text:
    STATE of Louisiana, Appellee v. Johnny Elron RUFFINS, III, Appellant.
    No. 41,033-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 2006.
    Rehearing Denied Oct. 26, 2006.

      Elton B. Richey, Jr., Shreveport, for Appellant.
    Paul J. Carmouche, District Attorney, Catherine M. Estopinal, Shreveport, Lea R. Hall, Jr., Tommy J. Johnson, Brady D. O’Callaghan, Assistant District Attorneys, for Appellee.
    Before STEWART, PEATROSS & MOORE, JJ.
   PEATROSS, J.

| defendant, Johnny Elron Ruffins, III, was convicted of illegal use of a weapon during a crime of violence and illegal possession of a weapon while in possession of a controlled dangerous substance (“CDS”). For illegal use of a weapon during a crime of violence, the trial court sentenced Defendant to ten years at hard labor without benefit of parole, probation or suspension of sentence. For illegal possession of a weapon while in possession of CDS, the trial court sentenced Defendant to five years at hard labor without benefit of parole, probation or suspension of sentence. The trial court ordered that both sentences be served concurrently. Defendant now appeals. For the reasons stated herein, Defendant’s conviction and sentence are affirmed.

FACTS

Johnny and Quontina Ruffins had been married for three years when Quontina decided to end the marriage. Accompanied by her mother, sister, a friend and her two young daughters, Quontina went to the house where she and Defendant lived to pack her and the children’s things. Defendant arrived home while they were packing, and Quontina told him that she was leaving. A verbal altercation followed, wherein Defendant stated, “[i]f you want to live, you all need to get out of my house right now.” Defendant then left the room, and Quontina went to the back door to get everyone out of the house because she believed Defendant was going to do something crazy. Quontina was standing at the back door in the kitchen when Defendant returned with a rifle, pointing it at her. He chased Quontina as she ran out the door, around the house and across the street. Defendant | .¿fired the gun, striking Quontina above the ankle. Witnesses testified to hearing approximately three gunshots, although Quontina testified that she remembered hearing only one shot. Quontina did not realize that she had been shot until she crossed the street and tried to jump across a ditch. Quontina’s mother, sister, friend and children took her to the hospital, where she stayed for two months and underwent two surgeries.

Defendant told Shreveport police officers that he was upset and lost his temper when Quontina told him that she was leaving. He admitted shooting at her feet with an SKS assault rifle, claiming that the bullet must have ricocheted and hit her leg. At trial, Defendant testified that he had kicked her out of the house a few days earlier, that he was upset because Quonti-na had brought these people to his house and that he got the rifle because they were not leaving his house. Defendant admitted in his testimony that he fired his assault weapon while chasing Quontina, but he maintained that he did not fire at her, rather he fired at the ground.

When officers searched the house, they discovered a shotgun, another assault rifle, a .22 caliber Intratec semi-automatic pistol and a Ruger handgun. Inside the bedroom closet, officers also found a handgun on top of a wooden box, which contained a small amount of marijuana.

As previously stated, Defendant was arrested, convicted as charged and sentenced to ten years and five years to be served concurrently. On appeal, Defendant assigns the following two errors (verbatim):

1. The district court erred in denying the defendant’s motion to quash the bill of information and his subsequent motion in arrest of judgment, contending that Louisiana Revised | ¡¡Statute 14:94 was unconstitutional as applied to the defendant’s conduct.
2. The district court erred in failing to instruct the jury that the state was required to prove a nexus between Johnny Ruffin’s possession of the firearms found in the residence and his possession of the small amount of personal use the marijuana found in a bedroom closet.

DISCUSSION

Assignment of Error Number One: Constitutionality of La. R.S. 14:94 as applied to Defendant

Defendant argues that the trial court erred in denying his motion to quash the bill of information and subsequent motion in arrest of judgment, wherein he argued that La. R.S. 14:94 was unconstitutional as applied to his conduct. That statute provides:

