text:
    Irvin FRANCOIS, III and Debra Davis v. Gilbert V. ANDRY, IV and the Andry Law Firm, L.L.C.
    No. 2005-CA-0388.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 5, 2006.
    Robert G. Harvey, Sr., Robert G. Harvey, Sr., A.P.L.C., New Orleans, Counsel for Plaintiff/Appellant.
    Gilbert V. Andry, IV, the Andry Law Firm, L.L.C., New Orleans, Counsel for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS Sr., Judge MICHAEL E. KIRBY).
   PATRICIA RIVET MURRAY, Judge.

| plaintiffs, Irvin Francois, III, and Debra Davis, appeal the trial court’s judgment ruling that their petition failed to state a cause of action against the defendants, attorney Gilbert Andry, IV, and the Andry Law Firm. For the reasons that follow, we affirm.

FACTS AND PROCEEDINGS BELOW

On May 10, 2004, the plaintiffs filed the instant suit alleging that Mr. Gilbert An-dry, IV, had intentionally or negligently interfered with the contract of legal representation between them and their current attorney, Mr. Robert Harvey. At the time they filed this suit, Mr. Harvey was representing plaintiffs in a medical malpractice action alleging the wrongful death of their child. According to the plaintiffs, Mr. Jerome Winsberg, an attorney who had previously represented them in a custody dispute, had mistakenly assumed that he was also representing them in their medical malpractice action and, without their knowledge or permission, had made an agreement with Mr. Andry to take over the malpractice case. As a result, from March to May of 1999, both Mr. Andry and Mr. Harvey initiated complaints | ¡¡with the Louisiana Patients’ Compensation Fund [“the PCF”] on plaintiffs’ behalf. Having had no communication with Mr. Andry, the plaintiffs apparently did not learn of his actions until the PCF notified the parties of the duplicate claims. After the representation issue was resolved in favor of Mr. Harvey, a medical review panel convened in May, 2001, and ultimately decided that the hospital that was the subject of the plaintiffs’ complaint had deviated below the standard of care.

The plaintiffs then filed suit against the hospital in district court in Jefferson Parish. On January 9, 2003, Mr. Andry and Mr. Winsberg jointly intervened in plaintiffs’ medical malpractice suit claiming they had an interest in the outcome because they were entitled to payment for legal services they had rendered to the plaintiffs in the case. On May 7, 2003, the plaintiffs settled the medical malpractice case for the statutory maximum of $500,000, from which Mr. Harvey was to receive a contingency fee of $200,000. The intervenors claimed they were entitled to a percentage of that fee. The district court in Jefferson Parish determined that the disputed amount of Mr. Harvey’s fee was ten percent, or $20,000, which amount was deposited into the registry of the court prior to the disbursement of the settlement funds on August 4, 2003.

The plaintiffs filed the instant suit on May 10, 2004, in Orleans Parish Civil District Court, alleging that by continuing to represent them against their wishes, Mr. Andry had illegally interfered with the contract between them and Mr. Harvey; plaintiffs further alleged that Mr. Andry’s interference had delayed the settlement laof their medical malpractice claim and the disbursement of the settlement funds, causing them to lose interest and be deprived of the use and enjoyment of their money. The defendants, Mr. Andry and his law firm, filed exceptions of no cause of action, no right of action, res judicata, and prescription. The trial court heard the exceptions on July 16, 2004. On July 28, 2004, the trial court rendered judgment granting the exception of no cause of action as to the plaintiffs’ claim of negligent interference with a contract and granting the exception of prescription as to the plaintiffs’ claim of intentional interference with a contract. The trial court denied the remaining exceptions, and dismissed with prejudice both the intentional and the negligent interference claims. However, two days prior to the rendering of the July 28, 2004 judgment, plaintiffs had filed a “First Supplemental and Amending Petition,” which set forth additional, more detailed facts and alleged for the first time that Mr. Andry’s conduct constituted legal malpractice, and that this malpractice was a continuing tort through July of 2003. The supplemental petition thus remained pending after the trial court dismissed the original petition.

On August 4, 2004, the plaintiffs filed a motion for new trial with regard to the judgment that had dismissed the original petition. The next day, the defendants asserted the same four exceptions to the supplemental petition that they had raised to the original petition: no cause of action, no right of action, res judicata and prescription. After hearing both the motion and the exceptions, the trial court rendered judgment on September 29, 2004, denying plaintiffs’ motion for new trial, granting defendants’ exception of no cause of action as to the supplemental |4petition, and giving plaintiffs thirty days to amend their petition to assert a cause of action. The trial court deferred ruling on the remaining exceptions.

Plaintiffs filed a motion for new trial as to the September 29, 2004, judgment. The trial court denied that motion on November 22, 2004, and this appeal followed. According to the plaintiffs’ notice of intent to appeal filed December 7, 2004, the plaintiffs now appeal devolutively from the judgment of the district court which “denied the Plaintiffs Motion for New Trial on the basis that privity of contract is a necessary element of a cause of action of legal malpractice and on the basis that Defendant’s conduct as set forth in the Plaintiffs’ original Petition did not constitute a continuing tort.” [sic]

MOTION TO DISMISS APPEAL

Defendants have moved to dismiss the appeal as frivolous. This court has held that an appeal is frivolous if it does not present a substantial legal question, if fe only purpose is dilatory, or if appellant’s counsel does not seriously believe the view of the law that he advocates. Tillmon v. Thrasher Waterproofing, 2000-0395, p. 8 (La.App. 4 Cir. 3/28/01), 786 So.2d 131, 137. In any case, the determination that an appeal is frivolous is not grounds for dismissal of the appeal, but only for an award of damages, or sanctions, by the appellate court if it deems such are appropriate. See La.Code Civ. Pro. art. 2164 (West 2005). Appeals are always favored, and unless the appeal is unquestionably frivolous, damages are not warranted. Tillmon, 2000-0395, p. 8, 786 So.2d at 137.

| .^Defendants have not shown the existence of any of the above-cited criteria for frivolous appeal. Rather, the assertions made in support of defendants’ motion to dismiss are actually defenses to the appeal, and as such are addressed in our discussion of the merits.

Accordingly, we deny the motion to dismiss the appeal and decline to award sanctions.

ISSUES ON APPEAL

Plaintiffs have raised two issues on appeal:

(1) The trial court erred by finding that the plaintiffs failed to state a cause of action for legal malpractice; and
(2) The trial court erred by finding plaintiffs’ claim was not a continuing tort and therefore was prescribed.

However, the only judgments subject to appeal, namely, those rendered by the trial court on September 29, 2004, and November 22, 2004, do not address the exception of prescription. On September 29, 2004, the trial court granted defendants’ exception of failure to state a cause of action with regard to plaintiffs’ “First Supplemental and Amending Petition,” and deferred ruling on all other exceptions; on November 22, 2004, the trial court denied plaintiffs’ motion for new trial as to this judgment.

Despite plaintiffs’ argument concerning the issue of prescription, that issue is not before us. The only time the trial court addressed prescription was when it 1 Rruled, in its judgment rendered July 28, 2004, that plaintiffs’ claim for intentional interference with a contract, which was asserted in the original petition, was prescribed. The July, 28, 2004 judgment became final when plaintiffs failed to appeal it within sixty days of the court’s mailing of notice of its September 29, 2004 denial of the motion for new trial as to that judgment. See La.Code Civ. Pro. Art. 2087 (West 2005). According to the record, that notice was mailed September 29, 2004, and this appeal was filed December 7, 2004. Moreover, the portion of plaintiffs’ brief related to prescription is confined to whether Mr. Andry’s “acts of negligence” or legal malpractice should be considered a continuing tort so as to defeat prescription; it presents no argument regarding intentional tort. Nevertheless, because the trial court did not reach the issue of whether the plaintiffs’ legal malpractice claim was prescribed, we are precluded from addressing that issue.

