’s “trade, business or work” is manufacturing various chemicals. Dows uses pipelines to transport chemicals for use in its manufacturing process. Valves used to monitor safe operation of the pipelines are designated at different intervals of the pipeline. The platform repaired by Mac Duncan is necessity [sic] for Dow’s . safe operation. Dow’s technicians require access to safety valves to monitor the pipelines for leaks and/or malfunctions and perform maintenance and repair work. See Affidavit of Paul Russo dated August 3, 2005.
This court finds the reasoning in Becker [ ] appropriate and applicable to this case. The “work” perform[ed] by Duncan (repairing the entire flooring of the platform and replacing it with treated wood and floor joists, creating a safer platform) is an integral part of Dow’s ^business under L[a].R.S. 23:1061.
Dow’s ability to operate and maintain safe pipelines is essential to its smooth and continued business of manufacturing oil products.

(Footnote omitted.)

Thus, considering the evidence properly before this court, we find that summary judgment was appropriately granted by the trial court. The record clearly indicates the existence of a contractual statutory employer relationship between Duncan and Dow, which Duncan failed to overcome. There are no genuine issues of material fact and Dow is entitled to summary judgment as a matter of law pursuant to the mandates of La.Code Civ.P. art. 966; hence, Duncan’s sole remedy lies in workers’ compensation.

DECREE

For the foregoing reasons, the judgment of the trial court granting summary judgment in favor of Dow is affirmed. Costs of this appeal are assessed against Plaintiff/Appellant, Phyllis Duncan on behalf of Mac Duncan, deceased.

AFFIRMED.

      . According to the record, Mac Duncan died of lung cancer on December 28, 2003; thereafter, his wife, Phyllis Duncan, filed a motion to substitute parties in order to enroll as the proper party plaintiff in this matter. Thus, to avoid confusion, this court will continue to refer to the sole remaining plaintiftyappellant in this matter, Phyllis Duncan, as "Duncan.”


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    Dora Thompson BROWN, et al. v. RIVERLAND MEDICAL CENTER.
    No. 06-1449.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2007.
    Jo Ann Nixon Glenda M. August <& Associates, New Iberia, LA, for Plaintiffs/Appellants, Dora Thompson Brown, et al.
    René J. Pfefferle, Watson, Blanche, Wilson & Posner, Baton Rouge, LA, for Defendant/Appellee, Riverland Medical Center.

      Court composed of JIMMIE C. PETERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   AMY, Judge.

|TIn this medical malpractice matter, the plaintiff appeals the trial court’s granting of the defendant’s motion for summary judgment. For the following reasons, we affirm.

Factual and Procedural Background

According to the petition for medical malpractice, the decedent, Laura King Thompson “was admitted to the defendant facility[, Riverland Medical Center (River-land) ] on or about December 8, 1998[,]” allegedly suffering from complications caused by a misplaced pacemaker. The plaintiffs, the decedent’s heirs, contended that the decedent’s condition deteriorated during her hospital stay, ultimately culminating in her death on December 18, 1998.

The plaintiffs filed a medical malpractice claim, which was reviewed by a Medical Review Panel. The Medical Review Panel rendered an opinion on April 4, 2001, in which it found that Riverland did not breach the applicable standard of care. The plaintiffs subsequently filed suit against Riverland on July 12, 2001. River-land filed an answer on October 30, 2001 and a motion for summary judgment on May 12, 2005. A hearing on the motion was subsequently held on January 19, 2006. According to the record, on the morning of the hearing, the plaintiffs attempted to file an opposition to the motion for summary judgment with a letter attached from their expert witness, Dr. Antoine Keller, in which he discussed alleged breaches in medical care.

laAfter oral argument, the trial court took the matter under advisement and entered reasons for judgment on April 24, 2006, in which it stated:

Plaintiffs bear the burden of proof at trial. Defendant has pointed out the absence of factual support for one or more elements essential to plaintiffs case. Because plaintiffs have failed to produce factual support in the form of medical expert testimony to establish they will be able to satisfy their eviden-tiary burden of proof at trial, defendant’s motion for summary judgment is granted at plaintiffs costs.

The plaintiffs appeal, arguing that the “[m]otion was granted contrary to the law and jurisprudence” as the trial court “gave no consideration to the facts offered by [them].” The plaintiffs concede that Dr. Keller’s conclusions were stated in a letter rather than an affidavit; however, they contend that “the opposition should be review[ed] ‘indulgently.’ ”

Discussion

Standard of Review & Summary Judgment

In Ceasar v. Hebert, 06-374, p. 2 (La. App. 3 Cir. 11/2/06), 941 So.2d 678, 679-70, this court explained the standard employed for reviewing motions for summary judgment:

An appellate court reviews motions for summary judgments de novo and employs the same criteria as the trial court in deciding whether summary judgment is appropriate. Lafleur v. Aftco Enterprises, Inc., 05-127 (La.App. 3 Cir. 4/5/06), 927 So.2d 1200. “A motion for summary judgment will be granted ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.’ La.Code Civ.P. art. 966(B).” Id. at 1202.
[sThe mover bears the initial burden of proof to show that no genuine issue of material fact exists. However, if the mover will not bear the burden of proof at trial, he need not negate all essential elements of the adverse party’s claim, but he must point out that there is an absence of factual support for one or more elements essential to the claim. La.Code Civ.P. art. 966(C)(2). Once the mover has met his initial burden of proof, the burden shifts to the nonmov-ing party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. Id.

Standard of Care

Riverland contends that the motion for summary judgment was properly granted insofar as there was no evidence that Riv-erland breached the applicable standard of care. It argues that this court should not consider the letter from Dr. Keller because it was not in affidavit form and timely filed under La.Code Civ.P. art. 966(B), which provides in pertinent part:

For good cause, the court shall give the adverse party additional time to file a response, including opposing affidavits or depositions. The adverse party may serve opposing affidavits, and if such opposing affidavits are served, the opposing affidavits and any memorandum in support thereof shall be served pursuant to Article 1313 at least eight days prior to the date of the hearing unless the Rules for Louisiana District Courts provide to the contrary. (Emphasis added).

At the hearing on the motion for summary judgment, Riverland objected to the admission of the letter into evidence. It went on to state why summary judgment should be granted in its favor:

We submit in support of the summary judgment the Medical Review Panel opinion, the affidavit of each of the three physicians who served on the opinion, again reiterating their opinion that the care — in fact, if I might read it into the record. They stated “The material presented to the panel for its review demonstrated excellent documentation of Ms. Thompson’s hospitalization at River-land Medical Center and established excellent response to and appropriate care of Ms. Thompson’s condition during her hospitalization. The panel is further of the opinion that Ms. Thompson died of a massive pulmonary embolus and that the pacemaker did not play any part in her death.” These panelists, again when presented with the opinion later and asked them to do affidavits, and [4they did same so we have that in the record .... For those reasons, Your Honor, we would maintain that our Motion for Summary Judgment is proper, it is timely, it is not premature as suggested.... In fact, if anything, we waited a long time to file it and there is still no evidence, proper evidence, presented in opposition to the Motion for Summary Judgment.