94. Illegal use of weapons or dangerous instrumentalities
A. Illegal use of weapons or dangerous instrumentalities is the intentional or criminally negligent discharging of any firearm, or the throwing, placing, or other use of any article, liquid, or substance, where it is foreseeable that it may result in death or great bodily harm to a human being.
B. Except as provided in Subsection E, whoever commits the crime of illegal use of weapons or dangerous instrumentalities shall be fined not more than one thousand dollars, or imprisoned with or without hard labor for not more than two years, or both.
C. Except as provided in Subsection E, on a second or subsequent conviction, the offender shall be imprisoned at hard labor for not less than five years nor more than seven years, without benefit of probation or suspension of sentence.
D. The enhanced penalty upon second and subsequent convictions provided for in Subsection C of this Section shall not be applicable in cases where more than five years have elapsed since the expiration of the maximum sentence, or sentences, of the previous conviction or convictions, and the time of the commission of the last offense for which he has 1¿been convicted. The sentence to be imposed in such event shall be the same as may be imposed upon a first conviction.
E. Whoever commits the crime of illegal use of weapons or dangerous instru-mentalities by discharging a firearm from a motor vehicle located upon a public street or highway, where the intent is to injure, harm, or frighten another human being, shall be imprisoned at hard labor for not less than five nor more than ten years without benefit of probation or suspension of sentence.
F. Whoever commits the crime of illegal use of weapons or dangerous instru-mentalities by discharging a firearm while committing, attempting to commit, conspiring to commit, or soliciting, coercing, or intimidating another person to commit a crime of 'violence or violation of the Uniform Controlled Dangerous Substances Law, shall be imprisoned at hard labor for not less then ten years nor more than twenty years, without benefit of parole, probation, or suspension of sentence. If the firearm used in violation of this Subsection is a machine gun or is equipped with a firearm silencer or muffler, as defined by R.S. 40:1751 and R.S. 40:1781, respectively, the offender shall be sentenced to imprisonment for not less than twenty years nor more than thirty years, without benefit of parole, probation, or suspension of sentence. Upon a second or subsequent conviction, under this Subsection, such offender shall be sentenced to imprisonment for not less than twenty years. If the violation of this Subsection, upon second or subsequent conviction, involves the use of a machine gun or a firearm equipped with a firearm silencer or muffler, such offender shall be sentenced to imprisonment for life without benefit of parole, probation, or suspension of sentence.

In his motion to quash, Defendant argued that the statute is overbroad, vague and ambiguous because the facts alleged by the State would also support verdicts of aggravated battery or aggravated assault with a firearm. More specifically, Defendant explained that the statute is unconstitutional because the same facts used to support the verdict of illegal use of a weapon would be the same as those sup porting the underlying crime of violence of aggravated battery. He argued that the statute defining illegal use of a weapon during a crime of violence was meant to apply when | Rthe crime of violence differed more from the underlying offense of illegal use of a weapon, such as when the crime of violence is a robbery, rape, burglary or kidnaping. At the pretrial hearing, Defendant argued that allowing aggravated battery to be the underlying crime of violence for this charge gave-the State the opportunity to inflict a harsher sentence for the same conduct.

Defendant alternatively argued that the statute was overbroad, vague and ambiguous because the penalty was unclear. According to Defendant, while Subsection B defines the penalty for illegal use of a weapon and makes an exception for the penalty to differ if the crime falls into the facts contemplated in Subsection E, Subsection B does not make an exception for the penalty to differ if the crime falls into the facts contemplated by Subsection F, which defines illegal use of a weapon during a crime of violence.

On appeal, Defendant makes a slightly different argument in support of his claim that the statute defining illegal use of a weapon during a crime of violence is over-broad, vague and ambiguous. Defendant urges that, when the crime of violence is aggravated battery, the offense of illegal use of a weapon as defined by Subsection A is then indistinguishable from illegal use of a weapon during a crime of violence as defined by Subsection F.

On the other hand, the State argues that the statute is not unconstitutional and that this court has recognized Subsection F as a proper enhanced penalty provision to the crime of illegal use of a weapon in State v. Walker, 26,026 (La.App.2d Cir.5/4/94), 637 So.2d 583, unit denied, 94-1369 (La.9/30/94), 642 So.2d 868. We agree.

In State v. Hair, 00-2694 (La.5/15/01), 784 So.2d 1269, the Louisiana Supreme Court reviewed the applicable law regarding statutes challenged as unconstitutionally vague:

In determining the constitutionality of a statute, we' must follow the basic rules of statutory construction. A statute is presumed to be constitutional, and the burden of clearly establishing unconstitutionality rests upon the party who attacks the statute. A statute should be upheld whenever possible. Louisiana criminal statutes must be “given genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.” La. R.S. 14:3.
A statute is unconstitutionally vague if an ordinary person of reasonable intelligence is not capable of discerning its meaning and conforming his conduct thereto. This occurs where a statute either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. In such instances, the statute violates due process of law. A criminal statute must provide adequate standards by which a party may be determined to be guilty or not guilty so that an individual’s fate is not left to the unfettered discretion of law enforcement.
Accordingly, under the “void-for-vagueness” doctrine, a criminal statute must meet two requirements to satisfy due process: (1) adequate notice to individuals that certain contemplated conduct is proscribed; and (2) adequate standards for those charged with determining the guilt or innocence of the accused. La. Const, art. 1 § 13. Broad language is not in 17itself vague, particularly where it is clear that the legislature intended to make criminal all acts of a certain kind.