FAILURE TO STATE A CAUSE OF ACTION

The trial court found that plaintiffs failed to state a cause of action in legal malpractice against Mr. Andry. The granting of an exception of no cause of action is subject to de novo review on appeal, with all factual allegations of the petition presumed to be true and all reasonable inferences made in favor of the plaintiffs. City of New Orleans v. Board of Commissioners of the Orleans Levee District, 93-0690 (La.7/5/94), 640 So.2d 237, 253.

The elements of the tort of legal malpractice are:

(1) the existence of an attorney-client relationship;
|7(2) negligent representation by the attorney; and
(3) loss to the client caused by that negligence.

Francois v. Reed, 97-1328, p. 4 (La.App. 1 Cir. 5/15/98), 714 So.2d 228, 229-230. The existence of an attorney-client relationship turns largely on the client’s subjective belief that it exists. Louisiana State Bar Association v. Bosworth, 481 So.2d 567, 571 (La.1986).

Plaintiffs’ supplemental petition clearly indicates that there was never any contact or communication whatsoever between them and Mr. Andry. Nor does that petition allege any facts which would indicate the existence of an attorney-client relationship between plaintiffs and Mr. An-dry. Moreover, plaintiffs clearly did not hold a subjective belief that such a relationship existed; in fact, they expressly deny its existence in their supplemental petition, stating in Paragraph 15: “[A]t no time did Petitioners ... ever hire, contract with, or agree to be represented by the Defendant, Gilbert V. Andry, IV.” Rather, the supplemental petition alleges that Mr. Winsberg misconstrued his representation of plaintiffs at a custody hearing to extend to representation of them in their medical malpractice action, and then, without any authority from plaintiffs, Mr. Winsberg contracted with Mr. Andry to take over the malpractice action.

Under these facts, we agree with the trial court that plaintiffs failed to state a cause of action in legal malpractice because they have not established the first element, the existence of an attorney-client relationship between them and the defendant, Mr. Andry. Although the trial court did not render written reasons for ^judgment, plaintiffs contend that the trial court judge at the hearing focused on the lack of “privity of contract” between them and Mr. Andry. On appeal, plaintiffs argue that privity of contract is not necessary for legal malpractice to exist, citing the case of Anderson v. Collins, 26,142 (La.App. 2 Cir. 1/6/95), 648 So.2d 1371. In Anderson, the court held that the presumptive heirs to a succession had stated a cause of action against an attorney who had been hired by the administrator of the succession to represent the succession. Although there was no privity of contract between the heirs and the attorney, the court specifically noted that the administrator had a statutory fiduciary duty to the heirs, who were third-party beneficiaries of the contract between the administrator and the attorney. We do not find the instant situation to be analogous to Anderson v. Collins. The plaintiffs are not third-party beneficiaries to any contract, especially since they also deny that a contract of representation existed between them and Mr. Winsberg. We therefore hold that the trial court was correct in ruling that plaintiffs failed to state a cause of action against defendants herein.

CONCLUSION

Accordingly, for the reasons stated, we affirm the judgment of the trial court.

AFFIRMED.

      . Apparently, the fee dispute is still pending in the Jefferson Parish court.

      . In the plaintiffs' appellant brief, this issue was raised in defense of the defendants’ motion to dismiss the appeal.


source: Caselaw Access Project

author: PATRICIA RIVET MURRAY, Judge.

license: Public Domain

text:
    Sheila HOPKINS and Ronald Hopkins v. James P. HOWARD, Celadon Trucking Services, Inc. and Reliance National Insurance Company.
    No. 2005-CA-0732.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 5, 2006.
    Writ Denied June 23, 2006.

      Stephanie B. Laborde, Angela W. Adolph, Milling Benson Woodward, L.L.P., Baton Rouge, Raymond C. Jackson, III, Allen & Gooch, Lafayette, Counsel for Defendant/Appellee the Louisiana Insurance Guaranty Association.
    Daniel J. Caruso, James A. Burton, M. Davis Ready, Jeffrey J. Thomas, Simon Peragine Smith & Redfearn, LLP, New Orleans, Counsel for Defendant/Appellant Celadon Truck Services, Inc.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS Sr., Judge MICHAEL E. KIRBY).
   PATRICIA RIVET MURRAY, Judge.

17This appeal is taken by the third party plaintiff, Celadon Trucking Services, Inc. (“CTSI”). CTSI appeals from the trial court’s judgment dismissing the third party defendant, Louisiana Insurance Guaranty Association (“LIGA”), from this suit and awarding it defense costs, including attorney’s fees. The principal issue presented is whether the trial court erred in its interpretation of La. R.S. 22:1379(3)(f), the net worth exclusion to the definition of a LIGA-covered claim. For the reasons that follow, we amend the judgment to delete the award of defense costs and, as amended, affirm.

FACTUAL, PROCEDURAL, AND STATUTORY BACKGROUND

The underlying facts in this case are undisputed. This case arises out of a rear-end collision that occurred in Orleans Parish on April 24, 1997. The accident occurred when the vehicle Sheila Hopkins was driving was rear ended by the truck James Howard was driving. At the time of the accident, Mr. Howard was acting in the course and scope of his employment with CTSI, and CTSI was insured under a commercial policy issued by Reliance National Insurance Company (“Reliance”). On October 9, 1997, Ms. Hopkins and her husband commenced this suit against Mr. Howard, CTSI, and Reliance.

|¡Jn May 2001, the Commonwealth Court of Pennsylvania placed Reliance into rehabilitation. In October 2001, the Pennsylvania court declared Reliance insolvent and ordered it liquidated. Since Reliance’s insured’s (CTSI’s) domicile was Indiana, claim files relating to pending claims against CTSI, including the Hopkins’s claim, were tendered to the Indiana Insurance Guaranty Association (“IIGA”). Since Ms. Hopkins’s domicile was Louisiana, IIGA forwarded this case to LIGA. By letter dated July 31, 2003, LIGA notified IIGA that it was refusing to handle the claim, stating that “Louisiana has a Net Worth provision of $25 million, and the insured [ (CTSI) ] and affiliates exceed this figure. The Louisiana Guaranty Fund [ (LIGA) ] will not be involved in this case.” On August 14, 2003, the trial court issued an order dismissing Reliance from this suit and reserving the Hopkins’s rights to pursue other parties to this litigation.

On July 15, 2004, CTSI and Mr. Howard filed a third party demand against LIGA, seeking indemnification and defense of this suit. LIGA answered the third party demand asserting as an affirmative defense the net worth exclusion, La. R.S. 22:1379(3)(f), and citing the recoupment provision, 22:1382(D). LIGA also filed a motion for summary judgment contending that there were no material issues of fact and that based on La. R.S. 22:1379(3)(f) it was entitled to judgment as a matter of law.

To understand the trial court’s reasons for granting summary judgment in LIGA’s favor, it is necessary to first provide a brief statutory background.

lain 1969, the National Association of Insurance Commissioners (“NAIC”) adopted a Model Act in an attempt to prevent insurance company failures from undermining the public’s confidence in the insurance industry. The stated purpose of the Model Act was “to provide a mechanism for the payment of covered claims under certain insurance policies to avoid excessive delay in payment and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer, to assist in the detection and prevention of insurer insolvencies, and to provide an association to assess the costs of such protection among insurers.” Model Act § 4 (1969). The NAIC recommended that each state establish an insurance insolvency fund to pay covered claims.

