author: MAX N. TOBIAS, JR., Judge.

text:
    Toxie H. STANFORD. v. The ADMINISTRATORS OF the TULANE EDUCATIONAL FUND d/b/a Tulane University Health Science Center (Tulane) and Mercedes Bordelon Whitecloud, Independent Executrix of the Estate of Thomas S. Whitecloud, III (Deceased), et al.
    No. 2007-CA-0678.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 9, 2008.
    Rehearing Denied Feb. 12, 2008.

      Patrick H. Hufft, Hufft & Hufft, APLC, and Charles G. Justice, III, New Orleans, LA, for Plaintiff/Appellant.
    Stewart E. Niles, Jr., Karen M. Fonta-na, Niles, Bourque & Fontana, L.L.C., New Orleans, LA, for Defendant/Appellee.
   (Court composed of Judge PATRICIA RIVET MURRAY, Judge MAX N. TOBIAS JR., Judge DAVID S. GORBATY).

MAX N. TOBIAS, JR., Judge.

IjToxie H. Stanford (“Stanford”) timely appeals the dismissal of his medical malpractice action on an Exception of Prescription filed by the defendants, the Administrators of the Tulane Educational Fund d/b/a Tulane University Health Science Center (“Tulane”) and the Succession of Thomas S. Whitecloud, III. For the reasons that follow, we affirm the trial court’s dismissal.

Factual Background

On 17 May 1988, Stanford underwent thoracic disc excision surgery of a T7-T8 disc herniation, which he contends was improperly performed by Thomas S. Whi-tecloud, M.D. (“Dr. Whitecloud”), at Tulane University and Clinic (“Tulane”). Following surgery, Stanford continued follow-up treatment with Dr. Whitecloud until the spring of 1999. During those 11 years post-surgery, Stanford alleged that he remained symptomatic and experienced ongoing pain, which he contends Dr. Whitecloud should have recognized as complications from the improperly performed surgery in 1988. Despite his continuous suffering, Stanford did not file a request for a | ¿medical review panel until 28 February 2002. Thereafter, on 10 January 2005, Stanford filed the instant malpractice action against Dr. Whitecloud and Tulane. All allegations of negligence contained in Stanford’s request for a medical review panel and his subsequent petition for damages relate to the surgery performed 14 years earlier in 1988.

Tulane and Dr. Whitecloud filed a peremptory exception of prescription. Following hearings held on 27 January and 3 February 2006, judgment was entered in favor of the defendants on 6 February 2006, dismissing Stanford’s medical malpractice action against Tulane and Dr. Whitecloud. In oral reasons for judgment, the trial court concluded that the suit had prescribed because it was filed more than one year from the date of Stanford’s surgery on 17 May 1988. The court further reasoned that, regardless of the date the alleged negligent act was discovered, all malpractice actions must be filed within three years of the date of the alleged act, and because more than three years had passed since the 1988 surgery, the filing of Stanford’s claim in 2002 was prescribed. Stanford timely appealed.

La. R.S. 9:5628 delineates the time limitations applicable to the filing of medical malpractice actions. It provides, in pertinent part:

A. No action for damages, injury or death against a physician [or] hospital ... duly licensed under the laws of this state ... whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.

| sAs a general rule, the party pleading prescription bears the burden of proving the plaintiffs claim has prescribed; however, when a claim has prescribed on its face, the burden shifts to the plaintiff to demonstrate prescription was suspended or interrupted. In re Medical Review Panel for the Claim of Moses, 00-2643, p. 6 (La.5/25/01), 788 So.2d 1173, 1177-1178; Grant v. Tulane University, 02-0848, p. 3 (La.App. 4 Cir. 4/23/03), 853 So.2d 651, 652-653. Stanford’s malpractice claim was commenced nearly 14 years after his thoracic surgery was performed by Dr. Whi-tecloud. Thus, because Stanford’s claim was prescribed on the face of his petition, he bore the burden of establishing that prescription on his medical malpractice action had been suspended or interrupted.

In this regard, Stanford argues that, for three reasons, the doctrine of contra non valentem agere nulla currit praescripto (“contra non valentem ”) is applicable in this case thereby suspending the time limitations for filing his claim as set forth in La. R.S. 9:5628. Specifically, Stanford avers: (1) Tulane and/or Dr. Whitecloud intentionally concealed from him that the reason for his continuous pain post-surgery was the result of Dr. Whitecloud’s negligently performed 1988 surgery, and that this concealment “effectually prevented [Stanford] from availing himself of his cause of action;” (2) Dr. Whitecloud negligently failed to recommend additional surgery or to suggest a second opinion during the entire 11-year post-surgery | ^physician-patient relationship, thereby suspending the running of prescription during the existence of the physician-patient relationship, which did not end until 3 March 1999; and/or (3) his physician-patient relationship and continuous treatment with Dr. Whitecloud and Tulane effectively prevented him from learning and availing himself of his cause of action until July 2001, when Stanford underwent additional MRI testing and diagnosis with a second physician.

We find that the Louisiana Supreme Court’s recent decision in Borel v. Young, 07-0419 (La.11/27/07), — So.2d -, 2007 WL 4171208, is dispositive as to whether the doctrine of contra non valentem applies to Stanford’s claim. According to Borel, it does not. Having made this determination, we pretermit a discussion of the merits of Stanford’s contentions regarding Dr. Whiteeloud’s purported intentional concealment and/or Dr. Whitecloud’s allegedly preventing Stanford from availing himself of his cause of action.

In Borel, the Supreme Court determined the “seminal issue” of whether La. R.S. 9:5628 is peremptive and, therefore, not susceptible of suspension, interruption, or renunciation for any reason, or prescriptive. In Borel, the deceased patient’s family brought a medical malpractice action in 2002, naming |Bthe medical center where she underwent surgery for ovarian cancer in August 1999, as the sole defendant. Two years after filing suit, during the deposition of the medical center’s expert, the plaintiffs learned for the first time that the medical treatment provided by two of Mrs. Borel’s physicians may have fallen below the applicable standard of care. Thereafter, the plaintiffs filed a motion to amend their petition to name the two physicians, which the trial court denied. The plaintiffs, therefore, filed a separate lawsuit in 2005 against the two physicians and their insurer, asserting they jointly, severally and in solido with the medical center were negligent in their treatment of Mrs. Borel in August 1999. One of the doctors and his insurer filed an exception of prescription. The plaintiffs argued in response that the filing of their suit against the medical center, a joint tortfeasor, interrupted prescription as to all other joint tortfeasors, including the two doctors and their insurer. See Borel, p. 2, — So.2d at -.

The district court granted the doctor’s exception finding that the plaintiffs’ claims against the doctor were preempted under La. R.S. 9:5628(A), as the negligent act complained of occurred in 1999 and suit was not filed until 2005, six years later. On appeal, the Third Circuit Court of Appeal, while finding that both the one-year and three-year time provisions contained in La. R.S. 9:5628 were prescriptive, affirmed the district court’s granting of the exception dismissing plaintiffs’ claims, but for different reasons. Borel, p. 3, — So.2d at -; see Borel v. Young, 06-352, 06-353 (La.App. 3 Cir. 12/29/06), 947 So.2d 824. The plaintiffs sought a writ of certiorari from the Supreme Court, which was granted.

|fiIn addressing the issue of whether the three-year time limitation contained in La. R.S. 9:5628 is prescriptive or peremptive, the Borel Court noted its prior decision in Hebert v. Doctors Memorial Hosp., 486 So.2d 717, 723 (La.1986), wherein it held that both the one-year and three-year time limitations set forth in the statute were prescriptive and, therefore, were potentially susceptible to interruption or suspension. Borel, p. 4, — So.2d at -. However, the Court further noted that, within a year of its handing down the Hebert decision, the Louisiana Legislature amended and reenacted La. R.S. 9:5628 by passing 1987 La. Acts No. 915, and that the amendment changing the wording of the statute, in effect, changed the law. Id. The Court recognized, however, that it had never addressed the effect of the 1987 amendments and reenactment of the. statute. Id. Thus, in analyzing the Legislature’s changing in the wording of the statute in Borel, the Court stated:

The plain language of [La. R.S. 9:5628] as reenacted by 1987 La. Acts No. 915 does clearly indicate the Legislature’s intent that the three-year time period is preemptive, i.e., an extinguishment of the right upon a lapse of a specified period of time: “No action ... shall be brought unless filed within one year ...; however, even as to claims filed within one year ... of such discovery, in all events such claims shall be filed at the latest within ... three years ...” See Frank L. Maraist & Thomas C. Galligan, Jr., Louisiana Tort Law §§ 10.05, 10.06, n. 12 (2006 ed.); see also Spradlin v. Acadia-St. Landry Medical Foundation, 98-1977, p. 6 (La.2/29/00), 758 So.2d 116, 120 (describing the time limitations contained in [La. R.S. 9:5628] as “special prescriptive and peremptive periods for malpractice actions”). The use of the word “shall,” which must be interpreted as a mandatory provision, see [La. R.S. 1:3], lends further credence to this conclusion. The language used in this particular three-year statutory time limitation does easily admit on its face of a conclusion as to its ^preemptive nature. Therefore, the plain meaning of this legislation, which is conclusive, clearly indicates both the intent and the purpose of the Legislature in reenacting [La. R.S. 9:5628] to extinguish actions for medical malpractice after the lapse of three years from the date of the alleged act, omission or neglect, i.e., to limit the duration of the right to bring a medical malpractice claim. Accordingly, there can be no doubt from the clear and unambiguous language of the statute that it was the intent of the Legislature to set forth a precise peremptive period to govern the filing of medical malpractice suits against specific health care providers. [Emphasis in original.]

Borel, p. 7, — So.2d at -. Applying their analysis of the Legislature’s actions to the facts before it, the Borel Court held:

Considering the plain, explicit language of the statute, the obvious purpose behind the statute, and the readily apparent public policy, which mitigates against suspension, interruption, or renunciation of the time limit and in favor of certainty in terminating causes of action, we find [La. R.S. 9:5628] establishes a preemptive period.