State v. Lam, 36,862 (La.App.2d Cir.2/11/03), 837 So.2d 749, writ denied, 03-0945 (La.10/3/03), 855 So.2d 308, quoting State v. Hair, supra. Further, this court has previously found that La. R.S. 14:94, including Subsection F, is not unconstitutionally vague:

LSA-R.S. 14:94 clearly prohibits the discharging of a firearm in either an intentional or criminally negligent manner where death or great bodily harm to a human being is foreseeable.... Nor, when the enhanced penalty provisions of Subsection F are implicated, does the definition of the crime become less understandable. Instead, one element is merely added: the defendant must be committing or attempting to commit a crime of violence, as defined in LSA-R.S. 14:2(13).

State v. Walker, supra.

Defendant claims that Subsection F is unconstitutionally vague as applied to him because aggravated battery as the underlying crime of violence renders Subsections A and F indistinguishable; and, therefore, it is unclear which punishment provision applies to him. We disagree. Subsection A prohibits the intentional discharging of a firearm when it is foreseeable that it may result in death or great bodily harm to a human being. Subsection F prohibits the same conduct during the attempt or commission of a crime of violence, and aggravated battery is considered a crime of violence under La. R.S. 14:2(13)(e). Aggravated battery is defined as “a battery committed with a dangerous weapon,” and a battery is defined as “the intentional use of force or violence upon the person of another.” La. R.S. 14:34; La. R.S. 14:33. Whereas Subsection A simply prohibits the intentional discharge of a firearm where it is foreseeable that it may result in |sdeath or great bodily harm to a human being, illegal use of weapons during an aggravated battery requires proof of the additional element of intentional use of force or violence being used upon the victim. In the case sub judice, the fact that Defendant actually shot the victim while he was intentionally chasing her and shooting in her direction with an SKS assault rifle distinguishes his actions from those defined in Subsection A. The crimes of illegal use of weapons and illegal use of weapons during the crime of violence of aggravated battery are, therefore, distinguishable so that it is clear which penalty is applicable. We conclude that the provisions defining these offenses are not constitutionally vague as applied to Defendant.

In response to Defendant’s pretrial argument that the facts of the case could support more than one charge, we note that this does not render a statute unconstitutional. As discussed above, the crime of illegal use of weapons is distinguishable from aggravated battery and illegal use of weapons during the crime of violence of aggravated battery. Although Defendant argued that illegal use of weapons during a crime of violence was meant to apply when the crime of violence differed more from the underlying charge of illegal use of weapons, the legislative intent to punish “crimes of violence” when a firearm is discharged is shown by the increased penalties found in La. R.S. 14:94(E), 14:94(F) and 14:95(E). State v. Brisco, 04-3039 (La.7/6/06), 933 So.2d 754.

Moreover, the district attorney has the discretion on which offense to charge when the facts could support different charges, even when the penalties for the offenses differ:

| ¡/The district attorney has broad discretion in both the institution and handling of criminal prosecutions. LSA-Const. art. V, § 26(B), LSA-R.S. 16:1(B); State v. Walker, 2000-0334, p. 4 (La.App. 1 Cir. 12/22/00), 775 So.2d 663, 666, writ denied, 01-0235 (La.12/07/01), 803 So.2d 23. When conduct is made criminal under a section of the revised statutes and is also criminal according to some special statute, prosecution may proceed under either provision, at the discretion of the district attorney. LSA-R.S. 14:4(2). Even when the penalty under a general criminal provision differs from that established in a special provision, the district attorney has the discretion to proceed under either provision. See State v. Juluke, 374 So.2d 1259, 1260 (La.1979); State v. Smith, 597 So.2d 1151 (La.App. 1 Cir.), writ denied, 599 So.2d 311 (La.1992).

State v. Brisco, supra. The fact that the district attorney opted to charge Defendant with illegal use of a weapon during a crime of violence instead of aggravated battery, which has a lesser penalty, does not render the statute unconstitutional.

Finally, Defendant’s alternative pretrial argument regarding the confusion over which penalty provision applies under La. R.S. 14:94 is without merit. Subsection B defines the penalty for illegal use of a weapon and makes an exception for the penalty to differ if the crime falls into the facts contemplated in Subsection E. Even so, Subsection F defines the offense of illegal use of a weapon during a crime of violence and the applicable penalty for that offense. The plain language of the statute gives adequate notice of what conduct is prohibited and the penalty for that prohibited conduct. La. R.S. 14:94(F) is not unconstitutional due to vagueness regarding the prescribed punishment for that offense.