In response, the plaintiffs explained why they waited until the morning of the hearing to file the opposition and the letter into evidence. They contended that the letter should preclude summary judgment:

We did do a phone conference with Your Honor concerning the obtaining of the medical expert and we indicated we would have it within that period of time. We were working with some attorneys other places who said they could provide experts. They just had not provided those experts for us up until that point. As I say it in the memo, and Mr. Pfef-ferle is correct concerning the time limits of this, the response under the Article of Civil Procedure is eight days prior to that and this has not been done. However, to rule against the defendant [sic] solely for that reason when it is clear that the defendant has the — that the spirit, if not the letter of the law in responding to this, I think would be unfair. Concerning the merits of the case and Your Honor obviously has also received this only on this morning, so I’m not certain what time you have had to be able to review the information that Dr. Keller gave us on this. But I would differ again, and I can’t specifically criticize Mr. Pfefferle [defense counsel] for saying this because he has only received the letter of Dr. Keller on yesterday. But Dr. Keller does find omissions in the care that Mrs. Thompson received at Riverland. The things that he was concerned about was because of the complaint she made when she was admitted. There were certain types of care, prophylactic care that should have been taken to avoid the problems which he— and he opined is deep vein thrombosis. That' is his opinion based on his review of the medical record. It is not in the form of an affidavit. That can be obtained at some point within in [sic] a period of time.... [T]he facts that should be presented to a trier of fact, I think are present here with the opinion of Dr. Keller. And we would ask that the Court deny the Motion for Summary Judgment.

After reviewing the record, we find that Riverland’s motion for summary judgment was properly granted. In Young v. Mobley, 05-547, p. 5 (La.App. 3 Cir. 3/1/06), 923 So.2d 917, 920, this court recently stated:

Louisiana Revised Statute 9:2794 provides the applicable burden of proof for a plaintiff in a medical malpractice case. That article | ^provides that a plaintiff must establish the following elements by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) that the defendant breached that standard of care; and (3) that there was a causal connection between the breach and the resulting injury. Generally, expert testimony is required to establish the applicable standard of care and whether or not that standard of care was breached. Butler [v. DePuy], 876 So.2d 259 [(2004)] (citing Davis v. Atchison, 37,832 (La.App. 2 Cir. 10/29/03), 859 So.2d 931).

Because the plaintiffs have the burden of proof of trial, Riverland must show that “there is an absence of factual support for one or more elements essential to the [plaintiffs’] claim.” La.Code Civ.P. art. 966(C)(2). At the hearing, River-land entered into evidence the Medical Review Panel Opinion in which it concluded that “[t]he material presented to the Panel for its review demonstrated excellent documentation of Mrs. Thompson’s hospitalization at Riverland Medical Center and established excellent response to, and appropriate care of, Mrs. Thompson’s condition during her hospitalization.” As Riverland established that the plaintiffs would be unable to prove a breach of the standard of care, the burden then shifted to the plaintiffs “to produce factual support sufficient to establish that [they] will be able to satisfy [their] evidentiary burden at trial.” La.Code Civ.P. art. 966(C)(2).

Here, the plaintiffs did not attempt to file their opposition to summary judgment, with the letter from Dr. Keller attached thereto, until the morning of the hearing. Louisiana Code of Civil Procedure Article 966(B) (emphasis added) states that the plaintiffs’ “opposing affidavits and any memorandum in support thereof shall be served pursuant to Article 1313 at least eight days prior to the date of the hearing.” Because the plaintiffs did not file their opposition at least eight days prior to the hearing, they cannot establish by expert testimony, i.e., Dr. Keller’s letter, the applicable standard of care and a breach thereof. Furthermore, even if the opposition and the letter were served within the requisite time period, the letter would not be | ^admissible because it was not submitted in affidavit form or as an attachment to an affidavit. See La.Code Civ.P. art. 966(B); Mouton v. Sears Roebuck, 99-669, p. 8 (La.App. 3 Cir. 11/3/99), 748 So.2d 61, 66, writ denied, 99-3386 (La.2/4/00), 754 So.2d 232 (wherein this court held that “[ujnsworn and unverified documents are not of sufficient evidentiary quality to be given weight in determining whether there is a genuine issue of material fact.”)

The plaintiffs failed to produce factual support sufficient to establish that they would be able to prove their claim at trial. As no genuine issue of material fact exists, Riverland’s motion for summary judgment was properly granted.

Therefore, this assignment is without merit.

DECREE

For the foregoing reasons, the judgment of the trial court granting the defendant’s motion for summary judgment is affirmed. All costs of these proceedings are assessed against the plaintiffs, Dora Thompson Brown, et al.

AFFIRMED.

      . We note that the trial court agreed that the plaintiffs could submit a corrected copy of their opposition to summary judgment to the Clerk of Court's Office and allowed Riverland to respond to it. However, the record does not further indicate that the opposition was filed as it does not contain either the opposition or the attached letter. See Thibodeaux v. Ferrellgas, Inc., 98-862, p. 11 (La.App. 3 Cir. 1/6/99), 741 So.2d 34, 41, writ denied, 99-0366 (La.3/26/99), 739 So.2d 797, where this court held that “[t]he trial court could have taken the [late filing] under advisement while it considered memoranda from all parties and then determined whether to exercise its discretion and admit it.”


text:
    Donnie KOONCE, d/b/a K Krane v. Kemp DOUSAY.
    No. 06-1498.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2007.

      Nathan A. Cormie, Lake Charles, LA, for Defendant/Appellee, Kemp Dousay.
    Yul D. Lorio, Shaun S. Gill, Blaine A. Doucet, Doucet Lorio, L.L.C., Lake Charles, LA, for PlaintiffAppellant, Donnie Koonce, d/b/a K Krane.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   AMY, Judge.

hThe plaintiff appeals the trial court’s granting of the defendant’s motion for involuntary dismissal. For the following reasons, we affirm.

Factual and Procedural Background

The record indicates that the plaintiff, Donnie Koonce (Koonce) d/b/a K Krane, and the defendant, Kemp Dousay (Dous-ay), entered into an agreement whereby Dousay would lease a 1994 Ford LNT8000 Truck and a 990 National Crane at $1,500.00 per month for sixty months from Koonce. According to Koonce, the terms of the lease agreement required that Dous-ay provide adequate insurance on both the truck and the crane, list Koonce as an “added insured!,]” and that the equipment be domiciled at the address given in the lease agreement.

On October 28, 2005, Koonce’s attorney sent Dousay a letter terminating the lease agreement due to Dousay’s alleged default in not providing adequate insurance coverage for the full insurable value of the equipment and in not keeping the equipment domiciled at the named address. According to this letter, which was entered into evidence, Koonce, citing the Louisiana Lease of Movables Act, demanded the return of the truck and equipment within five days of receipt of the letter or legal proceedings would be instituted.