Borel, p. 7, — So.2d at -. Accordingly, because the plaintiffs’ action against the doctor was brought more than three years after the alleged act of malpractice, the Borel Court held that, under La. R.S. 9:5628, their claim was extinguished by preemption.

Similarly, in the case at bar, Dr. Whitecloud performed surgery on Stanford in May 1988. Stanford’s medical malpractice claim arising out of the surgery was first made on 28 February 2002, almost 14 years later. The instant lawsuit was not filed until 2005. Therefore, applying La. R.S. 9:5628 to Stanford’s petition, and considering the Supreme Court’s holding in Borel v. Young, supra, we find that Stanford’s malpractice action against Dr. Whitecloud and Tulane is extinguished by preemption and, accordingly, is not susceptible of suspension, interruption, or renunciation for any reason, including contra non valentem.

JL Continuous Tort Theory

As an alternative to his argument that prescription on his malpractice claim was suspended by the doctrine of contra non valentem, Stanford contends that as a result of Dr. Whitecloud’s malpractice and failure to properly treat his true condition (ie., the improperly performed surgery or negligent post-surgical complications), he was continuously prescribed narcotic pain medication to which he became addicted. Stanford avers that this continuous and cumulative prescribing of pain medication by Dr. Whitecloud causing his addiction to narcotics constitutes a continuing tort sufficient to enlarge the three-year prescriptive period. Essentially Stanford argues that because of Dr. Whitecloud’s improperly performed surgery and/or his failure to take corrective measures following the surgery, he had to continuously prescribe addictive narcotic medications to control his ongoing pain during the 11 years of post-surgical treatment, resulting in his becoming addicted to narcotic pain medication. Stanford avers that prescription on his claim, therefore, did not commence to run in May 1988 at the time of surgery, but rather, commenced on 3 March 1999 — the date upon which Dr. Whitecloud and/or Tulane last prescribed addictive narcotic medication and when Stanford ceased treatment with Dr. Whitecloud and Tulane. Stanford contends, therefore, that the filing of his complaint on 28 February 2002 was in fact timely: within “three years from the date of the [last] act, omission, or neglect.” We disagree.

In order to allege a continuing tort, a plaintiff must allege both continuous action and continuous damage. South Central Bell Tel. Co. v. Texaco, Inc., 418 So.2d 531, 533 (La.1982). Thus, in the case sub judice, for Stanford’s argument to prevail, we must find on the record before us that Dr. Whitecloud’s prescribing of narcotic pain relievers over an 11-year period rises to the level of a continuing tort resulting in continuous damage. We find that it does not.

Pretermitting any discussion as to whether Dr. Whitecloud’s prescribing narcotic pain medication constitutes a continuous tort, other than Stanford’s self-diagnosis of drug addiction, and the affidavit of Bert Bratton, M.D., suggesting that Stanford had become “significantly dependent” on narcotic medication, no evidence exists in the record that Stanford was actually chemically dependent on narcotic pain medication or otherwise continuously damaged. No evidence in the record is present showing a medical diagnosis of drug addiction; neither is any evidence present of even a recommendation for treatment of a drug addiction. Accordingly, we find that absent evidence of continuous damage sustained by Stanford, his allegation of a continuing tort theory for purposes of tolling prescription in this case must fail. See In re Jenkins, 06-0566 (La.App. 4 Cir. 11/15/06), 945 So.2d 814; In re Medical Review Panel of Vaidyanathan, 98-0289 (La.App. 4 Cir. 9/23/98), 719 So.2d 604; In re Medical Review Panel of Morgan, 98-1001, 98-1002 (La.App. 4 Cir. 12/16/98), 727 So.2d 536.

CONCLUSION

For the above and foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . After this appeal was lodged, Stanford departed this life. Michael Stanford, the natural child of Stanford, has been substituted as the party plaintiff in this matter.

      . In Corsey v. State Dept. of Corrections, 375 So.2d 1319, 1321 (La.1979), the Supreme Court, addressed the doctrine of contra non valentem, defining four scenarios where prescription would be suspended. Stanford's argument is predicated on categories three and four of the doctrine, which provide: (3) where the debtor himself has done some act effectively to prevent the creditor from availing himself of his cause of action; and (4) where the cause of action is not known or reasonably known by the plaintiff, even though his ignorance is not induced by the defendant.

      . Stanford filed his complaint in July 2001, within six months of discovering the alleged malpractice.

      . Peremption is a period of time fixed by law for the existence of a right, and unless timely exercised, the right is extinguished upon the expiration of the peremptive period. La. C.C. art. 3458. Thus, preemption is a period of time, fixed by law, within which a right must be exercised or be forever lost. Borel v. Young, p. 5, - So.2d at -. Consequently, preemption may not be renounced, interrupted, or suspended. Id.; La. C.C. art. 3461.

      . Prescription merely prevents the enforcement of a right by action, but does not terminate the natural obligation. Further, as an inchoate right, prescription may be renounced, interrupted, or suspended, and contra non valentem applies as an exception to the statutory prescriptive period where in fact and for good cause a plaintiff is unable to exercise his cause of action when it accrues. Borel v. Young, p. 5, - So.2d at -, 2007 WL 4171208; State Bd. of Ethics v. Ourso, 02-1978, p. 4 (La.4/9/03), 842 So.2d 346, 349; Hebert v. Doctors Memorial Hosp., 486 So.2d 717, 723 (La.1986).

      . Relying on Hebert v. Doctors Memorial Hosp., supra, the appellate court found both the one-year and three-year time provisions contained in La. R.S. 9:5628 were prescriptive, but that the plaintiffs’ claims against the doctor and his insurer were nevertheless time-barred under the more specific time provisions of La. R.S. 40:1299.47(A)(2)(a). Specifically, the plaintiffs had until 29 January 2003, to bring the new defendants, who had previously been named before the medical review panel, into the suit; therefore, their attempt to bring them in on 15 March 2005, was untimely. See Borel, 06-352, 06-353, pp. 16-17, 947 So.2d at 835.

      . Specifically, regarding the three-year period, in the 1987 amendments to the statute, the Legislature changed the wording from "provided, however, that even as to claims filed within one year from the date of such discovery, in all events such claims must be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect,” to read "however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.” [Emphasis supplied.]

      . Stanford’s surgery occurred in March 1988, after the effective date of the 1987 amendment and. reenactment of La. R.S. 9:5628.


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    Sara Katherine WAGGONER, et al., Plaintiffs-Appellants v. AMERICA FIRST INSURANCE, et al., Defendants-Appellees.
    No. 42,863-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 2008.
    Rehearing Denied Feb. 7, 2008.

      Keogh, Cox & Wilson, by John P. Wolff, III, Tiffany N. Thornton, Baton Rouge, LA, for Appellants.
    Nelson, Zentner, Sartor & Snellings, by George M. Snellings, IV, Monroe, LA, for Appellee, American First Ins. Co.
    Voorhies & Labbe, by Cyd S. Page, Lafayette, LA, for Appellee, Continental Ins. Co.
    Cook, Yancey, King & Galloway, by Robert Kennedy, Jr., Lila J. Knicely, Shreveport, LA, for Appellee, Thomas & Farr Agency.
    Before BROWN, WILLIAMS and LOLLEY, JJ.
   LOLLEY, J.

| plaintiffs appeal the judgment of the Fourth Judicial District Court, Parish of Ouachita, State of Louisiana, granting peremptory exceptions of no cause of action and no right of action in favor of Defendants. For the following reasons, we reverse and remand.

FACTS

This case stems from an accident that occurred on January 23, 2003, when Sara Katherine Waggoner was injured after being struck by a car as a pedestrian in Baton Rouge, Louisiana. As a result of the accident and injuries suffered by Sara, a suit was filed by her and her parents, George and Jere Ann Waggoner, against numerous insurance companies. Primary demands were made upon America First Insurance Company (“AFIC”) and Federal Insurance Company (“Federal”) to recover uninsured/underinsured motorists benefits (“UM”).

During this time, the Waggoners explain that they discovered that Thomas & Farr Agency (“T & F”), their insurance broker, failed to name George Waggoner as an additional insured on their business auto policy T & F obtained from AFIC for its business, S & W Western Wear (“S & W”). As a result, only S & W was the named insured on the AFIC business auto policy at issue. Consequently, the Waggoners brought an additional claim against T & F for errors and omission with regard to their failure to procure the requested coverage under the AFIC policy. In June 2004, the Waggoners settled with Federal and assigned all of their rights to pursue reimbursement and/or contribution against the non-settling defendants, namely AFIC. In March 2005, Federal substituted itself as party plaintiff.

^Several partial judgments were rendered in favor of T & F and AFIC after having filed exceptions of no cause of action and no right of action, in addition to various motions for summary judgment against: Federal; Federal as subrogee; and, the Waggoners individually. Eventually, in a judgment dated October 24, 2005, the trial court disposed of all remaining issues in favor of T & F and AFIC (the “October 2005 judgment”). Federal appealed that judgment, but this court found that it was not a final appealable judgment and dismissed the appeal without prejudice in an unpublished opinion dated June 19, 2006. Meanwhile, with permission from the trial court, Federal added S & W and the Waggoners as additional party plaintiffs (collectively the “Plaintiffs”) and filed a First Supplemental and Amending Petition for Damages. In response, both T & F and AFIC (collectively the “Defendants”) again filed peremptory exceptions of no right of action and no cause of action. On May 25, 2007, the trial court issued a final judgment wherein all exceptions were granted in favor of AFIC and T & F (the “May 2007 judgment”). This appeal ensued.