This assignment is without merit.

Assignment of Error Number Two: Failure to instruct the jury about a nexus between Defendant’s possession of the firearm and marijuana

| mDefendant argues that the trial court erred by not instructing the jury that it must find a nexus between the possession of the firearm and possession of the marijuana when the evidence shows that he was not in actual possession of both items. The State argues that no such jury instruction is required when the evidence shows that a defendant uses, has actual possession of the firearm or has the firearm within his immediate control. The State further argues that the evidence showed that Defendant used the firearm and had it in his immediate control when he shot the victim.

First, we will discuss whether this court can address this issue on appeal. In this regard, we note that Defendant failed to object to the trial court not giving this jury instruction. According to La. C. Cr. P. art. 801, “[a] party may not assign as error the giving or failure to give a jury charge or any portion thereof unless an objection thereto is made before the jury retires or within such time as the court may reasonably cure the alleged error,” and appellate review of errors pertaining to jury instructions are ordinarily precluded for failure to make a contemporaneous objection as required by La. C. Cr. P. art. 841(A). In State v. Jarvis, 01-1277 (La.App. 4th Cir.2/13/02), 811 So.2d 38, writ denied, 03-0248 (La.2/13/04), 867 So.2d 677, however, the supreme court recognized an exception to this rule. The court in Jarvis held that an objection is not required to preserve the issue for appellate review when the error is of such significance that it violates fundamental requirements of due process. State v. Jarvis, supra, citing State v. Williamson, 389 So.2d 1328 (La.1980). The fourth circuit | ^further held that failure to instruct the jury regarding the required nexus between the constructive possession of a firearm and the possession of controlled dangerous substances falls into this exception because it involves the very definition of the crime for which the defendant was convicted. State v. Jarvis, supra. Since it is the same instruction under scrutiny in the case sub judice, we find it prudent to address Defendant’s argument regarding failure to so instruct the jury despite Defendant’s failure to raise a contemporaneous objection at trial.

We now turn to the merits of Defendant’s argument concerning the jury instruction at issue. In State v. Blanch ard, 99-3439 (La.1/18/01), 776 So.2d 1165, the supreme court examined the. issue of whether La. R.S. 14:95(E), which prohibits a person from possessing a firearm while possessing a controlled dangerous substance, criminalizes the constructive possession of a firearm by one who also possesses marijuana. In Blanchard, officers found an Uzi pistol in a kitchen cabinet and a small amount of marijuana under a sofa cushion in the living room of the defendant’s home. The court noted that the Second Amendment to the United States Constitution and Article I, § 11, of the Louisiana Constitution guarantee the right to bear arms, but that the state is entitled to restrict that right for legitimate state purposes such as public health and safety. The comet also noted that those engaged in illegal drug activities do not have the equal right to possess firearms as do law-abiding citizens. State v. Blanchard, supra, citing State v. Warner, 94-2649 (La.App. 4th Cir.3/16/95), 653 So.2d 57, writ denied, 95-0943 (La.5/19/95), 654 So.2d 1089.

|12The Blanchard court found that “constructive possession” of the firearm was sufficient to constitute “possession” under the statute, but that the state must prove a nexus between the firearm and the drugs if relying upon constructive possession of the firearm:

Guided by those decisions from other states, we find that under La. R.S. 14:95(E), when it cannot be established that the defendant was using or in actual possession of a ñrearm or that a ñrearm was within his or her immediate control, the state must prove more than mere possession of the firearm. It must prove some connection between the firearm possession and the drug offense. This connection might be established by the following evidence: (1) the type of firearm involved; (2) the type of controlled dangerous substance involved; (3) the quantity of 'drugs involved; (4) the proximity of the firearm to the drugs; (5) whether the firearm is loaded; and (6) any other relevant evi-déncé. (Emphasis added.)

State v. Blanchard, supra. The court explained that, when relying upon constructive possession of the firearm, proof of a nexus between the firearm and the drug offense balanced the state’s interest in public health and safety with the state and federal constitutional right to bear arms. Id. Since the jury had not been instructed that the state must prove a nexus between the constructive possession of the firearm and the possession of the marijuana found underneath the sofa cushion, the court remanded the case for a new trial. Id.