Dousay’s attorney sent correspondence to Koonce’s attorney, denying all of Koonce’s allegations and informing Koonce that he would “not be surrendering the machinery as demanded.” On April 4, 2006, Koonce filed pleadings requesting that | ¡.the lease be terminated and the property returned to him. In his pleadings, Koonce alleged that “Dousay is in default of the Lease Agreement for numerous reasons including: (i) failure to maintain an adequate amount of insurance to cover the Vehicle and (ii) failure to act as a prudent administrator.” A hearing was held on June 27, 2006. At the close of Koonce’s case, Dousay moved for involuntary dismissal, asserting that Koonce did not prove that he “failed to carry out his responsibilities under the lease/purchase agreement.” The trial court granted the motion. Koonce now appeals, raising the following issues:

1. Was the trial court correct in finding Dousay in substantial compliance and ignoring the Lease of Movables Act for failing to maintain adequate insurance up to the amount of the lease-purchase agreement and should the lease-purchase agreement be construed against the drafter?
2. Was the trial court correct in finding K Krane had not met the burden of proof in establishing a prima facie case for termination of the lease-purchase agreement under the Lease of Movables Act?

Discussion

Adequate Insurance

Koonce argues that Dousay “was in default for not maintaining adequate insur-anee coverage to [his] satisfaction as required in the lease-purchase agreement.” He asserts that the “total value of payments” under the lease was $90,000.00; however, Dousay only insured the truck for $50,000.00. According to Koonce, the 13crane was not insured and this coupled with the amount of insurance coverage, violated La.R.S. 9:3333.

Louisiana Code of Civil Procedure Article 1672(B) provides:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

“The trial court is granted much discretion in determining whether to grant an involuntary dismissal.”' Boone v. Reese, 04-979, p. 5 (La.App. 3 Cir. 12/8/04), 889 So.2d 435, 438 (citing Kite v. Carter, 03378 (LaApp. 3 Cir. 10/1/03), 856 So.2d 1271). If after considering and weighing the plaintiffs evidence, the trial court determines that the plaintiff has not met his burden of proof, it must dismiss the plaintiffs case. Gauthier v. City of New Iberia, 06-341 (La.App. 3 Cir. 9/27/06), 940 So.2d 915. “The trial court’s grant of an involuntary dismissal is subject to the well-settled manifest error standard of review.” Id. at 918.

In granting the motion for involuntary dismissal, the trial court stated:

Now, there’s not much alleged in this — petition here, as I said, two things: One, failure to maintain an adequate amount of insurance to cover the — the vehicle ... and, two, failure to act as a prudent | ¿administrator. Well, I never knew that a lessee like this could be regarded as a prudent administrator. I can see why you say in there that he has to maintain the — the machinery in good repair or something like that, but so forget about this number two, then it’s almost meaningless.
I was concerned about the failure to maintain an adequate amount of insurance to cover the vehicle.
Now, it would have been simple enough to have changed the contract to say, “It is the responsibility of the lessee to maintain property insurance in the sum of not less than $100,000, let’s say, less whatever — less whatever is paid or will have been paid by the lease installments,” and it would have been simply enough to say that — well, there was provided [sic] adequate liability insurance.
I don’t believe there’s any issue about that. I think the real issue is whether the crane was covered and so — what I’m ruling is that there was substantial compliance on the part of the lessee in this, and it’s manifested, too, by the — by being paid up to date under the lease.
There will be judgment for the — for the defendant.
The sections of the lease agreement that are relevant to our discussion are:
4. LESSEE assumes all risk and liability for and agrees to indemnify, save and hold LESSOR harmless from all claims and liens of all loss and damage to the machinery and all loss, damage, claims, penalties, liability and expenses, including reasonable legal fees, howsoever arising or incurred because of the machinery or the storage, use of operation thereof. LESSEE at its own expense shall carry adequate liability insurance with respect to use, operation and possession of the machinery against bodily injury and against property damage.
5. LESSEE, at its own expense, will provide during the term of this lease, before any equipment covered by this lease is used, such insurance of the type and in an amount satisfactory to LESSOR as is necessary for and against any liability or loss for injury or death to any person or persons or for any damage to property resulting from or arising out of the use, possession or operation by LESSEE of any equipment hereby leased. LESSEE shall keep the equipment insured at its full insurable value against loss or damage to it resulting from all risk or physical damage. LESSEE shall deliver to LESSOR policies or certificates of insurance naming LESSOR as an insured.

| sAfter reviewing the record, while we consider La.R.S. 9:3333, we find it dis-positive that the lease agreement itself speaks on the issue of adequate insurance coverage. The trial court found that there was substantial compliance with the lease agreement, and this factual finding will not be reversed absent manifest error. Young v. Tumipseed, 33,602 (La.App. 2 Cir. 6/21/00), 764 So.2d 1172.

At the hearing, Koonce testified that the insurance that Dousay obtained was inadequate because “[i]t is a general automotive policy. It is not covering general liability. It covers the liability as the truck is running down the road, not as it is being used as a crane.” Over defense counsel’s objection, Koonce’s attorney asked him what type of insurance he thought was necessary to limit his liability with regard to the truck and the crane. Koonce explained:

To operate a crane, you have to have the insurance first to move the vehicle, which is automotive. If you use it as a bucket truck, under the State of Louisiana statutes, you can run a bucket truck as lifting personnel as a bucket truck. It does not have a winch on it okay.
Then to use it as a crane, you have to have a[sie] optimum general liability. That’s when you set your outriggers out and you’re lifting equipment.
Then you have to have — you should have on-hook is whatever you have you’re lifting that could be damaged, come off the hook, kill somebody, hit something, whatever. Those are three basic types of insurance.

Koonce entered into evidence the various insurance policies that Dousay submitted to him. We note that Dousay had an automotive liability policy with Republic-Vanguard Insurance Company, which shows that Dousay added the truck that he leased from Koonce as a covered auto under the policy and that liability coverage was proved in the amount of “[$]1,000,-000[.00] CSL” (combined single | (¡limit). This endorsement became effective May 18, 2005. Another policy shows that Dous-ay had property damage insurance in the amount of $50,000.00.

The lease agreement states that: “LESSEE at its own expense shall carry adequate liability insurance with respect to use, operation and possession of the machinery against bodily injury and against property damage.” (Emphasis added). While we note that the lease agreement describes “the machinery” as a: “94 FORD LNT8000” and a “990 NATIONAL CRANE [,]” it does not specifically state that both the truck and the crane are required to be separately insured.

Dousay provided both liability ($1,000,-000.00 CSL) and property damage ($50,-000.00) insurance on the truck. At the hearing, Koonce was asked how much the truck was worth, to which he replied, “[a]t this day and time, if I had to say, probably anywhere from five to ten thousand dollars.” He estimated that the crane was worth between $50,000.00 and $60,000.00. Koonce entered into evidence an affidavit from an appraiser who found that the equipment had a market value of $70,000.00. Koonce’s attorney acknowledged that on the morning of the hearing, Dousay’s attorney provided him with a policy which indicated that Dousay increased the property damage insurance from $50,000.00 to $70,000.00.

