author: PARRO, J.

text:
    Corey HALPHEN v. Luis O. BORJA, Davis Mechanical Contractors, Inc., Eagle Insurance Company, State Farm Mutual Automobile Insurance Company, and the American Central Insurance Company.
    No. 2006 CA 1465.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 2007.

      A.J. Paul Fredrickson, II, Baton Rouge, for Plaintiff-Appellant Corey Halphen.
    Daniel R. Atkinson, Jr., Daniel J. Bal-hoff, Perry, Atkinson, Balhoff, Mengis & Burns, L.L.C., Baton Rouge, for Defendant-Appellee American Central Ins. Co.
    Before: PARRO, GUIDRY, and McClendon, jj.
   PARRO, J.

|2Corey Halphen appeals the district court’s judgment, which granted a motion for summary judgment in favor of his employer’s automobile insurer, American Central Insurance Company (American), and dismissed his claims against it on the grounds that American’s policy did not provide underinsured/uninsured motorist (UM) coverage for Halphen while driving his personal automobile. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On July 19, 1999, Corey Halphen was injured in an automobile accident while driving his personal vehicle. He was employed by Rabenhorst Funeral Home, Inc. (Rabenhorst), which had a business automobile insurance policy from American. Halphen sued American, along with several other defendants, alleging that he was in the course and scope of his employment when the accident occurred and that American provided UM coverage for him under the policy issued to Rabenhorst. American filed a motion for summary judgment, claiming there was no UM coverage under its policy for Halphen. The district court agreed and granted American’s motion, dismissing Halphen’s claims against American in a judgment signed October 25, 2005. Halphen’s motion for a new trial was denied in a judgment signed February 9, 2006, and he appealed.

APPLICABLE LAW

Summary Judgment

An appellate court reviews a district court’s decision to grant a motion for summary judgment de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. See Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. Summary judgment shall be rendered if there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). A summary judgment may be rendered on the issue of insurance coverage alone, although there is a genuine issue as to liability or damages. See LSA-C.C.P. art. 966(E); Bilbo for Basnaw v. Shelter Ins. Co., 96-1476 (La.App. 1st Cir.7/30/97), 698 So.2d 691, 694, writ denied, 97-2198 (La.11/21/97), 703 So.2d 1312. Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. When the issue before the court on the motion for summary judgment is one on which the party bringing the motion will bear the burden of proof at trial, the burden of showing there is no genuine issue of material fact remains with the party bringing the motion. See LSA-C.C.P. art. 966(C)(2); Buck’s Run Enterprises, Inc. v. Mapp Const., Inc., 99-3054 (La.App. 1st Cir.2/16/01), 808 So.2d 428, 431. An insurer seeking to avoid coverage through summary judgment must prove some provision or exclusion applies to preclude coverage. Gaylord Chem. Corp. v. ProPump, Inc., 98-2367 (La.App. 1st Cir.2/18/00), 753 So.2d 349, 352.

Insurance Policy Interpretation

An insurance policy is an agreement between the parties and should be interpreted by using ordinary contract principles. Smith v. Matthews, 611 So.2d 1377, 1379 (La.1993). The judicial responsibility in interpreting insurance contracts is to determine the parties’ common intent. See LSA-C.C. art. 2045; Louisiana Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-0911 (La.1/14/94), 630 So.2d 759, 763. If the language in an insurance contract is clear and explicit, no further interpretation may be made in search of the parties’ intent. LSA-C.C. art. 2046 The court should not strain to find ambiguity where none exists. Strickland v. State Farm Ins. Companies, 607 So.2d 769, 772 (La.App. 1st Cir.1992). The determination of whether a contract is clear or ambiguous is a question of law. McMath Const. Co., Inc. v. Dupuy, 03-1413 (La.App. 1st Cir.11/17/04), 897 So.2d 677, 681, writ denied, 04-3085 (La.2/18/05), 896 So.2d 40.

However, if there is ambiguity in an insurance policy, it must be resolved by construing the policy as a whole; one policy provision is not to be construed separately at the expense of disregarding other policy provisions. See LSA-C.C. art. 2050; Louisiana Ins. Guar. Ass’n, 630 So.2d at 763. Ambiguity will also be resolved by ascertaining how a reasonable insurance policy purchaser would construe the clause at the time the insurance contract was entered. Breland v. Schilling, 550 So.2d 609, 610-11 (La.1989). If, after applying the other general rules of construction, an ambiguity remains, the ambiguous contractual provision is to be construed against the insurer who issued the policy and in favor of coverage for the insured. See LSA-C.C. art. 2056; see also Louisiana Ins. Guar. Ass’n, 630 So.2d at 764. Under this rule of “strict construction,” equivocal provisions seeking to narrow an insurer’s obligation are strictly construed against the insurer. However, for the rule of strict construction to apply, the policy must be susceptible to two or more interpretations, both of which are reasonable. See Bonin v. Westport Ins. Corp., 05-0886 (La.5/17/06), 930 So.2d 906, 911.

Even if the words are fairly explicit, the court must refrain from construing them in such a manner as to lead to absurd consequences. When a literal interpretation will produce absurd consequences, the court may consider all pertinent facts and circumstances, including the parties’ own conclusion of the instrument’s meaning, rather than adhere to a forced meaning of the terms used. See LSA-C.C. art. 2046; Ratcliff v. Theriot, 93-973 (La.App. 3rd Cir.3/2/94), 634 So.2d 1234, 1236, writ denied, 94-0685 (La.5/6/94), 637 So.2d 1048; see also Carrier v. Reliance Ins. Co., 99-2573 (La.4/11/00), 759 So.2d 37, 44; McEachern v. Mills, 36,156 (La.App. 2nd Cir.8/16/02), 826 So.2d 1176, 1180-81; Ehrlicher v. State Farm Ins. Co., 171 F.3d 212, 214-15 (5th Cir.1999).

| RUM Coverage

Under Louisiana’s UM statute, LSA-R.S. 22:680, automobile liability insurance delivered or issued for delivery in Louisiana and arising out of the ownership, maintenance, or use of a motor vehicle registered in Louisiana and designed for use on public highways must provide UM motorist coverage for the protection of persons insured thereunder equal to the liability coverage provided for bodily injury, unless UM coverage has been validly rejected or lower UM limits have been selected. See Jones v. Henry, 542 So.2d 507, 508 (La.1989). The requirement that there be UM coverage is an implied amendment of any automobile liability policy, even one which does not expressly address the subject matter, as UM coverage will be read into the policy unless validly rejected. Roger v. Estate of Moulton, 513 So.2d 1126, 1130 (La.1987). Although Louisiana’s public policy strongly favors UM coverage and a liberal construction of the UM statute, it is well-settled that a person who does not qualify as an “insured” for liability coverage under a policy of insurance is not entitled to UM coverage under the policy. In other words, a plaintiff must be an “insured” under auto liability coverage to be entitled to UM coverage. Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191, 196.

Limitations on UM coverage are valid where they are authorized by statute. Galliano v. State Farm Mut. Auto. Ins. Co., 606 So.2d 580, 581 (La.App. 5th Cir.1992). Therefore, even if a person is an “insured” for liability coverage, if the policy under which he claims UM coverage describes specific motor vehicles, the UM coverage does not apply to bodily injury of such an insured while occupying a motor vehicle owned by that insured unless that motor vehicle is described in the policy under which the claim is made. See LSA-R.S. 22:680(l)(e); Jones v. Allstate Ins. Co., 619 So.2d 111, 114 (La.App. 1st Cir.), writ denied, 626 So.2d 1186 (La.1993), partially abrogated on evidentiary ruling by Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226; Shackelford v. State Farm Mut. Auto. Ins. Co., 94-514 (La.App. 5th Cir.11/29/94), 646 So.2d 1209, 1211; Dunn v. St. Paul Fire & Marine Ins. Co., 33,904 (La.App. 2nd Cir.9/27/00), 768 So.2d 720, 722-24, writ denied, 00-3014 (La.12/15/00), 777 So.2d 1235; Southerland v. Continental Cas. Co., 36,782 (La.App. 2nd Cir.1/29/03), 837 So.2d 712, 714, writ denied, 03-0955 (La.5/16/03), 843 So.2d 1137; Ehrlicher, 171 F.3d at 214-15.