Defendant’s reliance on Blanchard in the instant case is misplaced. Blanchard was a “constructive possession” case (the firearm was in a kitchen cabinet), not an “actual, possession case.” Indeed, the Blanchard court expressly concluded that “[p]roof of this nexus is not required where the defendant uses or has actual possession of the firearm or has the firearm l13within his immediate control.” (Emphasis added.) Actual possession means having an object in one’s possession or on one’s person in such a way as to have direct physical contact with and control of the object. State v. Hill, 38,400 (La.App.2d Cir.6/23/04), 877 So.2d 173. The case sub judice is an “actual possession” case — the evidence established that Defendant was using the SKS assault rifle when he shot his wife and, thus, that he was in actual possession of the firearm.

Defendant argues on appeal that this jury instruction is required unless the evidence shows actual possession of the firearm and the controlled dangerous substance. We disagree. The court’s ruling in State v. Blanchard, supra, only contemplated constructive versus actual possession of the firearm, not the constructive versus actual possession of the controlled dangerous substance. Further, as noted above, the legislative intent to punish “crimes of violence” when a firearm is discharged is shown by the increased penalties found in La. R.S. 14:94(E), 14:94(F) and 14:95(E). State v. Brisco, supra. Since the evidence established that Defendant was in actual possession of the firearm, there was no need for the trial court to instruct the jury regarding a nexus between the constructive 114possession of a firearm and the possession of the marijuana. The trial court’s failure to so instruct the jury was not error.

CONCLUSION

For the foregoing reasons, the convictions and sentences of Defendant, Johnny Elron Ruffins, III, are affirmed.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, PEATROSS, MOORE and LOLLEY, JJ.

Rehearing denied.

      . We initially note that the constitutionality of this statute has been previously challenged in other cases. In State v. Lam, 36,862 (La.App.2d Cir.2/11/03), 837 So.2d 749, writ denied, 03-0945 (La. 10/3/03), 855 So.2d 308, the defendant argued that the statute was vague for failing to define "dangerous instrumentality” and that "article" was too vague for the ordinary person to know that a bat was included in the definition or to understand that swinging a bat at people would be prohibited conduct under this statute. This court rejected that argument, finding that broad language was not necessarily vague and that the statute satisfied the due process "void-for-vagueness” analysis. In State v. Dumaine, 534 So.2d 32 (La.App. 4th Cir.1988), conviction affirmed and remanded for resen-tencing, 541 So.2d 880 (La.1989), the defendant argued that, because the language of the statute requires only that the harm be foreseeable rather than actual, La. R.S. 14:94 is vague and overbroad. The court of appeal found that contention to be meritless.

      . The supreme court has recognized the holding of State v. Blanchard that the nexus is required when the firearm is not in the actual possession or under the immediate control of the defendant. See State v. Dabney, 02-0934 (La.4/9/03), 842 So.2d 326.

      . Although there was evidence that Defendant was in actual possession of a firearm, trial testimony proved a nexus regarding the constructive possession of the other firearms on the premises because a handgun belonging to Defendant was found directly on top of the wooden box containing his marijuana.

      . Likewise, we note that the court of appeal in State v. Jarvis, supra, held that, while the defendant could raise the issue on appeal even though he had failed to timely object, “when the defendant was in actual possession of the firearm or it was within his or her immediate control, the state must prove no more than mere possession of the firearm.” Accordingly, the Jarvis court found that no such jury instruction regarding proof of a nexus between the possession of the firearm and possession of the controlled dangerous substance was necessary because the firearm in Jarvis was under the immediate control of the defendant. State v. Jarvis, supra.


source: Caselaw Access Project

author: PEATROSS, J.

license: Public Domain

text:
    Thomas MILLER and Sandra Miller, Individually and on Behalf of their Deceased Daughter, Tiffany Michelle Miller, and Jennifer Miller (Daughter of Tiffany Miller), Plaintiffs-Appellees v. Willis-Knighton BOSSIER, Christus Schumpert Medical Center and Susan Shattuck, M.D., Defendants.
    No. 41,476-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 2006.
    Rehearing Denied Oct. 26, 2006.

      Walter F. Clawson, Shreveport, for Appellant, Louisiana Patients’ Compensation Fund and Louisiana Patients’ Compensation Fund Oversight Board.
    Nelson & Hammons, by John L. Ham-mons, Phylliss B. Hennessee, Shreveport, for Appellees.
    Before BROWN, GASKINS & PEATROSS, JJ.
   PEATROSS, J.

11 This medical malpractice action arose from the deaths of 16-year old Tiffany Miller and her infant daughter, Jennifer. The present appeal is from a granting of a motion for summary judgment in favor of Tiffany’s parents, Thomas and Sandra Miller. For the reasons stated herein, the judgment of the trial court is amended and, as amended, is affirmed.