In 1970, the Louisiana Legislature adopted La. R.S. 22:1375-1394 (the “LIGA Law”). Although not expressly stated therein, the LIGA Law was taken almost verbatim from the Model Act, including the statement of purpose quoted above. Backhus v. Transit Casualty Co., 549 So.2d 283, 289 (La.1989). LIGA fulfills its purpose through the mechanism of paying covered claims, which are defined by statute. Despite the broadly stated purpose, “the Legislature has not deemed LIGA to be an all-purpose guarantor.” Carey J. Guglielmo, The ABC’s of LIGA, 53 La. L.Rev. 1759, 1763 (1993). Indeed, “the limitations of liability specified in the LIGA Law — the LIGA deductible, the liability cap, etc. — more often than not result in somebody losing money.” Id. at 1762.

In 1999, the Louisiana Legislature added a new limitation on LIGA’s liability: a net worth exclusion. Act No. 475 of 1999 enacted the following net worth exclusion to the definition of a “covered claim”:

“Covered claim” shall not include any claim by any insured whose net worth exceeds twenty-five million dollars on December thirty-first of the year immediately preceding the date of the determination of the | insolvency of the insurer. However, an insured’s net worth on such date shall be deemed to include the aggregate net worth of the insured and all of its subsidiaries and affiliates as calculated on a consolidated basis. An insured for the purposes of this provision shall not include any state or local governmental agency or subdivision thereof.

La. R.S. 22:1379(3)(f)(as enacted by Act No. 475 of 1999)(emphasis supplied). We refer to an insured whose net worth exceeds the statutory cap as a “high net worth” insured.

Act No. 475 of 1999 was a comprehensive package that included not only the above net worth exclusion, but also two other provisions; to-wit: (i) a recoupment provision that allows LIGA to recover for claims it paid on behalf of a high net worth insured, La. R.S. 22:1382(D); and (ii) an exemption from LIGA assessment for premiums paid by a high net worth insured, La. R.S. 22:1382(A)(3)(f). Act No. 109 of 2004 made parallel changes to all three of the statutes included in the package. The 2004 amendment, among other things, added a definition of the term “affiliate” to La. R.S. 22:1379(3)(f), the net worth exclusion.

1 BCiting the 2004 amendment, the trial court granted LIGA’s motion for summary-judgment. The trial court in its written reasons for judgment reasoned as follows:

1. Act 109 of the 2004 Regular Legislative Session, defining the term “affiliate” in Louisiana Revised Statutes 22:1379(3)(f) and 22:1382(A)(3)(f), is interpretive and therefore is to be given retroactive application.
2. Act 109 of the 2004 Regular Legislative Session defines “affiliate” to include any person or entity who controls or is controlled by or is under common control with the insured, whether through the ownership of voting securities or otherwise. This definition includes a parent company of the insured.
3. Accordingly, Celadon Group, Inc., the parent company of Celadon Trucking Services, Inc., is an “affiliate” of Celadon Trucking Services, Inc.
4. Therefore, the net worth on December 31, 2001 of Celadon Group, Inc., along with all of the other affiliates of Celadon Trucking Services, Inc., calculated on a consolidated basis, is the appropriate standard to determine whether the aggregate net worth of Celadon [Trucking Services, Inc.] and its affiliates exceeds $25,000,000.00.
5. LIGA has proved, to the satisfaction of the Court, that the net worth of Celadon Group, Inc., alone, far exceeds the $25,000,000 net worth exception to the definition of a “covered claim” as to LIGA, contained in Louisiana Revised Statute 22:1379(3)®.

Citing La. R.S. 22:1382(D), as amended in 2004, the trial court further found that CTSI is “obligated to reimburse LIGA for the reasonable costs incurred in the defense of this claim, including attorney[’s] fees, administrative costs, court costs, and all costs associated with bringing the instant Motion.”

| fiCTSI has appealed the judgment, arguing that the trial court erred in retroactively applying the 2004 amendments to the LIGA statutes.

STANDARD OF REVIEW

“Favored in Louisiana, the summary judgment procedure ‘is designed to secure the just, speedy, and inexpensive determination of every action’ and shall be construed to accomplish these ends.” King v. Parish Nat’l Bank, 2004-0337, p. 7 (La.10/19/04), 885 So.2d 540, 545 (quoting La. C.C.P. art. 966(A)(2)). An appellate court reviews a trial court’s decision granting summary judgment de novo using the same standard applied by the trial court in deciding the motion for summary judgment. Schmidt v. Chevez, 2000-2456, p. 4 (La.App. 4 Cir. 1/10/01), 778 So.2d 668, 670. According to this standard, a summary judgment shall be granted if the pleadings, depositions, answers to inter-rogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Schmidt, 2000-2456 at p. 3, 778 So.2d at 670. This case does not turn on whether there is a matter of material fact; rather, this case turns on the meaning given to the wording of a statute. See Louisiana Horsemen’s Benevolent and Prot. Ass’n 1993, Inc. v. Fair Grounds Corp., 2002-1928, p. 3 (La.4/9/03), 845 So.2d 1039, 1041.

DISCUSSION

As to the award for reimbursement of costs, including attorney’s fees, court and associated costs, we agree with CTSI that the 2004 amendment authorizing LIGA’s recovery of defense costs, including attorney’s fees, was a substantive amendment that cannot be given retroactive effect. We find the reasoning of the JjFifth Circuit in Louisiana Insurance Guaranty Ass’n v. Johnson Controls, Inc., 2005-27 (La.App. 5 Cir. 5/31/05), 905 So.2d 444, to be compelling, and, therefore, amend the judgment to delete the award of defense costs.

CTSI argues that the trial court likewise erred in retroactively applying the 2004 amendment adding a definition of the term “affiliate.” We find it unnecessary to decide that issue. Rather, we find, as LIGA contends, that regardless of whether the amendment applies the result would be the same. Indeed, we note that LIGA made the determination that the net worth exclusion applies so as to bar the Hopkins’s claim from LIGA coverage in 2003 before the amendment. Thus, the narrow issue before us is the legal issue of whether under the original statute as enacted in 1999 the undefined term “affiliate” included a parent company.

The legal issue presented is whether under the 1999 version of La. R.S. 22:1379(3)(f), the undefined term “affiliate” included a parent company. CTSI argues that the term “affiliate” should be narrowly construed to include only companies at a lower level' — subsidiaries—or at the same level — sibling companies. LIGA counters that the term should be broadly construed to include all companies affiliated with the insured including parent companies.

As CTSI acknowledges, the issue of what constitutes an “affiliate” under the original statute is a function of the Legislature’s intent, and the rules of statutory 1 ¡^construction are determinative in establishing the scope of the undefined term “affiliate.”

The Civil Code contains five provisions that directly relate to statutory interpretation:

• “When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” La. C.C. art. 9. This is the plain meaning rule.
• “When the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law.” La. C.C. art. 10.
• “The words of a law must be given their generally prevailing meaning. Words of art and technical terms must be given their technical meaning when the law involves a technical matter.” La. C.C. art. II.
• “When the words of a law are ambiguous, their meaning must be sought by examining [ (a) ] the context in which they occur and [ (b) ] the text of the law as a whole.” La. C.C. art. 12.
• “Laws on the same subject matter must be interpreted in reference to each other.” La. C.C. art. 13. This is the in pari materia rule of statutory construction.

The starting point in interpreting any statute is the language of the statute itself. Touchard v. Williams, 617 So.2d 885, 888 (La.1993). The statutory phrase at issue, which was not changed by the 2004 amendment, is the provision in La. R.S. 22:1379(3)(f) that “an insured’s net worth on such date shall be deemed to include the aggregate net worth of the insured and all of its subsidiaries and affiliates as calculated on a consolidated basis.” La. R.S. 22:1379(3)(f). The dispute is over the meaning of the undefined term “affiliate.” In determining the |9common and approved usage of an undefined word, “[dictionaries are a valuable source.” Gregor v. Argenot Great Central Ins. Co., 2002-1138, p. 7 (La.5/20/03), 851 So.2d 959, 964. Dictionaries “provide a useful starting point for determining what statutory terms mean, at least in the abstract, by suggesting what the legislature could have meant by using particular terms.” 2A Norman Singer, Statutes and Statutory Construction § 47:28 (6th ed.2000).

