author: DAVID S. GORBATY, Judge. CANNIZZARO, J.,

text:
    Louis MARCOTTE v. PROGRESSIVE SECURITY INSURANCE COMPANY.
    No. 2006-CA-1368.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 21, 2007.
    Timothy J. Falcon, Jeremiah A. Sprague, Falcon Law Firm, Marrero, LA, for PlaintiffiAppellant.
    Charles V. Giordano, Tasha W. Hebert, Hebbler & Giordano, LLC, Metairie, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, JR.).
   DAVID S. GORBATY, Judge.

| T Plaintiff Louis Marcotte appeals a summary judgment granted in favor of Progressive Security Insurance Company. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY:

Louis Marcotte (hereinafter Mr. Mar-cotte) was involved in a vehicular accident on January 30, 2005, while riding his 2004 Vespa on Tchoupitoulas Street in New Orleans. He settled his claims with the offending driver, and with Progressive Security Insurance Company (hereinafter Progressive), under a policy of insurance providing uninsured motorist/underin-sured motorist (UM/UIM) coverage for the Vespa. The record reflects that the Progressive policy covering the Vespa only is numbered 32488103-0.

On January 20, 2006, Mr. Marcotte filed the instant suit against Progressive seeking recovery under a UM/UIM provision included in a policy issued by Progressive, Policy No. 18268902-1, which covers a 2002 BMW owned by Mr. Marcotte. Mr. Marcotte argues that he had but one insurance policy covering both ^vehicles, and that the form he signed for UM/UIM coverage did not designate that it applied only to the Vespa and not the BMW.

Progressive filed a motion for summary judgment arguing that there were no genuine issues of fact that the policy of insurance issued to Mr. Marcotte for coverage of his BMW did not afford UM/UIM coverage for this accident. After hearing, the trial court granted summary judgment in favor of Progressive, and Mr. Marcotte’s appeal followed.

LAW AND ANALYSIS:

Appellate courts review grants of summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Champagne v. Ward, 03-3211, p. 4 (La.1/19/05), 893 So.2d 773, 776. The mover bears the burden of proof. La.Code Civ. Proc. art. 966(C)(2). If the mover meets this initial burden, the burden then shifts to the other party to present factual support adequate to establish that he will be able to satisfy the evidentiary burden at trial. Richard v. Hall, 03-1488, p. 5 (La.4/23/04), 874 So.2d 131, 137. Thereafter, if the non-moving party fails to meet this burden, there is no genuine issue of material fact and the mover is entitled to summary judgment as a matter of law. Id. The Supreme Court has recognized that a “genuine issue” is a “triable issue,” an issue in which reasonable persons could disagree. Jones v. Estate of Santiago, 03-1424, p. 6 (La.4/14/04), 870 So.2d 1002, 1006 (citing Smith v. Our Lady of the Lake 3Hosp., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751). A “material fact” is one as to which “its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery.” Id.

Mr. Marcotte argues that although he had issued to him two separate declarations pages for two separate vehicles, the Vespa and the BMW, he only had one insurance policy. Mr. Marcotte argues that the contract (policy) between the parties is Form 9608, and that numerous terms contained in the contract are ambiguous and susceptible to various interpretations, making it impossible for the policyholder to understand just what coverage applies. Thus, because Progressive is the writer of the contract, the contract should be interpreted in favor of Mr. Marcotte.

Progressive counters that Mr. Mar-cotte’s argument that he was issued one policy for both vehicles is nonsensical because the contract, Form 9608, clearly and unambiguously indicates that the terms of the contract will be applied according to the declaration sheet issued for each vehicle. The declaration sheet details what vehiele(s) is covered, and the coverage types and limits of liability for that vehicle(s). Mr. Marcotte was issued two separate declaration sheets, one for a policy covering his Vespa and one for a policy covering his BMW. He has already recovered under the UM/UIM provisions for the policy covering his Vespa. Thus, to allow him to recover under the policy covering his BMW would violate Louisiana’s anti-stacking statutes.

4In Petti v. Ordon, 04-1659 (La.App. 4 Cir. 11/10/04), 888 So.2d 1064, this Court stated:

An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Civil Code. Louisiana Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-0911 (La. 1/14/94), 630 So.2d 759. The judicial responsibility in interpreting insurance contracts is to determine the parties’ common intent. La.C.C. art. 2045.
An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Louisiana Ins. Guar. Ass’n, 630 So.2d at 763 (collecting cases). Absent a conflict with statutory provisions or public policy, insurers, like other individuals, are entitled to limit their liability and to impose and to enforce reasonable conditions upon the policy obligations they contractually assume. Id.
Yet, if the policy wording at issue is clear and unambiguously expresses the parties’ intent, the insurance contract must be enforced as written. La. C.C. art. 2046. When the language of an insurance policy is clear, courts lack the authority to change or alter its terms under the guise of interpretation. Louisiana Ins. Guar. Ass’n, 630 So.2d at 764.

Petti 04-1659 at pp. 10-11; 888 So.2d at 1069-70, citing Magnon v. Collins, 98-2822, pp. 6-7 (La.7/7/99), 739 So.2d 191, 196. Further, “[t]he rule of strict construction does not authorize a perversion of language, or the exercise of inventive powers for the purpose of creating an ambiguity where none exists, nor does it authorize the court to make a new contract for the parties or disregard the evidence as expressed, or to refine away the terms of a contract expressed with sufficient clearness to convey the plain meaning of the parties, and embodying requirements, compliance with which is made the condition of liability thereon.” Commercial Union Ins. Co. v. Advance Coating Co., 351 So.2d 1183, 1185 (La.1977).

IfiThe notion of “stacking” is derived from La. R.S. 22:1406(D), which provides in pertinent part:

(1)(c)(i) If the insured has any limits of uninsured motorist coverage in a policy of automobile liability insurance, in accordance with the terms of Subsection D(1), then such limits of liability shall not be increased because of multiple motor vehicles covered under said policy of insurance and such limits of uninsured motorist coverage shall not be increased when the insured has insurance available to him under more than one uninsured motorist coverage provision or policy; provided, however, that with respect to other insurance available, the policy of insurance or endorsement shall provide the following:
(ii) With respect to bodily injury to an injured party while occupying an automobile not owned by said injured party, resident spouse, or resident relative, the following priorities of recovery under uninsured motorist coverage shall apply:
(aa) The uninsured motorist coverage on the vehicle in which the injured party was an occupant is primary;
(bb) Should that primary uninsured motorist coverage be exhausted due to the extent of damages, then the injured occupant may recover as excess from other uninsured motorist coverage available to him. In no instance shall more than one uninsured motorist policy be available as excess over and above the primary coverage available to the injured occupant.

The language of the statute focuses on the action of a single, insured seeking to recover under more than one UM policy. This is clearly what Mr. Marcotte is attempting to do. Mr. Marcotte wishes this Court to ignore the declaration sheets contained in the record that clearly and unambiguously detail the vehicle covered, the types of coverage and the limits of coverage. Additionally, he inserts into his argument a red herring, namely, the document indicating that he selected uninsured motorist/uninsured motorist bodily injury (UM/UMBI) coverage for his Vespa. He claims that there is no coverage limit stated, and that the form does not reflect to which policy it applies. Mr. Marcotte acknowledges that the form “purports” to | fiShow the Vespa policy number, but does not state that the selection only applies to the Vespa. To the contrary, a thorough reading of the form to which Mr. Marcotte refers clearly indicates that the UMBI coverage selected will have the same policy limits as the bodily injury liability coverage, which is clearly and unambiguously detailed on the declaration sheet for the Vespa, policy number 82488103-0.

We agree with the trial court that Mr. Marcotte is prohibited from stacking UM7 UIM coverage based on the record evidence. Further, we find that Mr. Mar-cotte’s situation is not covered by the exception to the anti-stacking statute, and provides that stacking is permitted if: (1) the injured party is occupying an automobile not owned by him; (2) the UM coverage on the vehicle in which the injured party was an occupant is primary; and (3) the primary UM coverage is exhausted due to the extent of damages. In that instance, the other uninsured motorist coverage available to the injured occupant is considered as excess insurance, under which the injured occupant may recover. Boullt v. State Farm Mut. Auto. Ins. Co., 99-0942, p. 7 (La.10/19/99), 752 So.2d 739, 743. All three conditions must be met for the exception to apply. Mr. Marcotte owned the vehicle on which he was injured; therefore, he cannot meet the first condition.

To reach the result desired by Mr. Mar-cotte, this Court would have to break every jurisprudential rule of contract interpretation. We decline to do so.

Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

CANNIZZARO, J., concurs in the result with reasons.

CANNIZZARO, J.,

concurs in the result with reasons.

|,I respectfully concur in the result reached in the majority opinion. I would not go so far, however, as to say that “[t]o reach the result desired by Mr. Marcotte, this Court would have to break every jurisprudential rule of contract interpretation.”

      . Subsection D of La. R.S. 22:1406, was re-designated as La. R.S. 22:680 by § 3 of Acts 2003, No. 456, and pursuant to the statutory revision authority of the Louisiana State Law Institute.


source: Caselaw Access Project

author: DENNIS R. BAGNERIS, Sr., Judge. CANNIZZARO, J.,

license: Public Domain

text:
    Toney DeCLUES v. CARUBBA ENGINEERING, INC.
    No. 2006-CA-1336.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 28, 2007.

      J. Courtney Wilson, J. Courtney Wilson, Attorney at Law, Metairie, LA, for Plain-tiffAppellant.
    Scott J. Sonnier, Baton Rouge, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge DAVID S. GORBATY, and Judge LEON A. CANNIZZARO, Jr.).
   DENNIS R. BAGNERIS, Sr., Judge.

|TThe Appellant, Tony DeClues, appeals the decision of the Office of Worker’s Compensation granting summary judgment in favor of the Appellee, Caraba Engineering, Inc., and dismissing the claimant’s case with prejudice. We affirm.

Caraba Engineering, Inc. (Caraba) purchased real estate located at 8616, 8618, 8620 and 8622 Willow Street in New Orleans. Caraba contracted with Real Estate Unlimited (REU) to renovate the houses. The contract included “roofing” as an item to be done. REU hired a freelance roofer, Teddy Wallace, who in turn hired Mr. DeClues to work on the project. On October 7, 2003, Mr. DeClues fell and was injured while fixing the roof.