FACTS

On October 28, 2001, at approximately 1:00 a.m., Tiffany, at 40 1/2 weeks gestation, presented at Willis-Knighton Medical Center in Bossier (“Willis-Knighton”) with nausea, vomiting, diarrhea, abdominal pain and coughing. She was given Vistril and released without seeing a doctor. Around 11:00 p.m., Tiffany went to the emergency room of Christus-Schumpert Medical Center (“Schumpert”) complaining of headache, nausea, vomiting, contractions and swelling. Tiffany was examined and admitted. She had had late prenatal care from the parish health unit and her records were, therefore, not available to the hospital when she was admitted. Her contractions were mild and irregular and her water had not yet broken.

Dr. Susan Shattuck was consulted (she was taking call for Dr. Mercer, the obstetrician on call that evening). Three calls were placed to Dr. Shattuck overnight regarding Tiffany’s care. She was first placed on IV antibiotics and lab work was ordered, as was pain medication. The second ^consult resulted in cough medicine being ordered. At 6:00 a.m., Dr. Shattuck ordered that Tiffany be placed on a pitocin drip. Between 6:00 and 7:00 a.m., Dr. Shattuck arrived and examined Tiffany. She found her showing signs of respiratory distress. At this point, the fetal heartrate was 168 and Tiffany’s pulse was 146. She was breathing rapidly, with cyanosis of the lips and nailbeds. Dr. Shattuck ordered a pulmonary consult. Shortly thereafter, an emergency C-section was ordered. At approximately 8:00 a.m., Tiffany was taken to the operating room, was intubated and fluid was removed from her airway and lungs. The baby was still-born and efforts to resuscitate Tiffany and the baby were unsuccessful.

The instant suit was filed by Tiffany’s parents, Thomas and Sandra Miller, naming as defendants Willis-Knighton, Dr. Shattuck and Schumpert. Willis-Knigh-ton and Dr. Shattuck were dismissed on summary judgment and Schumpert settled for $100,000, thus admitting liability under the Medical Malpractice Act. The Millers reserved their right to proceed against the Patient’s Compensation Fund (“PCF”) and, subsequently, filed a claim against the PCF seeking an additional $400,000 plus special damages. The Millers then filed a motion for summary judgment on that claim, which was denied by the trial court, and this court denied writs. The Millers filed a second motion for summary judgment, which the trial court granted, awarding them general damages of $400,000, medical expenses of $9,981.90 and $10,000 for funeral and burial expenses, plus legal interest.

| ^ACTION OF THE TRIAL COURT

On consideration of the motion for summary judgment and the opposition thereto, the trial judge struck several attachments to the PCF’s opposition to the motion for summary judgment. He struck a letter from a physician because it was not sworn and autopsy reports and medical articles for not being in proper form. An affidavit from Schumpert Nurse Linda Dessommes was stricken because the trial judge found it went only to causation. The trial judge opined that “[cjausation has already been decided” by virtue of the $100,000 settlement, citing Graham v. Willis-Knighton Medical Center, 97-0188 (La.9/9/97), 699 So.2d 365.

Citing Jordan v. Willis-Knighton Medical Center, 39,944 (La.App.2d Cir.9/21/05), 911 So.2d 351, writ denied, 05-2340 (La.3/17/06), 925 So.2d 542, the trial judge next found that it did have the authority to ,grant summary judgment in this case. Quoting extensively from Jordan, the trial judge further found that the PCF did not submit countervailing affidavits that were legally sufficient to create a genuine issue of material fact in opposing the Millers’ well-pleaded motion. He opined that the Millers’ motion and affidavits clearly established damages that would exceed $400,000 for two persons who lost their lives due to the malpractice of Schumpert. He also awarded funeral expenses and medical bills, citing Lamark v. NME Hospitals, Inc., 522 So.2d 634 (La.App. 4th Cir.1988), writ denied, 526 So.2d 803 (La.1988).

The PCF now appeals.

DISCUSSION

Before discussing the propriety of the trial court’s granting of the motion for summary judgment, we will address the issue concerning the legal effect of the $100,000 settlement with Schumpert. As previously noted, the trial court stated in its reasons for judgment that “causation” had already been decided by virtue of the settlement. In the recent case of Williams v. Enriquez, 40,305 (La.App.2d Cir.11/17/05), 915 So.2d 434,. this court explained: .