Lastly, in his brief to this court, Koonce argues that there was not substantial compliance with the lease agreement because he was not named as an additional insured in Dousay’s policy, but rather as the loss payee. However, in Karno v. Bourbon Burlesque, Inc., 05-241, p. 9 (La.App. 4 Cir. 5/10/06), 931 So.2d 1111, 1117, the court stated, “where ... the alleged lease violations could be characterized 17as ‘technical’ the courts are inclined to regard them as non-serious.” The court found a technical violation when the lessee structurally changed the leased premises without the lessor’s written consent. Nevertheless, it held that “voiding of lease agreements are not favored by the law, particularly for technical infringements.” Id.

Moreover, La.Civ.Code art.2014 states: “A contract may not be dissolved when the obligor has rendered a substantial part of the performance and the part not rendered does not substantially impair the interest of the obligee.” Pursuant to Article 2014, the trial court could have found that there was substantial compliance with the lease agreement where any part not performed did not substantially affect Koonce’s interest.

In light of the trial court’s factual determination that the insurance coverage provided by Dousay was adequate, we find no manifest error in the trial court’s ruling that there was substantial compliance with the lease agreement. Therefore, we find that Dousay’s motion for involuntary dismissal was properly granted.

This assignment is without merit.

Termination of the Lease Agreement

Koonce argues that because of Dousay’s default, he is authorized, under La.R.S. 9:3318, to terminate the lease agreement and recover possession of the truck [Rand crane. Koonce contends that the trial court erred in not finding that pursuant to La.R.S. 9:3322, his affidavit established a prima facie case for termination of the lease agreement.

Our conclusion that the trial court was not clearly wrong in finding that Dousay substantially complied with the lease agreement pretermits any discussion on this assignment of error.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court granting the defendant’s motion for involuntary dismissal. All costs of these proceedings are assessed against the plaintiff, Donnie Koonce d/b/a K Krane.

AFFIRMED.

      . We note that the demand letter sent to Dousay contains several reasons for termination of the lease agreement. However, we will only address those bases which were discussed at trial and are the subject of this appeal.

      . The record indicates that Koonce filed a pleading entitled: "Rule to Show Cause Why Lease Should Not Be Terminated and Lessee Should Not Surrender Property to Lessor.” Louisiana Revised Statutes 9:3322 provides in pertinent part:
      A. If the lessee fails or refuses to surrender the leased property to the lessor within the delays provided in R.S. 9:3321, the lessor may cause the lessee to be cited summarily by a court of competent jurisdiction to show cause why he should not be ordered to surrender possession of the leased property to the lessor, in accordance with the provisions of this Section.”

      . Louisiana Revised Statutes 9:3333 states:
      A lessor may request or require a lessee to insure the leased property against loss, damage, destruction, and other contingencies, as well as require the lessee to obtain comprehensive liability insurance with regard to use of the leased property and the lessor’s related business activities. The cost of such insurance may also be included at the lessee's option as a separate charge in a lease contract or agreement. Any insurance and the premiums or charges thereon shall bear a reasonable relationship to the amount, term, and condition of the lease contract or agreement, the existing hazards or risks of loss, damage, or destruction, and shall not provide for unusual or exceptional risks or coverages which are not ordinarily included in policies issued to the general public.

      . At the hearing, Koonce argued that this was the first time that Dousay’s insurance policy listed the crane on it. This iteration of the policy was not entered into evidence. However, there is no indication that this increase in the policy was determinative to the trial court’s conclusion that Dousay substantially complied with the lease agreement.

      . Louisiana Revised Statutes 9:3318 (footnote omitted) provides:
      A. (1) In the event of default by the lessee under a true lease, or under a financed lease entered into prior to the time Chapter 9 of the Louisiana Commercial Laws becomes effective, the lessor may do any one of the following:
      (a) He may file an appropriate collection action against the lessee to recover accelerated rental payments and additional amounts that are then due and outstanding and that will become due in the future over the full base term of the lease, as provided under R.S. 9:3319.
      (b) He may cancel the lease, recover possession of the leased property and recover such additional amounts and liquidated damages as may be contractually provided under the lease agreement, as provided under R.S. 9:3320 through 3328.
      (2) The above remedies following the lessee’s default are not cumulative in nature. The lessor may not seek to collect accelerated rental payments under the lease and also to cancel the lease and recover possession of the leased equipment.
      B. In the event of default by the lessee under a financed lease entered into after Chapter 9 of the Louisiana Commercial Laws becomes effective, the lessor may at his option:
      (1) Exercise such rights and remedies following default as are provided under this Chapter; or
      (2) Exercise such rights and remedies following default as are provided under Chapter 9 of the Louisiana Commercial Laws.


author: PETERS, J.

text:
    STATE of Louisiana v. Bradley James NOEL.
    No. 2006-1129.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2007.
    Jeffrey J. Trosclair, Assistant District Attorney, St. Mary Parish Courthouse, Franklin, LA, for Appellee State of Louisiana.
    Mark O. Foster, Louisiana Appellate Project, Natchitoches, LA, for Defendant/Appellant Bradley James Noel.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   PETERS, J.

hThe defendant, Bradley James Noel, appeals the sentence imposed upon him for his conviction of second degree battery, a violation of La.R.S. 14:34.1. In his one assignment of error, he asserts that the sentence imposed is cruel, unusual, and excessive, thus violating La. Const, art. I, § 20. For the following reasons, we reject the defendant’s assignment of error and affirm the trial court sentence in all respects.

DISCUSSION OF THE RECORD

The incident giving rise to the criminal charge occurred on January 1, 2005, at the home of Faye Alex in St. Martin Parish, Louisiana. The defendant originally entered a plea of not guilty to the charge, but on October 10, 2005, pursuant to a plea agreement, changed his plea to that of nolo contendere. The trial court accepted the defendant’s plea pursuant to the authority provided for in La.Code Crim.P. art. 552(4). At the October 10, 2005 hearing, the State of Louisiana presented the factual basis for the charge through the testimony of Faye Alex.

According to Faye Alex, who at the time of the incident was the defendant’s girlfriend, she and the defendant became involved in a verbal dispute at her home on January 1, 2005. Faye Alex testified that when the defendant attempted to strike her, Anna Alex, her mother, intervened in the altercation, and that the defendant and Anna Alex then exchanged blows. As the defendant continued to strike her mother, Faye Alex left the house to obtain assistance. Anna Alex lost consciousness as a result of the defendant’s attack and was later diagnosed as having sustained a closed head injury and a fracture of her maxillary sinus and mandible. She remained comatose for several days, and a tracheotomy was performed to sustain her breathing.

After accepting the defendant’s plea, the trial court ordered a pre-sentence investigative report and set sentencing for February 6, 2006. At that sentencing | ¡¿hearing, the trial court sentenced the defendant to serve three years at hard labor with credit for time served. The trial court subsequently denied the defendant’s motion to reconsider his sentence and the defendant perfected this appeal.