Mr. DeClues filed a Worker’s Compensation Claim against Caraba on January 27, 2004. Caraba filed a Motion for Summary Judgment that was granted by the Office of Worker’s Compensation. It is from this judgment that Mr. DeClues takes the instant appeal.

In his sole assignment of error, Mr. DeClues maintains that the Office of Worker’s Compensation erred in finding that Caraba was not a statutory employer and granting the defendant summary judgment. “Appellate courts review summary ¡¿judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate.” Independent Fire Insur ance Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 7 (La.2/29/00), 755 So.2d 226, 230; Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991).

Mr. DeClues maintains that the Office of Worker’s Compensation erred in granting the summary judgment in favor of Caraba based upon the “two-contracts” theory in La. R.S. 23:1061, discussed infra. Specifically, Mr. DeClues argues that Caraba was his statutory employer and the “two-contracts” theory applied by the Office of Worker’s Compensation was an exception to the general rale of statutory employment.

Caraba argues that there was no statutory relationship between the parties and that Mr. DeClues offered no evidence to support his argument when the contract between Caraba and REU is clear and unambiguous.

The Office of Worker’s Compensation reasoned that Caruba’s primary trade and business was as a structured (meaning civil) engineering firm that designed, rather than constructed projects. It further reasoned that Caraba contracted with REU and that there was no “two-party” contract pursuant to La. R.S. 23:1061. We agree.

Statutory Employment is governed by La. R.S. 23:1061, which reads:

1061. Principal contractors; liability
A. (1) Subject to the provisions of Paragraphs (2) and (3) of this Subsection, when any “principal” as defined in R.S. 23:1032(A)(2), undertakes to execute any work, which is a part of his trade, business, or occupation and contracts with any person, in this Section referred to as the “contractor”, for the execution by or under the contractor of the whole or any part of the work [..¡undertaken by the principal, the principal, as a statutory employer, shall be granted the exclusive remedy protections of R.S. 23:1032 and shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed. For purposes of this Section, work shall be considered part of the principal’s trade, business, or occupation if it is an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.
(2) A statutory employer relationship shall exist whenever the services or work provided by the immediate employer is contemplated by or included in a contract between the principal and any person or entity other than the employee’s immediate employer.
(3) Except in those instances covered by Paragraph (2) of this Subsection, a statutory employer relationship shall not exist between the principal and the contractor’s employees, whether they are direct employees or statutory employees, unless there is a written contract between the principal and a contractor which is the employee’s immediate employer or his statutory employer, which recognizes the principal as a statutory employer. When the contract recognizes a statutory employer relationship, there shall be a rebuttable presumption of a statutory employer relationship between the principal and the contractor’s employees, whether direct or statutory employees. This presumption may be overcome only by showing that the work is not an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.

Caruba is not considered a “principal” under the law. “[T]he word ‘principal’ shall be defined as any person who undertakes to execute any work |4which is a part of his trade, business, or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.” LSA-R.S. 23:1032(A)(2).

Caruba simply owned the property where Mr. DeClues just happened to be working on the roof. Caruba contracted with REU who hired Ms. Wallace who then contracted with Mr. DeClues. The “two contract” defense applies when: (1) the principal enters into a contract with a third party; (2) pursuant to that contract, work must be performed; and (3) in order for the principal to fulfill its contractual obligation to perform the work, the principal enters into a subcontract for all or part of the work performed. Beddingfield v. Standard Construction Company, 560 So.2d 490, 491-92 (La.App. 1 Cir.1990); Aetna Casualty and Surety Company v. Schwegmann Westside Expressway, Inc., 516 So.2d 412, 413 (La.App. 1 Cir.1987); Allen v. State ex rel. Ernest N. Morial-New Orleans Exhibition Hall Authority 2002-1072, 842 So.2d 373, 379, (La.4/09/03).

There is no language in the contract between Caruba and REU describing Ca-ruba as a “statutory employer.” The law clearly indicates that Caruba cannot be held liable for the injuries suffered by Mr. DeClues and further, Mr. DeClues failed to support his claim.

Decree

The judgment of the Office of Worker’s Compensation granting summary judgment in favor of Caruba is affirmed.

AFFIRMED.

CANNIZZARO, J., concurs with reasons.

CANNIZZARO, J.,

Concurring.

hi concur in the majority’s opinion to affirm the judgment of the Office of Workers’ Compensation.

In order for the claimant, Mr. DeClues, to prevail in a claim for worker’s compensation benefits against the defendant, Ca-ruba Engineering, Inc. (Caruba), he must prove that either: 1) the written contract between Caruba and Real Estate Unlimited (REU) expressly recognized Caruba as the statutory employer of REU’s direct or statutory employees, or 2) the requirements of the “two contract” theory of the statutory employer defense set forth in Allen v. State ex rel. Ernest N. Mortal— New Orleans Exhibition Hall Authority, 2002-1072 (La.4/09/03), 842 So.2d 373, 379, are satisfied in this particular case. Mr. DeClues has failed to meet his burden.

Under Mr. DeClues’ theory, Caruba would be responsible for paying a worker’s compensation claim even though it never entered into any contract with the injured party or did not agree to satisfy the claims of any workers who might be injured while working for REU. This would create an unfair and unjust situation.


author: TERRI F. LOVE, Judge.

text:
    Karen JOHNSON v. Mustafa MISIRCI and ABC Insurance Company.
    No. 2006-CA-1136.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 28, 2007.

      Raymond P. Ladouceur, Jane C. Alvarez, Ladouceur and Ladouceur, L.L.C., New Orleans, LA, for UM Too, L.L.C.
    B. Frank Davis, Howard B. Kaplan, Bernard Cassisa Elliott & Davis, A PLC, Metairie, LA, for Landmark American Insurance Company.
    (Court composed of Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, Sr., Judge TERRI F. LOVE).
   TERRI F. LOVE, Judge.

11 This appeal arises from an alleged injury suffered while on the job by Mrs. Karen Johnson. Her worker’s compensation claim was denied when she tested positive for marijuana. Mrs. Karen Johnson then filed suit against multiple defendants alleging negligence and strict liability. Landmark American Insurance Company, a third party defendant that insured Musta-fa Misirci, d/b/a UM Too, L.L.C., alleges that it owes no duty to defend or indemnify the insured because the lawsuit stems from a worker’s compensation claim and was under an insured contract. The trial court granted a motion for summary judgment in favor of UM Too, L.L.C., finding that Landmark American Insurance Company’s policy covered and indemnified UM Too, L.L.C. The trial court also found that Landmark American Insurance Company had a duty to defend UM Too, L.L.C. However, the trial court declined to assess penalties against Landmark American Insurance Company for its failure to timely provide the cost of defense to UM Too, L.L.C. Finding that conflicting provisions regarding insurance coverage of liability assumed in an insured contract create ambiguity and that Landmark American Insurance Company did not arbitrarily refuse to provide a defense, we affirm.

\9FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Mrs. Karen Johnson (“Mrs. Johnson”) worked as a prep cook at the Italian Pie Restaurant (“Italian Pie”) located in Orleans Parish. Upon her arrival at work on August 29, 2003, she turned on the lights and was allegedly hit with a tile from the ceiling. Mrs. Johnson filed a worker’s compensation claim, which was denied when she tested positive for marijuana. Thereafter, she filed a petition seeking damages based on negligence and strict liability against Mustafa Misirci (“Mr. Mi-sirci”), as the owner and operator of the Italian Pie, and ABC Insurance Company (“ABC”).

Mr. Misirci, d/b/a UM Too, L.L.C. (“UM”), leased the space utilized as the Italian Pie from Rachel Investors, LLC (“Rachel”). The lease between Mr. Misirci and Rachel stipulated that the lessee indemnifies and assumes liability for damages and injuries occurring on the leased premises. Thus, Mr. Misirci, on behalf of UM, acquired a “Commercial General Liability Coverage” policy (“Policy”) from Landmark American Insurance Company (“Landmark”) to comply with the lease provision.

Mrs. Johnson asserted in her first supplemental and amended petition that Mr. Misirci was the owner of UM and operator of the Italian Pie. The pleading also added UM and Rachel as additional defendants. Rachel then filed a cross claim against UM and Mr. Misirci due to the lease provisions on indemnification and assumption of liability. Rachel also filed a third party demand against Essex Insurance Company (“Essex”) as a third party defendant. Rachel, in its supplemental and amended third party demand, added Landmark as a third party | ^defendant. Then, Rachel dismissed all claims against Essex without prejudice.

Mr. Misirci, individually and on behalf of UM, filed a reconventional demand against Mrs. Johnson alleging that she “faked” the accident and was liable for litigation fraud. Mr. Misirci, individually and on behalf of UM, filed a third party demand making Landmark a third party defendant alleging it owed defense and indemnity. Mr. Misir-ei, individually and on behalf of UM, filed a motion for summary judgment to dismiss Mrs. Johnson’s claims. The trial court granted the summary judgment and dismissed all of Mrs. Johnson’s claims against Mr. Misirci and UM with prejudice.

Landmark filed a motion for summary judgment or alternatively a declaratory judgment asserting that the Policy did not require it to defend or indemnify UM. UM filed a cross motion for summary judgment alleging that ambiguities in the Policy mandated that Landmark provide a defense against Mrs. Johnson and seeking penalties for Landmark’s failure to defend. The trial court granted UM’s cross motion for summary judgment and held: 1) that the Policy provided coverage and indemnification to UM under the assumed contract with Rachel; 2) that Landmark had a duty to defend UM; and 3) that Landmark was not liable for penalties for failure to timely provide the cost of defense to the insured.

Landmark timely filed a devolutive appeal asserting that the trial court erred by finding that the worker’s compensation exclusion was ambiguous and that the trial court erred in granting UM’s cross motion for summary judgment. UM answered the appeal and asserts that the trial court erred by failing to assess penalties against Landmark for its failure to timely provide the cost of defense.