In 1975, the legislature enacted the MMA to establish a framework for compensating persons who are injured as a result of medical malpractice committed by qualified health care providers. Hanks v. Seale, 04-1485 (La.6/17/05), 904 So.2d 662. The MMA limits the liability of a single qualified health care provider to $100,000, plus interest. Id., citing La. R.S. 40:1299.42(B)(2). Any damages awarded or agreed to in excess of $100,000 may be recovered from the PCF, a legislatively created entity which holds private monies in trust to compensate victims of medical malpractice and to protect qualified health care provider members who may be liable for damages caused by their malpractice; however the total amount recoverable, exclusive of future medical care and related benefits, shall not exceed $500,000 plus interest and costs. Id., citing La. R.S. 40:1299.42(B)(1) and (3); Griffin v. Louisiana Patient’s Compensation Fund Oversight Bd., 04-0613 (La.App. 1st Cir.3/24/05), 907 So.2d 90. Future medical care includes all past, present, and future medical and related care services necessitated by a qualified health care provider’s malpractice. Kelty v. Brumfield, 93-1142 (La.2/25/94), 633 So.2d 1210.
* * *
Although the court shall consider the liability of the health care provider as admitted and established where the | sinsurer has paid its policy limits of $100,000, pursuant to La. R.S. 40:1299.44(0(5), the plaintiff retains the burden of proving that the malpractice at issue caused damages in excess of the $100,000 settlement. Graham v. Willis-Knighton Medical Center, 97-0188 (La.9/9/97), 699 So.2d 365. When a health care provider tenders payment of $100,000, thereby admitting and establishing liability, that admission of liability is an admission of fault and causation of damages of at least $100,000. It is not an admission of the percentage of fault attributable to the health care provider; nor is it an admission as to the extent of the claimant’s damages beyond $100,000. Id. (Emphasis added.)

Applied to the instant case, the above principle dictates that liability on the part of Schumpert was admitted via the settlement. In addition, causation for the resulting damages was established up to $100,000. The Millers retained the burden of proving damages caused by Schumpert’s malpractice in excess of $100,000 and up to the statutory cap of $500,000. This is the burden, therefore, against which the Millers’ motion for summary judgment must be viewed.

In determining whether summary judgment is appropriate, appellate courts conduct a de novo review of the evidence, employing the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Ocean Energy, Inc. v. Plaquemines Parish Gov’t, 04-0066 (La.7/6/04), 880 So.2d 1. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of every | ^action. La. • C.C.P. art. 966(A)(2); Hawes v. Kilpatrick Funeral Homes, Inc., 39,089 (La.App.2d Cir.11/17/04), 887 So.2d 711.

Specifically, La. C.C.P. art. 966 states, in pertinent part:

A. (1) The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiffs motion may be made at any time after the answer has been filed. The defendant’s motion may be made at any time.
B. The motion for summary judgment and supporting affidavits shall be served at least fifteen days before the time specified for the hearing. For good cause, the court shall give the adverse party additional time to file a response, including opposing affidavits or depositions. The adverse party may serve opposing affidavits, and if such opposing affidavits are served, the opposing affidavits and any memorandum in support thereof shall be served pursuant to Article 1313 at least eight days prior to the date of the hearing unless the Rules for Louisiana District Courts provide to the contrary. The judgment sought shall be rendered forthwith 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 mover is entitled to judgment as a matter of law.

La. C.C.P. art. 967(B) states, in pertinent part:

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

In the case sub judice, the Millers supported their motion for summary judgment by attaching, inter alia, the medical review panel opinion, an affidavit from one of the panel members, medical records, autopsy reports and affidavit of Dr. George McCormick, coroner, depositions of the Millers and answers to interrogatories. As previously explained, although causation was established up to $100,000, the medical review panel opinion, the affidavit of the panel member and the coroner’s affidavit state that Schumpert’s negligence or breach of the standard of care |7was a cause of the deaths. Other supporting evidence shows the extent of the injuries and suffering of Tiffany and her parents, as well as the close relationship between Tiffany and her parents. Also attached were the Schumpert medical bill totaling $9,981.90 and documentation of funeral expenses, discussed infra.

In response to this well-pleaded motion for summary judgment, the PCF was required to show the existence of a genuine issue of material fact to overcome the motion and may not rest on allegations and/or denials in its pleadings. La. C.C.P. art. 967(B). The PCF attached to its opposition to the motion for summary judgment the autopsy reports, a letter from a physician, various publications and medical articles and an affidavit of Schumpert Nurse Linda Dessommes. The trial court properly struck the physician’s letter because it was not certified or sworn and properly excluded the autopsy reports, publications and articles as not being in proper form. Regarding Nurse Dessommes’ affidavit, the PCF argues that it was improperly stricken based on the trial judge’s erroneous conclusion that causation had been decided and that the affidavit was “about causation.” As previously stated, liability and causation up to $100,000 in damages was admitted by virtue of the settlement. Since Nurse Dessommes’ affidavit adds nothing relevant to the summary judgment determination; striking the affidavit was not erroneous.

| sAs a result of these rulings, we are constrained to agree that the PCF’s opposition was not sufficiently supported as required by La. C.C.P. art. 966. In Jordan, supra, this court recognized that, where the PCF fails to submit sufficient countervailing evidence in opposition to a motion for summary judgment, judgment is properly rendered in favor of the moving party. The PCF would have this court rely solely on alleged discrepancies among the attachments to the Millers’ motion for summary judgment to find genuine issues of material fact. As previously stated, however, we agree with the trial court that the Millers’ motion was well-pleaded and the opposition was simply insufficient.