OPINION

In sentencing the defendant, the trial court considered the content of the pre-sentence investigative report, the victim’s medical records, photographs of the victim, the testimony of both Faye and Anna Alex, and the statement of the defendant. The trial court further articulated its consideration of the sentencing guidelines found in La.Code Crim.P. art. 894.1, and, in doing so, concluded that the defendant was a very controlling person with a family history of violence. Specifically, the trial court concluded that the defendant had abused Faye Alex in the past and was attempting to abuse her when her mother intervened. Having made that finding, the trial court concluded that application of the factors found in La.Code Crim.P. art. 894.1(A) mandated an incarceration sentence. The trial court then considered the factors found in La.Code Crim.P. art. 894.1(B) and concluded that a number of those factors applied to the detriment of the defendant. Specifically, the trial court found that the defendant was “persistently involved in domestic violence before this incident took place,” that the defendant was under the influence of alcohol at the time of the offense, and that he was previously involved with controlled dangerous substances. The only mitigating factors present, according to the trial court, were that the defendant was a first felony offender, was employed, and was now involved with another woman.

The defendant argues in brief that Faye and Anna Alex fabricated their testimonies to the trial court at the sentencing hearing to create an impression that|3they were in constant and present danger from him. He points to the fact that, despite this purported fear, Faye Alex resided with him for most of 2005. The defendant also argues that the trial court failed to consider his personal, educational, and lack of criminal-history in sentencing him. We do not find that the record supports the defendant’s arguments in this regard.

In considering the testimony of Faye and Anna Alex, the trial court found them credible and accepted their testimonies as true. On the other hand, the trial court found the defendant’s explanation of the offense “unbelievable.” It is the fact finder’s role to weigh witness credibility, and the reviewing court should not second-guess those credibility determinations beyond the sufficiency evaluations under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983). Here, the defendant complains of credibility determinations made in the sentencing proceedings, not at the trial on the merits as contemplated by the Jackson standard of review. However, the credibility determinations remain with the trial court regardless of the nature of the hearing at issue. We find no error in the trial court credibility determinations in this matter.

We also find no merit in the defendant’s argument that the trial court did not consider the mitigating factors. The trial court specifically addressed the defendant’s background and gave him credit for a clean felony record. While the trial court did not specifically address the defendant’s educational background, we note that the defendant presented no evidence on that issue. We do not know if the pre-sentence investigative report contains any reference to the defendant’s educational background because it was not made a part of the appeal record. While La.Code Crim.P. art. |4894.1(C) requires that the trial court must “state for the record the considerations taken into account and the factual basis therefor in imposing sentence,” the trial court is not required to use La.Code Crim.P. art. 894.1(B) as a check list or to articulate every circumstance as long as the record sufficiently establishes that the trial court adequately considered the codal guidelines in particularizing a particular defendant’s sentence. State v. Anderson, 95-1688 (La.App. 3 Cir. 5/8/96), 677 So.2d 480. In the matter before us, the trial court more than adequately complied with the sentencing guidelines.

In considering the defendant’s argument that his three year sentence is excessive, we first note that La.R.S. 14:34.1 provides a maximum sentence of five years with or without hard labor for the offense of second degree battery. Therefore, the defendant’s sentence is within the statutory range. Still, a sentence which falls within the statutory limit may be excessive under the particular circumstances of a given case. State v. Sepulvado, 367 So.2d 762 (La.1979).

This court, in State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-0838 (La.2/1/02), 808 So.2d 331, stated the following concerning the reviewing court’s role in excessive sentence claims:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. Stake v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is ^whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

In order to decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has held:

[A]n appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

Second degree battery is a serious crime of violence that requires as an element the imposition of serious bodily injury. In this case, Anna Alex sustained serious bodily injury at the hands of the defendant. Additionally, the circumstances were such that no justification existed for the defendant’s actions. The legislative purpose of the significant penalty available under the statute is obviously to punish, prevent, and protect. Finally, sentences imposed for similar offenses compare favorably to the sentence imposed. See State v. Robertson, 98-883 (La.App. 3 Cir. 12/9/98), 723 So.2d 500, writ denied, 99-658 (La.6/25/99), 745 So.2d 1187 (The victim momentarily lost consciousness, suffered a three-inch laceration to her forehead and scalp requiring seven stitches, suffered a laceration over the bridge of her nose, and sustained bruises to her arms and legs. The defendant received a four year hard labor sentence) and State v. Jackson, 02-1250 (La. App. 3 Cir. 2/5/03), 838 So.2d 841, writ denied, 03-832 (La.10/17/03), 855 So.2d 759 (The victim suffered a dislocated jaw requiring corrective surgery. The defendant received a four year hard labor 1 (¡sentence).

Given our review of the record, we find that the trial court considered the sentencing guidelines of La.Code Crim.P. art. 894.1, and individualized the sentence to the defendant. We do not find that the sentence imposed is excessive, nor do we find that the trial court abused its broad sentencing discretion in imposing the sentence.

DISPOSITION

For the foregoing reasons, we affirm the defendant’s sentence in all respects.

AFFIRMED.


author: GREMILLION, Judge.

text:
    Dudley COURVILLE v. SCI LOUISIANA FUNERAL SERVICE.
    No. 06-1441.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2007.
    M. Terrance Hoychick, Hoychick & Aguillard, L.L.P., Eunice, LA, for Plaintiff/Appellant: Dudley Courville.
    Roger A. Javier, Donovan J. O’Pry, II, Jeansonne & Remondet, L.L.C., Lafayette, LA, for Defendant/Appellee: SCI Louisiana Funeral Service.
    Court composed of JOHN D. SAUNDERS, GLENN B.
    GREMILLION, and J. DAVID PAINTER, Judges.
   GREMILLION, Judge.

LThe plaintiff, Dudley Courville, appeals from the workers’ compensation judge’s judgment denying his motion for summary judgment and in finding that he violated La.R.S. 23:1208 by misrepresenting that he was unable to perform the type of work entailed by his position with the defendant, SCI Louisiana Funeral Service. For the following reasons, we reverse, render, and remand.

FACTS

Courville was employed by SCI to perform handyman services and yard maintenance at its various funeral homes. In July or August, 2001, he suffered a work-related injury to his right knee while moving a compressor at Ardoin’s Funeral Home in Eunice, Louisiana. As a result, he first underwent arthroscopic surgery on his right knee and then a total knee replacement. Thereafter, he began experiencing pain in his right lower back and extremity. A 2004 MRI revealed advanced spinal stenosis at L4-5 and moderate osteoarthritis of the facets at L5-S1, along with a bulging disc. Courville was released to light duty work on January 5, 2004, which he performed until SCI terminated that position on March 2, 2004. At that point, it placed him on a no-work status and indicated it would adjust his indemnity benefits to reflect this status.

However, his indemnity benefits were never reinstated.

Courville filed the present disputed claim for compensation against SCI alleging its failure to reinstate his benefits. SCI answered and alleged that Courville forfeited his right to benefits pursuant to a violation of La.R.S. 23:1208 or 1208.1, which it reiterated in a reconventional demand. Courville then filed an amended disputed claim for compensation alleging that SCI arbitrarily refused to provide | ^medical care, pay indemnity benefits, and made false statements designed to deny him benefits in violation of La.R.S. 23:1208. Thereafter, both parties pursued judgments via motions for summary judgment. Following a hearing, the workers’ compensation judge granted summary judgment in favor of SCI finding that Courville violated La.R.S. 23:1208 and forfeited his right to workers’ compensation benefits. Courville’s motion was denied, and his claims against SCI were dismissed with prejudice. This appeal followed.