SUMMARY JUDGMENT

Appellate courts review motions for summary judgment with the same de _J¿novo standard as the trial court. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. The reviewing court examines the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits” to find genuine issues of material fact. La. C.C.P. art. 966(B). If the court finds no genuine issues of material fact, the “mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). The mover bears the burden of proof. La. C.C.P. art. 966(C)(2).

Interpretation of Insurance Contracts

In Louisiana, insurance policies are “construed by using the general rules of interpretation of contracts.” Cadwallader v. Allstate Ins. Co., 02-1637, p. 3 (La.6/27/03), 848 So.2d 577, 580. Thus, we must determine the intent of the parties. Id. However, the interpretation of the intent of the parties and the insurance policy provisions must be reasonable and not create a “perversion of the words.” Id. Ambiguous insurance policy provisions are construed against the insurer and in favor of the insured. Id., 02-1637, p. 4, 848 So.2d at 580. “[A]n ambiguity exists in an insurance policy when the pertinent provision can reasonably be construed in two different ways.” McCarthy v. Berman, D.C., 95-1456 (La.2/28/96), 668 So.2d 721, 726.

Insurer’s Duty to Defend

“[A]n insurer’s duty to defend lawsuits against its insured is broader than its liability for damage claims.” Mossy Motors, Inc. v. Cameras America, 04-0726, p. 6 (La.App. 4 Cir. 3/2/05), 898 So.2d 602, 606. This Court enumerated the insurer’s duty to defend as follows:

A liability insurer’s duty to defend and the scope of its coverage are separate and distinct issues. Dennis v. Finish Line, Inc., 93-0638 (La.App. 1 Cir. 3/11/94), 636 |5So.2d 944, 946. It is likewise well-recognized that the obligation of a liability insurer to defend suits against its insured is generally broader than its obligation to provide coverage for damages claims. Steptore v. Masco Construction Co., Inc., 93-2064, p. 8 (La.8/18/94), 643 So.2d 1213, 1218. The issue of whether a liability insurer has the duty to defend a civil action against its insured is determined by application of the “eight-corners rule,” under which an insurer must look to the “four corners” of the plaintiffs petition and the “four corners” of its policy to determine whether it owes that duty. Vaughn v. Franklin, 00-0291, p. 5 (La.App. 1 Cir. 3/28/01), 785 So.2d 79, 84. Under this analysis, the factual allegations of the plaintiffs petition must be liberally interpreted to determine whether they set forth grounds which raise even the possibility of liability under the policy. Id. In other words, the test is not whether the allegations unambiguously assert coverage, but rather whether they do not unambiguously exclude coverage. Id Similarly, even though a plaintiffs petition may allege numerous claims for which coverage is excluded under an insurer’s policy, a duty to defend may nonetheless exist if there is at least a single allegation in the petition under which coverage is not unambiguously excluded. Employees Ins. Representatives, Inc. v. Employers Reinsurance Corp., 94-0676, p. 3 (La.App. 1 Cir. 3/3/95), 653 So.2d 27, 29.
Generally, an insurer’s duty to defend lawsuits against its insured is broader than its liability for damage claims. The duty to defend is determined by the allegations of the plaintiffs petition, with the insurer being obligated to furnish a defense unless the petition unambiguously excludes coverage. Yount v. Maisano, 627 So.2d 148 (La.1993); Matheny v. Ludwig, 32,288 (La.App. 2 Cir. 9/22/99), 742 So.2d 1029. Thus, assuming all the allegations of the petition to be true, if there would be both coverage under the policy and liability to the plaintiff, the insurer must defend the lawsuit regardless of its outcome. Yount, supra; Matheny, supra. The duty to defend arises whenever the pleadings against the insured disclose even a possibility of liability under the policy. Steptore v. Masco Const. Co., Inc., 93-2064 (La.8/18/94), 643 So.2d 1213; Yarbrough v. Federal Land Bank of Jackson, 31,815 (La.App. 2 Cir. 3/31/99), 731 So.2d 482.

Id, 04-0726, pp. 5-7, 898 So.2d at 606-07. This Court examines the “four corners of the plaintiffs petition and the four corners” of the insurance policy to determine |fiif a duty to defend exists based on the “eight-corners rule.” Grimaldi Mech., L.L.C. v. Gray Ins. Co., 05-0695, p. 8 (La.App. 4 Cir. 6/2/06), 933 So.2d 887, 891. This requires a liberal interpretation of the factual allegations contained in the plaintiffs petition. Id.

The Policy

Rachel required UM to indemnify it “against all claims, losses, liabilities, injuries or damages of whatsoever nature” in congruence with the leased premises. Thus, UM obtained the Policy from Landmark for indemnity. In regards to insured contracts and worker’s compensation, the Policy provides:

SECTION I — COVERAGES COVERAGE A. BODILY INJURY AND PROPERTY DAMAGE LIABILITY
1. Insuring Agreement
2. Exclusions
This insurance does not apply to:
b. Contractual Liability
“Bodily injury” or “property damage” for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages:
(1) That the insured would have in the absence of the contract of agreement; or
(2) Assumed in a contract or agreement that is an “insured contract”, provided the “bodily injury” or “property damage” occurs subsequent to the execution of the contract or agreement. Solely for the purposes of liability assumed in an “insured contract”, reasonable attorney fees and necessary litigation expenses incurred by or for a party other than an insured are deemed to be damages because of “bodily injury” or “property damage”, provided:
(a) Liability to such party for, or for the cost of that party’s defense of that party against a civil or alternative |7dispute resolution proceeding in which damages to which this insurance applies alleged.
d. Workers’ Compensation And Similar Laws
Any obligation of the insured under a workers’ compensation, disability benefits or unemployment compensation law or any similar law.
e. Employer’s Liability “Bodily injury” to:
(1) An “employee” of the insured arising out of and in the course of:
(a) Employment by the insured; or
(b) Performing duties related to the conduct of the insured’s business; or
(2) The spouse, child, parent, brother or sister of that “employee” as a consequence of Paragraph (1) above.

This exclusion applies:

(1) Whether the insured may be liable as an employer or in any other capacity; and
(2) To any obligation to share damages with or repay someone else who must pay damages because of the injury.
This exclusion does not apply to liability assumed by the insured under an “insured contract”. (Emphasis added)

The Policy defines an insured contract, in pertinent part, as follows:

9. “Insured contract” means
a. A contract for a lease of premises. However, that portion of the contract for a lease of premises that indemnifies any person or organization for damage by fire to premises while rented to you or temporarily occupied by you with permission of the owner is not an “insured contract”;
f. That part of any other contract or agreement pertaining to your business (including an indemnification of a municipality in connection with work performed for a municipality) under which you assume the tort liability of another party to pay for “bodily injury” or “property damage” to a third person or organization. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement.

An endorsement (“Endorsement”) to the Policy amends Section 1(A)(2)(e) to read: |s“This exclusion also applies to “temporary workers” and “employees” of subcontractors as well as liability assumed by the insured under an “insured contract”.”

Alleged Ambiguity

Landmark avers that the clear and unambiguous language of the Policy documents that it has no duty to defend UM because the worker’s compensation exclusion applies; that the insured contract endorsement excludes coverage for all liability assumed by the insured under an insured contract; and if the insured contract endorsement does not apply, UM is not the proper party to benefit from the coverage.

It is undisputed that Mrs. Johnson’s alleged injuries occurred during the course and scope of her employment. However, once her worker’s compensation claim was denied because of a positive drug test, she filed a petition asserting negligence, which is not covered by worker’s compensation. Mrs. Johnson’s petition and first supplemental and amended petition does not state a worker’s compensation claim, but instead, states a strict liability and negligence claim arising from her injury while working at the Italian Pie. Specifically, Mrs. Johnson avers that the defendants were aware: 1) of the defective condition of the building/ceiling; 2) that stored chairs put weight on the ceiling, which created a dangerous condition; 3) that poorly supported tubing put pressure on the ceiling; 4) that part of the ceiling had fallen prior to her injury; 5) that safety guidelines were not followed; and 6) that they failed to take reasonable steps to prevent her injury.

As stated above, an insurer’s duty to defend the insured is more extensive than its liability. Giving a liberal construction to Mrs. Johnson’s petition and assuming every fact alleged by Mrs. Johnson is true, the lawsuit falls outside the |apurview of worker’s compensation. Thus, we find Landmark’s argument that it owes UM no defense due to the worker’s compensation exclusion is without merit. We find Landmark’s argument that UM is not the proper party to benefit from the coverage is also without merit. The Policy provides coverage to UM, which indemnifies Rachel.

Landmark then asserts that the Endorsement excluding coverage for liability assumed by the insured under an insured contract in Section 1(A)(2)(e) precludes a duty to defend UM. It is undisputed that Rachel and UM’s lease agreement is an insured contract. However, the Endorsement amends Section 1(A)(2)(e), but does not refer to Section 1(A)(2)(b) of the Policy, which states that exclusion does not apply to liability assumed under an insured contract. This creates an ambiguity as to whether Landmark intended to include insured contracts in one provision and exclude it in another. Therefore, two reasonable interpretations of coverage under the Policy exist. Ambiguous provisions are construed against the insurer.

The trial court correctly stated: “When you look at this file you say, I can’t figure what you would ever cover.” Further, the trial court noted that Mrs. Johnson made a strict liability claim, which it stated, “might not fly, but I think you still have to defend it.” Due to the contradictions in the Policy regarding the exclusion of liability assumed in an insured contract in Section 1(A)(2)(e) and Section 1(A)(2)(b), we find that the Policy does not unambiguously exclude coverage and that Landmark owes a duty to defend UM against Mrs. Johnson’s claims.

PENALTIES

The Louisiana Revised Statutes provide that insurers must pay or offer to settle claims within thirty days of “receipt of satisfactory proof of loss.” La. R.S. 22:658. When the insurer fails to do so, the trial court may assess penalties if the |infailure is “arbitrary, capricious, or without probable cause.” La. R.S. 22:658. The statute must be strictly construed, as it is penal in nature. Sanders v. Int’l Indem. Co., 97-1061, p. 6 (La.App. 3 Cir. 2/4/98), 708 So.2d 772, 776. The trial court’s decision to assess penalties pursuant to La. R.S. 22:658 is partially based on factual determinations and should not be reversed absent a showing that it is manifestly erroneous. A trial court’s conclusion concerning the assessment of statutory penalties is in part a factual determination that should not be disturbed absent a finding that it is manifestly erroneous. Sanders, 97-1061, pp. 6-7, 708 So.2d at 776.