ANALYSIS

The starting point for interpreting an insurance policy is an examination of the relevant policy provisions. The “Business Auto Declarations” page shows the named insureds as “Rabenhorst Funeral Home, Inc.” and “Rabenhorst Life Ins. Co., Inc.” The “Schedule of Coverages and Covered Autos” on that page displays a chart that uses numerical designations to show which vehicles are covered automobiles for the types of insurance listed. The covered automobiles for liability insurance are denoted by the number “1,” while the covered automobiles for uninsured motorists insurance are denoted by the number “2.” Above this chart is an explanation, which states, in pertinent part:

Each of these coverages will apply only to those AUTOS shown as covered AUTOS. AUTOS are shown as covered AUTOS for a particular coverage by the entry of one or more of the symbols from the COVERED AUTOS SECTION of the BUSINESS AUTO COVERAGE FORM next to the name of the coverage.

Turning to the “Business Auto Coverage Form,” which provides a description of the covered auto designation symbols, we note that with respect to covered autos for liability insurance, the number “1” denotes any auto, while with respect to covered autos for UM insurance, the number “2” denotes owned autos only, which is further explained to mean only those autos “you own.” This form also explains that the words “you” and “your” refer only to the named insureds shown in the declarations. Therefore, based on these provisions of the business auto declarations page, the policy indicates that UM coverage is provided only for automobiles owned by the named insureds, Rabenhorst or its affiliated life insurance company.

UM coverage is further limited by the statement on the UM declarations page indicating that such coverage is provided only for automobiles owned by the named insureds that, are listed on an attached “Schedule of Covered Autos You Own.” Thus, |7UM coverage is limited to automobiles owned by a named insured and listed on the schedule as a covered auto. The car Halphen was driving when the accident occurred was his personal vehicle and was not listed as a covered auto for UM coverage on the schedule of covered autos. These provisions of the UM declarations page would support American’s position that its policy did not provide UM coverage for Halphen when he was driving his personal vehicle.

The first analytical problem arises in the definition of who is an insured in the UM section of the policy. It states that in addition to the named insureds, UM coverage is provided for:

Anyone else “occupying” an “auto” you [the named insureds] do not own and that is a covered “auto” under this coverage part for Liability Insurance and is licensed or principally garaged in Louisiana.

This provision is internally inconsistent. It predicates insured status for UM coverage on occupying an auto the named insured does not own, but which is a covered auto “under this coverage part,” which would be understood to be UM coverage, since that is the coverage part of the policy in which this definition is found. But only vehicles owned by the named insureds are covered autos “under this coverage part.” The definition goes on to say “for Liability insurance,” which could be interpreted as “any auto,” since those are the covered autos for liability insurance. For vehicles licensed or principally garaged in Louisiana, this interpretation would virtually eliminate the UM designation of covered vehicles as those owned by the named insureds and listed on a schedule of covered autos. The inherent ambiguity of this provision was noted by the Louisiana Supreme Court in Carrier, in which the following statement was made:

The key language in Section B5 that is subject to interpretation states, in effect, that an “insured” includes “[a]nyone else occupying an auto [the named insured] do[es] not own and that is a covered auto under this coverage part for Liability Insurance .... ” (emphasis added). The words “this coverage part,” contained in the UM coverage portion of the policy, are obviously the critical words in the interpretation process. The phrase “for Liability Insurance,” following “this coverage part,” makes Section B5 ambiguous. Without the phrase “for Liability Insurance,” Section B5 would unambiguously refer to a “covered auto” as defined in this UM coverage, where the symbol for “covered auto” is “7,” meaning “specifically described autos.” Since plaintiffs vehicle was not among the vehicles specifically described in his employer’s policy, he clearly would not be an insured under Section B5.
|ROn the other hand, Section B5 arguably could be interpreted, as written, to refer to a “covered auto” as defined in the liability coverage of the policy, where the symbol for covered auto is “1,” meaning “any auto.” In our view, however, this interpretation ... is not reasonable. '

Carrier, 759 So.2d at 42-43 (footnotes omitted).

There is also an exclusion in the UM coverage section of the policy, which states that the UM insurance does not apply to:

4. “Bodily Injury” sustained by an “insured” while “occupying” or struck by any vehicle owned by that “insured” that is not a covered “auto.”

It appears that “covered auto” in this exclusion refers unequivocally to those listed in the schedule of covered automobiles for which UM coverage is provided. Therefore, in spite of the ambiguity in the definition of who is an insured, this exclusion clarifies that Halphen, even if he is somehow an “insured,” is not provided UM coverage for bodily injury sustained while occupying his personal vehicle that is not listed on the schedule of covered autos for UM coverage.

However, Halphen contends that if he is an insured under the liability coverage provisions, then Louisiana law mandates UM coverage for him under the policy. He reasons that since liability insurance in the policy covers “any auto,” that includes his personal vehicle as a covered auto. He further maintains that since “any auto” includes all the other enumerated designations, his personal vehicle is covered for liability under the designation “9,” which is defined as:

NONOWNED “AUTOS” ONLY. Only those “autos” you do not own, lease, hire, rent or borrow that are used in connection with your business. This includes “autos” owned by your employees or partners or members of their households but only while used in your business or your personal affairs.

Turning to the definition of who is an insured for liability coverage, we find that: The following are “insureds”:

a. You [the named insureds] for any covered “auto.”
b. Anyone else while using with your permission a covered “auto” you own, hire or borrow except:
(2) Your employee if the covered “auto” is owned by that employee or a member of his or her household.

1 aUnder this exception, even if Halphen’s personal auto were a covered auto for liability coverage because it falls within the definition of “any auto,” and if his use of that auto were considered “borrowing” of that vehicle by the named insureds due to its use to benefit a named insured, this provision would exclude him from being an insured for liability coverage. Additionally, a policy exclusion states that liability coverage does not apply to bodily injury to an employee of the insured arising out of and in the course of employment by the insured. However, there is also an endorsement page in the policy entitled “CU SECURITY FOR AUTO,” on which the definition of who is an insured for liability coverage is broadened by adding:

d. Any employee of yours while using a covered “auto” you don’t own, hire or borrow in your business or your personal affairs.

According to a page in the business auto declarations, the forms and endorsements applying to this policy include the above endorsement, and this amendment is applicable to “Liab Coll Comp.” This endorsement supports Halphen’s contention that he is an “insured” for liability coverage.

Ultimately, the crux of the issue is whether the policy can reasonably be interpreted to mean that because “any auto” was a “covered auto” under the liability portion of the policy, Halphen was an “insured” for liability coverage, and therefore, UM coverage had to be provided to him, even though he was driving his own vehicle when the accident occurred, which was not owned by the named insureds and was not listed on the schedule of covered autos for UM coverage. Based on the applicable jurisprudence and the provisions of LSA-R.S. 22:680(l)(e), we reject this interpretation as contrary to statutory authority and as unreasonable.