Black’s Law Dictionary defines an affiliate as follows:

1. A corporation that is related to another corporation by shareholdings or other means of control; a subsidiary, parent, or sibling corporation ....
2. Securities. One who controls, is controlled by, or is under common control with an issuer of a security. SEC Rule 10b — 18(a)(1).

Bryan Garner, Black’s Laiv Dictionary (8th ed.2004). Another legal dictionary defines an affiliate as follows:

A person or company with an inside business connection to another company. Under bankruptcy, securities, and other laws, if one company owns more than a certain amount of another company’s voting stock, or if the companies are under common control, they are affiliates.

Daniel Oran, Oran’s Dictionary of the Law (1983).

Although other dictionary definitions arguably lend support to CTSI’s narrow reading of the term affiliate, the legal dictionary definitions quoted above |insupport LIGA’s broad reading. When a word is susceptible to different meanings, we are required to interpret it in conformity with the purpose of the law. La. C.C. art. 10.

Explaining the Louisiana Legislature’s purpose for enacting the net worth exclusion, one court recently noted:

Over the years, a large amount of LIGA’s funds were expended on behalf of large commercial insureds. Net worth exclusions were enacted in an effort to redirect available resources away from entities with high net worth in favor of individuals who would not otherwise be covered and for whom it was intended. Thus, the legislature determined that insureds with a net worth over 25 million dollars were in a better position to bear the loss of an insolvent insurer worth less money for whom LIGA funds would be available.

Johnson Controls, Inc., 2005-27 at pp. 9-10, 905 So.2d at 450. Thus, “[t]he theory behind the exclusion is that because insurance guaranty fund resources are limited, parties with assets over a certain amount should not be able to make claims against the fund because ‘they are in a position to better bear the inevitable loss themselves.’ ” 5 Law and Prac. of Ins. Coverage Litig. § 58:19 (2005). Simply stated, “the net worth provision results in leaving more resources available for those entities less able to absorb an uncovered loss.” Delaware Insurance Guar. Ass’n v. Chris-tiana Care Health Services, Inc., 892 A.2d 1073 (Del.Supr.2006). |1TIndeed, a net worth exclusion has been noted to be similar to the general cap on the fund’s liability in that both serve to preserve the limited resources of the fund. Goodyear Tire & Rubber Co. v. Dynamic Air, Inc., 702 N.W.2d 237, 243 (Minn.2005).

Although construing the term affiliate broadly would be consistent with the purpose of the net worth provision of preserving the limited resources of the fund, the purpose does not necessarily resolve the issue presented here. When the purpose of the statute does not resolve the issue of the meaning of a word in a particular statute, “resort to related statutes is necessary.” 20 P. Raymond Lamonica and Jerry G. Jones, Louisiana Civil Law Treatise: Legislative Law and Procedure, § 7.6 (2004).

CTSI suggests that the related statutes we should resort to in applying this rule of statutory construction are the provisions of the Insurance Code. Because the Legislature expressly included the term parent company in other provisions of the Insurance Code but omitted the term from this provision, CTSI contends that we should construe the term “affiliate” in this provision as having a more precise meaning that excludes parent companies. Contrary to CTSI’s suggestion, we find the pertinent related statutes are the net worth exclusions to the definition of covered claim other states have enacted and the jurisprudence construing those statutes.

Lain Harold Ives Trucking Co. v. Pickens, 355 Ark. 407, 139 S.W.3d 471 (2003), which LIGA cites, the Arkansas Supreme Court certified the res nova issue of whether the undefined term affiliate in the net worth exclusion to the Arkansas Guaranty Act, Ark.Code Ann. § 23-90-103(2)(B), included a parent company of a wholly owned subsidiary. In answering this question in the affirmative, the court relied upon three factors: (i) the Arkansas jurisprudential rule that “common sense is a key element in defining statutory construction”; (ii) the dictionary definition of the term affiliate in Black’s Law Dictionary (7th ed.1999) as a “corporation that is related to another corporation by shareholdings or other means of control; a subsidiary, parent, or sibling corporation”; and (iii) the definition of affiliate codified in another state’s net worth statute as “a person who directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with the specified person on December 31 of the year next preceding the date the insolvent company became an insolvent company.” 73 Ill. Comp. Stat. Ann. 5/534.7. From those accepted definitions, the court gleaned that control is the fundamental standard. Pickens, 355 Ark. at 411, 139 S.W.3d at 474. Applying the control standard coupled with common sense, the court concluded that a parent company of a wholly owned subsidiary is an affiliate. We agree.

CTSI contends that Pickens is distinguishable on the basis that the Arkansas statute refers only to affiliates; whereas, the Louisiana statute refers to both subsidiaries and affiliates. Contrary to CTSI’s contention, we find the inclusion of the term subsidiary in the Louisiana statute at issue is a distinction without a difference. As the court in Pickens points out, the Model Act provision includes a | ^requirement that for the purpose of determining the applicability of the exclusion the insured’s net worth shall be deemed to include that of all its subsidiaries as calculated on a consolidated basis at the end of the year preceding the insurer’s insolvency. Pickens, 355 Ark. at 413, 139 S.W.3d at 475. In contrast, several other states, including Arkansas and Illinois, have adopted broader provisions that deem the insured’s net worth to include that of any of its affiliates. By including both terms— subsidiary and affiliate — in the net worth exclusion, we find the Louisiana Legislature intended to create at least as broad of an exception as that in the other states in which only the term affiliate is used. As one court recently noted, “by referring to ‘the aggregate net worth of the insured and all of its affiliates as calculated on a consolidated basis’, the legislature appears to be mandating the consideration of a broad, rather than a narrow, range of assets in determining an entity’s net worth.” Community Unit School District 200 v. Illinois Insurance Guaranty Fund, 358 Ill.App.3d 1056, 295 Ill.Dec. 321, 832 N.E.2d 472, 477 (2d Dist.2005). Likewise, we find the term affiliate was intended to have a broad meaning, which includes a parent company.

Our finding that the term affiliate was intended to have a broad meaning is supported by a consideration of the term in the context of the entire statutory provision. See La. C.C. art. 12 (providing that the meaning of ambiguous words must be sought by examining them in the statutory context in which they appear). The statute utilizes the accounting concept of eon-solidated net worth. See La. C.C. art. 11 (providing that “technical terms must be given their technical meaning when the law involves a technical matter.”) Consolidation refers to the financial | ureporting of parent and subsidiary corporations as a single economic unit, “regardless of legal and geographic boundaries.” D. Edward Martin, CPA, Attorney’s Handbook of Accounting, Auditing and Financial RepoH-ing, § 2.03[1](2004). Because the net worth exclusion expressly refers to subsidiaries and because consolidation refers to aggregating the financial statements of parent and subsidiaries, CTSI’s argument that the term affiliate includes only subsidiaries and sibling companies would make the term affiliate in this context redundant. It would thus violate the principle of statutory construction that the Legislature is presumed to have intended" every word and phrase included in a statute to have some meaning and that none was inserted by accident. Elevating Boats, Inc. v. St. Bernard Parish, 2000-3518, p. 18 (La.9/5/01), 795 So.2d 1153, 1166.

In support of its position that the trial court erred in granting summary judgment, CTSI also cites the single business enterprise doctrine. The single enterprise doctrine is an equitable doctrine, similar to the piercing of the corporate veil, under which the courts may disregard a company’s separate corporate existence and require the aggregation of its assets with an affiliated company to satisfy liabilities or claims of creditors. The statutory provision at issue does not disregard the separate corporate existence of affiliated companies. Rather, it employs the accounting concept of consolidated net worth, discussed above, to 11sdetermine the insured’s eligibility for LIGA coverage. As noted, consolidation deems a parent company and its subsidiaries to be a single economic unit for accounting purposes. CTSI’s reliance on the single business enterprise theory is thus misplaced.