Scope of Appellate Review

At the outset we note that Defendants make much of the scope of our review, alleging that Plaintiffs did not seek appeal from the October 2005 judgment rendering it a final judgment. We disagree. This court specifically found that the October 2005 judgment was only a partial judgment in light of the fact that cross-claims for contribution, and the Waggoners’ independent claim against T & F, were still pending. Furthermore, the trial court declared that the May 2007 judgment, together with the October 2005 judgment previously rendered, constituted a final | ¡¡appealable judgment pursuant to La. C.C.P. art. 1915(A). In addition, only in the May 2007 judgment did the trial court make a determination that there was no just reason for delay as required by La. C.C.P. art. 1915(B)(1). Therefore, the May 2007 judgment, which incorporated all previous findings, is rightfully before this court on appeal. Notably, it has long been our rule that we will only address issues that have been submitted to the trial court and raised in specifications of error on appeal, unless the interest of justice requires otherwise. See Rule 1-3, Uniform Rules, Courts of Appeal. (Emphasis added.)

LAW AND DISCUSSION

On appeal, Plaintiffs urge that the trial court erred in granting the peremptory exceptions of no cause of action and no right of action in favor of Defendants. Both the exception of no cause of action and the exception of no right of action present questions of law. Therefore, the standard of review of the trial court’s action is a de novo review. See Badeaux v. Southwest Computer Bureau, Inc., 2005-0612 (La.03/17/06), 929 So.2d 1211, 1217. Exceptions of no cause of action and no right of action are both peremptory exceptions, the function of which is “to have the plaintiffs action declared legally nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action.” La.C.C.P. art. 923. In considering the merits of an exception of no cause of action, the trial court is required to decide whether to grant or deny the exception on the basis of the face of the petition. However, unlike the exception of no cause of action, evidence is admissible on trial of an exception of no right of action in order to determine whether the plaintiff is legally invested with the right to stand in judgment. Schexnayder v. Gish, 41,819 (La.App.2d Cir.02/07/07), 948 So.2d 1259.

AFIC

Plaintiffs initially sought to recover UM benefits, and in the alternative brought a cause of action for reformation of AFIC’s business auto policy to include George Waggoner as an additional named insured. However, AFIC asserts that: 1) because George Waggoner was not named individually there is no UM coverage; 2) only S <& W has procedural capacity to bring the instant suit; and, 3) reformation is not a valid cause of action since it is contingent on a right of action.

A de novo review of a no right of action exception allows this court to look past the pleadings and review the evidence presented, specifically the policy in effect at the time of Sara’s accident. Although George Waggoner was not named individually, we find that coverage exists for the subject accident as set forth by the language in the Business Auto Extension Endorsement (“endorsement”) portion of the policy, which states, in pertinent part:

15. DRIVE OTHER CARS FOR EXECUTIVE OFFICERS
A. This provision 17.[sic] changes only those coverages where a limit and premium is shown in the Declarations.
B. CHANGES IN LIABILITY COVERAGE:
Any “auto” you do not own, hire, or borrow is a covered “auto” for Liability Coverage while being used by any of your “executive officers ”, except:
Any “auto” owned by that “executive officer” or a member of that persons household, or
Any “auto” used by that “executive officer” while working in a business of selling, servicing, repairing, or parking “autos”.
C. CHANGES IN AUTO MEDICAL PAYMENTS AND UNINSURED MOTORISTS AND UNDERIN-SURED | .MOTORISTS COVERAGE The following is added to WHO IS AN INSURED:
Any individual “insured” and his or her “family members” are “insured” while “occupying” or while a pedestrian when being struck by an auto you do not own except:
Any “auto” owned by that individual or by any “family member”.
* * *
E. ADDITIONAL DEFINITIONS
As used in this endorsement:
“Executive Officer” means a person holding any of the officer positions created by your charter, constitution, by-laws, or any other similar governing document, and that persons spouse, while a resident of the same household.
“Family member” means a person related to an “executive officer” by blood, marriage, or adoption who is a resident of the individuals household, including a ward or foster child.

(Emphasis added.)

An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Ambiguous policy provisions generally are to be construed against the insurer and in favor of coverage. Carrier v. Reliance Ins. Co., 1999-2573 (La.04/11/00), 759 So.2d 37.

In accordance with the pertinent section of the endorsement, which incidentally AFIC does not refute was a part of the policy in effect at the time of the accident, the record reflects that a limit and premium is shown in the Declarations for UM coverage. Further, AFIC concedes that George Waggoner is an executive officer and by extension, Sara is the daughter of an executive officer. It is undisputed that Sara was a pedestrian when she | ¿was hit by a car — not owned by any family members. The policy unequivocally added “Executive officers” to the Liability Coverage. In fact, the plain reading of the applicable section all but states Sara’s name. The policy unambiguously and clearly provides coverage for Sara Wag-goner’s accident, despite the fact that George Waggoner was not a named insured.

AFIC contends that the endorsement does not provide coverage because the UM section (Section C, above) does not mention executive officers, and the previous provision which makes changes to “Liability Coverage” (Section B, above) does not broaden the scope of the “WHO IS AN INSURED” reference in Section C. AFIC insists that only S & W is insured. We find this interpretation of the policy erroneous. Further, it is well established that when reading an insurance policy, “each provision in the policy must be interpreted in light of the other provisions. One provision cannot be construed separately at the expense of disregarding other provisions.” Sims v. Mulheam Funeral Home, Inc., 2007-0054 (La.05/22/07), 956 So.2d 583, 591-92. Here, since George Waggoner is an executive officer, and the endorsement expands on “executive officers,” there is coverage under the policy. Plaintiffs thereby have a right of action, and given this, they can pursue their cause of action, specifically contribution.

AFIC, in the alternative, argues that antistacking provisions prevent the Waggoners from receiving additional UM coverage since Federal has already paid. We find that Plaintiffs cause of action (i.e., Federal as subrogee) for contribution of UM benefits is valid. In effect, the 17Waggoners will not recover additional damages via coverage but rather Federal will receive their pro rata share as one of many UM insurers responsible to the Waggoners. In Hull v. Louisiana Indem., 1991-663 (La.App. 3d Cir.10/06/92), 606 So.2d 923, 925, the court held that the antistacking statute did not preclude an insurer, which had paid insured’s claim, from seeking contribution and explained that:

Otherwise the uninsured motorist carrier selected by the plaintiff will bear the full burden of compensation while other uninsured motorist carriers pay nothing. We observe that La. R.S. 22:1406(D)(1)(c) was enacted to prevent plaintiffs from recovering the maximum under each policy. The clear intent of the legislature was to provide tort victims with the option to pursue the highest uninsured motorist policy. The legislation does not address the issue of contribution or indemnity by the uninsured motorist carrier(s) that is (are) not selected to the uninsured motorist carrier which is selected.

We agree with this analysis. AFIC’s arguments are without merit. The trial court erred in granting the peremptory exceptions in favor of AFIC.

T&F

Plaintiffs allege a cause of action against T & F for errors and omissions for failing to name George Waggoner individually on the policy at issue. We disagree with T & F’s contention that George Waggoner’s claims are derivative of Sara Waggoner’s, precluding a cause of action since no duty was owed to Sara Waggoner. The policy clearly provided coverage for the subject accident, which is implicitly supported by AFIC’s position, had George Waggoner been named individually. Therefore, a right of action and cause of action exists and the exceptions were erroneously granted. Practically speaking, however, while a right of action and cause of action for errors and omission exists, we note that Plaintiffs must still prove damages in order to succeed with this claim.

|sWe are uncertain as to why the relevant portions of the policy which provide coverage to executive officers were not referred to in any of the earlier proceedings leading up to this appeal. We are certain, however, that the procedural maneuvering by all interested parties created confusion resulting in several partial judgments and still no redress. Perhaps by concentrating on the substantive words of the policy, a resolution will be reached.

CONCLUSION

For the foregoing reasons, we reverse the judgment sustaining the exceptions of no cause and no right of action and remand to the trial court for further proceedings not inconsistent with this opinion. Costs of this appeal are to be split between American First. Ins. Co. and Thomas & Farr Agency.

REVERSED AND REMANDED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, STEWART, CARAWAY and LOLLEY, JJ.

Rehearing denied.

      . Since we have found coverage under the original policy, the cause of action for reformation is moot.


author: WILLIAMS, J.

text:
    Bobby Clifton ROWELL and Diane Elaine Rowell, Plaintiff-Appellant. v. Marie JACOBS and Randy K. Parker, Defendant-Appellee.
    No. 42,821-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 2008.
    Rehearing Denied Feb. 7, 2008.

      Bobby L. Culpepper, Jonesboro, LA, for Appellant.
    Chris L. Bowman, Jonesboro, LA, Stephan M. Cooper, for Appellee.
    Before WILLIAMS, GASKINS and PEATROSS, JJ.
   WILLIAMS, J.

| plaintiffs, Bobby and Diane Rowell, filed suit against their neighbor, Marie Jacobs, and her son, Randy K. Parker, alleging that Parker’s cow(s) entered plaintiffs’ property through Jacobs’ dilapidated fence and fell into plaintiffs’ swimming pool, causing damage to the tarpaulin pool cover and the pool’s liner. Following a bench trial, the trial court entered judgment in favor of defendants, dismissing plaintiffs’ demands. For the reasons that follow, we affirm the trial court’s judgment.

FACTS

Randy Parker was in the business of raising longhorn cattle on Marie Jacobs’ property. Parker’s cattle occasionally es-eaped from the fence surrounding Jacobs’ property and entered plaintiffs’ property.

In the fall of 2004, plaintiffs covered their swimming pool with a new tarpaulin cover and secured the cover with flotation pillows to preserve it for the winter months. In October or November 2004, Mr. Rowell noticed that the tarpaulin was lying in the pool and the flotation pillows were torn. He also observed cow manure and hoof prints on the deck and in the yard. When Mr. Rowell pulled the tarpaulin back, he noticed holes in it, and he later discovered that the swimming pool liner was torn.