Subparagraph (e) of LSA-R.S. 22:680(1) states:

The uninsured motorist coverage does not apply to bodily injury, sickness, or disease, including death of an insured resulting therefrom, while occupying a motor vehicle owned by the insured if such motor vehicle is not described in the policy under which a claim is made, or is not a newly acquired or replacement motor vehicle covered under the terms of the policy. This provision shall not apply to uninsured motorist coverage provided in a policy that does not describe specific motor vehicles.

|inThis provision became part of the UM statute by the passage of 1988 La. Acts, No. 203, § 1. See former LSA-R.S. 22:1406(D)(l)(e). It was apparently intended to change the law, so as to “legislatively overrule” a decision by the Louisiana Supreme Court that allowed an insured to select the most advantageous UM coverage when driving a vehicle with a lower UM limit than that available to him from another policy under which he was also an “insured” for liability coverage. See Wyatt v. Robin, 518 So.2d 494 (La.1988) (claimant driving his own vehicle with statutory minimum UM coverage could claim higher UM coverage available to him on his parents’ automobile, since he resided in their household at the time of the accident and thus, was an insured under their policy). Shortly after passage of this subparagraph, W. Shelby McKenzie and H. Alston Johnson, III, in Insurance Developments in the Law, 1987-1988, 49 La. L.Rev. 349, 354 (1988), commented that:

The new subparagraph thus provides that when an insured suffers bodily injury while occupying a certain motor vehicle that he owns, he may not demand payment under any policy that does not specifically cover that vehicle.... In cases ... in which the insured suffers injury while occupying an automobile owned by him, subparagraph (e) would permit recovery only under the particular policy issued on that automobile.

In Haltom v. State Farm Mut. Auto. Ins. Co., 588 So.2d 792, 795 (La.App. 2nd Cir.1991), the Second Circuit stated that another rationale for this provision was to keep vehicle owners from carrying UM coverage on only one of two or more owned vehicles, thus obtaining the benefit of UM coverage regardless of which vehicle they occupied when an accident occurred, at the cost of only one UM policy. This court reached a similar conclusion in Jones, 619 So.2d at 114. In these cases, even though the claimant had bought and paid for liability and UM coverage under a policy covering one vehicle, he could not claim the benefit of that UM coverage if the accident occurred while he was occupying another motor vehicle that he also owned, but on which he had lower UM limits or had waived or rejected UM coverage. We note that in the case we are reviewing, Halphen is not trying to obtain the benefit of UM coverage on another vehicle he owned or from another policy on which he or a family member paid the premiums. Rather, he claims UM coverage under a policy covering vehicles he did not own and for which he did not pay premiums for liability or UM coverage.

Inin the Shackleford case, the Fifth Circuit applied subparagraph (e) to preclude UM coverage to a woman who was injured while driving a vehicle she owned, but claiming UM coverage under her deceased father’s automobile liability policy, on which she was an insured for liability, but which did not list the vehicle she was driving when the accident occurred. In that case, even though her status as an insured for liability coverage on her father’s vehicle was not contested, UM coverage was denied under the clear statutory mandate. Shackleford, 646 So.2d at 1211.

Several more recent cases from other courts have interpreted subparagraph (e) in a factual context more similar to the case we are. reviewing. In the Ratcliff case, a motorist who was injured in an automobile accident while acting within the course and scope of his employment brought a declaratory judgment suit for UM coverage against the insurer that issued an automobile liability policy to his employer. In denying UM coverage to the employee claimant, the Third Circuit analyzed the policy provisions as follows:

The declaration page designates covered autos for UM purposes as “owned ‘autos’ only” (covered auto symbol “02”). Ratcliff would not be an insured under B(3) because he was not occupying a “covered ‘auto” ’ for UM purposes.
The endorsement appears to be a standard form and purports to modify insurance provided under business auto coverage, garage coverage, and truckers coverage forms. On its face, the endorsement would seem to provide coverage to Ratcliff under section B(5) since (1) Ratcliff was occupying a vehicle that [his employer] did not own; (2) Ratcliffs auto is a “covered ‘auto” ’ under the coverage part for liability insurance (“any ‘auto” ’); and (3) it is not disputed that Ratcliffs automobile is licensed or principally garaged in Louisiana. Indeed, the endorsement, literally construed, purports to extend UM coverage to anyone while occupying any auto, as long as the auto is not owned by [the named insured, Ratcliffs employer] and is principally licensed or garaged in Louisiana. Thus, conceivably, even the members of this court could claim UM coverage under the policy as literally construed. We can see that under certain selections for covered autos the B(5) provision of the endorsement would not lead to absurd consequences; however, because of the selection for covered autos (i.e. “any ‘auto” ’) for liability purposes in this policy, the B(5) provision leads to absurd consequences.

Ratcliff, 634 So.2d at 1236. Similarly, the Second Circuit denied UM benefits to an |12employee who sought UM coverage under her employer’s automobile liability insurance policy for an accident that occurred while she was driving her own vehicle in the course of her employment. Because her car was not listed as a covered automobile under the UM provisions of her employer’s policy, she was not entitled to UM benefits, even though she argued that she was insured for liability coverage by virtue of the fact that she was driving a “covered auto,” which for liability coverage was defined in the policy as “any auto.” Dunn, 768 So.2d at 722-24.

The Dunn case followed and cited a Louisiana Supreme Court case that approved the Ratcliff rationale in interpreting a similar policy under similar factual circumstances. See Carrier, 759 So.2d 37. The Carrier case also involved an employee using his own pickup truck in the course and scope of his employment and seeking UM coverage under his employer’s business automobile insurance policy. After noting the internal inconsistency discussed above, the court reiterated the longstanding rule of strict construction against the insurer and in favor of coverage when an ambiguity cannot be resolved, but only if each of the alternative interpretations is reasonable. Carrier, 759 So.2d at 43-44. It concluded that:

[A]n interpretation of Section B5 to include, in the definition of an insured for UM coverage, any person (other than the named insured) occupying “any auto” (as “covered auto” is indicated in the liability section of the policy) is not a reasonable interpretation. It simply is not reasonable to ascribe to the contracting parties an intention to provide UM insurance worldwide to any person occupying any auto. ... [T]he literal language of Section B5 ... leads to unreasonable and even absurd consequences.

Carrier, 759 So.2d at 44. Therefore, the court determined that the only reasonable interpretation of the ambiguous policy provision was to conclude that “covered autos” for UM insurance coverage were only those specifically described in the policy. The court further examined the plaintiff/employee’s argument that UM coverage was statutorily required because he qualified as an insured under the liability portion of the policy, and determined that under the relevant policy provisions, he did not so qualify. Carrier, 759 So.2d at 44-45. The court explained that because it had ruled in favor of the insurer on other grounds, it was not necessary to address whether UM coverage was precluded by the clear language of subparagraph (e) (as the Shackleford court had held under different factual circumstances). Carrier, 759 So.2d at 43 n. 11.

Following Carrier, the Second Circuit found in the McEachem case that, under the applicable policy provisions, the plaintiff was not insured for UM or liability coverage under his employer’s policy while driving his personal vehicle in the course and scope of his employment. McEachern, 826 So.2d at 1182. In the Southerland case, the Second Circuit went a step further and used the Fifth Circuit’s rationale in Shackleford, applying subpara-graph (e) as a clear statutory exception to the general rule that if a claimant is an “insured” for liability coverage under the policy, he must be provided UM coverage. The court held that the employee’s personal vehicle was not a “covered auto” within the scope of the UM coverage provision in the policy, because it was not specifically listed therein, and further stated:

Even assuming that Southerland would be an insured under the liability endorsement, [LSA-R.S. 22:680(l)(e) ] specifically states that the mandatory UM coverage does not apply to bodily injury of the insured while the insured is occupying a vehicle owned by the insured but not described in the insurance policy. Southerland (the alleged insured) was injured while driving a vehicle he owned that is not described in Continental’s policy. Therefore, this argument is without merit.