Finally, CTSI contends that the provisions of the LIGA Law, La. R.S. 22:1377 and 1378, require that the statute be construed liberally in support of coverage. The Louisiana Supreme Court has rejected a similar argument, reasoning that “[a] liberal interpretation of the [Louisiana] Insurance Guaranty Law, even though authorized by the Law itself, cannot overcome the specific statutory exemptions from coverage under that law.” Backhus, 549 So.2d at 291. In Pickens, supra, the Arkansas Supreme Court likewise rejected a similar argument that it should narrowly interpret the term affiliate to safeguard the rights of insured and third-party claimants as required by the Arkansas Guaranty Act. As a commentator has observed, the guaranty fund acts by including provisions such as net worth exclusions effectively have “abandoned the mandate in the model acts and in the various [Insurance Guarantee Acts] statutes to interpret the guaranty fund statutes broadly to protect the insured.” J. Ernest Hartz, Jr., State Insurance Guaranty Associations, 22-FALL Brief 20, 45 (1992).

In sum, we find the term affiliate is a broad one that includes a parent company. For this reason, we affirm the trial court’s decision granting summary judgment in LIGA’s favor.

\kjoecree

For the forgoing reasons, the trial court’s judgment is amended to delete the award to LIGA of defense costs, including attorney’s fees. In all other respects, the trial court’s judgment is affirmed.

JUDGMENT AMENDED AND AS AMENDED AFFIRMED.

      . In October 2002, the parties filed a joint motion for a continuance of the trial on the basis that “the Indiana Guaranty Association [ (IIGA) ] may not have coverage for this incident but the Louisiana Guaranty Association [ (LIGA) ] may have coverage, and both parties desire a continuance to allow time to determine insurance coverage if any.”

      . As discussed below, LIGA made the determination that the net worth exclusion applied to bar coverage in this case in 2003 before the Legislature amended the statute to define the term affiliate.

      . Although the net worth exclusion was not enacted until 1999, which is after the date of the underlying accident at issue in this case, it is well settled that the applicable law governing claims against LIGA is the law in effect on the date of the insurer's insolvency. See Harvey v. Traylor, 96-1321, p. 21-22 (La.App. 4 Cir. 2/5/97), 688 So.2d 1324, 1336-37 (citing Prejean v. Dixie Lloyds Ins. Co., 94-2979 (La.5/22/95), 655 So.2d 303, opinion modified on rehearing, 94-2979 (La.9/15/95), 660 So.2d 836). The reason for this is that the claim against LIGA does not accrue until the insurer is declared insolvent. Id.

        . As amended, Section 22:1379(3)(f) now provides:
      "Covered claim” shall not include any claim asserted for coverage under a policy held by any insured whose net worth exceeds twenty-five million dollars on December thirty-first of the year immediately preceding the date of the determination of the insolvency of the insurer. However, an insured's net worth on such date shall be deemed to include the aggregate net worth of the insured and all of its subsidiaries and affiliates as calculated on a consolidated basis. An "affiliate" of the insured includes any person or entity who directly, or indirectly through one or more intermediaries, controls or is controlled by or is under common control with the insured. "Control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of the controlled person or entity, whether through the ownership of voting secunties, by contract, or otherwise. The consolidated net worth of the insured and all of its subsidiaries and affili

        ates shall he calculated on the basis of their fair market values. The failure or refusal of a person or entity to return a net worth affidavit to the association after two requests therefor shall create a rebuttable presumption that the noncompliant person or entity had a net worth in excess of twenty-five million dollars on December thirty-first of the year immediately preceding the date of the determination of the insolvency of the insurer. An insured for the purposes of this provision shall not include any state or local governmental agency or subdivision thereof.
      La. R.S. 22:1379(3)(f) (as amended by Act No. 109 of 2004)(emphasis supplied).

      . Although the trial court refers to the date as December 31, 2001, it is undisputed that the pertinent date for determining whether the net worth exception applies is December 31, 2000. This is because Reliance was declared insolvent in October 2001.

      . The parties do not dispute the summary judgment evidence establishing that CTSI’s net worth on December 31, 2000 was less than the twenty-five million statutory cap and that CTSI had no subsidiaries. Nor do the parties dispute that CG’s consolidated net worth on that date was more than the statutory cap and that CTSI on that date was the wholly owned subsidiary of CG. The latter point was acknowledged by CTSI's counsel at oral argument before this court. Regardless, we note that the financial documents LIGA introduced in support of its motion for summary judgment reflect that CG is a major conglomerate with numerous subsidiaries, including CTSI. The documents also reflect that CTSI, as a subsidiary of CT, was included in CT’s consolidated financial statements for the pertinent period.

      . The same concept is expressed in La. R.S. 1:4, which provides that "[w]hen the wording of a Section is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit.” La. R.S. 1:4.

      .The same concept is expressed in La. R.S. 1:3, which provides that “[w]ords and phrases shall be read with their context and shall be construed according to the common and approved usage of the language. Technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.” La. R.S. 1:3.

      . See also McCall v. Cameron Offshore Boats, Inc., 93-787 (La.App. 3 Cir. 3/9/94), 635 So.2d 263 (citing Black's Law Dictionary (6th ed.1991), to define "affiliate company” as used in a compromise agreement to mean one that is "effectively controlled by another company. A branch, division, or subsidiary... .Corporations which are related as parent and subsidiary, characterized by identity of ownership of capital stock.”)

      . See 17 C.F.R. § 230.405 (defining an affiliate under the securities law as "a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified” and a parent as "an affiliate controlling such person directly, or indirectly through one or more intermediaries.”)

      . An affiliate is also defined as "a branch or unit of a larger organization” or "a company effectively controlled by another or associated with others under common ownership or control” such as a subsidiary. Webster’s Third New International Dictionary (1971). Another dictionary defines the term as "[t]o adopt as a subordinate associate” or "[t]o associate (with).” The American Heritage Dictionary of the English Language (1978). Still another dictionary defines the adjective "affiliated” as "closely associated with another typically in a dependent or subordinate position.” Mir-riam-Webster’s Collegiate Dictionary (10th ed.1993).

      . See Braun v. Insurance Co. of North America, 488 F.2d 1066, 1067-68 (5th Cir.1974)(rejecting restrictive downstream definition of term affiliate as used in an insurance policy and finding the term refers to the legal concept of "the present day corporation most spectacularly represented by the conglomerate, in which connections between companies may be vertical, diagonal or horizontal and sometimes all the way around with occasional mixtures of any one or all of the four”); see also Flintkote Co. v. General Acc. Assur. Co., 410 F.Supp.2d 875 (N.D.Cal.2006) (construing the term affiliate in an insurance policy to include a parent company and citing in support Braun, supra, and Harold Ives Trucking Co. v. Pickens, 355 Ark. 407, 139 S.W.3d 471 (2003)).

      .A corollary reason for the exclusion is the belief "that an insured with that much net worth ought to buy insurance intelligently enough so that it would not be insured by an unsound insurer.” ’ Pickens, 355 Ark. at 413-14, 139 S.W.3d at 476.

      . See 20 P. Raymond Lamonica and Jerry G. Jones, Louisiana Civil Law Treatise: Legislative Law and Procedure, § 7.7 (2004)(noting that under La. C.C. art. 13, "[r]eview of other statutes may include federal laws and the laws of another state, and case law construing them.”); see also J. Ernest Hartz, Jr., State Insurance Guaranty Associations, 22-FALL Brief 20, 22 (1992)(noting that although "the state laws are not uniform in all respects, the statutes are for the most part sufficiently alike that commonly accepted principles of interpretation and application can and should be accepted by all.")