UM asserts that Landmark arbitrarily refused to provide a defense to Mrs. Johnson’s claims and alleges that Landmark “knowingly misrepresented” the Policy provisions. However, the trial court stated that Landmark’s insurance policy was the “worst insurance policy that” it “ever saw.” The trial court further stated, in reference to Landmark’s insurance policy: “When you look at this file you say, I can’t figure what you would ever cover.” The trial court refused to assess penalties for Landmark’s failure to timely provide the cost of defense to UM, but provided no reasons.

Given the trial court’s statement regarding the ambiguity in the Policy coverage and our own review of the policy provisions, we find that it was not arbitrary for Landmark to reasonably believe that it did not owe UM a defense to a claim that originated as a worker’s compensation claim. We find that the trial court did not commit manifest error or abuse its discretion in refusing to assess penalties against Landmark.

J¿¿DECREE

For the reasons assigned above, we find that the trial court did not err in granting the cross motion for summary judgment nor by declining to assess penalties against Landmark.

AFFIRMED.

      . There is evidence in the record that the ADT surveillance video documenting Mrs. Johnson’s alleged injury showed the ceiling tile falling prior to her entering the area. She then allegedly pulled a chair over to reach the ceiling and rubbed the ceiling materials on her shoulder to '‘fake” a workers’ compensation injury.


author: TERRI F. LOVE, Judge. LOMBARD, J., BELSOME, J.,

text:
    Tiffany ADAMS v. Ruary O’CONNELL, M.D.
    No. 2006-C-0139.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 28, 2007.

      Christopher J. Bruno, David S. Scalia, Bruno & Bruno, New Orleans, LA, for Tiffany Adams.
    Peter E. Sperling, Naidra T. Colün, James P. Waldron, New Orleans, LA, for Ruary C. O’Connell, M.D.
    Court composed of Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO, JR., Judge ROLAND L. BELSOME.
   (On Remand from the Supreme Court of Louisiana)

TERRI F. LOVE, Judge.

_JjThis matter arises from a remand from the Louisiana Supreme Court of a writ decided by this Court wherein we denied the relator’s application based on the peremptory exception of prescription. We now address the matter following oral argument and grant the writ.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Tiffany Adams (“Ms. Adams”) was injured in a car accident and subsequently had surgery, which was performed by Dr. Raymond DeCorte (“Dr. DeCorte”) to repair a hernia in January 1995. After a second car accident, Ms. Adams’ hernia recurred. Dr. DeCorte repaired the hernia using Marlex mesh (“Marlex”) in November 1995.

In October 1998, Ms. Adams sought treatment for obesity from Dr. Ruary O’Connell (“Dr. O’Connell”). As a result, Dr. O’Connell performed a transverse gastric stapling, ROUX-en-y Gastrojejunosto-my, and cholecystectomy in October 1998. During the procedures, he allegedly cut through the existing mesh and sutured it back. Around March 2, 1999, Dr. O’Con-nell detected a small mid-line incisional hernia in Ms. Adams. He repaired the hernia on or around March 15,121999, and Ms. Adams alleged that she requested the use of Marlex to prevent a recurrence based on her previous knowledge of and success with Marlex.

On March 25,1999, Ms. Adams noticed a sudden drainage of fluid from her mid-line incision. She telephoned Dr. O’Connell, who instructed her to go to the emergency room. Ms. Adams visited the emergency room at East Jefferson General Hospital and received antibiotics. On March 26, 1999, and March 29, 1999, Ms. Adams had post-operative visits with Dr. O’Connell regarding the drainage. On May 19, 1999, Ms. Adams visited Dr. O’Connell and was instructed to return in six months. However, she did not return to Dr. O’Connell’s office, because, in her own words, she was “ticked” that Dr. O’Connell had not used Marlex mesh in her hernia repair. He had informed her at one of the earlier postoperative visits that he did not use Marlex for her surgery, because it was not needed for her type of hernia, and that she should not have any problems even though the mesh was not used.

Ms. Adams discovered a small “pea sized” hernia in late April or early May 1999. On June 28, 1999, Ms. Adams visited Dr. Xeith Samuels (“Dr. Samuels”), her obstetrician/gynecologist, with the suspicion that she was pregnant. Dr. Samuels diagnosed her with a mid-line incisional hernia at the June 28, 1999 visit. In her deposition when she was asked whether she believed at the time of the June 28, 1999 visit that Dr. O’Connell’s failure to use mesh in her hernia repair had caused the new hernia, Ms. Adams responded, “That was my impression.”

On October 27, 1999, Ms. Adams visited Dr. DeCorte for a consultation about her then existing hernia. Ms. Adams alleges that Dr. DeCorte informed her at this appointment that the failure of Dr. O’Con-nell to use Marlex caused her hernia to recur. In fact, Ms. Adams testified in her deposition that when she saw |3Pr. De-Corte in October, she “already knew” the cause of the hernia but that Dr. DeCorte confirmed it for her.

Following her recovery from a caesarian section, Dr. DeCorte performed a ventral hernia repair with Marlex on May 4, 2000. Ms. Adams suffered no recurrences or subsequent problems after the May 2000 hernia repair.

On August 18, 2000, Ms. Adams filed a medical malpractice complaint with the medical review panel (“the panel”), alleging that Dr. O’Connell used substandard care when he failed to use Marlex on her hernia repair. On October 2, 2001, the panel unanimously held that Dr. O’Connell did not breach the medical standards of care.

Accordingly, on October 19, 2001, Ms. Adams filed a petition alleging that Dr. O’Connell was negligent in failing to utilize Marlex and that she did not learn that the lack of Marlex usage was medically inappropriate until October 27, 1999. Ms. Adams then filed a supplemental and amending petition on July 11, 2003, alleging that she “specifically requested that he use mesh to repair the recurrent hernia because the last time she had a recurrent hernia a mesh was used.” Additionally, she urged that Dr. O’Connell agreed to use Marlex. After she discovered that Dr. O’Connell did not use Marlex, Ms. Adams alleges that Dr. O’Connell “lead her to believe that he fixed the hernia appropriately with sutures and she had nothing to worry about.” She alleged that the informed consent form she signed did not include a statement that Dr. O’Connell would ignore her request for Marlex, that he did not inform her of “alternative procedures,” and by doing all of the above, he deviated from the appropriate standard of care.

Dr. O’Connell then filed a peremptory exception of prescription alleging that Ms. Adams did not file within one year of actual or constructive knowledge of Dr. |40’ConneH’s failure to use Marlex. The trial court denied the exception with no reasons and Dr. O’Connell sought writs to this Court.

This Court denied Dr. O’Connell’s writ finding that two reasonable views existed as to what date Ms. Adams had actual or constructive knowledge to trigger the running of prescription. The Louisiana Supreme Court then granted Dr. O’Connell’s writ and remanded the matter to this Court for briefing, argument, and opinion. This Court heard arguments and this opinion follows.

STANDARD OF REVIEW

Appellate courts review a trial court’s factual findings with the manifest error/clearly wrong standard. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). In order to reverse findings of fact, the reviewing court must find that no reasonable factual basis exists for the findings and the findings are clearly wrong. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). The fact-finder’s conclusion must be a reasonable one. Stobart v. State, Through Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993).

PRESCRIPTION

The exception of prescription is a peremptory exception. La. C.C.P. art. 927. “[PJrescriptive statutes are strictly construed against prescription.... ” Carter v. Haygood, 04-0646, p. 10 (La.1/19/05), 892 So.2d 1261, 1268. If amendment of the petition can cure the basis for the peremptory exception, the trial court “shall order such amendment within the delay allowed by the court.” La. C.C.P. art. 934. The exceptor bears the burden of proof at the trial of the peremptory exception. Spott v. Otis Elevator Co., 601 So.2d 1355, 1361 (La.1992). However, the burden shifts to the plaintiff if prescription is evident on the face of the pleadings. Williams v. Sewerage & Water Bd. of New Orleans, 611 So.|2d5 1383, 1386 (La.1993).

La. R.S. 9:5628 provides the prescriptive period for medical malpractice and reads, in pertinent part:

A. No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital or nursing home duly licensed under the laws of this state, or community blood center or tissue bank as defined in R.S. 40:1299.41(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.

“Prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort.” Campo v. Correa, 01-2707, pp. 11-12 (La.6/21/02), 828 So.2d 502, 510. Even if a plaintiff does not have actual knowledge entitling him to bring a suit, constructive knowledge that excites attention and puts the “injured party on guard and call for inquiry” is sufficient. Id. at p. 12, 828 So.2d at 510-11. “Such information or knowledge as ought to reasonably put the alleged victim on inquiry is sufficient to start running of prescription.” Id. at p. 12, 828 So.2d at 511.

However, mere apprehension “that something is wrong is not sufficient to start prescription unless plaintiff knew or should have known by exercising reasonable diligence that his problem condition may have been caused by acts of malpractice.” Gunter v. Plauche, 439 So.2d 437, 439 (La.1983). “[Pjrescription does not run as long as it was reasonable for the victim not to recognize that the condition may be related to the treatment.” Griffin v. Kinberger, 507 So.2d 821, 823-24 (La.1987). “[KJnowledge that an undesirable condition has developed ... | rafter medical treatment does not equate to knowledge of everything to which inquiry might lead.” Campo, 01-2707, p. 15, 828 So.2d at 512-13.

Dr. O’Connell asserts that Ms. Adams filed her claim with the medical review panel one year and five months after the date of her injury; thus, her alleged malpractice claim prescribed. Ms. Adams avers that she did not discover that the failure to use Marlex, in March 1999, was inappropriate until October 1999. Thus, the claim had not prescribed on the face of the pleadings and Dr. O’Connell bore the burden of proving prescription.

Ms. Adams worked as a dental assistant, veterinarian technician, a medical assistant at the Pelican Outpatient Center in Hara-han, a medical assistant for a dermatologist, and as a medical assistant at East Jefferson’s after hours urgent care center. Thus, she has some medical knowledge.