On July 13, 2005, plaintiffs filed suit, alleging that defendants had allowed cattle to enter plaintiffs’ property for approximately one year. Plaintiffs also alleged that defendants’ fence was inadequate to prevent the cattle from escaping. According to plaintiffs “the fences and gates were in such a dilapidated condition so that the cattle could easily walk through and onto neighboring property.” Plaintiffs maintained that defendants were ¡¡.negligent in failing to maintain and inspect their fences and were strictly liable for failing to prevent their animals from causing damage.

During the trial, Mr. Rowell testified that prior to the incident in question, the swimming pool was completely covered with tarpaulin. He stated that he could tell that a cow or cows had gotten into the swimming pool because he was familiar with “what cow feces [and] cow hoof prints look like.” He testified that Parker’s cows had entered his yard “three or four times” in the past and were the only cows that had gotten into his yard. He further testified that Jacobs’ fence was the only fence in the area that was in “deplorable” condition.

Mrs. Rowell also testified that the Parker’s cows had gotten out of the fence “about three or four times” in 2004. She stated that Jacobs’ fence was in disrepair and “was totally swayed and down.” Mrs. Rowell testified that she and Mr. Rowell had repaired the fence on numerous occasions. She stated that on the morning in question, she did not see a cow in the swimming pool or in the yard, but she saw “signs of a cow being — had to have got [sic] in the pool.” Mrs. Rowell stated that she believed that a longhorn had caused the damage because one of the flotation pillows had been punctured. She also stated that she observed cow tracks “all around” the swimming pool and cow manure in and around the pool. She stated that the damage had to have been caused by a cow “because of the tracks and the |sway it tore it up — tore everything up.”

Phyllis McCoy, Mrs. Rowell’s mother, testified that she had seen cattle on plaintiffs’ property that did not belong to them. She stated that Parker’s cows would enter plaintiffs’ property and walk around the edge of the swimming pool to the front yard. She also testified that in August 2004, she observed three cows jump Parker’s fence and enter plaintiffs’ property.

Charlotte Shelton testified that she had seen Parker’s cows in plaintiffs’ yard at least two times in the year before the incident. Shelton testified that she visited plaintiffs the day of the incident, and she saw “the cover was down in the pool and there were big holes in it.” She also testified that she saw manure in the pool and on the concrete beside the pool and noticed that the grass was damaged.

Deputy Floyd Parker of the Winn Parish Sheriffs Department testified that on January 18, 2005, he received a complaint from Mr. Rowell with regard to cows being in his back yard. Deputy Parker stated that he went to the Rowells’ hpme and observed “breaks in the fence where the cows came through.” Deputy Parker stated:

[T]here was damage to the cover that was over the top of [the swimming pool] and there was damage to the liner and to the pool itself on the shallow end of the pool down there where a cow had tried to — a cow got off in there someway and tried to get out and cracked the liner on the swimming pool and damaged the cover that was over the top of the swimming pool. And there was cow tracks all around the swimming pool.

Lanell Jordan, Mr. Rowell’s sister, testified that she had seen cows in plaintiffs’ yard on one occasion “months before” the incident at issue. She also stated that the fence separating the properties was “broken in places |4where a cow could come through.” Jordan testified that she saw the damage to the swimming pool approximately two weeks after the incident.

Randy Parker testified that Mr. Rowell called him on a Monday night in November 2004 and informed him that a cow had fallen into his swimming pool and damaged the liner. The following morning, Parker went to plaintiffs’ property to inspect the pool. Parker stated that the tarpaulin was covering the pool and the water in the pool was “clear as drinking water.” He testified that he did not see any cow tracks or manure on plaintiffs’ property. Parker stated that he saw the hole in the swimming pool cover, but stated that it looked like the damage was caused by dry-rotten tarp. Parker denied that a cow could have gotten into and out of the swimming pool because based on his experience with cattle, if a cow had fallen into the swimming pool, it would have panicked and drowned.

Jacobs testified that Mr. Rowell came to her house and informed her that a calf had gotten into his swimming pool. She stated that she told Mr. Rowell to talk to Parker because that issue was “between him and Randy.” Jacobs stated that Rowell, who had approached her in the past about buying some of her property, told her that she had “good insurance” and threatened her by stating, “You know, somebody could get this big house you’re living in.” She opined that plaintiffs concocted the story about the cow/swimming pool incident in an attempt to get her to sell her land.

Following a bench trial, the trial court entered judgment in favor of defendants, stating:

[T]he court, after reviewing its notes, reviewing the photographs and physical evidence presented [finds] that [sthe plaintiffs have failed in their burden of proof by a preponderance of evidence. The court is not convinced that the damage caused to the pool was done by any cattle or animals owned by the defendants herein and will, therefore, deny plaintiffs’ claim....

This appeal followed.

DISCUSSION

Plaintiffs contend the trial court committed manifest error in finding they failed to meet their burden of proof. Conversely, defendants maintain the trial court was not clearly wrong in finding that plaintiffs failed to prove, by a preponderance of the evidence, that a cow fell into their swimming pool.

LSA-C.C. art. 2317.1 provides:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

LSA-C.C. art. 2321 provides, in pertinent part:

The owner of an animal is answerable for the damage caused by the animal. However, he is answerable for the damage only upon a showing that he knew or, in the exercise of reasonable care, should have known that his animal’s behavior would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care....

A court of appeal should not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State Dept. of Transp. & Dev., 617 So.2d 880 (La.1993). The reviewing court must do more than just simply review the record for some evidence which supports or controverts the trial court’s findings; it must instead review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Ambrose v. New Orleans Police Dept. Ambulance Serv., 93-3099, 93-3110, 93-3112 (La.7/5/94), 639 So.2d 216. The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Id. The reviewing court must always keep in mind that “if the trial court’s or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Stobart, supra, at 882-83 (quoting Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990)).

Because of its superior position to view the demeanor of witnesses, the trial court’s decision to credit the testimony of one of two or more witnesses can virtually never be plainly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). Reasonable evaluations of credibility and reasonable inferences of fact will not be disturbed on review, even though the appellate court may feel that its own evaluations and inferences are more reasonable. Id.; Collins v. City of Shreveport, 35,172 (La.App.2d Cir.10/31/01), 799 So.2d 630.

Plaintiffs assert that the instant case is analogous to Harris v. Roy, 108 So.2d 7 (La.App. 2d Cir.1958). In Harris, the defendant’s cattle broke |7through a fence and trampled the plaintiffs sweet potato field. The court held that the cattle owner negligently failed to maintain the fence enclosing his livestock and was therefore liable for the damage.

First, we note that this case is distinguishable from Harris, supra. In that case, the defendant did not deny that his cattle entered the plaintiffs sweet potato field. In the instant case, whether defendants’ cows caused the damage to plaintiffs’ property was an issue that was hotly contested.

Witnesses testified that Parker’s cows habitually escaped from their enclosure and entered plaintiffs’ property. Witnesses also testified that they observed cow hoof prints and cow manure in the vicinity of plaintiffs’ swimming pool. Plaintiffs also submitted photographs which purportedly showed the condition of the fence and the damage to the tarpaulin covering the pool. However, none of the pictures depict a cow in the swimming pool and none of the witnesses testified that they saw a cow in plaintiffs’ yard on the morning of the incident. Furthermore, no one saw a cow enter or exit the swimming pool at any time. Under these circumstances, we cannot say that the trial court was manifestly erroneous in concluding that plaintiffs failed to meet their burden of proving that defendants’ cows caused the damage to their swimming pool.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is hereby affirmed. Costs of this appeal are to be borne by plaintiffs/appellants.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, GASKINS, PEATROSS and DREW, JJ.

Rehearing denied.

      . Defendants filed a reconventional demand, seeking damages for a PVC pipe on plaintiffs’ property, which directed certain fluids, including sewage, to be discharged onto defendants’ property. The trial court found that defendants (plaintiffs in reconvention) failed to meet their burden of proof with regard to their claim of damage caused by the PVC pipe. Defendants did not appeal this determination.


author: STEWART, J.

text:
    Anthony J. BRUSCATO, Plaintiff-Appellant v. Mason L. OSWALT, Defendant-Appellee.
    No. 42,877-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 2008.
    Rehearing Denied Feb. 7, 2008.

      Rountree Law Offices, by James A. Rountree, Monroe, LA, for Appellant.
    Donald L. Kneipp, Monroe, LA, for Ap-pellees, Mason L. Oswalt and Albert E. Loomis, III.
    Before BROWN, STEWART and CARAWAY, JJ.
   STEWART, J.

11 Anthony J. Bruscato appeals the trial court’s denial of his claims for an accounting and rent he contends is owed by Albert E. Loomis, III, a co-owner with Bruscato of office buildings in which they practice law, and Mason L. Oswalt, an attorney who also practiced there pursuant to an agreement with Loomis. The trial court denied Bruscato’s claims upon concluding that there was no lease between Loomis and Oswalt and that Oswalt did not pay rent. Finding no merit to Bruscato’s claims, we affirm the trial court’s judgment.

FACTS

Bruscato and Loomis began practicing law together in the 1970’s. In 1993, then-practice included four other attorneys. They shared office space in adjoining buildings located at 2011 and 2015 Hudson Lane in Monroe, Louisiana. Bruscato and Loomis were co-owners of the property. Their partnership ended amicably in July 1993. The reasons are undisputed. Loomis wanted to operate with less overhead, but Bruscato did not want to maintain a heavy caseload without assistance. Rather than partition the co-owned property, they entered an oral agreement by which each would continue his own practice as he wanted and they would share the common overhead expenses on a fifty-fifty basis. Bruscato continued his practice with the associates, and Loomis began a solo practice. As a result, Bruscato’s overall expenses increased due to having to meet a payroll for his associates and staff, whereas Loomis’s expenses decreased. But at the same time, Bruscato had the benefit of an income stream produced by | ¡multiple attorneys, whereas Loomis had only what he produced as a solo practitioner.