Southerland, 837 So.2d at 713-14.

After reviewing the UM statute and jurisprudence, we agree that the reasoning of the Second Circuit in South-erland is correct. The Carrier case determined that precisely the same UM provisions as in the case before us could only be reasonably interpreted as precluding UM coverage for an employee occupying his own vehicle, when that vehicle is not described in the policy. We are persuaded by that determination. Additionally, we conclude that LSA-R.S. 22:680(l)(e) is a statutory exception to the general rule that if a person is an insured for liability coverage under a policy, UM coverage must be provided for him. In the initial cases interpreting subparagraph (e), there was no doubt that the claimants were insured under the liability provisions of the policies under which they claimed UM coverage. See, e.g., Haltom, 588 So.2d 792; Jones, 619 So.2d 111, and Shackelford, 646 So.2d 1209. Yet, UM coverage was denied because the vehicles they occupied were not specifically described in the policies under which they were claiming coverage. There is no reason why sub-paragraph (e) should not be similarly applied when the factual scenario involves an employee driving his own vehicle and seeking UM coverage under his 1 uemployer's policy, when the vehicle involved in the accident is not listed in the employer’s policy. The language of the statute is clear. Even if Halphen were considered an “insured” for liability coverage under the American policy, he is not entitled to UM coverage under that policy, because he was not driving a vehicle that was specifically listed in the policy. Therefore, the district court in this case correctly denied Halphen’s claims for UM coverage from American.

CONCLUSION

For the foregoing reasons, the judgment denying Halphen’s claims for UM coverage and dismissing American from the suit is affirmed. All costs of this appeal are assessed to Halphen.

AFFIRMED.

      . The other defendants included: Halphen's automobile liability and UM insurer, State Farm Mutual Automobile Insurance, Company; the other driver, Luis O. Borja; Borja’s automobile liability insurer, Eagle Insurance Company; Borja’s alleged employer, Davis Mechanical Contractors, Inc.; and American, in its capacity as Davis’s liability insurer.

      . An earlier motion for summary judgment filed by American on this issue had been denied. However, after that judgment, another appellate court rendered judgment on this issue, so American re-urged its motion and cited this new jurisprudence to the district court in support of its motion.

      . Although the cited cases refer to the UM statutory provisions as being found in LSA-R.S. 22:1406(D), these provisions were re-designated as LSA-R.S. 22:680 by 2003 La. Acts, No. 456, § 3. For the sake of clarity, we will reference LSA-R.S. 22:680 throughout this opinion.

      . For simplicity in this opinion, we will refer to this provision as subparagraph (e).

      . Noting that in 1999, when it decided a similar case, there was a split in the Louisiana appellate courts on this issue, the federal Fifth Circuit Court of Appeals interpreted similar policy language and followed the Rat-cliff rationale, concluding that an employee seeking UM coverage under his employer’s business automobile liability policy was not covered, because UM coverage was limited to specifically described vehicles, and his personal automobile was not described in the policy. Ehrlicher, 171 F.3d at 214-15.


source: Caselaw Access Project

author:
GUIDRY, J. McCLENDON, J.,
      PARRO, J.,

license: Public Domain

text:
    Lana COWART v. LAKEWOOD QUARTERS LIMITED PARTNERSHIP and Tangi McKnight.
    No. 2006 CA 1530.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 2007.

      Brandon Brown, Baton Rouge, Counsel for Plaintiff/Appellee Lana Cowart.
    Karl J. Koch, Paul B. Lauve, Baton Rouge, Counsel for Defendant/Appellant Lakewood Quarters Limited Partnership (LQRNH, L.L.C.).
    Before: PARRO, GUIDRY, and McClendon, jj.
   GUIDRY, J.

|^Defendant appeals a .summary judgment granted in favor of plaintiff, finding the defendant vicariously liable for the intentional tortious actions of its employee. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

In May 2003, plaintiff, Lana Cowart, was employed by defendant, LQRNHC, LLC d/b/a Lakewood Quarters Rehabilitation and Nursing Center (hereinafter “LQRNHC”), as the Certified Nursing Assistant (“CNA”) Director. Her duties included the hiring and firing of subordinate employees. One of her subordinates, Tangi McKnight, was employed as a CNA supervisor. Ms. McKnight’s position required her to supervise and fill in for or assist her fellow CNAs should it become necessary for any reason.

Various CNAs began to complain to Ms. Cowart that Ms. McKnight was socializing rather than performing her job duties. Ms. Cowart investigated and determined that the complaints were well-founded. The Director of Nursing (Director) advised Ms. Cowart to terminate Ms. McKnight’s employment. However, before terminating Ms. McKnight, Ms. Cowart decided she would first offer Ms. McKnight the option of stepping down from her supervisory position to work as a regular CNA. Ms. McKnight refused to do so. , According to Ms. Cowart, the following exchange then occurred.

Ms. Cowart: I said “Tangi, what I am to do with you? If you don’t.. .what am I to do” and I said, “What am I to do”— “Or else,” you know, “What am I doing?” She just goes, “Or else what?” I said, “Or terminate you” and she goes, “Terminate me? You’re going to terminate me” and I looked at [the Director and the Director said], “Terminate her” and I said, “Well I guess so,” and she goes, “Oh, so you’re firing me” and I said, “Well, I guess so, if you won’t step down and take a [demotion]” and I was even going to let her take a breather, you 13know, cool off, and I had picked up the termination paper and turned to throw it away and that’s when she attacked me.

When Ms. Cowart turned her back to Ms. McKnight, Ms. McKnight pounced on Ms. Cowart, smashed a coffee mug over her head and proceeded to beat her with a metal three-hole punch. As a result of the beating, Ms. Cowart sustained serious injuries.

Ms. Cowart subsequently filed suit against Ms. McKnight, as well as LQRNHC, alleging LQRNHC was vicariously liable for Ms. McKnight’s intentional tortious actions. Because the facts were essentially undisputed, both Ms. Cowart and LQRNHC sought a summary judgment on the issue of vicarious liability. Following a contradictory hearing, the trial court granted a summary judgment in favor of Ms. Cowart, finding LQRNHC vicariously liable for the intentional tortious conduct of Ms. McKnight. From this judgment, LQRNHC appeals, asserting that it cannot be held vicariously liable for Ms. McKnight’s actions because they were not reasonably incidental to her employment duties or, alternatively, because she had been terminated just prior to the attack and, thus, was no longer its employee.

LAW AND ANALYSIS

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s determination of whether a summary judgment is appropriate. Duplantis v. Dillard’s Dept. Store, 2002-0852, p. 5 (La.App. 1 Cir. 5/9/03), 849 So.2d 675, 679, writ denied, 2003-1620 (La.10/10/03), 855 So.2d 350. A motion for summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966 B.

|4The facts in this case are essentially undisputed; accordingly, it must simply be determined whether the plaintiff is entitled to judgment on the issue of liability as a matter of law. Vicarious liability is based on LSA-C.C. art. 2320, which provides in part, “[m]asters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.” Under LSA-C.C. art. 2320, an employer can be held liable for an employee’s tortious conduct only if the injuring employee is acting within the course and scope of his employment. Spears v. Jones, 2000-2799, p. 4 (La.App. 1 Cir. 2/15/02), 807 So.2d 1182, 1185, writs denied, 2002-0663 and 2002-0767 (La.5/3/02), 815 So.2d 106 and 826.