Next, we conclude that the trial court correctly found that rendering summary judgment in this case and awarding damages equal to the statutory cap was warranted under the circumstances of this case. Again, from Jordan, supra, we note that, while damages is a question of fact, summary judgment may be proper under the appropriate circumstances, i.e., where there exists no genuine issue of material fact as to whether the plaintiff is entitled to the statutory limit of $500,000. Simply stated, where a medical malpractice victim is clearly entitled to the statutory limit of $500,000, summary judgment should be granted. Bijou v. Alton Ochsner Medical Foundation, 95-3074 (La.9/5/96), 679 So.2d 893; Jordan, supra.

It is evident in this case that the loss was especially greivous. Two lives were lost, a very young expectant mother and her infant daughter. The trial judge stated, “the affidavits filed by the plaintiff in the case establish that clearly the amount of damages would exceed four-hundred thousand |fldollars ($400,000) for the two persons that lost their life due to the malpractice of Christus-Sehumpert Hospital.” We agree. Moreover, the PCF submitted no countervailing evidence as to quantum. As the supreme court stated in Bijou, supra, we find that this holding “will eliminate the need for unnecessary litigation on this particular issue, and further the courts’ general interest in promoting judicial economy.” Summary judgment and the awards of general damages in the amount of $400,000 and special medical damages in the amount of $9,981.90 were proper. See Lamark, supra.

The award of funeral expenses in the amount of $10,000, however, was erroneous. La. R.S. 40:1299.42 provides for recovery of “all malpractice claims for injuries to or death of a patient, exclusive of future medical care and related benefits as provided in R.S. 40:1299.43” not to exceed $500,000. Under section 1299.43, “future medical care and related benefits” does not include funeral and/or burial expenses. See Monistere v. Engelhardt, 04-1126, 04-1127 (La.App. 5th Cir.2/15/05), 896 So.2d 1105, unit denied, 05-0675 (La.11/28/05), 916 So.2d 141; Arrington v. E.R. Physicians Group APMC, 03-02 (La.App. 3d Cir.5/21/03), 847 So.2d 236; Roy v. Gupta, 606 So.2d 940 (La.App. 3d Cir.1992), writ denied, 609 So.2d 232 (La.1992). The judgment will, therefore, be amended to delete the award of funeral expenses.

h ^DECREE

For the foregoing reasons, the judgment of the trial court granting summary judgment in favor of Thomas Miller, et al, and awarding general damages in the amount of $400,000, special medical damages in the amount of $9,981.90 and funeral expenses in the amount of $10,000 is amended to delete the award of funeral expenses. In all other respects, the judgment is affirmed.

AMENDED AND, AS AMENDED, AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, GASKINS, PEATROSS and LOLLEY, JJ.

Rehearing denied.

      . The appellant in this case is the Louisiana Patient's Compensation Fund ("PCF”). Initially, Walter Clawson, counsel for the PCF, filed the appeal in his name individually. Mr. Clawson subsequently submitted to this court that his filing of the appeal in his name was a typographical error. Since appeals are favored, this court allowed Mr. Clawson to file an amended motion for appeal naming the appropriate party, the PCF, as appellant.

      . The trial judge further found that, like in Jordan, this case falls within the window pri- or to the 2003 amendment to La. R.S. 40:1299.44(C), which changed the statute to allow the PCF to assert third party healthcare provider fault to reduce its share of damages. Whether or not third party healthcare provider fault can be asserted by the PCF is not an issue in the present appeal. We do note, however, that, in this case, the alleged additional cause of Tiffany's and Jennifer’s deaths was an underlying heart condition of Tiffany's, not fault of a third party healthcare provider. We simply note this distinction and do not express any opinion as to how this distinction may become significant when the PCF attempts to assert additional causative factors in similar cases.

      . There were actually supplemental oppositions and additional time granted by the court for the filing of additional documents, both in support of and in opposition to the motion. For clarity, we simply refer collectively to the attachments filed at any time.

      . The trial court's reliance on Lamark, supra, for the award of funeral expenses was misplaced. Lamark involved an award of special damages in the form of medical expenses, not funeral or burial expenses.