However, Ms. Adams stated in her deposition that Dr. DeCorte informed her that Marlex was needed to prevent the recurrence of hernias. She also stated that she requested that Dr. O’Connell use Marlex for her hernia repair on March 15, 1999, because she did not want another hernia and that he agreed. In her deposition, Ms. Adams said that asking for Marlex was “just kind of common sense” because when Marlex was used she did not have a recurrent hernia. Ms. Adams stated that she knew she had a new hernia in late April or early May 1999. She stated:

I mean, it wasn’t big. It was like maybe a pea size. It wasn’t big at all. Like I said, it was, once again, when I was taking a bath, I happened to sit up, and it was just — it was like a pinch that I felt, and it was a pain that, you know, a pain and a small little knot, I guess you could say, that you can see, when I would sit forward. And at that time, actually, the first time I remember mentioning anything to a physician was when I saw Dr. Samuels, about the hernia.

|7Ms. Adams’ visit with Dr. Samuels was in June 1999. Further, she stated that Dr. O’Connell informed her that he did not use mesh in one of the first post-operative visits, which was prior to May 19, 1999. Lastly, in regards to her knowledge that the hernia was allegedly caused by the lack of Marlex, she acknowledged, “[a]nd then I had the hernia repair from Dr. O’Connell, without mesh. And then, a month or two later, I end up with another hernia.” Ms. Adams admitted that she realized this around April 1999.

Ms. Adams alleges that Dr. O’Connell “lead her to believe that he fixed the hernia appropriately with sutures and she had nothing to worry about.” Dr. O’Connell stated that mesh was unnecessary for Ms. Adams’ surgery. Thus, Ms. Adams asserts that contra non valentem suspends the running of prescription. Ms. Adams relies upon the claim that she was an “innocent plaintiff’ that had “been lulled into a course of inaction in the enforcement or fraudulent conduct on the part of the defendant, or because of his failure to perform some legal duty whereby plaintiff has been kept in ignorance of his rights.” Carter v. Haygood, 04-0646, p. 12 (La.1/19/05), 892 So.2d 1261, 1269. The Louisiana Supreme Court further stated:

[prescription runs against a plaintiff who has knowledge of facts that a condition may be the result of improper-treatment only if there is no effort by the physician to mislead or cover up information available to the plaintiff through inquiry or professional medical or legal advice during the continuing treatment.

Id. at p. 19, 892 So.2d at 1273. In Carter, the doctor assured the plaintiff to “hang in there” and “that he would ‘get it right’ ” upon his “various efforts to remedy her problems.” Id. Additionally, the doctor in Carter repeatedly refused to give the plaintiff a copy of her medical records. Id. at p. 18, 892 So.2d at 1272.

We find that Carter is not dispositive as the case sub judice is ^distinguishable. Ms. Adams’ medical malpractice claim is based solely upon Dr. O’Connell’s failure to use Marlex, of which she learned during one of her first post-operative visits prior to May 19, 1999. Ms. Adams stated that she thought it was “common sense” to request the use of Marlex because she knew that it prevented recurring hernias. Also, Dr. O’Connell is not accused of repeatedly assuring Ms. Adams that she would get better if she continued treatment under his care. In fact, Ms. Adams was scheduled to return to Dr. O’Connell for a check-up six months after May 19, 1999. However, she never returned and Dr. O’Connell did not know about her recurrent hernia. Dr. O’Connell stated in his deposition that after reviewing Ms. Adams’ medical records after she left his care, that he believed the hernia occurred as a result of the infection. Ms. Adams stated that she first told Dr. Samuels about her recurrent hernia after she stopped treatment from Dr. O’Connell. Thus, Dr. O’Connell did not have the opportunity to lull Ms. Adams and prevent the running of prescription.

Thus, based on the above testimony of Ms. Adams, we find that Dr. O’Connell met his burden of proof that Ms. Adams had knowledge that her hernia was allegedly related to the failure of Dr. O’Connell to use Marlex prior to Dr. DeCorte telling her it was medically inappropriate in October 1999. Even considering that prescription statutes are to be strictly construed, Ms. Adams admitted that she had knowledge in April or early May 1999, which connotes that her alleged malpractice claim prescribed prior to her August 2000 request for a medical review panel. Therefore, we find that it was manifestly erroneous for the trial court to deny Dr. O’Connell’s peremptory exception of prescription, as there was no other reasonable conclusion based on Ms. Adams’ deposition testimony.

| ¡DECREE

For the above-mentioned reasons, we grant Dr. O’Connell’s writ and find that the trial court committed manifest error when it held that Ms. Adams filed within the appropriate time period.

WRIT GRANTED.

LOMBARD, J., dissents.

BELSOME, J., dissents with reasons.

LOMBARD, J.,

dissenting.

hi respectfully dissent for the reasons assigned by Judge Belsome.

BELSOME, J.,

dissents with reasons.

hi respectfully dissent. A reasonable factual basis exists for the district court’s denial of the peremptory exception of prescription. Accordingly, the writ should be denied.

The Supreme Court has consistently held that prescriptive statutes are strictly construed against prescription. As recently as Carter v. Haygood, the Louisiana Supreme Court reiterated the rule that prescriptive statutes are strictly construed against prescription and in favor of the obligation sought to be extinguished, stressing that when a court is faced with two possible constructions it should adopt that which favors maintaining an action, as opposed to barring it. Carter v. Haygood, 2004-0646, pp. 10-11 (La.1/19/05), 892 So.2d 1261, 1268.

The facts outlined by the majority choose one plausible set of circumstances over another. This does not constitute manifest error. In Freeman v. Poulan/Weed Eater, 93-1530, pp. 4-5 (La.1/14/94), 630 So.2d 733, 737-38, the Supreme Court specifically stated the following:

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Stobart v. State Through DOTD, 617 So.2d 880, 882 (La.1993). The appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one, after reviewing the record in its entirety. Mart v. Hill, 505 So.2d 1120,-1127 |2(La.1987); Rosell, supra; Stobart, supra. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact-finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell, supra; Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978); Stobart, supra.

The other pertinent information is that the majority points out through Ms. Adams’ deposition testimony that she testified that she suspected that the recurrent hernia was due to the failure to use mesh; however, prior to Dr. DeCorte informing Ms. Adams in October 1999 that Dr. O’Connell’s failure to use mesh had resulted in her fourth hernia, it was reasonable for the trial court to have found that she only had a “mere apprehension” that this was the cause. It is further reasonable for the trial court to have found that Ms. Adams never appreciated that the failure to use mesh might be contrary to the standard of care and therefore malpractice, especially since Dr. O’Connell continued to assure her that his use of the sutures was appropriate.

Ms. Adams’ deposition testimony also indicates that a reasonable factual basis exists for the district court’s denial of the peremptory exception of prescription, such as Ms. Adams’ response to the question asked by plaintiffs counsel, which follows:

Q. ... Tiffany, when did you become aware that the nonuse of mesh was, in your mind, medical malpractice?
A. When I spoke with Dr. DeCorte in October, when he told me that mesh should have been placed.

Moreover, counsel for defendant followed up with questions to which plaintiff confirmed that in April 1999 she first noticed the fourth hernia, at which time she already knew that defendant had not used mesh in the repair of her third hernia, although she had asked for mesh. Counsel for defendant then asked plaintiff whether it was true that when she first noticed the fourth hernia, and when Dr. Samuels diagnosed it in June 1999, she knew it had been inappropriate for | defendant not to have used mesh. Plaintiffs counsel objected, but let plaintiff answer the question. Plaintiff replied that she was not a doctor, and thus did not know it had been inappropriate until she was so informed by Dr. DeCorte in October 1999. Questioned further, plaintiff said that from what defendant had told her, she believed defendant had done everything he could have done for her, so she did not think about it until she went to see Dr. DeCorte in October 1999 and he told her that it had been done incorrectly. When asked whether, after being diagnosed with a hernia in June 1999 by Dr. Samuels, she had thought that defendant’s failure to use mesh had been inappropriate, plaintiff stated:

Obviously not, because I mean, [defendant] told me everything was okay. So he told me that the muscle repair was done and that everything was going to be fine.

Counsel for defendant pursued this line of questioning further, during the following colloquy:

Q. Did you think that was malpractice in April of '99—
A. No.
Q. —or June of '99?
A. No.
Q. You were upset, mad at him?
A. I was upset, yes, because I’m thinking I had another hernia, and that, you know, he didn’t place the mesh when it needed to be placed.
Q. And you thought that hernia, in April or June of '99, was caused by not using the mesh?
A. I didn’t know what it was caused from.
Q. I though you had testified to that earlier.
A. It wasn’t a trauma or anything. So I don’t know — like I said, I’m not a doctor or a psychic to know exactly what it’s caused from.

|4While the majority recognizes that the party should not be elevated to the status of sophisticated plaintiff, its ruling indicates otherwise. Moreover, as stated in this court’s prior writ:

In the instant case the trial court was presented with two possible constructions as to when plaintiff had knowledge sufficient to trigger the running of prescription. One interpretation of the facts is that prior to Dr. DeCorte informing plaintiff in October 1999 that defendant’s failure to use mesh had resulted in her fourth hernia, she only had a “mere apprehension” that this was the cause. Another interruption is that plaintiffs suspicions about the mesh-hernia connection were enough to excite her attention, put her on guard and call for inquiry after being diagnosed by Dr. Samuels with her fourth hernia in June 1999.
Given these two interpretations, we cannot say that the trial court erred in its factual determination thereby denying the Exception of Prescription.
The Louisiana Supreme Court reiterated the rule that prescriptive statutes are strictly construed against prescription and in favor of the obligation sought to be extinguished, stressing that when a court is faced with two possible constructions it should adopt that which favors maintaining an action, as opposed to barring it. Carter v. Haygood, 2004-0646, pp. 10-11 (La.1/19/05), 892 So.2d 1261,1268.

Based on Supreme Court precedent and the highly subjective interpretation of the facts of this case, the writ should be denied.

      . Adams v. Ruary O’Connell, M.D., 06-0139 (La.App. 4 Cir. 5/5/06).