Generally, courts consider four factors when assessing vicarious liability, including whether the tortious act: (1) was primarily employment-rooted; (2) was reasonably incidental to performance of employment duties; (3) occurred during working hours; and (4) occurred on the employer’s premises. See LeBrane v. Lewis, 292 So.2d 216, 218 (La.1974). It is not necessary that each factor is present in each case, and.each case must be decided on its own merits. Baumeister v. Plunkett, 95-2270, p. 4 (La.5/21/96), 673 So.2d 994, 997. Further, an employer is not vicariously liable merely because his employee commits an intentional tort on the business premises during working hours. Under the jurisprudence, an employer is responsible for an employee’s intentional tort when the conduct is so closely connected in time, place, and causation to the employment that it constitutes a risk of harm attributable to the employer’s business. Menson v. Taylor, 2002-1457, pp. 5-6 (La.App. 1 Cir. 6/27/03), 849 So.2d 836, 840.

We conclude that Ms. Cowart’s claims against LQRNHC arise out of a single transaction. The entire transaction included Ms. Cowart informing |fiMs. McKnight that she had to take a demotion or else be terminated, Ms. McKnight’s refusal, Ms. Cowart’s attempted termination of Ms. McKnight, equivocal at best, and Ms. McKnight’s resultant attack upon Ms. Cowart. We further find that Ms. McKnight was the employee of LQRNHC for the duration of this transaction.

Unquestionably, the attack at issue herein occurred on the employer’s premises during working hours. Moreover, it is patent that the attack was employment-rooted and was reasonably incidental to Ms. McKnight’s employment duties, since her duties implicitly included being counseled by her superiors regarding complaints about her job performance and the actions to be taken as a result of those complaints. Clearly, there was no appreciable passage of time between the remarks directed toward Ms. McKnight regarding her termination and Ms. McKnight’s unprovoked attack on her supervisor. See LeBrane, 292 So.2d at 219.

Accordingly, we conclude that Ms. McKnight’s attack upon Ms. Cowart was so closely connected in time, place, and causation to her employment that it constituted a risk of harm attributable to LQRNHC’s business, thereby rendering LQRNHC responsible for any damages caused by Ms. McKnight’s intentional tor-tious conduct.

CONCLUSION

For the foregoing reasons, the summary judgment is hereby affirmed. All costs of this appeal are assessed to LQRNHC, LLC d/b/a Lakewood Quarters Rehabilitation and Nursing Center.

AFFIRMED.

McCLENDON, J., agrees and assigns additional reasons.

PARRO, J., dissents and assigns reasons.

McCLENDON, J.,

agrees and assigns reasons.

hi agree that the defendant in this case is vicariously liable for the intentional tort committed by its employee. The altercation in this case was not only closely connected in time, place and causation to the employment, but also the dispute leading to the altercation arose directly from an employment-related activity, i.e., being terminated for poor job performance by her supervisor. These facts put this matter squarely within the ambit of Menson v. Taylor, 2002-1457 (La.App. 1 Cir. 6/27/03), 849 So.2d 836, where this court held that an intentional tort in the employment arena can be sufficiently “employment-rooted” to warrant the imposition of vicarious liability on the employer when the foregoing factors have been met.

PARRO, J.,

dissenting.

hA motion for summary judgment should only be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to summary judgment as a matter of law. See LSA-C.C.P. art. 966(B). In considering whether a genuine issue of material fact exists, courts cannot consider the merits, make credibility determinations, evaluate testimony, or weigh the evidence. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 751. Because it is the applicable substantive law that determines materiality, whether or not a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Davis v. Specialty Diving, Inc., 98-0458, 98-0459 (La.App. 1st Cir.4/1/99), 740 So.2d 666, 669, writ denied, 99-1852 (La.10/8/99), 750 So.2d 972.

The premise of vicarious liability is codified in LSA-C.C. art. 2320, which provides that an employer is liable for the tortious acts of its employees “in the exercise of the functions in which they are employed.” Accordingly, before the liability of an employer | ^attaches, it must be demonstrated that an employer-employee relationship existed between the tortfeasor and the employer at the time of the tortious conduct. See Parmer v. Suse, 94-2200 (La.App. 1st Cir.6/23/95), 657 So.2d 666, 668, writ denied, 95-1853 (La.11/3/95), 662 So.2d 10. The evidence in the record indicates that there is a genuine issue of material fact as to whether Ms. McKnight was still employed by LQRNHC at the time she attacked Ms. Cowart. As this issue is critical to the determination of whether LQRNHC is vicariously liable for Ms. McKnight’s intentional tortious actions, I believe that a summary judgment should not have been granted under the circumstances of this case. In my view, the matter should be remanded to the trial court for a full trial on the merits. Accordingly, I respectfully dissent from the majority opinion.

      . The record reflects several variations of the defendant’s name. Throughout this opinion, we use the name that the defendant contended was the proper designation in its answer to the plaintiffs petition.

      . Pursuant to LSA-R.S. 23:1032, workers' compensation is the employee's exclusive remedy for injuries sustained in the course and scope of employment, unless the injuries were the result of an intentional tort.


author: McClendon, j.

text:
    In re D.D.D. Applying for Intrafamily Adoption.
    No. 2006 CU 2274.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 2007.
    Rehearing Denied July 9, 2007.

      Jamie E. Fontenot, Port Allen, Counsel for Appellees D.D.D. and D.M.D.
    Jeffrey S. Wittenbrink, Baton Rouge, Counsel for Appellant K.P.D.
    Before: PARRO, GUIDRY, and McClendon, jj.
   McClendon, j.

L,In this matter, the biological mother of two children appeals the trial court judgment granting an intrafamily adoption. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

K.P.D. and D.M.D. are the parents of two minor children, P.P.D. and D.W.D. K.P.D. and D.M.D. divorced in 2002, and on September 4, 2002, the Family Court for East Baton Rouge Parish awarded D.M.D. the sole custody of the children, subject to supervised visitation by their mother, K.P.D. Judgment to this effect was signed on October 28, 2002. One year later, on October 28, 2003, D.M.D. married D.D.D.

On January 23, 2006, D.D.D. filed for an intrafamily adoption of the minor children. D.M.D. joined in the petition. The petition asserted that the whereabouts of K.P.D. were unknown, and on January 25, 2006, an attorney was appointed for the limited purpose of locating K.P.D. and effecting service. Through her attorney, K.P.D. was served with a copy of the petition by certified mail on March 3, 2006, and also by regular mail on |sMarch 10, 2006. Thereafter, K.P.D. contacted the appointed attorney regarding the adoption proceedings.

Trial of the matter was held on June 20, 2006, with K.P.D. appearing in proper person. Written reasons for judgment were issued on July 31, 2006, finding that the adoption was in the best interest of P.P.D. and D.W.D. and granting the intrafamily adoption by D.D.D. Following the denial of KP.D.’s request for a new trial, judgment was signed on August 30, 2006. K.P.D. appealed.

In her counseled appeal, K.P.D. raises several assignments of error, including whether she had a right to appointed counsel, whether her failure to pay court-ordered child support was without just cause, and whether the adoption is in the best interests of the children.

DISCUSSION

Among the types of adoption authorized by the Louisiana Children’s Code is the intrafamily adoption, which refers to adoption by a stepparent or certain other relatives of the child. See LSA-Ch.C. arts. 1170, 1243. Articles 1243 through 1258 of the Children’s Code set forth the procedures for intrafamily adoptions.

In her first several assignments of error, K.P.D. asserts that the juvenile court erred in failing to appoint her counsel in this intrafamily adoption when the termination of her parental rights was at issue. Specifically, K.P.D. alleges that she has a constitutional right to such an appointment.

We note that Louisiana specifically provides for the appointment of counsel for an indigent parent, as well as the child, in state-instituted termination proceedings. LSA-Ch.C. art. 1016. However, no such statutory Rright exists in an intrafamily adoption proceeding! Therefore, KP.D.’s right to counsel can only arise from a constitutional basis.