ISSUES

On appeal, Courville raises five assignments of error committed by the workers’ compensation judge. He argues that the workers’ compensation judge was legally incorrect in granting summary judgment in favor of SCI, and in finding that his statements were willfully made in order to obtain indemnity benefits. He further argues that the workers’ compensation judge erred in refusing to consider his claims that arose prior to the alleged fraudulent statements and in failing to grant summary judgment in his favor. Finally, he argues that the workers’ compensation judge erred in refusing to consider the fraudulent statements made by SCI.

SUMMARY JUDGMENT

The standard applied by appellate courts in reviewing a lower court’s grant of summary judgment is well settled. Accordingly, we will undertake a de novo review of the record in order to determine the correctness of the workers’ compensation judge’s findings.

FRAUDULENT STATEMENTS In his first two assignments of error, Courville argues that the workers’ ^compensation judge legally erred in granting summary judgment in favor of SCI. He points out that the workers’ compensation judge considered the merits of the matter, made credibility determinations, and weighed the evidence in order to reach his determination.

Louisiana Revised Statutes 23:1208(A) provides that it is “unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.” Any employee violating this statute forfeits -all of their rights to workers’ compensation benefits. La.R.S. 23:1208(E).

This very issue was addressed by us in the recent case of Hitchcock v. Heritage Manor Nursing Home, 05-1010 (La.App. 3 Cir. 2/1/06), 922 So.2d 764. There we stated:

In this motion for summary judgment, the burden is on HMNH to show that Hitchcock violated La.R.S. 23:1208 by willfully making one or more false statements for the purpose of obtaining workers’ compensation benefits. Weingartner [v. Louisiana IceGators, 02-1181 (La.App. 3 Cir. 4/17/03)], 854 So.2d 898 [, writ denied, 03-1388 (La.9/13/03), 853 So.2d 645]. Additionally, a determination of whether a party has violated La.R.S. 23:1208 turns on an evaluation of the party’s motive or intent in making the contested representations.
Summary judgment is seldom appropriate for determinations based on subjective facts, such as motive, intent, good faith, knowledge and malice. Penalber [v. Blount], 550 So.2d [577 (La.1989)]. As we put it in Penal-ber, summary judgment “is rarely appropriate for a determination based on subjective facts.” 550 So.2d at 588 (emphasis supplied).
Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 23 (La.7/5/94), 639 So.2d 730, 751 (footnote omitted).

Id. at 766-67 (alteration in part in the original).

|4In this instance, SCI bases its claim of fraud on an August 15, 2004 surveillance video and on Courville’s July 26, 2005 deposition testimony. The nineteen minute video clip shows Courville using lopper shears and a small hand saw to trim the branches from a small tree which had been cut down. In his deposition, Courville was asked if he could perform yard work, including trimming branches, following his accident. In reply, he stated that he had cut his yard approximately three times since the accident, but had not trimmed any branches as his is unable to climb a ladder. He stated that he can mow his yard, but said that he pays the price later with pain in his lower back down to his right big toe. When asked if he could return to work, Courville testified that he felt that he was unable to return either to full-time or part-time work due to severe constant pain. He specifically said that he did not feel capable of performing a landscaping or manual labor position as he did not think he could perform such a job properly.

Dr. Thomas Montgomery, Courville’s treating orthopaedic surgeon, testified that he released Courville to light duty work on January 5, 2004, following his total knee replacement. He stated that Courville was restricted from lifting in excess of twenty pounds, but could lift ten pounds frequently. He said that Courville was further limited in bending, kneeling, squatting, and sitting, as well as in the use of his right lower extremity. Dr. Montgomery opined that it would not be unreasonable for Courville to occasionally perform gardening and yard work, such as raking, trimming, and shovel work. He further testified that it was not uncommon for a person restricted to light duty to exceed those restrictions for a short period of time before resuming them. He stated, “I think everybody does that.”

|BIn finding that Courville forfeited his right to workers’ compensation benefits, the workers’ compensation judge stated in his oral reasons:

Well, the court is aware of the Third Circuit’s opinions dealing with summary judgment, but the court finds this case is a little bit different. The Court finds that in this case, this claimant — his job encompassed maintenance type work, yard work, things like that. The Court finds that the claimant was attending doctor’s visits indicating that he basically was not able to do any type of work and within just a short time period to the video the claimant was taken off all work completely. The video was taken on August 14, 2004, which clearly shows the claimant moving around very easily doing yard work, the same type of work he normally would do on the job. In his deposition thereafter it’s clear to the court that he lied concerning the type of work he had been doing. He tried to put it all off on I think his son, named Jacob, as doing all the yard work. He testified he didn’t do any type of yard, didn’t do any type of clipping, no type of work with trees or anything like that since the accident.
The Court finds that the defendants have met their burden of proof in proving a 1208 violation and the summary-judgment is granted. The case is dismissed with prejudice. The summary judgment of claimant is now moot.

After reviewing the evidence, we find that the workers’ compensation judge clearly considered the merits of this matter and reached his decision based on a credibility determination. He found that Courville lied about trimming trees, a duty which encompasses only part of his position with SCI. However, Dr. Montgomery stated that Courville was released to light duty work on January 5, 2004, and could occasionally perform this task. Furthermore, Courville was performing light duty work for SCI up until March 2, 2004, when it stated that it could no longer provide him light duty work as requested by Dr. Montgomery. In its letter, SCI stated that it would adjust his status as of that date to place him back on a no-work status.

SCI directs us to our opinion in Girard v. Courtyard by Mariott, 02-0105 (La.App. 3 Cir. 10/2/02), 827 So.2d 578, and argues that the instant case and that case |fiare similar and that Girard should guide us to affirm the workers’ compensation judge’s decision. The contrary is true. In Gir-ard, the evidence presented by the video clearly contradicted the employee’s claim. Such is not the case here. In Girard, a credibility determination was not necessary, while in this instance it is.

Accordingly, we find that a genuine issue of material fact remains with regard to whether Courville made his statements willfully for the purpose of obtaining workers’ compensation benefits. The judgment of the workers’ compensation judge is reversed and the matter is remanded for further proceedings.

BENEFITS

In his third assignment of error, Cour-ville argues that the workers’ compensation judge erred in finding that his ruling with regard to the alleged fraudulent statements by him rendered his claim for benefits moot. He argues that this issue has been squarely addressed by us in Jim Walter Homes, Inc. v. Guilbeau, 05-1473 (La.App. 3 Cir. 6/21/06), 934 So.2d 239, and Apeck Construction Inc., v. Bowers, 03486 (La.App. 3 Cir. 12/10/03), 862 So.2d 1087, writ denied, 04-0459 (La.4/23/04), 870 So.2d 301. In those cases, we held that a forfeiture of benefits arising from a violation of La.R.S. 23:1208 commences only after the fraudulent statements are made and the employer becomes aware of them. La.R.S. 23:1208(D).