Eventually, Loomis found that he had too much work for one attorney. To alleviate his work burden, he brought in a young attorney, Mason Oswalt, whom he had met while handling a case in a rural parish. In April 1996, Loomis and Oswalt reached an agreement by which Oswalt would assist Loomis with his domestic practice by handling overflow work and cases where there was a conflict in Loom-is’s schedule. They agreed to work certain tort files together and divide the fees. Finally, Oswalt agreed to pay Loomis $2000 per month. Loomis and Oswalt describe this payment as a contribution toward the general overhead expenses of the practice, whereas Bruscato claims it is a payment of rent to which he is entitled to his share as co-owner.

By September 2002, Bruscato’s partners had left, and he was a solo practitioner. He began to look at the monthly overhead expenses to determine whether any could be cut. In 2003, Bruscato’s office manager, Cheryl Norton, noticed that the office phone bill included a charge for an advertisement for Oswalt’s practice. Bruscato asked Oswalt about the charge and claims that Oswalt told him that he was paying rent to Loomis and could charge the advertisement to the office phone bill. Thereafter, Oswalt began paying for the monthly advertisement.

On June 19, 2003, Bruscato delivered a letter to Oswalt’s office demanding reimbursement of $3,100 for one-half of the advertisement costs that had been previously paid as part of his shared overhead expenses with | ¡¡Loomis. Bruscato also alleged that Loomis had been renting office space to Oswalt without his consent and demanded that Oswalt vacate the premises. At Loomis’s urging, Oswalt reimbursed Bruscato for the advertisement costs, but he did not vacate the premises. Rather, he remained as allowed by his agreement with Loomis, while Loomis attempted to resolve the dispute with Brus-cato. Unfortunately, Loomis’s and Brus-cato’s relationship further deteriorated.

On December 10, 2004, Bruscato again wrote to Oswalt. He claimed that he had been “astounded to learn” that Oswalt had been paying Loomis rent and that Loomis would rent space in the building they co-owned without telling him. He alleged that Oswalt and Loomis had a “secret relationship” that resulted in Bruscato subsidizing Oswalt’s practice for over eight years. Bruscato proposed discussing a “fair and equitable rental” for the eight years that Oswalt had occupied office space. Finally, he demanded that Oswalt begin paying him $3,000 per month in rent beginning on January 1, 2005, or vacate the premises by December 31, 2004. Os-walt did not respond to Bruscato’s letter. Instead, he remained on the premises in accordance with his agreement with Loom-is.

On March 24, 2005, Bruscato filed suit against Oswalt seeking his eviction and reimbursement to “fairly and reasonably compensate Petitioner for the space occupied by OSWALT and costs incurred in paying monthly expenses with regard to his overheard in his practice of the law.” In response to exceptions of no cause of action and failure to join an indispensable party, Bruscato amended his petition to name Loomis as a|4defendant. He alleged that Loomis owed him one-half of all the rent he collected from Oswalt. In response, Loomis also filed an exception of no cause of action and a petition to partition their co-owned property.

Loomis and Oswalt argued that the co-owner agreement between Loomis and Bruscato allowed Loomis to enter the arrangement he had with Oswalt for the practice of law. Alternatively, they asserted that even if the arrangement was considered a lease, Loomis was still authorized to freely lease his undivided share. Loomis also asserted affirmative defenses of estoppel and setoff, arguing that if he owed Bruscato rent for Oswalt’s occupancy, then Bruscato owed him rent for the attorneys who had occupied office space with his permission.

On November 9, 2005, the trial court signed a judgment granting a motion for involuntary dismissal filed by Oswalt and Loomis in response to the claim for eviction. Prior to the hearing on the eviction, Loomis had sold to Oswalt a one percent interest in his undivided share of the co-owned property. The trial court also denied the exceptions of no cause of action. Later, a motion for summary judgment filed by Bruscato was also denied.

The matter proceeded to trial, with the parties recounting testimony relative to the facts mentioned above and with additional testimony from Tony Tramontana, Carey Underwood, and Scott Wolleson relative to their practice with Bruscato. Tramontana, Underwood, and Wolleson testified about their pay structure while working with Bruscato. Though Bruscato never asked for rent, overheard expenses, which included Bruscato’s share of the common expenses he shared with Loomis, were deducted from the | ¡¡gross income generated by all the attorneys before they were paid. Tramontana and Wolleson also recalled that Oswalt had his own letterhead with only his name as the attorney.

In its reasons for judgment, the trial court rejected Bruscato’s interpretation of the agreement between Loomis and Os-walt as a lease. Rather, the trial court found Loomis’s arrangement with Oswalt to be no different in substance from Brus-cato’s arrangements with the lawyers who had worked with him over the years. In both instances, the lawyers working with Loomis and Bruscato contributed to the overhead expenses. The trial court found that the defense of setoff asserted by Loomis would be applicable to the situation. Moreover, the trial court determined that Oswalt had no contractual agreement with Bruscato and that Loomis and Oswalt did not have a lease agreement. Rather, they had “a comprehensive arrangement related to how the law practice of Loomis and the law practice of Oswalt would operate to help each other.” The monthly payment of $2,000 was a payment toward the operating expenses incurred by Loom-is in his law practice, including his share of the common expenses shared with Brusca-to. For these reasons, the trial court rendered a judgment in favor of Oswalt and Loomis, dismissing all of Bruscato’s claims. This appeal by Bruscato followed.

DISCUSSION

Bruscato raises three assignments of error. He asserts that the trial court erred in finding that Loomis owed no accounting for the money he collected from Oswalt, in concluding there was no agreement between | ¡¡himself and Oswalt, and in determining that Oswalt did not have to pay him anything for his use of the office space.

Bruscato claims he is entitled to rent from Oswalt from January 1, 2005, the date he demanded monthly rent in the amount of $3,000, through July 2006, when Loomis and Oswalt vacated the property. Bruscato bases this claim on the letter of December 10, 2004, in which he demanded that Oswalt either begin paying him rent or vacate the premises. He asserts that by refusing to vacate and remaining on the premises, Oswalt accepted his offer. In support of his argument, Bruscato cites Chaisson v. Chaisson, 29,243 (La.App.2d Cir.2/26/97), 690 So.2d 899, which notes, “An offer may be accepted other than by sacramental words such as T accept your offer.’ ” Chaisson, 29,243 p. 4, 690 So.2d at 901.

An offer, acceptance, and consent of the parties must be proven when a claim is based on the existence of a contract. La. C.C. art.1927; Chaisson, supra. When the law does not require specific formalities, an offer and acceptance may be oral, written, or some action or inaction that under the circumstances indicates consent. Id.

In the present case, the evidence does not establish a contract between Bruscato and Oswalt. Consent was not established through offer and acceptance. Oswalt’s remaining in his office on the premises was not an action indicative of acceptance under the circumstances. He was already there pursuant to his agreement with Loomis. Therefore, Bruscato could not assume that Oswalt’s refusing to vacate indicated acceptance of his offer. |7The trial court did not err in concluding there was no contract between Bruscato and Os-walt and that Oswalt did not owe rent to Bruscato.

Bruscato complains that neither the trial court nor defendants Loomis and Oswalt have explained why Loomis could collect money from Oswalt for his occupancy but he cannot. This complaint overlooks the agreement between Bruscato and Loomis and hinges on Bruscato’s interpretation of the agreement between Loomis and Oswalt as a lease, which the trial court rejected. This also brings us to Bruscato’s claim against Loomis for an accounting of the money paid to him by Oswalt.

The use and management of a thing held in indivisión is determined by agreement of all the co-owners. La. C.C. art. 801. Loomis and Bruscato agreed to continue their law practices on the co-owned premises as each saw fit and to share the common overhead expenses on a fifty-fifty basis. Pursuant to this agreement, Loom-is conducted a solo practice until he found he needed assistance. He then entered an agreement with Oswalt for such assistance in 1996. The innominate contract between Loomis and Oswalt pertained to Loomis’s use of his undivided share of the co-owned property as a law business. As agreed, Oswalt handled Loomis’s extra work and cases when scheduling conflicts occurred. He and Loomis also shared some tort cases. The testimony of Loomis and Os-walt showed a close working relationship that was mutually beneficial. As part of their arrangement, Oswalt paid Loomis $2,000 per month toward overhead expenses. These included not only the expenses Loomis shared with Bruscato but also expenses, such as money advanced on tort cases, individually incurred by |sLoomis in his law business. While Brus-cato insists this payment is rent, that designation overlooks the full extent of the agreement between Loomis and Oswalt for practicing law and focuses only on the office space occupied by Oswalt.

Nothing in the broad, general agreement between Loomis and Bruscato for use of the co-owned property prohibits Loomis from conducting his law practice with others or using his undivided share for that purpose in any manner of his choosing. He was not required to remain a solo practitioner or to structure his practice in the same manner as Bruscato’s. Loomis was free to contract with Oswalt to benefit his law practice, and their agreement is properly considered an adjunct to Loomis’s use of his undivided share of the co-owned property. Notably, Loomis’s use of his undivided share of the property did not interfere with Bruscato’s use of his undivided share. Other than the individual advertisement for which Oswalt reimbursed Bruscato, there is no showing that Oswalt’s presence increased the common overhead expenses shared by Loomis and Oswalt.

The trial court’s factual findings may not be set aside on appeal unless they are manifestly erroneous or clearly wrong. Stobart v. State through DOTD, 617 So.2d 880 (La.1993). We find no manifest error in the trial court’s findings regarding the nature of the agreement between Loomis and Oswalt and the purpose of the payments made by Oswalt. The record viewed in its entirety supports the trial court’s judgment.