In this regard, the United States Constitution does not require the appointment of counsel for an indigent parent in every parental termination proceeding. Lassiter v. Department of Soc. Serv. of Durham Cty., 452 U.S. 18, 31-32, 101 S.Ct. 2153, 2162, 68 L.Ed.2d 640 (1981). The decision of whether due process calls for the appointment of counsel for indigent parents in a termination proceeding is to be answered in the first instance by the trial court, subject to appellate review. Lassiter, 452 U.S. at 32, 101 S.Ct. at 2162.

In Lassiter, the State of North Carolina instituted proceedings to terminate a mother’s parental rights. At the hearing on the petition, the court, noting that she had been given ample opportunity to obtain counsel and that her failure to do so was without just cause, did not postpone the proceeding. The mother did not aver that she was indigent and the court did not appoint counsel for her. Thereafter, her parental rights were terminated, and she appealed, asserting that because of her indigent status, the Due Process Clause of the Fourteenth Amendment required the state to appoint counsel for her. Lassiter, 452 U.S. at 20-24, 101 S.Ct. at 2156-58. At the outset of its due process analysis, the Court acknowledged:

For all its consequence, “due process” has never been, and perhaps can never be, precisely defined.... [T]he phrase expresses, the requirement of “fundamental fairness,” a requirement whose meaning can be as opaque as its importance is lofty. Applying the Due Process Clause is therefore an uncertain enterprise which must discover what “fundamental fairness” consists of in a particular situation by first considering any relevant precedents and then by assessing the several interests that are at stake.

Lassiter, 452 U.S. at 24-25, 101 S.Ct. at 2158.

|,r,Based on its precedents of what fundamental fairness means when considering the right to counsel, the Court determined that there is a presumption thát an indigent has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty. Lassiter, 452 U.S. at 26-27, 101 S.Ct. at 2159. The Court then noted the case of Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976), which set forth three elements to be evaluated in deciding what due process requires: the private interests at stake, the government’s interest, and the risk that the procedures used will lead to erroneous decisions. These elements must be balanced against each other, and then against the presumption that there is a right to appointed counsel only where the indigent, if he is unsuccessful, may lose his personal freedom. Lassiter, 452 U.S. at 27, 101 S.Ct. at 2159.

In summarizing the Eldridge factors in light of the right to counsel when a state seeks to terminate an indigent parent’s rights, the Court stated:

[T]he parent’s interest is an extremely important one (and may be supplemented by the dangers of criminal liability inherent in some termination proceedings); the State shares with the parent an interest in a correct decision, has a relatively weak pecuniary interest, and, in some but not all cases, has a possibly stronger interest in informal procedures; and the complexity of the proceeding and the incapacity of the uncounseled parent could be, but would not always be, great enough to make the risk of an erroneous deprivation of the parent’s rights insupportably high.

Lassiter, 452 U.S. at 31, 101 S.Ct. at 2161— 62.

After carefully weighing the Eldridge factors against the presumption that there is no right to appointed counsel in the absence of at least a potential deprivation of physical liberty, the Supreme Court concluded that there was no denial of due process when the trial court did not appoint ^counsel for the indigent mother in her state-instituted termination proceedings. Lassiter, 452 U.S. at 31-33, 101 S.Ct. at 2161-63.

In this matter, K.P.D. did not ask for the appointment of counsel during these proceedings. With the filing of the petition for adoption, D.M.D. requested that counsel be appointed as curator ad hoc to locate K.P.D., after which K.P.D. was clearly made aware of the adoption proceedings. At the trial of this matter, K.P.D. said nothing about having counsel appointed to represent her in the merits of this proceeding. Thus, the question whether due process called for the appointment of counsel for K.P.D., as an indigent parent, in these proceedings that resulted in the termination of her parental rights, was not presented to, and therefore could not be answered by, the trial court. See Lassiter, 452 U.S. at 32, 101 S.Ct. at 2162.

Nevertheless, even if we were to determine that KP.D.’s pauper status, coupled with her request for a continuance of the hearing on her motion for a new trial so that she could retain counsel, somehow suffices to put the question of the appointment of counsel before the juvenile court, we do not believe that the appointment of counsel was required in this instance. We recognize that a parent’s desire for and right to “the companionship, care, custody and management of his or her children” is an important interest that “undeniably warrants deference and, absent a powerful countervailing 1 ^interest, protection.” Lassiter, 452 U.S. at 27, 101 S.Ct. at 2159-60, citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972). A parent’s interest in the correctness of a decision forever altering his or her parental status is a “commanding one.” In re Rodrigue, 95-0009, p. 3 (La.App. 1 Cir. 6/23/95), 657 So.2d 648, 650, writ denied, 95-2141 (La.10/27/95), 662 So.2d 2, citing Lassiter, 452 U.S. at 27, 101 S.Ct. at 2160. However, after a careful weighing of the necessary factors, and balancing them against the presumption that there is no right to appointed counsel in the absence of at least a potential deprivation of personal liberty, we do not find that the juvenile court erred in failing to appoint counsel. KP.D.’s interests, although compelling, are not outweighed by the state’s interests “to promote the permanent placement of available children into suitable homes” (LSA-Ch.C. art.- 1167), and the state’s additional interest in concluding child-custody litigation in a timely manner. Additionally, the risk of an erroneous decision is not great, and there was no showing that the presence of counsel for K.P.D. would have made a determina-five difference. No expert witnesses testified, nor were there-any unusually complex evidentiary issues or points of law. Further, the primary consideration in intra-family adoptions continues to be the best interests of the child. LSA-Ch.C. art. 1255. We further note that, unlike a state-instituted proceeding, there was little or no risk of criminal liability to K.P.D. inherent in this stepparent adoption.

^Accordingly, we find that the juvenile court did not deny K.P.D. due process of law when it did not appoint counsel for her, and KP.D.’s assignments of error regarding the right to counsel are without merit.

K.P.D. also disputes the . juvenile court’s finding that she did not prove just cause for failing to fulfill her court-ordered child support obligation. Generally, under LSA-Ch.C. art. 1193, the parents’ consent to the adoption is required. However, parental consent may be dispensed with in certain situations as provided by LSA-Ch.C. art. 1245:

A. The consent of the parent as required by Article 1193 may be dispensed with upon proof of the required elements of either Paragraph B or C of this Article.
C. When the spouse of a stepparent petitioner has been granted sole or joint custody of the child by a court of competent jurisdiction or is otherwise exercising lawful custody of the child and any one of the following conditions exists:
(1) The other parent has refused or failed to comply with a court order of support without just cause for a period of at least six months.

The initial burden of proving that a parent’s consent is not required is on the party seeking the adoption. Once a prima facie case of nonsupport is proven, the burden of proof shifts to the nonconsenting parent to show that his or her failure was due to factors beyond his or her control. In re T.A.S., 04-1612, p. 6 (La.App. 1 Cir. 10/29/04), 897 So.2d 136, 140.

On September 4, 2002, the family court ordered K.P.D. to pay to D.M.D. support payments in the amount of $100 per month per child, retroactive to May 14, 2002. It is undisputed that no payments were made until D.D.D. filed her petition for adoption, at which time a payment of $200 |awas made. In lengthy and thorough written reasons, the juvenile court stated:

[K.P.D.] did not offer any reason for not paying child support other than not having a job. The record reflects that [K.P.D.] is able to get jobs but is unable to maintain employment. [KP.DJ’s inability to maintain employment does not constitute just cause unless it is a factor beyond [KP.DJ’s control. Although [K.P.D.] has been diagnosed with ADD and Bi-Polar Disorder, [K.P.D.] fails to seek a treatment plan that would allow her to function and maintain employment. [KP.D.’s] failure to even acknowledge the fact that there is an illness that warrants treatment in the first instance is a condition that is within [K.P.D.]’s control. In other words, [K.P.D.]’s failure to seek treatment for an illness that is keeping [K.P.D.] from being gainfully employed so that she can pay child support is not a factor that is beyond her control and therefore is not just cause for nonpayment of child support.