As stated above, Courville was released to light duty work on January 5, 2004, and worked at such until SCI terminated that position on March 2, 2004. When SCI failed to reinstate his benefits, he filed the disputed claim for compensation which instituted this action. Dr. Montgomery testified that he would permanently restrict Courville to light-duty work based on both his total knee |7replacement and his spinal stenosis. He further stated that SCI never sought his approval for any potential position it identified for Courville.

Based on the evidence in the record, we find that no genuine issue of material fact exists regarding Courville’s entitlement to indemnity benefits following his work-related injury. As we have reversed the workers’ compensation judge’s grant of summary judgment on the issue of fraud, and as SCI has failed to present any evidence of his earning capacity, Courville’s supplemental earnings benefits are reinstated based on a zero earning capacity as of March 3, 2004.

COURVILLE’S MOTION FOR SUMMARY JUDGMENT

In his fourth assignment of error, Cour-ville claims that the workers’ compensation judge erred in not granting his motion for summary judgment on the issues of medical and indemnity benefits, penalties, and attorney’s fees. He argues that although Dr. Montgomery related the aggravation of his spinal stenosis to his work-related injury, SCI refused to authorize the recommended medical treatment. Courville further argues that there is no evidence that SCI has offered him a light-duty job since it terminated his position on March 2, 2004.

We have already held that Courville is entitled to supplemental earnings benefits at a zero earning capacity. Although SCI was reasonable in relying on its La.R.S. 23:1208 claim, we find that there is no genuine issue of material fact regarding its failure to reinstate his indemnity benefits prior to the date it learned of his alleged fraudulent statements. SCI arbitrarily and capriciously refused to reinstate his benefits as of March 3, 2004, even though it did not learn of his statements until July 26, 2005. Accordingly, we award Courville $3000 in penalties on this issue. |sLa.R.S. 23:1201.

With regard to medical treatment, the record is clear that Dr. Montgomery related Courville’s aggravation of his preexisting spinal stenosis to his work-related injury and total knee replacement. As of February 16, 2004, he recommended that Courville undergo a series of three lumbar epidural steroid injections. On August 2, 2004, he noted that Courville’s spinal sten-osis preexisted his knee injury, but opined that it was exacerbated by his injury and total knee replacement. On August 23, 2004, he clarified his position to SCI’s medical ease manager, Diane Johnson. Despite this, SCI still refused to authorize the treatment, even though Dr. Gregory Gidman, SCI’s choice for a second ortho-paedic opinion, found Dr. Montgomery’s impression and recommended treatment was reasonable. At some point in 2006, SCI finally authorized the injections.

After reviewing the record, we find no genuine issue of material fact with regard to the fact that Courville’s preexisting spinal stenosis was exacerbated by his work-related injury and its aftermath. Accordingly, we find that he is entitled to continuing medical treatment as recommended by Dr. Montgomery, as well as $3000 in penalties based on SCI’s arbitrary refusal to authorize the recommended treatment even after Dr. Montgomery clarified his position. La.R.S. 23:1203. Furthermore, we award Courville $8000 in attorney’s fees for work performed at the lower level and on appeal. La.R.S. 23:1201(1).

FRAUD

In his final assignment of error, Cour-ville argues that the workers’ compensation judge erred in refusing to consider the fraudulent representations made |9by SCI in its responses to his requests for admissions. However, as this document is not contained in either the record or in the exhibits supplemented to the record, we need not address this assignment.

CONCLUSION

For the foregoing reasons, the judgment of the workers’ compensation judge granting summary judgment in favor of SCI is reversed and the matter is remanded for further proceedings. Judgment is also rendered granting summary judgment in favor of Courville awarding him supplemental earnings benefits at a zero earning capacity as of March 3, 2004, continuing medical treatment, and $6000 in penalties and $8000 in attorney’s fees. The costs of this appeal are assessed to the defendant-appellee, SCI Louisiana Funeral Service.

REVERSED; RENDERED; AND REMANDED.


author: PAINTER, Judge.

text:
    David W. DUHON v. STATE FARM MUTUAL AUTOMOBILE INS. CO.
    No. 2006-1413.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2007.
    April Petry Defelice, David Groner, P.L.C., New Iberia, LA, for Plaintiff-Appellant, David W. Duhon.
    Katherine Paine Martin, Gretchen Heider Mayard, Katherine P. Martin, P.L.C., Lafayette, LA, for Defendant-Appellee, State Farm Mutual Automobile Ins. Co.
    Court composed of JOHN D. SAUNDERS, GLENN B.
    GREMILLION, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

| ¶Plaintiff, David W. Duhon (Duhon), filed suit for breach of contract against Defendant, State Farm Mutual Automobile Insurance Company (State Farm), seeking damages, penalties, and attorney’s fees based on State Farm’s failure to pay a claim made for losses incurred due to the alleged theft of Duhon’s vehicle. Duhon now appeals the trial court’s grant of summary judgment in favor of State Farm, dismissing his claim for penalties and attorney’s fees. For the following reasons, we find no error in the trial court’s conclusion that State Farm did not act in bad faith in choosing to investigate the validity of Duhon’s claim and, therefore, was not arbitrary and capricious. Accordingly, we affirm the trial court’s judgment in all respects.

FACTUAL AND PROCEDURAL BACKGROUND

Duhon owned a 2002 Ford F150 Harley Davidson special edition pick-up truck with liability, collision, and comprehensive coverage issued by State Farm. Duhon alleges that on the evening of May 22, 2003, this truck was stolen from the parking lot of Koto Restaurant in Baton Rouge while he was inside the restaurant. The truck was equipped with Ford’s passive anti-theft system (PATS) and a code alarm system. The PATS requires that a key containing a chip programmed for the vehicle’s computer be used to operate the vehicle. Apparently, the vehicle will not start without the programmed chip. The code alarm, if set, disables the vehicle’s starter system.

Duhon, a resident of New Iberia, claimed that he had stopped in Baton Rouge on his way home from a shopping trip to New Orleans. Duhon reported the theft to the Baton Rouge Police Department at 6:45 p.m. that same day and to his insurer, State Farm, the next day.

|2On May 27, 2003, Duhon signed an affidavit under oath verifying that his truck was stolen. On or about June 5, 2003, State Farm received information from an anonymous person indicating that Duhon had asked this person to steal the truck and burn it. State Farm also received information from the Louisiana State Police that Troy Donovan had informed the police that Duhon had asked him to dispose of the truck three weeks before the alleged theft.

State Farm then conducted an investigation, which included obtaining Duhon’s cell phone records for the day of the alleged theft, taking two recorded statements from Duhon, and taking Duhon’s examination under oath. The cell phone records called Duhon’s account of his activities on the day of the alleged theft into question. Specifically, the cell phone records showed that Duhon made twenty-seven phone calls between 8:36 a.m. and 3:39 p.m. on May 22, 2003, all of which calls were routed through’ New Iberia towers. Between 3:42 p.m. and 3:50 p.m., Duhon made three calls which were routed through a St. Martin-ville tower. There were nine calls routed through a Baton Rouge tower between 5:24 p.m. and 7:11 p.m. Based on this information, State Farm concluded that Duhon could not have been in New Orleans when he said that he was. State Farm then took a second recorded statement from Duhon. During this statement, State Farm learned that Duhon could not identify the mall at which he was allegedly shopping or give any directions to it and that Duhon did not purchase anything, including gas, and had no receipts for that day. Duhon claimed he was in New Orleans on the day in question and arrived in Baton Rouge between 4:00 p.m. and 4:30 p.m. He also stated that after he reported his truck stolen to the police, he went to a gas station across the street from the restaurant and got a ride home from an unknown man who was traveling to Lafayette. However, this version of events was directly contradicted by the cell phone records.