Though we reject the interpretation of the agreement between Loomis and Oswalt as a lease of office space for the payment of rent by Oswalt, a | ¡¡finding of a lease as alleged by Bruscato would not necessarily entitle him to the accounting and share of the rent he claims is owed by Loomis. A co-owner is entitled to use the thing held in indivisión according to its destination, but he cannot prevent another co-owner from doing likewise. La. C.C. art. 802. In making use of the thing held in indivisión, a co-owner may burden his undivided share with a lease to a third party. La. C.C. art. 805. A co-owner and his tenant have the right to possession of the property in indivisión so long as the other co-owner is not excluded. Loret v. Fugler, 71 So.2d 384 (La.App. 1st Cir. 1954). If a co-owner or his lessee are in exclusive possession of the thing held in indivisión, then the non-possessing co-owner has a claim for his proportionate share of the rent derived from the lease agreement. As explained in Juneau v. Laborde, 228 La. 410, 82 So.2d 693 (La.1955):

In determining the amount due and recoverable by a co-owner out of possession from his co-owner in possession, a clear distinction should be drawn between the personal occupancy, use and enjoyment of property by the possessor and the rents and revenues derived by him therefrom, either from a lease or by his own industry or exploitation. As to the latter, he must account to his co-owner for all rents and revenues he has received because, in obtaining these fruits he acts not only for himself but also as the agent of his co-owner for the latter’s just proportion.

See also McCarroll v. McCarroll, 96-2700 (La.10/21/97), 701 So.2d 1280.

In the present case, neither co-owner possessed the office buildings to the exclusion of the other. Even with the presence of Oswalt, Bruscato remained in possession of his undivided share of the property. Any rents derived by Loomis from the alleged lease burdening his undivided share, which was recognized in his agreement with Bruscato for their co-owner |inuse, would be attributable only to his proportionate share of ownership. In his agreement with Oswalt, Loomis acted on his on own behalf, not as Bruscato’s agent, and did not burden the entirety of the co-owned property with the lease. As such, Bruscato would have no claim for half of the rent under La. C.C. art. 798, as he would if Loomis exercised exclusive possession over their co-owned property without a mutual agreement for use under La. C.C. Art. 801, which existed in this case.

CONCLUSION

For the reasons stated, we affirm the trial court’s judgment and assess costs of appeal to the appellant, Anthony J. Brus-cato.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, STEWART, GASKINS and CARAWAY, JJ.

Rehearing denied.


author: MAX N. TOBIAS, JR., Judge. MURRAY, J., McKAY, J.,

text:
    Glendale Swaingan DEAN v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. 2007-CA-0645.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 16, 2008.
    Rehearing Denied Feb. 27, 2008.

      Allen H. Borne, Ryan P. Reece, Allen H. Borne and Associates, New Orleans, LA, for Plaintiff/Appellant.
    Robert H. Cooper, Pelleteri & Wiedorn, Mandeville, LA, for Defendant/Appellee.
   (Court Composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, and Judge MAX N. TOBIAS, JR.).

MAX N. TOBIAS, JR., Judge.

h The plaintiff-Appellant, Glendale Swaingan Dean (“Mrs. Dean”), appeals an adverse judgment dismissing her automobile theft claim against the defendant-ap-pellee, State Farm Mutual Automobile Insurance Company (“State Farm”), on a motion for summary judgment. For the reasons that follow, we reverse the trial court judgment and remand the matter for further proceedings.

I. Background and Procedural History

This case stems from an alleged automobile theft. State Farm issued an automobile policy to Mrs. Dean insuring a 1999 Ford Mustang (hereinafter, “vehicle”) for loss by theft. The insured vehicle was reported to the police as stolen on 11 June 2004. Subsequently, Mrs. Dean made a claim for the alleged theft of the automobile under the comprehensive loss provision of her State Farm policy. State Farm denied the theft claim on the basis that Mrs. Dean and her daughter, Dewana Swaingan (“Ms. Swaingan”), made numerous misrepresentations of fact in connection with the claim with |2the intent to deceive thereby triggering Section 8 of State Farm’s policy voiding all coverage for the alleged theft. The vehicle has not been recovered.

Mrs. Dean filed the instant suit against State Farm seeking coverage for the theft of her automobile. Specifically, the suit alleges breach of contract and seeks bad faith penalties for State Farm’s alleged arbitrary and capricious failure to pay for the purported loss of the stolen vehicle. State Farm subsequently deposed Mrs. Dean wherein Mrs. Dean admitted to providing false information in both a recorded statement given to a State Farm’s Claim Representative, Mitch Falgoust, and in an Affidavit of Vehicle Theft filed with State Farm. The false information pertains to events occurring on the day of the alleged theft and relating to Mrs. Dean’s daughter’s regular use of the vehicle in the months preceding the loss. Mrs. Dean testified in her deposition that the reason she provided the false information was because she believed that had State Farm known her daughter was the one who drove and parked the vehicle on the morning of its theft and had regularly driven the automobile during the preceding six months, State Farm would deny coverage under the policy for the claimed loss. Despite a provision in the State Farm policy providing coverage for losses occurring while the insured vehicle is in the possession of a permissive user, Mrs. Dean believed that coverage for the loss would attach only if she | ¡¡was the one who drove and parked the automobile immediately preceding and on the day of its theft.

Following the depositions of Mrs. Dean and Ms. Swaingan, State Farm filed a motion for summary judgment urging that (1) the misrepresentations made by Mrs. Dean and her daughter were material and made with the intent to deceive thereby triggering Section 8 of the policy voiding coverage for the alleged theft, and (2) as such, Mrs. Dean was not entitled to bad faith penalties or damages for breach of contract, as a matter of law. On 8 December 2006, at the conclusion of the summary judgment hearing, the trial court granted State Farm’s motion dismissing Mrs. Dean’s suit, with prejudice, and assigning oral reasons. Judgment was subsequently rendered on 12 February 2007. Thereafter, Mrs. Dean filed a Request for Written Reasons for Judgment, which the trial court issued by on 16 March 2007. In written reasons, the trial court stated:

State Farm alleged that the claimant made false statements throughout the investigation of the claim with the intent to deceive and therefore, coverage is voided, pursuant to Section 8 of the terms of the policy.
The record is replete with documentation of Mrs. Dean’s misrepresentations throughout the investigation of her claim. These misrepresentations were not insignificant. Their nature and nu-merosity trigger Section 8 of the policy and void coverage.

|4Mrs. Dean timely filed the instant appeal.

II. Law and Analysis

A. Summary Judyment

We review a grant of summary judgment de novo applying the same criteria applied by trial courts to determine if summary judgment is appropriate. Supreme Services and Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827 (La.5/22/07), 958 So.2d 634. Summary judgment should only be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show no genuine issue of material fact exists and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966B.

If the movant will not bear the burden of proof at trial, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, but rather to point out to the court the absence of factual support for one or more elements essential to that claim. La. C.C.P. art. 966C(2). The adverse party must, thereafter, produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. Id. Summary judgment shall be rendered against the adverse party if he fails to set forth facts sufficient to show that a genuine issue for trial exists.

Exceptions to the rule that the failure of an adverse party to file countervailing affidavits will result in a summary judgment exist. The | ¡^exceptions to the general rule stand for the principle that countervailing affidavits need not be filed by the party opposing summary judgment if the motion for summary judgment has not been properly made. Chrysler Credit Corporation v. Harris, 417 So.2d 1370, 1372-73 (La.App. 4 Cir.1982). For example, in Chaisson v. Domingue, 372 So.2d 1225 (La.1979), where it was undisputed that the teacher-plaintiff had been injured while attending a school band concert, the Supreme Court held that despite the fact that counter-affidavits had not been submitted, summary judgment was not appropriate because it was unclear whether the moving party, her professional liability insurer, was entitled to judgment as a matter of law. Also, in Thompson v. South Central Bell Tel. Co., 411 So.2d 26 (La.1982), the Supreme Court found that even though South Central Bell was the only party to file affidavits, it was not entitled to summary judgment because there were contradictions on factual issues created by the depositions and the affidavits stated conclusions of law rather than evidentiary facts.

Hence, even if affidavits are unanswered, a motion for summary judgment should not be granted if the moving party is not entitled to it as a matter of law or if the affidavits themselves show a material issue of fact. In the instant case, Mrs. Deans opposition memorandum to State Farms summary judgment motion is not contained in the record on appeal. | ^Additionally, no references to any countervailing affidavits or other controverted evidence submitted by Mrs. Dean are made in the appellate briefs. Because we hold that State Farm is not entitled to judgment as a matter of law, we find the exception to the general rule is applicable.

The issues raised by Mrs. Dean on appeal are twofold: (1) the applicability of a “concealment or fraud clause” in the policy to Mrs. Dean’s post-application misrepresentation; and (2) whether or not the misrepresentations made must be material to the loss claimed in order to void coverage under the policy.

B. Intentional Misrepresentations Made Subsequent to an Application for Insurance

We are not persuaded by Mrs. Dean’s argument that La. R.S. 22:619A provides the sole remedy for an automobile insurer to void a policy on the basis of material misrepresentations made with the intent to deceive. La. R.S. 22:619A states:

A. Except as provided in Subsection B of this Section and R.S. 22:692, and R.S. 22:692.1, no oral or written misrepresentation or warranty made in the negotiation of an insurance contract, by the insured or in his behalf, shall be deemed material or defeat or void the contract or prevent it attaching, unless the misrepresentation or warranty is made with the intent to deceive.

Mrs. Dean contends this statute limits an insurer’s right to void coverage under an automobile policy on the basis of material misrepresentations made with the intent to deceive solely to misrepresentations made in the negotiation or in the application for 17insurance. Mrs. Dean further contends that because State Farm has neither alleged nor shown that she made any misstatements in her application, State Farm cannot void coverage under her policy based on her post-application misrepresentations even though made with the intent to deceive.