      . Marlex mesh is a type of surgical mesh used in some hernia patients to lessen the chance of a recurrence.


author: TERRI F. LOVE, Judge. MURRAY, J.,

text:
    Billy DENSON v. DIAMOND OFFSHORE COMPANY and Walter Oil & Gas Corporation.
    No. 2006-CA-0568.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 28, 2007.
    Robert J. Young, Timothy J. Young, N. Husted DeRussy, Robin Richmond Kli-bert, The Young Firm, New Orleans, LA, for Billy Denson.
    Terrill W. Boykin, New Orleans, LA, Christopher B. Siegrist, Houma, LA, for Walter Oil & Gas Corporation.
    Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge ROLAND L. BELSOME.
   TERRI F. LOVE, Judge.

I iThis appeal arises from a Jones Act suit filed by Billy Denson, a Diamond Offshore Company employee who injured his neck and back while working on the Diamond Offshore Company vessel, M/V OCEAN SARATOGA. Diamond Offshore Company contracted with Walter Oil & Gas Corporation to drill a well. Walter Oil & Gas Corporation filed a motion for summary judgment asserting that it was not liable for the actions of an independent contractor, Diamond Offshore Company, and that the Minerals Management Service regulations did not create a private right of action. The trial court granted Walter Oil & Gas Corporation’s motion for summary judgment. Billy Denson appealed and this Court reversed the trial court granting of the motion for summary judgment because Walter Oil & Gas Corporation failed to attach a copy of the drilling contract and the evidence did not show that there were no genuine issues of material fact.

Walter Oil & Gas Corporation then attached the drilling contract and filed a second motion for summary judgment, which the trial court granted. Billy Den-son appeals averring that the trial court erred because genuine issues of material fact exist and the Minerals Management Service regulations do create a private right of action. We find that genuine issues of material fact exist as to whether Walter Oil |2& Gas Corporation retained operational control in the drilling contract, which determines whether it is liable for its alleged negligence, and reverse.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

In our prior decision, Denson v. Diamond Offshore Co., 04-1436 (La.App. 4 Cir. 3/30/05), 897 So.2d 920, we summarized the pertinent facts as follows:

On or about May 11, 2002, plaintiff/appellant, Billy Denson, employed as a Jones Act seaman by Diamond Offshore Company (Diamond) aboard the M/V Ocean Saratoga, slipped and fell while painting a stairway. On July 2, 2002, he filed suit in Civil District Court for the Parish of Orleans against Diamond and defendant/appellee Walter Oil & Gas Corporation (Walter), alleging that the accident was caused by oil based mud on the steps and, as such, the direct result of defendants’ negligence and the unseaworthiness of the vessel. On May 26, 2003, Walter moved for summary judgment, arguing that summary judgment was appropriate because the drilling contract between Walter and Diamond expressly provides that (1) Diamond is an independent contractor solely responsible for its own performance, drilling the well, the crew, and repair and maintenance of the equipment on the rig; and (2) a representative is appointed to the rig by Walter solely to monitor and ensure completion of the work contemplated under the contract. In support of its motion, Walter attached (1) excerpts from the deposition of Bradley Pitt, Walter’s representative on the M/V Ocean Saratoga (exhibits A-B, L-M, OP); and (2) excerpts from deposition of the plaintiff (exhibits C-K; N, Q-Z, aa, bb).
In opposition, the plaintiff contended that summary judgment should be denied because, despite the contract between Diamond and Walter, Walter is responsible for its own negligent acts. In support of its opposition to defendant’s motion, plaintiff cited federal precedent which holds that an owner of an offshore oil platform owes a duty to the employee of an independent contractor to insure that the platform was reasonably safe and attached (1) excerpts from his deposition (exhibit A); (2) copies of several federal cases; and (3) excerpts from Pitt’s deposition.
Walter filed a reply brief, arguing that (1) the laplaintiff failed to show why the independent contractor legal doctrine did not exonerate Walter; and (2) the plaintiff misrepresented Pitt’s statement that he inspected the vessel to insure that everything “is running right” in an attempt to create a material issue of fact to preclude summary judgment. In support of its reply, Walter attached another excerpt of Pitt’s deposition.
On May 3, 2004, without oral or written reasons, the trial judge signed an amended judgment granting Walter’s Motion for Summary Judgment.

On appeal, this Court reversed the trial court’s judgment, which granted the motion for summary judgment. Specifically, this Court found that “Walter based its motion on its interpretation of the contract and the independent contractor doctrine, but failed to properly support its motion with a copy of the contract.” This Court concluded that Walter Oil Gas Corporation (“Walter”) failed to sustain its burden of proof that no genuine issues of material fact existed and that it was not entitled to summary judgment. Thereafter, Walter again moved for summary judgment on identical grounds, attaching a copy of the drilling contract between Walter and Diamond Offshore Company (“Diamond”). The trial court again granted summary judgment in favor of Walter based on the attachment of the drilling contract. Billy Denson’s (“Mr. Denson”) appeal timely followed.

Mr. Denson asserts two assignments of error: (1) the trial court incorrectly granted summary judgment in favor of Walter given that genuine issues of material fact exist and (2) the trial court incorrectly found that Minerals Management Service (“MMS”) regulations do not create a private right of action.

STANDARD OF REVIEW

The standard of review of a trial court’s decision granting summary judgment is de novo. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/ll/94), |4634 So.2d 1180, 1183. The reviewing court examines the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits” to find genuine issues of material fact. La. C.C.P. art. 966(B). If the court finds no genuine issues of material fact, the “mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). The mover bears the burden of proof. La. C.C.P. art. 966(C)(2).

SUMMARY JUDGMENT

The question in reviewing the summary judgment denial and alleged factual issues is whether Walter “retained operational control” on the drilling vessel OCEAN SARATOGA. Ainsworth v. Shell Offshore, Inc., 829 F.2d 548, 550 (5th Cir.1987). The contract between Walter and Diamond and the testimony of Bradley Pitts (“Mr. Pitts”), Walter’s “company man,” reveal issues of fact that do not warrant the granting of summary judgment on the issue.

OPERATIONAL CONTROL

The control of operations “determination ‘depends in great measure upon whether and to what degree the right to control the work has been contractually reserved by the principal. The supervision and control which is actually exercised by the principal is less significant.’ ” Ainsworth, 829 F.2d at 550-51, quoting Hemphill v. State Farm Ins. Co., 472 So.2d 320, 322 (La.App. 3 Cir.1985). The contract contains clauses that are suggestive of Walter maintaining some aspects of control over the vessel. For example, Article III, § 303, “Increase in Contractor’s Personnel” states: “[o]per-ator may, at any time, with Contractor’s approval require Contractor to increase the number of Contractor’s Personnel and the day rates ^provided herein shall be adjusted accordingly.” Further, § 304, “Replacement of Contractor’s Personnel” states: “[cjontractor will remove and replace in a reasonable time any of Contractor’s Personnel if Operator so requests in writing and if Operator can show reasonable grounds for its request.” Additionally, in Article Y — “Contractor’s General Obligation, § 501 “Contractor’s Standard of Performance,” Walter retains control over the daily operations of the vessel. The clause states:

Contractor shall carry out all operations hereunder on a daywork basis. For purposes hereof the term “daywork basis” means Contractor shall furnish equipment, labor, and perform services as herein provided, for a specified sum per day under the direction and supervision of Operator (which term is deemed to include any employee, agent, consultant or subcontractor engaged by Operator to direct drilling operations). When operating on a daywork basis, Contractor shall be fully paid at the applicable rates of payment and assumes only the obligations and liabilities stated herein.

Lastly, § 503 “Compliance with Operator’s Instructions” reads:

Contractor shall comply with all instructions of Operator consistent with the provisions of this Contract, including, without limitation, drilling, well control and safety instructions. Such instructions shall, if Contractor so requires, be confirmed in writing by the authorized representative of Operator. However, Operator shall not issue any instructions which would be inconsistent with Contractor’s rules, policies or procedures pertaining to the safety of its personnel, equipment or the Drilling Unit, or require Contractor to exceed the rated capacities of Contractor’s Items or the minimum or maximum water depths or maximum well depth set forth in Appendix A.

The drilling contract provides that Diamond, the contractor, “shall comply with all instructions” of Walter, the operator, and that Diamond is under the “direction and supervision” of Walter. Diamond was also required to comply with Walter’s “drilling, well control and safety instructions.” These provisions demonstrate a | fiquestion as to Walter’s role in the day-today operations of the vessel. The drilling contract stated that Walter retained the right to control aspects of Diamond’s employment system and how the vessel operated. Therefore, the provisions of the drilling contract create a question of material fact as to Walter’s degree of operational control.

Jurisprudence interpreting the operator and contractor relationship uniformly states that the mere presence of a company man or representative on the jobsite does not indicate liability. See Ainsworth 829 F.2d at 550-51; Wallace v. Oceaneer ing Int’l, 727 F.2d 427, 436-37 (5th Cir.1984); McCormack v. Noble Drilling Corp., 608 F.2d 169, 174-75 (5th Cir.1979). However, these cases are factually distinguishable because they involve company men who were not involved in actual safety checks, unlike Mr. Pitts, or who only occasionally visited the jobsite. For example, in Ainsworth, the company man “had no right to interfere in Hercules’ operation; he only represented Shell’s interest in the final product.” 829 F.2d at 551. The court further stated that “Shell retained no control over Hercules’ activity.” Id Similarly, in Wallace, the company man ensured that his company achieved the desired end result. 727 F.2d at 436. He had “no actual control over or responsibility for the details of the drilling and diving work, but merely inspected progress.” Id. at 437. The court continued in its analysis by stating that the company man did not “control the operation of the particular procedure in which Wallace was injured.” Id. The company representative in McCor-mack also lacked specific knowledge or involvement in the procedures or operations that injured the plaintiff. 608 F.2d at 174. These cases present different factual scenarios.