We agree and find no error in the juvenile court’s factual findings that K.P.D. failed to comply with the court order to pay support and that such failure was without just cause for a period of at least six months. Accordingly, pursuant to LSA-Ch.C. art. 1245, KP.D.’s consent to the adoption was not necessary.

Nevertheless, even if consent of a parent is not necessary because of the failure to support his or her child, the court must still consider whether the adoption is in the best interests of the child. The basic consideration in an intrafamily adoption is the best interests of the child. LSA-Ch.C. art. 1255 A. In cases where the stepparent seeking adoption is married to the parent who has been granted sole custody of the child, there is a rebuttable presumption that the adoption is in the best interests of the child. LSA-Ch.C. art. 1255 B; In re T.A.S., 04-1612 at pp. 6-7, 897 So.2d at 140.

In looking at what factors must be considered when determining the best interests of the children in this matter, this court has recognized that the most important factors are the children’s relationships with their stepmother and their natural mother. In re J.A.B., 04-1160, pp. 8-9 (La.App. 1 Cir. 9/17/04), 884 So.2d 678, 684, writ denied, 04-2963 (La.12/14/04), 888 So.2d 848. In the J.A.B. case, the court recognized:

It is not enough to examine the love and home environment provided by the petitioner/stepparent. The court must also examine the depth of closeness of the child’s ties with the non-custodial natural parent, and the effect which the loss of this relationship would have on the child. Further, the court must consider the seriousness and finality of the severing of the relationship between the parent and child, as well as the importance and benefit to the child of a continued relationship with the parent.

In re J.A.B., 04-1160 at p. 9, 884 So.2d at 684.

The record clearly shows erratic and delusional behavior by K.P.D. One instance of this psychotic behavior occurred in January of 2002, when K.P.D. was driving her vehicle with her children in the car and she believed she was being followed. She ended up in the parking lot of a K-Mart store, where the police were summoned. K.P.D. became suspicious and questioned whether the police were “real.” She refused to get out of the car when requested by the police and rammed the police vehicles with her own, while P.P.D. and D.W.D were in her vehicle. Worried about the safety of the children, the officials had to break a rear window to retrieve the children. After this incident, K.P.D. was admitted to Our Lady of the Lake Hospital, and D.M.D. was granted custody of P.P.D. and D.W.D.

Following the trial in this matter, the juvenile court concluded that it would be in the best interest of P.P.D. and D.W.D to terminate KP.D.’s parental rights and to grant the petition for adoption filed by D.D.D. In considering the relationship of the children with their mother, the juvenile court stated:

In the present case there is evidence of an existing relationship between [K.P.D.] and [P.P.D.] and [D.W.D], thus the effect of legally severing this relationship would be detrimental to the children. The record shows that the children know [K.P.D.] is their biological mother but only visit with her luone weekend per month due to the difficulties of scheduling the 'supervised visits with [K.P.D.]’s mother, the supervisor, whose job requires that she work on weekends. Although the supervised visits are regular, to cease those visits with the maternal grandmother and the biological mother will certainly have a detrimental effect on the children. One can only speculate the degree of the effect because absolutely no evidence was presented to show the strength of the bond between [K.P.D.] and the children. What is noteworthy is that [D.M.D.] calls and arranges the supervised visits with [K.P.D.J’s mother and has maintained this custody arrangement almost unilaterally.

With regard to KP.D.’s mental health issues, the court continued:

In this case, there is little doubt in this court’s mind that [K.P.D.] has unresolved mental health issues that she fails to acknowledge- [K.P.D.]’s current predicament is unfortunate but is most likely a disposition she could have avoided. Her refusal to acknowledge, treat and actively manage her mental condition has led her life down a difficult path where she cannot meet her own most basic needs such as securing and maintaining employment and maintaining adequate housing. At any point in time, [K.P.D.] could have sought treatment to regain control of her life and possibly modify the supervised custody arrangement with the Family Court. Instead, the evidence reveals instances of violence, anger, resentment, fear and an entire gambit of mental health issues that are cloaked under [KP.D.Js unwillingness to cooperate with her physicians and the courts. [K.P.D.] has simply not been compliant with the orders issued by the medical community and the legal community. In this same vein, [K.P.D.] has been on notice since January 2002, the date [D.M.D.] was granted ex parte custody after the K-Mart incident, that there was a problem with her fitness as a parent. This should have served as a “wake-up call” if nothing else had alarmed her up to this point. Either [K.P.D.] was not cognizant of the circumstances around her or was cognizant but indifferent; in either case[,] she did not improve her situation. The prognosis for [K.P.D.] to recover in the near future is poor and there is no reasonable expectation of significant improvement in her condition in the near future. [K.P.D.] presented no evidence that her mental state has improved; indeed, she does not even acknowledge that she has a mental health problem, thus the inference is her mental state today is the same as it was in January 2002. For these reasons, the court concludes that [K.P.D.] is not parentally fit and termination of her parental rights [is] in the best interests of [P.P.D.] and [D.W.D.]

[ ^Thereafter, the juvenile court recognized that D.D.D. has been actively involved in P.P.D.’s and D.W.D’s daily lives, that the children have a strong bond with D.D.D., and that D.D.D. has brought stability to the children on a consistent basis.

As a reviewing court, we may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. To reverse a fact finder’s determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Stobart v. State, Dep’t of Transp. and, Dev., 617 So.2d 880, 882 (La.1993). When factual findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard of review demands great deference to the trier of fact’s findings, because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

We have thoroughly reviewed the record and find that a reasonable factual basis exists for the conclusion of the juvenile court that the adoption is in the minor children’s best interests. Moreover, we find no manifest error in the juvenile court’s judgment granting the adoption of P.P.D. and D.W.D by D.D.D.

CONCLUSION

Accordingly, we affirm the judgment of the juvenile court granting the adoption by D.D.D. of P.P.D. and D.W.D. Given K.P.D.’s pauper status, we decline to assess to her the costs of this appeal.

AFFIRMED.

      . Pursuant to Rules 5-1 and 5-2 of the Uniform Rules-Courts of Appeal, the initials of the parties involved in this matter will be used instead of their names.

      . Article 1250 A of the Louisiana Children’s Code provides:
      If a parent upon whom service is required under Article 1247 cannot be served in accordance with the provisions of Article 1248 or 1249, the court shall appoint an attorney at law as curator ad hoc for the parent and service shall be made upon the curator ad hoc.
      Article 1251 of the Children’s Code also provides:
      A. The curator ad hoc shall make a diligent effort to locate the parent and notify him of the pendency and nature of the proceedings. Any appearances or acceptances of service by the curator ad hoc shall be valid, but he shall not be allowed to waive any rights of notice.
      B. The curator ad hoc shall submit to the court a note of evidence indicating the efforts made to locate the parent and shall receive an appropriate fee.

      . The only discussion in the record regarding counsel for K.P.D. was in connection with K.P.D.'s motion for a new trial after the adoption was granted. At the hearing on the motion, K.P.D. asked the court for a continuance to retain counsel. Opposing counsel objected to the request noting that a continuance had previously been granted when the original petition for adoption was filed so that K.P.D. could obtain representation, but that no counsel was ever retained. The juvenile court, noting the time delays for effective and efficient adoption proceedings, denied the second request for continuance. Further, at the hearing, the juvenile court noted that in other related legal matters, K.P.D. had been represented, at least partially, by counsel. The court also noted that it had referred K.P.D. to the Pro Bono Project of the Baton Rouge Bar Association earlier in the proceedings. K.P.D. also had used Capital Area Legal Services in the past for representation.