Contrary to the plaintiff-appellant’s assertions, there is no restrictive language within the statute limiting an insurer’s right to void coverage under an automobile policy for material misrepresentations made subsequent to the issuance of a policy or occurring after a loss. We find that La. R.S. 22:619A does not limit the application of the language to misrepresentations occurring in the policy application, but rather limits the instances when an insurance company can void a policy when misrepresentations occur in the application. Moreover, while La. R.S. 22:619A is silent with respect to material misrepresentations occurring subsequent to the issuance of a policy and/or after a loss, State Farm’s policy speaks directly to the issue. Specifically, Section 8 of State Farm’s policy provides:

CONDITIONS
8. Concealment or Fraud
There is no coverage under this policy if you or any other person insured under this policy has made false statements with the intent to deceive in connection with any claim under this policy.

This provision likewise does not limit an insurer’s right to void coverage for false statements only if the false statements were made with the intent to deceive in conjunction with an application of insurance. Section 8 states that it applies to false statements made in connection with the making |sof any claim under the policy. An insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts. La. C.C. art.1988; Smith v. Matthews, 611 So.2d 1377 (La.1993). If the language in a policy is clear, unambiguous and expressive of the intent of the parties, the policy must be enforced as written. La. C.C. arts.1901, 1945-1946; Central Louisiana Elec. Co. v. Westinghouse Elec. Corp., 579 So.2d 981 (La.1991); LeBlanc v. Davis, 254 La. 439, 223 So.2d 862 (1969).

State Farm’s policy also provides that, following a loss, a policyholder must provide a sworn proof of loss and submit to an examination under oath, if requested. If the policyholder could indulge in concealment and misrepresentation in fulfilling these requirements without fear of forfeiting coverage, these requirements would be rendered meaningless. This result is inconsistent with the principle that every provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. C.C. art.2050; Campbell v. Melton, 01-2578, p. 11 (La.5/14/02), 817 So.2d 69, 78; Lewis v. Hamilton, 94-2204 (La.4/10/95), 652 So.2d 1327; see also La. R.S. 22:654. Further, allowing Louisiana policyholders to engage in misrepresentations during all aspects of their claims except in their policy application is against the public policy of this state.

The clear and unambiguous language of State Farm’s policy provides that coverage is voided under the policy when a claimant makes false statements with the intent to deceive in connection with any claim. We do not read this policy to mean, or find that the parties understood it to mean, that misrepresentations made beyond the application would leave the policy 19in force. The interpretation of an insurance contract that provides the more reasonable and probable intent of the policy will be adopted rather than an interpretation that leads to an absurdity or to a manifest and palpable improbability. Donovan v. Nettles, 327 So.2d 433 (La.App. 4 Cir.1976). See also La. R.S. 22:654. Based on the foregoing, we reject Mrs. Dean’s contention that State Farm is precluded from voiding coverage under its policy for misrepresentations made outside of her application and subsequent to the issuance of the automobile policy.

However, the mere fact that we find an insurer can void coverage based on misrepresentations made after the negotiation and purchase of an insurance policy does not end our inquiry in the instant case.

C. Intentional Misrepresentations Immaterial to the Claimed Loss

In her second assignment of error, Mrs. Dean avers the trial court erred by voiding comprehensive coverage under her State Farm policy based on misrepresentations she and/or her daughter made that were arguably immaterial to her claim for automobile theft. Louisiana law requires that in order for an insurer to successfully invoke the material misrepresentation defense to avoid coverage under a policy, the insurer must establish each of the following: (1) the statements made by the insured were false; (2) the misrepresentations were made with the actual intent to deceive; and (3) the misstatements materially affected the risk assumed by the insurer. Cousin v. Page, 372 So.2d 1231, 1233 (La.1979); Talbert v. State Farm, Fire & Cas. Ins. Co., 07-0211 (La.App. 4 Cir. 11/14/07), 971 So.2d 1206. All three elements must be established to support rescission of a policy based on material misrepresentation. Id. Thus, in the case at bar, in order for State |inFarm to successfully void coverage for Mrs. Dean’s theft claim, it must not only show that Mrs. Dean made intentional misrepresentations with the intent to deceive, but also show that the false statements were “material” and affected the risk for which it seeks to void coverage; ie., the alleged theft of the 1999 vehicle. See Cousin, 372 So.2d at 1233. See also Deutschmann v. Rosiere, 02-2002, p. 4 (La.App. 4 Cir. 4/9/03), 844 So.2d 1082, 1085; Johnson v. Occidental Life Ins. of Cal., 368 So.2d 1032 (La.1979).

In the case sub judice, Mrs. Dean admits that both she and her daughter made false statements with the intent to deceive State Farm because she was afraid State Farm would deny coverage under the policy. Mrs. Dean’s admission satisfies the first two elements of Louisiana’s three-tiered test for rescinding coverage based on a material misrepresentation defense. But has State Farm established as a matter of law that the intentionally deceptive misstatements were “material” and affected the risk assumed by it; ie., the risk of theft of Mrs. Dean’s automobile?

The test to determine the materiality of a misrepresentation made in connection with an insurance application is whether the statement made was of such a nature that, had it been true, the insurer would not have contracted with the insured or would have contracted at a higher rate. Henry v. State Farm Mut. Auto. Ins. Co., 465 So.2d 276 (La.App. 3 Cir. 1985). However, even if the information provided by the applicant is false, if the insurance company would have issued the policy anyway, the misrepresentation is not “material.” Davis v. State Farm Mut. Auto. Ins. Co., 415 So.2d 501, 504 (La.App. 1 Cir.1982). “Materiality” simply embodies the understanding that the misrepresentation concerns a fact that significantly affects the rights and obligations of the insurer. Therefore, if an insurer’s rights and obligations are not significantly affected, then the misrepresentations cannot be deemed to satisfy the “materiality” requirement as a matter of law. Id.

Applying these general precepts to misrepresentations made in a post-application context such as in the case at bar, we hold that in order for an insurer to establish that a misrepresentation is “material” so as to avoid coverage for a claimed loss, an insurer must show that had the statements made been true, no coverage would be afforded under the policy. Thus, in the instant case, the test of “materiality” is not as State Farm suggests, ie., whether Mrs. Dean and Ms. Swaingan’s statements were made in connection with Mrs. Dean’s claim for the theft of her vehicle. Rather, the proper test in this case is whether State Farm’s policy would afford coverage for the theft {ie. “the risk assumed”) regardless of the falsity of statements made by Mrs. Dean and Ms Swaingan.

To ascertain the “materiality” of the intentional misrepresentations made by Mrs. Dean and Ms. Swaingan, we examine each false statement made and then determine whether its truth would preclude or provide State Farm with a defense to coverage under its policy. The record in this case establishes that Mrs. Dean admittedly and intentionally made the following misrepresentations with the intent to deceive State Farm during the claims process and subsequent investigation of the alleged theft of her automobile:

• she last saw the vehicle on the morning of the alleged theft;
|1⅞* she drove the vehicle to Ms. Swain-gan’s workplace and parked the car in the parking lot;
• she had two sets of keys to the vehicle and still had both set following the theft;
• after leaving the vehicle parked in her daughter’s office parking lot, she locked the vehicle, and then left to go to Lafayette, Louisiana for the funeral of a friend;
• she did not give her daughter a set of keys to the vehicle;
• she was the last person who drove the vehicle prior to its being stolen;
• she planned to return to New Orleans that same day to personally retrieve the vehicle;
• she returned to New Orleans that same evening at 5:30;
• she owned only two vehicles — a Granada and the Vehicle; and
• she was the daily operator of the allegedly stolen vehicle.

The record further reveals that Ms. Swaingan also admittedly and intentionally made the following misrepresentations with the intent to deceive State Farm:

• she was driven to work on the morning of the alleged theft by a co-worker;
• her mother drove the vehicle to her work and parked it outside her office at about 9:00 a.m., because she thought it would be safer to park it there than at her home;
• her mother came into her office, left her with a set of keys to the vehicle, and told her it was locked;
• her mother told her to look after the vehicle and to drive it home after she finished work; and
• she only drove the vehicle on maybe one occasion prior to the theft.

|1sLater in the course of State Farm’s investigation of the alleged theft and, subsequently in the depositions of Mrs. Dean and Ms. Swaingan, the facts surrounding the misrepresentations were disclosed and the following truths were revealed:

• Mrs. Dean last saw the vehicle on the evening before the alleged theft when Ms. Swaingan drove away in it from her home;
• During the six months preceding the alleged theft, Ms. Swaingan, not Mrs. Dean, was the regular operator of the vehicle, with her mother’s permission, and often parked the vehicle at her apartment over night;
• Ms. Swaingan drove the vehicle to her workplace on the morning of the alleged theft with her mother’s permission and parked it in the office parking lot;
• There were two sets of keys to the vehicle — Mrs. Dean had one set and Ms. Swaingan had the other;
• Mrs. Dean was on her way to Kansas on the date of the alleged theft and was still driving when she spoke to the New Orleans Police Department to file a report of the theft;
• Mrs. Dean did not intend to return to New Orleans on the date of the theft and did not return that same day; and
• Mrs. Dean owned three cars, not two, including a Lincoln LS she purchased with her husband six months prior to the alleged theft, which was also insured by State Farm, and she rarely drove the vehicle after this purchase.

After reviewing the truth of each intentional misrepresentation, we find that not a single statement made would provide State Farm with a defense to Mrs. Dean’s theft claim under the terms and conditions of the policy. In particular, the definition of “Who is an Insured” contained in State Farm’s policy specifically includes coverage for a person driving the insured vehicle with the permission of the named insured. At all times pertinent, Ms. Swaingan was driving the vehicle |14with her mother’s permission. This is not disputed. Moreover, the fact that Mrs. Dean and her daughter mistakenly believed there would be no coverage for the theft if State Farm knew Ms. Swaingan — and not Mrs. Dean — was driving the vehicle at the time it was stolen, leading -them to engage in terminological inexactitudes about the circumstances leading up to and occurring immediately after the theft, does not make this otherwise mistaken belief somehow true. Nor do we find that the misrepresentations made had any real bearing on the actual theft — the risk insured under the policy — of the vehicle.