13State Farm alleged that Duhon’s claim included some of the National Insurance Crime Bureau Indicators of Vehicle Theft Fraud: (1) the vehicle was new or late model with no lien holder, (2) the vehicle was recently purchased, and (3) the vehicle was customized. Based on these allegations and the contradictions in Duhon’s account of his whereabouts, State Farm conducted an examination under oath of Duhon on July 15, 2003.

State Farm’s investigation also revealed some discrepancies concerning the whereabouts of the second key to Duhon’s vehicle. In one of his recorded statements, Duhon said that he left one of the windows slightly rolled down because it was hot outside. He went on to say that the second key must have been in the truck when it was stolen because he remembered leaving it there on one occasion when he had opened the truck for his mother. In his examination under oath, Duhon testified that he locked the truck before he entered the restaurant. With regard to the second key, Duhon testified that it was misplaced-he kept that key on the counter of his home, but one day, he noticed that it wasn’t there anymore. He testified that he did not worry about its whereabouts because he only needed one key to start the vehicle. In his deposition, Duhon testified that he distinctly remembered setting the alarm, hearing it chirp, and checking the doors to be sure they were locked before entering the restaurant.

Duhon filed suit against State Farm alleging breach of contract. Duhon filed a motion for summary judgment alleging that there was no genuine issue of material fact with regard to State Farm’s breach of the insurance contract and its failure to pay the amount of the claim within thirty days after receipt of satisfactory proof of loss, and, therefore, State Farm was subject to penalties and attorney’s fees. State Farm filed a cross motion for summary judgment alleging that it was entitled to judgment |4as a matter of law because Duhon could not meet his burden of proving that the loss was an accidental loss or theft and could not prove that State Farm was arbitrary and capricious in denying coverage. The trial court denied Duhon’s motion for summary judgment and partially denied State Farm’s cross motion on the basis that credibility determinations were necessary to decide the issues. However, the trial court granted State Farm’s motion with respect to the issue of penalties and attorney’s fees, specifically finding that State Farm had not acted in bad faith in choosing to investigate the validity of Duhon’s claim rather than simply paying it without question. Accordingly, the trial court dismissed Duhon’s claim for penalties and attorney’s fees for failure to pay the claim within thirty days. The judgment was designated as a partial final judgment. Duhon’s claim for breach of contract remains.

Duhon then filed a motion for new trial based on Morris v. Safeway Ins. Co. of La., 03-1361 (La.App. 1 Cir. 9/17/04), 897 So.2d 616. The motion for new trial was denied, and this appeal followed.

DISCUSSION

“Appellate courts review grants of summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, that is, whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.” Supreme Services and Specialty Co., Inc. v. Sonny Greer, Inc., 04-1400, p. 3 (La.App. 3 Cir. 5/3/06), 930 So.2d 1077, 1080. A summary judgment is appropriate where the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B). The burden of proof is on the mover;

|fi[h]owever, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mov-ant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

La.Code Civ.P. art. 966(C)(2).

Louisiana Code of Civil Procedure article 967(B) provides:

When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, 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.

The threshold question in our review of the trial court’s grant of summary judgment, then, is whether there is any genuine issue of material fact regarding whether State Farm had a reasonable basis for challenging Duhon’s claim. In determining whether or not a fact is material, we are guided by Broussard v. Jester, 04-18, p. 4 (La.App. 3 Cir. 6/16/04), 876 So.2d 940, 942, writ denied, 04-1787 (La.10/15/04), 883 So.2d 1056, wherein this court has stated:

Material facts are those which potentially ensure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute. Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606. If there is a genuinely disputed issue of material fact summary judgment is not appropriate. La.Code Civ.P. art. 966(c)(1).
In determining whether an issue is “genuine” for purposes of a summary judgment motion, courts cannot consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Simon v. Fasig-Tipton Co. of New York, 524 So.2d 788 (La.App. 3 Cir.), writs denied, 525 So.2d 1049 (La. 1988).

We agree with State Farm that the trial court in this case correctly distinguished between a genuine issue of material fact regarding whether Mr. Duhon can prevail on | fithe merits at trial and a genuine issue of material fact as to whether State Farm had a reasonable basis for defending the claim. In its reasons for judgment, the trial court stated:

This [Cjourt has carefully reviewed the facts presented by both the parties. Of notable concern to the court is the conflict between plaintiffs testimony that he had traveled to New Orleans and back with the clear evidence that cell phone calls were made during this exact time[,] which calls were routed through New Iberia towers and St. Martinville towers. While this evidence alone does not prove that plaintiffs truck was or was not stolen, it certainly calls into question the credibility of plaintiff. Further, State Farm has presented evidence regarding the near impossibility of stealing a car with the type of alarm system plaintiff had installed on his truck. Plaintiff testified that he did activate the alarm when he parked the truck in the restaurant parking lot.
This case before us is exactly the type of case that jurisprudence warns against utilizing summary judgment. The case is fact sensitive, but more importantly, the outcome of the case will turn on the credibility of witnesses. The Court believes it is necessary to hear the evidence during trial and have the opportunity to ascertain the credibility of the witnesses, in particular, the plaintiff.
The Court, however, does find it appropriate to grant the Summary Judgment of State Farm as to the issue of arbitrary and capricious failure to pay. The facts presented make it obvious that this is not a clear cut theft or loss of a vehicle. State Farm has not acted in bad faith in choosing to investigate the validity of the stolen vehicle rather than simply paying the claim without question.

We disagree with Duhon’s assertions that the trial court made credibility determinations in finding that State Farm was not arbitrary and capricious. The trial court correctly noted that whether or not the vehicle was stolen requires a credibility determination and denied the motions for summary judgment in that respect. The determination of whether State Farm was arbitrary and capricious in its handling of Duhon’s claim does not require a credibility determination or weighing of the evidence in this case. The evidence shows that State Farm conducted an investigation of the claim which revealed several inconsistencies in Duhon’s story. Duhon presented no evidence to show that State Farm was arbitrary and capricious.

^DECREE

After reviewing the record and for the above-stated reasons, we agree with the trial court’s conclusion that State Farm was neither arbitrary nor capricious in its refusal to pay Duhon’s claim within the statutory period. There is no error in the dismissal of Duhon’s claim for penalties and attorney’s fees for failure to pay his claim within thirty days. Accordingly, we affirm the trial court’s judgment in all respects. We cast Plaintiff-Appellant, David W. Duhon, with all costs of this appeal.

AFFIRMED.