      . The Arkansas statute provides in pertinent part that "an insured or third party claimant’s net worth on such date shall be deemed to include the aggregate net worth of the insured and all of its affiliates as calculated on a consolidated basis.” Ark.Code Ann. § 23-90-103(2)(B).

      . Consolidation is defined as "[t]he process of adjusting and combining information from the individual financial statements of a parent undertaking and its subsidiaries to prepare consolidated financial statements. These statements should present financial information for the group as a single economic entity.” R. Hussey, Oxford Dictionary of Accounting (1999). "Virtually all major U.S. corporations have subsidiary relationships and, accordingly, prepare consolidated financial statements.” D. Edward Martin, CPA, Attorney’s Handbook of Accounting, Auditing and Financial Reporting, % 2.03[1](2004). Although a parent corporation and its subsidiaries are "separate legal entities and may be widely disparate in geography and the nature of their activities,” consolidated financial statements are a "basic financial reporting technique.” Id.

      . See Green v. Champion Ins. Co., 577 So.2d 249 (La.App. 1st Cir.1991); see also Dishon v. Ponthie, 2005-659 (La.App. 3 Cir. 12/30/05), 918 So.2d 1132.


author: SUSAN M. CHEHARDY, Judge.

text:
    Barry A. PLAISANCE and Cynthia C. Plaisance v. Myra P. THIBODEAUX and Westwego City Police.
    No. 05-CA-988.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 25, 2006.

      Larry C. Pieno, Attorney at Law, Mar-rero, Louisiana, for Plaintiff/Appellant.
    Thomas P. Anzelmo, Kyle P. Kirsch, Andre J. Lagarde, Attorneys at Law, Me-tairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   SUSAN M. CHEHARDY, Judge.

| aThis is an appeal by plaintiffs, Barry A. Plaisance and Cynthia C. Plaisance, from a judgment maintaining an exception of no cause of action as to defendant, City of Westwego, and dismissing the plaintiffs’ claim against that defendant with prejudice. For reasons that follow, we affirm.

The judgment from which this appeal was taken arises from an underlying action involving a property dispute between two siblings, plaintiff Barry Plaisance and his sister, defendant Myra Thibodeaux. The acrimony in connection with that dispute led to an attempt by Ms. Thibodeaux to secure a temporary restraining order against her brother, Mr. Plaisance. In the course of that litigation the trial court issued a temporary restraining order on March 2, 2002. After several unsuccessful tries to serve Mr. Plaisance, Ms. Thibo-deaux filed a “Motion to | ¡Reissue Service on Petition and to Reset Hearing on Incidental Matters” on March 20, 2002. The motion was granted and a hearing was set on the preliminary injunction for May 13, 2002. The petition and order was served on Mr. Plaisance on April 2, 2002. Ms. Thibodeaux filed a motion for contempt on April 11, 2002, which also was set for hearing on May 13, 2002. The arrest that forms the basis for the suit at issue herein was made on April 11, 2002. The next day Ms. Thibodeaux filed a motion for re-issuance of the temporary restraining order.

According to the petition filed in the matter before us, plaintiffs were in Catfish Bourgeois Park on April 11, 2002 when Ms. Thibodeaux arrived with two Westwe-go City Police Officers. Ms. Thibodeaux had a temporary restraining order, which was issued, but not served on either plaintiff. At Ms. Thibodeaux’s insistence, the police officers arrested plaintiffs for violation of the temporary restraining order.

As a result, plaintiffs filed an action for malicious prosecution against Ms. Thibo-deaux, and unlawful detention and arrest against the City of Westwego. In a supplemental and amending petition, plaintiffs also asserted that Ms. Thibodeaux knew there was no valid temporary restraining order.

Ms. Thibodeaux filed exceptions of vagueness and no cause or right of action. After a hearing on the matter, the trial court ruled in favor of Ms. Thibodeaux, with an order directing plaintiffs to amend the petition within thirty days. Plaintiffs amended the petition a second time to define in more detail the cause of action against Ms. Thibodeaux.

The City of Westwego filed an exception of no cause of action, which was opposed by plaintiffs on the grounds that the temporary restraining order was either expired or otherwise invalid, and was a subject for a contempt hearing, not arrest. After consideration, the trial court maintained the exception and dismissed 14plaintiffs’ action as to the City of West-wego. It is that ruling that forms the basis for this appeal.

The Exception of No Cause of Action is designed to test the legal sufficiency of the petition by determining whether the plaintiff is afforded a remedy in law based on the facts alleged in the petition. Ackel v. Ackel, 97-70 (La.App. 5 Cir. 5/28/97), 696 So.2d 140 at 142. For the adjudication of the exception, the well-pleaded facts of the petition are accepted as true. No evidence may be introduced at any time to support or controvert the exception. Id.

Most of the allegations in the petitions relate to the conduct of Ms. Thibodeaux, asserting that she insisted police arrest plaintiffs, even though she knew the temporary restraining order in her possession was invalid. The actual temporary restraining order used, is not included in the record before us.

The only paragraph that directs an allegation to the City of Westwego in the original petition reads as follows;

Petitioners believe that the City of Westwego acted 'without lawful authority, probable cause or reason for detaining, arresting, booking and ultimately jailing BARRY A. PLAINANCE and CYNTHIA C. PLAISANCE without incident.

No other allegations were directed against the City of Westwego in the two supplemental and amending petitions. Moreover, in the subsequent supplemental and amending petition, plaintiffs alleged;

The Defendant MYRA P. THIBO-DEAUX caused the Westwego Police Department to arrest Plaintiffs (sic) herein by demonstrating to the Westwe-go Police officer certain documentation (expired restraining orders) when in fact she knew that the said restraining orders had expired or were no longer valid. The above actions, insistence, and provation (sic) of the Defendant, MYRA P. THIBODEAUX was the cause for Plaintiffs (sic) arrest and ultimate criminal proceeding.
The conduct of MYRA P. THIBO-DEAUX in provoking the Westwego City Police to arrest Plainitffs (sic) herein was 15unreasonable, without cause or justification and the sole cause in fact of Plaintiffs (sic) detention, arrest and resulting injuries.

In brief to this court plaintiffs argue that, taken together, the petitions allege a cause of action against the City of Westwe-go because when the allegations in the petition are taken as true, they show that the Westwego police arrested plaintiffs by virtue of an invalid temporary restraining order, which was not served on plaintiffs. They further point to the discussion by the trial court at the hearing on the exception of no cause of action in which the trial court expressed reservations about probable cause. In the alternative, plaintiffs argue the trial court should have allowed another amendment to the petition.

Plaintiffs’ allegations and arguments encompass elements of the torts of false imprisonment, malicious prosecution, and defamation. However, false imprisonment is the only tort applicable to the City of Westwego.

False imprisonment or arrest occurs when one arrests and restrains another against his will and without statutory authority. Kyle v. City of New Orleans, 353 So.2d 969 (La.1977). As explained by the Kyle court,

.Simply stated, it is restraint without color of legal authority. Thus, if police officers act pursuant to statutory authority in arresting and incarcerating a citizen, they are not liable for damages for false arrest and imprisonment.
Id. 353 So.2d at 971

Thus, the tort of false imprisonment consists of the following two essential elements: (1) detention of the person; and (2) the unlawfulness of the detention. Tabora v. City of Kenner, 94-613 (La.App. 5th Cir.1/18/95), 650 So.2d 319, writ denied, 95-0402 (La.3/30/95), 651 So.2d 843.