Walter’s “company man,” Mr. Pitts stated in his deposition that he would | .¡.perform safety checks according to the MMS regulations. He said that he checked the lighting every day and would report problems to Diamond’s employee, Bobby Hugh Adams (“Mr. Adams”). However, Mr. Adams indicated that he could and would notify Diamond of any lighting hazard Mr. Pitts found on the rig. Mr. Denson alleges that improper lighting partially caused his fall. Mr. Pitts was asleep at the time of Mr. Denson’s accident and allegedly did not know Mr. Denson. Additionally, Mr. Pitts alleges that he did not supervise or instruct Mr. Denson or fellow employees in their duties. Additionally, he testified that he was “on call 24 hours.” Therefore, questions of fact exist as to whether Mr. Pitts knew or should have known of any hazards on the rig at the time of Mr. Denson’s accident. Mr. Pitts’ lighting safety checks and twenty-four hour on call status also create questions of fact as to the operational control Walter retained.

In the case sub judice, the contractual provisions and Mr. Pitts’ actions create factual questions as to his or Walter’s responsibilities on the vessel. There are also issues regarding Mr. Pitts and Walter’s control over aspects of Diamond’s contracted work. We find that genuine issues of material fact exist regarding whether Walter maintained operational control of the drilling rig and reverse the granting of summary judgment by the trial court.

PRIVATE RIGHT OF ACTION/WALTER’S ALLEGED NEGLIGENCE

Mr. Denson asserts that MMS regulations should not be used to “insulate lease operators from liability and preclude a cause of action for basic negligence against a party who is contractually bound by such regulations.” As such, Mr. Denson avers that Walter is liable under Louisiana negligence law for its alleged negligent acts.

The United States Fifth Circuit Court of Appeal, in Coulter v. Texaco, Inc., |8117 F.3d 909, 911-12 (5th Cir.1997), held that a principal can be liable for “injuries resulting from the negligent acts of an independent contractor” if “the principal retains operational control over the contractor’s acts or expressly or impliedly authorizes those acts.” Operational control “requires an examination of whether and to what extent the right to control work has been contractually reserved by the principal.” Id., 117 F.3d at 912.

Walter avers that United Stated Fifth Circuit case, Fruge ex Rel. Fruge v. Parker Drilling Co., 337 F.3d 558 (5th Cir.2003), is persuasive in determining that MMS regulations do not make mineral lease owners responsible to conduct mineral development and production operations safely. Walter asserts that Diamond, as the owner of the drilling rig, was solely responsible for the drilling rig. Walter’s comparison is misplaced. We find that Fruge found that no cause of action existed under MMS regulations. 337 F.3d at 566. However, Fruge recognized the operational control exception based on Louisiana negligence law as espoused in Coulter. 337 F.3d at 564. The court in Fruge, examined the facts and determined that the principal did not maintain operational control; therefore, no private cause of action under MMS regulations or negligence claim based on Louisiana law existed. 337 F.3d at 564-65.

In the case sub judice, we find that genuine issues of material fact exist as to whether Walter maintained operational control under the provisions of the drilling contract and/or by the actions of Mr. Pitts. Following the reasoning of Fruge and Coulter, we find that a negligence action exists if the principal retained operational control. Thus, if the trier of fact determines that Walter retained operational control through the drilling contract and/or by the actions of Mr. Pitts, then Mr. Den-son possesses a negligence action based on Louisiana 1 Jaw.

DECREE

We find that genuine issues of material fact exist as to whether Walter maintained operational control, which determines if Mr. Denson possesses a negligence action under Louisiana law. Accordingly, we reverse the decision of the trial court.

REVERSED AND REMANDED.

MURRAY, J., dissents with reasons.

BAGNERIS, J., dissents.

MURRAY, J.,

dissents with reasons.

_JjThe plaintiff couches the issue presented as whether Walter Oil & Gas Corporation retained operational control and emphasizes the presence of Walter’s company man on board. However, there is no evidence of negligence. What the plaintiff actually is alleging is an unseaworthiness claim, which is not a viable claim against Walter — a non-vessel owner. For these reasons, I respectfully dissent.

BAGNERIS, J., dissents.

Iil respectfully dissent for the reasons assigned by Judge MURRAY.

      . In its memorandum in support of motion for summary judgment, appellee states that "The drilling contract between Walter and Diamond is attached” and cites to "Exhibit ‘bb’, p. 59.” However, Exhibit "bb” in the record contains pages 57-60 of the plaintiff's deposition and is paginated as "112.”

      . The initial judgment signed on April 16, 2004, the day of the hearing, erroneously stated that the motion was unopposed.


author: AMY, Judge.

text:
    STATE of Louisiana v. Stephen K. LANPHIER.
    Nos. KA06-1509/KA06-1510, KH06-1020/KH06-1135.
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2007.

      John F. DeRosier, District Attorney, Carla S. Sigler, Assistant District Attorney, Lake Charles, LA, for Appellee, State of Louisiana.
    Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Stephen K. Lanphier.
    Stephen K. Lanphier, Tallulah, LA, Pro Se.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and GLENN B. GREMILLION, Judges.
   AMY, Judge.

b The defendant, Stephen K. Lanphier, filed a motion to request the production of the district attorney’s file on January 3, 2006. The motion was denied by the trial court on July 26, 2006.

The defendant filed both writs and appeals asking this court to review the trial court’s denial of his motion to request the production of the district attorney’s file. Additionally, the defendant filed a writ asking this court to review a request he filed with the trial court seeking a copy of the transcript of the hearing on his motion. The writs filed by the defendant in docket numbers KH06-1020 and KH06-1135 were consolidated with the appeals filed as docket numbers KA06-1509 and KA06-1510. Appellate counsel has filed an Anders brief in this matter. For the following reasons, we affirm the trial court’s ruling and grant counsel’s motion to withdraw. Additionally, the writ in docket number KH06-1020 is denied, and the writ in docket number KH06-1135 is moot.

Discussion

Request for Production of District Attorney’s File

Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396,18 L.Ed.2d 493 (1967), the defendant’s appellate counsel filed a brief stating that he could find no errors on appeal that would support reversal of the defendant’s convictions or sentences. Thus, counsel seeks to withdraw. As this is not an appeal from a conviction and sentence, but an appeal from a documents request, the standard Anders review involving the defendant’s convictions and sentences is inapplicable here. Rather, the Anders review performed below involves consideration of the appeal involving the documents request.

|2In docket number KH06-1020, the defendant asks this court to review the trial court’s denial of his motion to request the production of the district attorney’s file. Additionally, in docket number KH06-1135, the defendant seeks a copy of the transcript of the denial of his motion.

The defendant sought production of the district attorney’s file by way of La.Code Crim.P. art. 822(B), which provides that “if at any time after sentence is imposed, the defendant seeks the production of all or any portion of the district attorney’s file in a criminal proceeding, the request for production shall be presented by written motion, which shall be tried contradictorily with the district attorney.”

In his motion, the defendant contended that he needed the documents in order to perfect his application for post-conviction relief. Subsequently, at the hearing on his motion, the defendant stated the following: “my particularized need for the production of District Attorney’s files is to ... perfect the post-conviction claim of ineffective assistance of counsel, which is in violation of my constitutional rights and under Article — Criminal Code of Procedure Article Number 822 [ (B)].” Additionally, in his application for supervisory writs, the defendant stated that he required the documents in order to complete his application for post-conviction relief.

In State ex rel. McKnight v. State, 98-2258, p. 1 (La.App. 1 Cir. 12/3/98), 742 So.2d 894, 896, the first circuit discussed Article 822(B) as follows:

Article 822 does not apply to requests for records under the Public Records Law, and it does not establish a separate procedure by which an inmate can secure documents from the district attorney. The purpose of this portion of [A]rtiele 822 is to prevent district courts from ordering the production of portions of the district attorney’s file without the district attorney first receiving notification of the motion.

See also State v. Paige, 03-874 (La.App. 4 Cir. 6/4/03), 849 So.2d 813, writ denied, 03-1957 (La.9/5/03), 852 So.2d 1027.

| ¡¡Since the defendant sought a copy of the district attorney’s file through the criminal court, we presume he is seeking copies of the documents free of charge pursuant to State ex rel. Bernard v. Criminal District Court Section J., 94-2247 (La.4/28/95), 653 So.2d 1174. In Bernard, the supreme court stated:

This Court’s jurisprudence requires lower courts to provide indigent inmates with copies of certain types of documents as of right. State ex rel. Simmons v. State, 93-0175(93-0275] (La.12/16/94), 647 So.2d 1094. As to all other documents, an indigent inmate has the constitutional right to free copies only in those instances in which he shows that denial of the request will deprive him of an “adequate opportunity to present [his] claims fairly.” United States v. MacCollom, 426 U.S. 317, 324, 96 S.Ct. 2086, 2091, 48 L.Ed.2d 666 (1976) (quoting Ross v. Moffitt, 417 U.S. 600, 616, 94 S.Ct. 2437, 2447, 41 L.Ed.2d 341 (1974)). Meeting that constitutional threshold requires a showing of what this Court has called “particularized need.”
For the inmate requesting documents in anticipation of a collateral attack on his conviction, adequate opportunity to present his claims requires first and foremost meaningful access to the post-conviction procedures provided by the legislature in La.C.Cr.P. art. 924 et seq. That access does not require the state to underwrite the inmate’s efforts to overturn his conviction and sentence by providing him generally with documents “to comb the record for errors.” State ex rel. Payton v. Thiel, 315 So.2d 40 (La.1975). If an inmate -has identified specific constitutional errors in the proceedings leading to his conviction and sentence, as required by La.C.Cr.P. art. 930.3, he may also “specify[ ] with reasonable particularity the factual basis for such relief,” and thereby meet the initial requirements set forth in La. C.Cr.P. art. 926 for filing the application and invoking the post conviction articles. An inmate therefore cannot make a showing of particularized need absent a properly filed application for post conviction relief which sets out specific claims of constitutional errors requiring the requested documentation for support. See Payton, supra ....

Id. at 1175 (alteration in original).

The defendant has not filed an application for post-conviction relief. He has, therefore, failed to meet his burden of demonstrating a particularized need for the documents requested from the district attorney. Accordingly, the writ filed, as docket number KH06-1020 is denied. As the appellate record contains a copy of the |4transeript sought by the defendant in the writ filed as docket number KH06-1135, the writ is moot.

The defendant, in his pro se brief, raised several issues. We reviewed those issues, and they do not support the granting of the defendant’s motion to request the production of the district attorney’s file.

We find no errors which would support an assignment of error on appeal. Therefore, appellate counsel’s motion to withdraw is granted.