      . This court has previously determined that the appointment of counsel was not required in an intrafamily adoption by grandparents, which resulted in the termination of the parental rights of an indigent incarcerated father. In re Rodrigue, 95-0009 at p. 3, 657 So.2d at 650.

      . We also find no merit in K.P.D.’s argument that the juvenile court erred in failing to appoint counsel for the children.

      . We find no error in the juvenile court s exclusion of the medical report of Dr. Robert Blanche as inadmissible hearsay. Nor did it affect the outcome of this matter.


author: CIACCIO, J.

text:
    J. Robert WOOLEY, Commissioner of Insurance for the State of Louisiana in his Capacity as Liquidator of AmCare Health Plans of Louisiana, Inc. v. Thomas S. LUCKSINGER, Michael D. Nadler, Stephen J. Nazarenus, Scott Westbrook, Michael K. Jhin, William F. Galtney, John P. Mudd, Executive Risk Indemnity, Inc., Executive Risk Management Associates, Executive Risk Specialty Insurance Company, Executive Liability Underwriters Greenwich Insurance Company, AmCareCo, and AmCare Management Inc. J. Robert Wooley, Commissioner of Insurance for the State of Louisiana, in his Capacity as Liquidator for AmCare Health Plans of Louisiana, Inc. v. Foundation Health Corporation, Foundation Health Systems, Inc., and Health Net, Inc. J. Robert Wooley, Commissioner of Insurance for the State of Louisiana, as Liquidator for AmCare Health Plans of Louisiana, Inc., in Receivership v. Pricewaterhousecoopers, LLP.
    Nos. 2006 CA 1164, 2006 CA 1165, 2006 CA 1166.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 2007.
    Joseph J. McKernan, Baton Rouge, Counsel for Plaintiff — Appellant Jean Johnson, Texas Special Deputy Receiver.
    R. James George, Jr., Austin, TX, Counsel for Plaintiff — Appellant Jean Johnson, Texas Special Deputy Receiver.
    James C. Percy, Baton Rouge, Counsel for Defendant — Appellee Health Net, Inc.
    David M. Kerth, Baton Rouge, Counsel for Defendant — Appellee Health Net, Inc.

      Before: CIACCIO, LANIER and CLAIBORNE, JJ.

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

   CIACCIO, J.

IsAmCare Health Plans of Louisiana, Inc., AmCare Health Plans of Texas, Inc., and AmCare Health Plans of Oklahoma, Inc. (collectively “the HMOs”) were health maintenance organizations licensed in Louisiana, Texas and Oklahoma. Foundation Health Corp. and/or Foundation Health System, now known as Health Net, Inc. (Health Net), owned the HMOs. Health Net considered the HMOs financial liabilities and sold a majority ownership interest in the HMOs to Thomas S. Lucksinger and others. The HMOs ultimately were ruled insolvent and in need of liquidation by the three respective state regulators. In each state, a receiver was appointed. The Louisiana receiver filed multiple lawsuits in the Nineteenth Judicial District Court, Parish of East Baton Rouge, Louisiana (the Louisiana actions), against Health Net and other defendants. The Louisiana receiver alleged, among other claims, mismanagement of the HMOs, contract fraud, and gross negligence.

Following the filing of the Louisiana actions by the Louisiana receiver, the Texas receiver instituted an action in Travis County, Texas (the Texas suit). During pre-trial proceedings in the Louisiana actions, the Texas and Oklahoma receivers intervened in the Louisiana actions and the Louisiana actions were consolidated for trial. Thereafter, Health Net filed a declina-tory exception raising the objection of improper venue in the Nineteenth Judicial District Court. Health Net asserted that Texas or Oklahoma was the only proper venue for consideration of the intervenors’ claims and that the Louisiana courts had no jurisdiction. The trial court ruled venue was proper in East Baton Rouge Parish. Health Net appealed that decision to this Court (the venue appeals).

| ¿Before this Court issued its decision in the venue appeals, trial on the merits of the Louisiana actions was held. As to the claims of the Louisiana and Oklahoma receivers, the trial court found in favor of the plaintiffs and against Health Net and awarded damages. As to the claims of the Texas receiver, a jury returned a verdict in favor of the plaintiff and against Health Net and awarded damages. Before the trial court issued written judgments, Health Net filed a “petition and application for injunctive relief and issuance of [a] temporary restraining order.” Health Net named the Texas and the Oklahoma receivers as adverse parties. Health Net asserted that the Texas receiver was simultaneously prosecuting the Texas suit with demands for additional discovery. Health Net sought a temporary restraining order and an injunction against the Texas and Oklahoma receivers, enjoining them from pursing the Texas suit.

On October 31, 2005, the trial court issued a temporary restraining order (TRO) enjoining the Texas and Oklahoma receivers from any act in furtherance of prosecution of their claims in the Texas suit. By its express terms, the TRO expired in ten days. The trial court also scheduled a hearing for November 7, 2005 on Health Net’s application for a preliminary injunction.

After the November 7, 2005 hearing, the trial court ruled from the bench, granting the preliminary injunction against the Texas and Oklahoma receivers. On January 4, 2006, the trial court issued the following written judgment:

IT IS HEREBY ORDERED that ... the temporary restraining order issued by this Court on October 31, 2005, shall be converted to a preliminary injunction, and [the Texas and Oklahoma receivers] are restrained, prohibited and enjoined from taking any action in any manner related to or in furtherance of the pursuit of their claims against Health Net, Inc. in [the Texas suit]....

| slnitially, the written judgment contained language that provided for the dissolution of the injunction upon the occurrence of certain events. However, the trial court struck that language from its written judgment. The Texas receiver filed the instant appeals, seeking review of the judgment issuing the preliminary injunction (the preliminary injunction appeals).

After the Texas receiver’s preliminary injunction appeals were lodged, this Court rendered its decision in the venue appeals. In Wooley v. AmCare Health Plans of Louisiana, Inc., 2005-2025 (La.App. 1 Cir. 10/25/06), 944 So.2d 668, this Court held venue was proper in East Baton Rouge Parish and affirmed the trial court’s ruling. No party applied to this Court for a rehearing or to the Louisiana Supreme Court for a writ of certiorari. Accordingly, the judgment of this Court is final and definitive. La. C.C.P. arts. 1841 and 2166.

As a result of the finality of the venue appeals and the determination that the Louisiana court has jurisdiction over all claims raised by the Louisiana actions, all issues relating to the preliminary injunction are now moot.

Louisiana Revised Statute 13:4231 provides:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
| fi(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

Pursuant to the principles enunciated by La. R.S. 13:4231, all causes of action in these consolidated cases have been extinguished and merged into the judgment. See La. R.S. 13:4231, Comment (f). Once the Texas receiver submitted her claims to the jurisdiction of the Louisiana court and the decision of the court on venue for the interventions became final and definitive, there can be no further litigation by the Texas receiver against Health Net in the Texas suit because of the substantive effect of the Louisiana judgment. Accordingly, the necessity for an injunction to prohibit future proceedings in the Texas suit no longer exists. Consideration of the issuance, content, or legal effect of the preliminary injunction would have no legal effect on the rights of the litigants. Pursuant to the provisions of La. R.S. 13:4231, we pretermit consideration of all issues raised by these appeals as moot. All cost of these appeals to be borne by appellant.

APPEALS DISMISSED AS MOOT.

      . No party asserts that the claims raised in the Texas suit differ in any substantive way from the claims raised in the Louisiana actions.