In the petitions before us, the allegations are that, “with the temporary restraining order in hand the Westwego Police Department proceeded to detain, arrest and surrender .... ” plaintiffs. Although there are allegations that the | firestraining order given to police was invalid, there are no allegations that officers had this information. The allegations in the petition also allege that Ms. Thibodeaux called the Westwego City Police “out to a location to report an incident when no incident occurred,” and that she was “willful and malicious, in provoking and insisting that Plaintiffs (sic) be detained and arrested.” Further, plaintiffs allege that Ms. Thibodeaux is the sole cause of the arrest and detention.

The alleged facts, accepted as true, are that Ms. Thibodeaux called the Westwego Police Department, made a false accusation against plaintiffs and presented the officers with a temporary restraining order she knew was not valid. Her actions are the sole cause for the arrest and detention of plaintiffs. Given those facts as alleged by plaintiffs, we find plaintiffs have failed to state a cause of action for false imprisonment against the City of Westwego.

Plaintiffs argue in the alternative that they should have been allowed to amend their petition to state a cause of action against the City of Westwego. La. C.C.P. art. 934 provides that;

When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.

Given the facts alleged in the original and amending petitions herein, we find the grounds of the objection cannot be removed by amendment. Therefore, the trial court did not err in maintaining the exception raised by the City without affording the plaintiffs an opportunity to amend the petition again.

For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.

      . A "Petition to Partition Co-owned Property” was filed on February 27, 2002; Myra P. Thibodeaux v. Bairy Plaisance, 24th Judicial District Court Number 577-862.


author: THOMAS F. DALEY, Judge.

text:
    Greather HEATHCOCK v. Carl NEUENHAUS.
    No. 05-CA-954.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 25, 2006.
    Richard J. Richthofen, Jr., Richthofen & Associates, L.L.C., New Orleans, Louisiana, for Plaintiff/Appellant.
    Robert C. Lowe, Marynell L. Piglia, Jeffrey M. Hoffman, Lowe, Stein, Hoffman, Allweiss & Hauver, L.L.P., New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   THOMAS F. DALEY, Judge.

| ^Plaintiff, Greather Heathcock, has appealed the trial court’s grant of an Exception of Prescription in favor of her former spouse, Carl Neuenhaus. For the reasons that follow, we affirm.

FACTS:

Greather Heathcock (Heathcock) and Carl Neuenhaus were married on March 1, 1991. On June 1, 1991, Mr. Neuenhaus signed a note wherein he promised to pay Ms. Heathcock $19,683.00 at a rate of $418.50 per month commencing on June 1, 1991 for a period of 60 months with ten per cent (10%) interest per annum until paid. Mr. Neuenhaus made no payments to Ms. Heathcock. On December 18, 2001, the parties were divorced.

|sOn December 10, 2004, Ms. Heathcock filed a petition seeking to enforce payment on the note. Mr. Neuenhaus responded with a Peremptory Exception of Prescription, contending that under C.C. art. 3498 the action on this promissory note had a liberative prescription of five years commencing to run from the day payment is exigible. Mr. Neuenhaus further argued that Ms. Heathcock was not barred from filing an action on this note during the marriage because as a suit to recover her separate property, it fell under the exception to the general rule that suits between spouses are barred.

The trial judge granted the exception and this timely appeal followed.

LAW AND DISCUSSION:

On appeal, Ms. Heathcock argues because C.C. art. 3469 suspends prescription between spouses during the marriage, prescription on this promissory note was suspended until the parties divorced on December 18, 2001. She reasons that because the prescription on the promissory note was five years and she filed suit within five years of the divorce, the tidal court erred in granting defendant’s Exception of Prescription.

In Eckhardt v. Reveley, 2004-0288 (La. App. 4 Cir. 7/21/04), 881 So.2d 128 the court held that where parties were separate in property, prescription did run between them during the marriage on a cause of action that the husband brought against the wife concerning monies he advanced before and during the marriage.

Ms. Heathcock argues that Eckhardt v. Reveley is distinguishable from the facts in the case at bar, in that in Eckhardt, Mr. Eckhardt loaned money to Ms. Reveley prior to and during the marriage for improvements to her separate property. Ms. Heathcock contends she is attempting to enforce a negotiable instrument, not to recover separate property.

|4Mr. Neuenhaus responds that Ms. Heathcock was not barred from filing suit on the promissory note during the marriage because this claim was for restitution of separate property. He contends that since prescription ran on the note during the marriage, the suit was properly dismissed. He contends that Eckhardt v. Reveley is applicable because in Eckhardt, as in the instant case, the spouses are separate in property and one spouse is seeking the return of separate property loaned during the marriage.

LSA-R.S. 9:291 states that spouses may not sue each other except for:

(1) Causes of action pertaining to contracts or arising out of the provision of Book III, Title VI of the Civil Code;
(2) Restitution of separate property;
(3) Divorce or declaration of nullity of the marriage;
(4) Causes of action pertaining to spousal support or the support or custody of a child while the spouses are living separate and apart.

The four enumerated exceptions to suits spouses can bring against each other are exclusive, not illustrative. Wilkinson v. Wilkinson, 323 So.2d 120 (La.1975).

Ms. Heathcock is seeking repayment of her money loaned to Mr. Neuenhaus, which amounts to restitution of her separate property. Thus, according to the exceptions enumerated in R.S. 9:291, Ms. Heathcock could have filed suit against Mr. Neuenhaus during the marriage to recover money loaned pursuant to the promissory note. Accordingly, we find no error in the trial court’s grant of defendant’s Exception of Prescription.

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

AFFIRMED.


author: SUSAN M. CHEHARDY, Judge. DALEY, J.

text:
    Sandra HERNANDEZ v. WAL-MART STORES, INC.
    No. 05-CA-921.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 25, 2006.
    Robert J. Caluda, Stephen C. Juan, Attorneys at Law, Metairie, Louisiana, for Plaintiff/Appellant, Sandra Hernandez.
    Thomas P. Anzelmo, Catherine M. Williams, Attorneys at Law, Metairie, Louisiana, for Defendant/Appellee, Wal-Mart Stores, Inc.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   SUSAN M. CHEHARDY, Judge.

| Jn this slip and fall case plaintiff, Sandra Hernandez, appeals an adverse judgment in which the trial court granted an involuntary dismissal of plaintiffs claim after a bench trial on the merits. For reasons that follow, we affirm.

Ms. Hernandez filed this action against Wal-Mart Stores, Inc.(Wal-Mart), alleging that she was shopping at the Wal-Mart Super Center on Jefferson Highway when she slipped and fell in the produce section due to a “saturated rug,” causing her to exacerbate pre-existing spine and knee problems. In due course, the matter went before the bench for a trial on the merits. At the close of plaintiffs case, defendant moved for an involuntary dismissal, which was granted by the trial court.

FACTS

At trial plaintiff, Sandra Hernandez, testified that she went to Wal-Mart on the afternoon of August 3, 2003 with a friend to shop. She was there several hours when she went to the produce section of the store. She was in the produce section about fifteen to twenty minutes before the fall. She selected some fruits and vegetables and made a trip to her basket, which was parked further away because of the crowds. Ms. Hernandez then returned to the produce section to select more [.-¡items. When she walked back to her basket she slipped and fell forward, landing on her hands and knees. Ms. Hernandez testified that her pants legs and hands were wet and she noticed debris on the floor. There were little pieces of leafy material on her hands and pants. There was a “bump” in the rug; however, Ms. Hernandez could not be sure if it was there before the fall. When she attempted to get up after the fall, the rug moved. Ms. Hernandez did not recall if the floor under the rug was wet.

At the time of the fall, there was a Wal-Mart employee stocking the produce section, about six feet away from plaintiff when she fell. There was another employee nearby working in the produce section. None of the employees told Ms. Hernandez to be careful, to watch out for a wet rug or debris on the floor. Ms. Hernandez testified that she did not notice any debris or water on the floor before she fell.