DECREE

For the above reasons, the ruling of the trial court denying the defendant’s motion to request the production of the district attorney’s file is affirmed. Counsel’s motion to withdraw is granted. The writ filed as docket number KH06-1020 is denied, and the writ filed as docket number KH06-1135 is denied as moot.

RULING AFFIRMED; MOTION TO WITHDRAW GRANTED. WRIT IN DOCKET NUMBER KH06-1020 DENIED; WRIT IN DOCKET NUMBER KH06-1135 DENIED AS MOOT.

ORDER

IfiAfter consideration of Defense counsel’s request to withdraw as counsel in the appeal presently pending in the above-captioned matter;

IT IS HEREBY ORDERED that appellate counsel’s motion to withdraw is granted.


author: GREG G. GUIDRY, Judge.

text:
    STATE of Louisiana, DEPARTMENT OF SOCIAL SERVICES and Jessica Rareshide v. Roger LEHMAN.
    No. 06-CA-922.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 11, 2007.
    Order Granting Rehearing for Clarification May 7, 2007.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Joseph R. McMahon, Jr., Lekita G. Robertson, Assistant District Attorneys, Juvenile Court, Harvey, LA, for Plaintiff/Appellee.
    Roger Lehman, I.P.P., Slidell, LA, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and GREG G. GUIDRY.
   GREG G. GUIDRY, Judge.

LThe Defendant, Roger Lehman, appeals from the juvenile court judgment, denying his exception of prescription and finding him in arrears for failure to pay child support as previously ordered by the court, in the amount of $12,374.17. For the reasons which follow, we vacate the judgment and remand to the juvenile court for further proceedings.

According to the record and admissions, Lehman was ordered, on August 3, 1983, to pay child support for his then minor child in the amount of $250.00 per month. On May 11, 1989, the district court rendered a judgment making past due support executory in the amount of $18,000.00, covering past due child support from August 3, 1983, until March 3, 1989. On August 21, 1991, the minor child preached the age of majority. On April 4, 2001, an Ex-Parte Motion and Order to Transfer Case to Juvenile Court was signed. The motion was filed by the State of Louisiana Department of Social Services through the District Attorney for the Parish of Jefferson, alleging that support enforcement services were being furnished to Jessica Tynes, the mother of the minor child of Lehman. Thereafter, on May 21, 2001, the state filed a Motion and Order for Contempt; to Make Arrears Executory; to Suspend Professional, Recreational, and Vehicular Licenses; and to Require Defendant to Post Bond. Following the filing of and rulings on exceptions, on November 30, 2001, a warrant was issued for Lehman for failure to appear. The record indicates no further proceedings until July 15, 2005, when the state filed a Rule to Show Cause requesting that Lehman show cause why his assets should not be seized in payment of his past due child support. On March 9, 2006, Lehman filed an exception of prescription and, on August 25, 2006, an amendment to the exception. On August 28, 2006, a Minute Entry — Judgment indicates that Lehman’s exception was denied, arrears were made executory in the amount of $12, 373.17, and other incidental orders were issued. It is from this judgment that Lehman appeals.

Lehman raises several issues on appeal. First, he argues that the juvenile court lacked subject matter jurisdiction to issue the August 28, 2006, judgment. In support of this argument, he contends that the district court had no right to transfer the case to juvenile court because, by the time of the transfer in 2001, his son had attained the age of majority in 1991, no further child support was due, and the matter was prescribed before it was transferred.

Lehman filed an exception of prescription. He contends that ten years passed between the May 1989 judgment, making arrears executory, and the 2001 motion filed herein. Additionally, he contends that over five years passed from the |4May 11, 1989, judgment until September 25, 1995, when, although not in the record, the state contends it filed a Rule for Contempt and Past Due Child Support. Moreover, there is nothing in the record, exhibits or testimony, evidencing any payments by Lehman that would have interrupted prescription from 1989 through 2000, or between rules allegedly filed by the state between September 21, 1990, and September 25, 1995, even if they were sufficient to interrupt prescription. Payments indicated by an attachment to the state’s brief which was not part of the record, and referred to by the juvenile court judge, were allegedly made through garnishment, which would not have interrupted prescription. See Brunston v. Hoover, 06-0970, p. 6 (La.App. 3rd Cir.12/6/06), 945 So.2d 852, 856.

Lehman also argues that the state has no right to bring the instant action for arrears. The state has not alleged that it is filing pursuant to application and request by the mother of the minor child. Further, the state concedes in its brief that “no funds [are] due to the State of Louisiana in this matter.”

Finally, Lehman argues that the judgment should be set aside because it was issued without any supporting proof. The minor’s mother, to whom the money would be due if owed, did not take part in the proceedings; she was not represented and did not testify regarding any child support payments or the lack thereof. There is nothing in the record or judgment that indicates how the awarded amount was calculated, despite a request for reasons. Further, and perhaps most persuasive, Lehman points out that the 1989 judgment covered arrears from August 3, 1983 through March 3, 1989. His son attained the age of majority on August 21, 1991. Thus, even if it were proven that he owed past due support for the 29 and one-half month period from March 3, 1989, until the date his minor child reached majority, August, 21, 1991, he would only owe approximately $7500.00 ($250.00 x 30). Additionally, if the amounts received through garnishment and payments are | ^deducted, he contends he would only owe approximately $3,073.77 for that time period and not $12,374.17 that was awarded herein.

A Court of Appeal is a court of record, which must limit its review to evidence in the record before it. La. C.C.P. art. 2164; Hover v. Farber, 05-613, p. 3 (La.App. 5th Cir.1/31/06), 922 So.2d 637, 638; Board of Directors of Industrial Development Bd. of City of New Orleans v. All Taxpayers, Property Owners, Citizens of New Orleans, 03-0826, p. 4 (La.App. 4th Cir.5/29/03), 848 So.2d 740, 744, writs denied, 03-1527, 03-1842 (La.10/1/03), 855 So.2d 287, 288. An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. Hover at 05-613, p. 4, 922 So.2d at 638. After the record has been transmitted to the appellate court, the record can be supplemented by stipulation of the parties, by the trial court, or by order of the appellate court, only if the evidence was properly filed into the record in the trial court. La C.C.P. art. 2132; Id.; Nuccio v. Robert, 99-1327, p. 5 (La.App. 5th Cir.4/25/00), 761 So.2d 84, 87, writ denied, 00-1453 (La.6/30/00), 766 So.2d 544.

Upon review, we find the record before us so sparse, that it is impossible for this Court to resolve any of the legal issues raised on appeal except to find that the judgment is not supported by the record and it must, therefore, be vacated.

Upon motion of the district attorney, in cases receiving support enforcement services from the department, a support order payable to the department shall be transferred for subsequent enforcement and modification to the appropriate juvenile court within the parish wherein the support order was rendered or last registered. La. R.S. 46:236.2(A)(2). The 2001 motion to transfer filed in this case alleges that support enforcement services were being provided to the mother of 1 fiLehman’s minor child and that Lehman was ordered to make payments through the department. However, there is no record showing that the support order was not prescribed at that time. Thus, it is impossible for this Court to determine, on the record before us, whether the transfer was valid.

The record evidence on whether the right to enforce the child support award had prescribed is also deficient. A court judgment rendered in 1989 found Lehman in arrears, and, thereafter, there is no showing in the record of any further support payments until 2000. The state has attached to its appellate brief a “Member Payment History” purportedly for Lehman, but it is not certified and, although apparently relied on by the juvenile court judge, was not introduced into evidence or made part of the record in juvenile court. Since an attachment to a brief not admitted into evidence at trial may not be relied on by this Court on appeal, we find no record evidence of support payments that would support the juvenile court’s denial of Lehman’s prescription exception. Moreover, there is no indication on that document as to who made the payments or how they were made. Reference was made at the hearing that they were made pursuant to garnishment. Payment of a debt interrupts prescription because it is deemed an acknowledgement of the debt. Where the debtor is not the one making the payment, no such acknowledgement takes place. Brunston v. Hoover, 06-0970, p. 6 (La.App. 3rd Cir.12/6/06), 945 So.2d 852, 856.

Finally, the record is void of any evidence of the amount of arrears that would be owed if not prescribed. The record indicates that a support judgment was entered against Lehman in 1983 ordering him to pay child support in the amount of $250.00 per month. It is also admitted that a judgment of arrears was entered in May 1989 in the amount of $18,000.00, covering the time period from August 3, 1983 through March 3, 1989. Thus, based on the record before us, it appears |7impossible for Lehman to owe the amount awarded, $12,373.17, for the 30 month period from the last judgment making arrears executory in March 1989 until the minor reached majority in August 1991. Since the judgment is not supported by the record it must be vacated.

Accordingly, the judgment denying Lehman’s exception of prescription and making arrears executory in the amount of $12,374.17, with all incidental orders thereto, is vacated and the matter is remanded to juvenile court for further proceedings consistent with the view expressed herein.

JUDGMENT VACATED; CASE REMANDED.

ORDER

REHEARING GRANTED FOR THE LIMITED PURPOSE OF CLARIFICATION:

|sUpon request by the State in its rehearing application, we recall our citation with approval of the case, Brunston v. Hoover, 06-0970 (La.App. 3rd Cir. 12/6/06), 945 So.2d 852, (holding that payment by garnishment is not deemed an acknowl-edgement of the debt), insofar as we found it applicable to assignments mandated for child support. We prefer to defer consideration of that issue to a future case where it is squarely presented and dispositive. Consequently, we grant the rehearing for the limited purpose of removing that reference from our original opinion. In all other respects, we deny the rehearing.

      . The judgment also ordered Lehman, in the interim, to pay $150.00 per month towards the arrears, to bring in proof that he is employed, and appear for a hearing on September 29, 2006, to determine a payment schedule for the arrears. Because we vacate the judgment making the arrears executory in the amount of $12,374.17, these incidental orders become moot.

      . The state filed a motion to supplement the record in this Court with attached documents purporting to be from the record in a related matter from the Twenty Fourth Judicial District Court. However, the exhibits sought to be added were not stipulated to by both parties, sent from the trial court or filed into the record in the trial court. See also La. R.S. 13:3723. Accordingly, the motion was denied.