Based on the record before us, we find as a matter of law that State Farm has failed to carry its burden of establishing the third element required to sustain a Immaterial misrepresentation defense; that is, the misrepresentations, while willful and deceptive, were “material” to the theft — the risk insured by the policy— State Farm should not be allowed to void coverage for the alleged loss. Accordingly, we reverse the trial court’s grant of summary judgment and remand the matter for further proceedings.

D. Bad Faith Penalties f or Arbitrary and Capricious Failure to Pay

While plaintiff-appellant does not specifically designate bad faith penalties as a separate assignment of error, Mrs. Dean does address this issue in her brief on appeal. Specifically, Mrs. Dean maintains that there remain genuine issues of material fact regarding whether State Farm arbitrarily and capriciously refused to pay her theft claim. Because the trial court granted State Farm’s motion for summary judgment voiding coverage for the claim, the issue of bad faith penalties became moot. Accordingly, we pretermit a further discussion of this issue in light of our remand to the trial court.

DECREE

For the foregoing reasons, we reverse the trial court’s grant of summary judgment and remand the matter for further proceedings.

REVERSED AND REMANDED.

MURRAY, J., concurs with reasons.

McKAY, J., concurs.

MURRAY, J.,

concurs with reasons.

| íAlthough I agree with the majority’s finding that an insurer can void coverage based on misrepresentations made after the negotiation and purchase of an insurance policy, I disagree with the finding that State Farm cannot establish a material misrepresentation defense as a matter of law. Given the procedural posture of this case, I would not preclude State Farm from reurging its policy defense based on the concealment or fraud provision of its policy. For these reasons, I concur in the majority’s decision reversing the trial court’s grant of summary judgment.

McKAY, J.,

concurs.

| ^though I find the misrepresentations and false statements made by the plaintiff and her daughter to be reprehensible, I must concur with the majority that these statements ultimately were not “material” to the theft and therefore should not void coverage for the alleged loss. I also concur with the majority that there was nothing arbitrary or capricious concerning State Farm’s handling of this claim.

      .Mrs. Dean's deposition testimony also revealed that the recorded statement given by her daughter to State Farm's Claim Representative, Joe Gallo, likewise contained false and conflicting information concerning the events occurring on the day of the alleged theft, as well as to Ms. Swaingan’s use of the vehicle in the months preceding the loss.

      . A copy of the trial transcript is not part of the appellate record, and thus, not available for this court's review on appeal.

      . While the trial court’s written reasons do not specifically state the misrepresentations made by Mrs. Dean and Ms. Swaingan were "material,” we find that its conclusion that the misrepresentations “were not insignificant” is tantamount to a finding that the misrepresentations were "material.”

      . Although we note that Chrysler Credit was decided before substantial amendments to the summary judgment articles of the Code of Civil Procedure, we find that in certain cases the old rules may be applicable in an appropriate case.

      . Id., note 4.

      . Id., note 4.

      . We find no reported Louisiana decision addressing "materiality” in the context of a post-application misrepresentation involving an automobile claim.

      . While it is true that Mrs. Dean did not contact State Farm to advise that her daughter was operating the vehicle on a regular basis, this is immaterial to a finding that the policy affords coverage for a theft occurring at a time when the vehicle was being driven by someone other than the insured with the insured's permission.

      . We distinguish the Third Circuit's decision in Jamshidi v. Shelter Mut. Ins.Co., 471 So.2d 1141 (La.App. 3 Cir.1985), and the Second Circuit’s decision in West v. Safeway Ins. Co. of La., 42,028 (La.App. 2 Cir. 3/21/07), 954 So.2d 286, which respectively held that “an insurer need not establish a causal relationship between the material misrepresentation and the loss claimed in order to avail itself of the material misrepresentation defense.” We note that in both cases, the courts made a finding that the misrepresentation made were “material.” Moreover, the courts were faced with material misrepresentations made with the intent to deceive in conjunction with an insurance application. The issue of "materiality" presented was whether or not the insurer, had the statements been true, either would not have contracted with the insured or would have contracted only at a higher premium rate. Thus, for example, in Jamshidi, even though the material misrepresentations made by the insured regarding his poor driving record were unrelated or "immaterial” to the subsequent loss, i.e., fire and theft of the insured auto, the misrepresentations made in the application were deemed "material” and supported avoidance of the policy because the insurer established that, had it known the truth of the insured's driving record, it would have not have issued him a policy. Jamshidi, 471 So.2d at 1144.
      Similarly, in West, the insured failed to list her unlicensed sister as a regular operator of the vehicle sought to be insured in the insurance application. Subsequently, when the car was stolen and vandalized, the insurer denied coverage based on the material misrepresentation defense. The trial court ruled in favor of the insured finding that the misrepresentations made were not causally related to the type of loss that actually occurred. The appellate court reversed citing Jamshidi stating that "the jurisprudence requires no causal relation between the misrepresentation and the loss for the insurer to avail itself of this defense.” Specifically, in holding that the insurer was entitled to void coverage for the theft claim, the court determined that, even though the misstatements made in the application were unrelated to the theft claim, the insurer successfully established that it would not have issued the policy had the plaintiff disclosed that an unlicensed driver would be the regular operator of the vehicle. West, 42,028 at p. 7, 954 So.2d at 291.

      . See Dempsey v. Auto Owners Ins. Co., 717 F.2d 556, 560 (11th Cir.1983)(married man who lied by failing to reveal that he was with another woman on the night of the fire in order to conceal his affair did not misrepresent a "material” fact); Zell v. Federal Ins. Co., 2007 WL 1875803 (W.D.Pa.6/27/07)(insured who lied by failing to disclose that the stolen diamond bracelet was shipped by Federal Express from Pennsylvania to Nevada where she picked it up while vacationing in order to avoid Pennsylvania sales tax did not misrepresent a "material” fact).


author: ROLAND L. BELSOME, Judge.

text:
    STATE of Louisiana v. Louis A. GIBSON.
    No. 2007-KA-0254.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 16, 2008.
    Rehearing Denied March 5, 2008.

      Eddie J. Jordan, Jr., District Attorney, David S. Pipes, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appel-lee.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
   (Court composed of Judge DENNIS R. BAGNERIS SR., Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).

ROLAND L. BELSOME, Judge.

_JjOn August 6, 2003, the appellant, Louis Gibson was charged by bill of information with aggravated assault of a peace officer with a firearm. The case was allotted to Section E of the district court on August 7, 2003 and on August 20, 2003, the appellant entered a not guilty plea. The district court found probable cause and denied the motion to suppress the evidence. Lunacy hearings were conducted on February 19, 2004 and on May 26, 2005. Mr. Gibson was found incompetent to proceed to trial at each of those hearings. The case was transferred on July 14, 2006, to Section J to follow case number 456-827, in which Mr. Gibson was also a defendant.

Two months after the case was transferred Mr. Gibson was deemed competent to proceed to trial. Purportedly this determination was made after the court reviewed various doctors’ reports and the facts of the case; no hearing was held. Trial proceeded on November 13, 2006 and Mr. Gibson was found guilty as charged. He was sentenced on December 4, 2006, to serve two years at hard labor, to run concurrently. A multiple bill hearing resulted in the court vacating the previous sentence imposed, and amended his sentence to thirty months at hard labor as a third felony offender, to run concurrently.

li>By his sole assignment of error, Mr. Gibson argues that his due process rights were violated when he was tried and convicted despite being found incompetent to proceed to trial. We agree.

At issue here is the failure of the district court to conduct a contradictory hearing, as required by La.C.Cr.P. art. 647, prior to its ruling that Mr. Gibson was competent to proceed to trial. The State maintains that a hearing was unnecessary in this case because the doctors’ testimony would have been the same as presented to the court on February 23, 2006, in case number 456-827. Though the minute entry of September 26, 2006, indicates that the district court reviewed various reports from psychiatrists, those reports are not part of the record; the only report filed in the record is the report that was submitted by Doctor Willis in conjunction with the May 26, 2005, hearing in which she indicated that Mr. Gibson was incompetent. Also, there is no indication that the district court judicially noticed the testimony presented by the doctors at the competency hearing conducted on February 23, 2006. The transcript from that hearing provided medical testimony that indicated Mr. Gibson was competent when taking his medication. However, there is nothing in the record that implies he continued to take the medications that rendered him competent to proceed in the other case.

laThe Louisiana Supreme Court stated in State ex rel Seals v. State, 00-2738 (La.10/25/02); 831 So.2d 828, that “[t]he failure to resolve the issue of a defendant’s capacity to proceed may result in nullification of the conviction and sentence under State v. Nomey, 613 So.2d 157, (La.1993), or a nunc pro tunc hearing to determine competency retrospectively under State v. Snyder, 98-1078 (La.4/14/99), 750 So.2d 832.” A nunc pro tunc hearing to determine appellant’s competency retrospectively is only appropriate “if a meaningful inquiry into- the defendant’s competency may still be had.” State ex rel Seals v. State, 831 So.2d at 833. In the instant case Mr. Gibson did not testify at trial and the record is void of any information regarding his mental state at the time of trial. Thus, a nunc pro tunc hearing cannot be considered.

Under the circumstances presented in this case the only proper remedy to ensure that Mr. Gibson’s due process rights are protected is to vacate his conviction and remand the case for a competency hearing under the provisions of La. C. Cr. P. art. 647 to determine if Mr. Gibson is competent to stand trial prior to conducting a new trial.

CONVICTION VACATED; REMANDED.

      . Article 647 titled Determination of mental capacity to proceed states:
      The issue of the defendant’s mental capacity to proceed shall be determined by the court in a contradictory hearing. The report of the sanity commission is admissible in evidence at the hearing, and members of the sanity commission may be called as witnesses by the court, the defense, or the district attorney. Regardless of who calls them as witnesses, the members of the commission are subject to cross-examination by the defense, by the district attorney, and by the court. Other evidence pertaining to the defendant's mental capacity to proceed may be introduced at the hearing by the defense and by the district attorney.