Ms. Hernandez tried, but was unable to get up after the fall. Someone called the manager, who came over and told Ms. Hernandez to remain still until she could get some help. The manager sent one employee for a mop and camera. Ms. Hernandez was helped to her feet and then into a room where she was given something to wipe her hands and ice for her injured knees. Ms. Hernandez gave a statement on how the accident happened.

The remainder of the testimony offered by plaintiff related to the injuries sustained in the fall, and the restrictions on her lifestyle since the accident. Ms. Hernandez testified that she was treated for several months at the New Orleans Health Clinic and was recently discharged when her maximum level of recovery was achieved. Ms. Hernandez stated that she still has pains in her lower back extending down into her legs. She can not stand or sit too long, and walks with a [4limp. Before her injury, Ms. Hernandez was a babysitter. However, she can no longer engage in that work since she is unable to carry small children.

Ms. Hernandez testified she had prior surgeries on her back and neck and was taking medication for pain in her neck, shoulders, hand and back. However, she did not have a high level of pain, or radiating leg pain until after the fall.

The record also contains the deposition of Sheila Jefferson, a friend of Ms. Hernandez who was shopping with her at the time of the fall. Ms. Jefferson stated that they arrived at about five in the afternoon and were shopping for about two hours when Ms. Hernandez fell. Ms. Hernandez went over to the produce section while Ms. Jefferson was one aisle over with the basket. Ms. Hernandez came over to the basket to put some items in and then went back to get more.

Ms. Jefferson did not actually witness the fall. She explained that she had her one-year-old godchild in the basket and she was playing with the baby while she waited for Ms. Hernandez to return. She heard someone say “ooh a lady fell,” she looked over and saw Ms. Hernandez sitting on a rug on the floor. There were a lot of people standing around her, and there was water all over the floor. Ms. Jefferson testified that she had not been on the aisle where Ms. Hernandez fell before the accident, so she did not know the condition of the floor before the fall. Ms. Jefferson recalled that Ms. Hernandez had produce in her hand, but could not remember whether it was packaged or loose. Ms. Jefferson testified that there was water on the floor from the misting system around the mat, although in later questioning she admitted she did not see water from the mister spraying the floor. There was a buckle in the mat and Ms. Jefferson stated that she could see there was water under the mat also. However, she could not be sure whether the buckle in the mat and the water on the floor were there before the accident.

IsThe assistant manager came and asked Ms. Jefferson to accompany Ms. Hernandez to complete some paperwork. After that was completed, Ms. Jefferson drove Ms. Hernandez home. The next day Ms. Jefferson called to check on Ms. Hernandez’ condition and was told Ms. Hernandez had leg pain.

Plaintiff also called Wal-Mart general manager, John McFadden, as a witness. Although he was not on duty the day of Ms. Hernandez’s fall, Mr. McFadden offered testimony regarding the store’s policy of holding safety meetings on a weekly basis to discuss customer accidents and how to prevent them in the future. Copies of notes from those loss prevention meetings were introduced into the record and show that customer accidents were “out of control.” Ways to prevent accidents, including having managers take hourly tours to look for hazards and hiring more people to keep the store clean, were discussed at these meetings. The safety meeting reports are general and do not specifically relate to the produce department and the mister.

Mr. McFadden stated that the store has maintenance associates who keep debris off the floor, but could not recall if more were hired after that meeting. Mr. McFadden testified that it is the duty of every store associate to look for hazards at all times, and to pick up any debris that falls to the floor.

He further testified that the produce section is equipped with a mister system that mists the fresh produce with water. The system covers a portion of the produce section that is about sixteen feet long. That area is covered with rubber floor mats placed over a non-slip tile surface. Mr. McFadden testified that he has never known these rugs to buckle or crease before this incident. Further, he stated the mister is directed on the produce and does not mist the customers or the floor, although at times customers picking up produce will drip water onto the rug.

IfiMr. McFadden stated that plaintiffs fall happened on a Sunday, which is the busiest day of the week for Wal-Mart. He further admitted that Wal-Mart employees should be aware that the rugs could be wet. However, Mr. McFadden again reminded the court that he was not present on the day of the accident, so he could not testify as to the actual conditions at the time of the fall.

Dr. Barbara Wizer, a board certified neurologist at the New Orleans Uptown Health Clinic, testified at trial. Dr. Wizer stated that Ms. Hernandez first came to the clinic on August 8, 2003. At that time she was experiencing pain in her knees, hands and lower back as a result of a fall at Wal-Mart. Ms. Hernandez’ medical records show prior low back surgeries and a cervical fusion. The initial diagnosis was contusions to the knees, shins and hands, and lumbar muscle strain. Ms. Hernandez was treated with moist heat therapy, ultrasound and electrical stimulation. Ms. Hernandez’ subsequent complaints of pain radiating into the buttocks and down the leg is indicative of some irritation or pressure on one or more of the nerve roots coming out of the lower back and going down into the legs. Ms. Hernandez continued physical therapy and was given Vicodin for pain. Although Ms. Hernandez had some fluctuations, generally by January of 2004 she showed some improvement. In March of 2004, the symptoms from the fall at Wal-Mart were resolved and Ms. Hernandez was left with her chronic problems. She was referred to a neurosurgeon for evaluation.

At the time of trial, Dr. Wizer stated that she was no longer treating Ms. Hernandez for her injuries; however, she had seen her a few weeks earlier. Ms. Hernandez was experiencing difficulty in performing normal activities such as bending, stooping, getting in and out of a car, and stepping up onto a bus or streetcar. Ms. Hernandez, a fifty-seven year-old woman who was a babysitter by trade, now has difficulty taking care of young children, cleaning her house, or | fitting or standing for a long time. Dr. Wizer opined that Ms. Hernandez may have some improvement, depending on how aggressively she pursues the exercise program prescribed for her.

In connection with the diagnosis at the New Orleans Uptown Health Clinic, Ms. Hernandez was given an MRI. That test showed degenerative disc disease at multiple levers, from L3-L4 down through L5-Sl, along with degenerative facet joint disease through those same levels. Dr. Wiz-er testified that the MRI showed three bulging discs; but there was no way to know whether these bulges pre-dated the accident at Wal-Mart.

Dr. Kenneth Vogel testified that he treated Ms. Hernandez since 1978 for lumbar problems and discharged her on March 12,1991. During the course of that treatment, Ms. Hernandez had three back surgeries. Ms. Hernandez returned in June of 2004 for an evaluation of low back and bilateral leg pain. When Ms. Hernandez related the reason for the visit, Dr. Vogel conducted an MRI. From that test he found evidence of degenerative disc disease. He further explained that at T12 and LI, and at L2 and L3 the discs are relatively normal. However, at L3-4 and at L4-5 there’s a diffuse bulge of the annulus. Dr. Vogel could not give a specific cause for this abnormal condition. He did state that an individual with Ms. Hernandez’ medical record would be predisposed to injury from a fall.

LAW

La. C.C.P. article 1672(B) provides that:

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

I sIn order to determine whether an involuntary dismissal is appropriate pursuant to La. C.C.P. art 1672(B), the trial court must determine whether the plaintiff has presented sufficient evidence to establish his claim by a preponderance of the evidence. Straughter v. Government Employees Ins. Co., 05-699 (La.App. 5 Cir. 3/14/06), 926 So.2d 617, 623. In our review of the trial court’s decision to grant the motion for involuntary dismissal, this court must use the manifest error standard. On appellate review, the grant of such motion will not be disturbed absent manifest error in a credibility determination or an error of law. Id.

La. R.S. 9:2800.6 provides in pertinent part:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

In brief to this court, plaintiff asserts the trial court erred in finding she did not meet her burden of proof considering the testimony of Mr. McFadden and the presentation of the safety reports showing a concern for slip and fall accidents and the need for more maintenance associates to keep the floor clean. Plaintiff argues 19that evidence demonstrates that Wal-Mart had constructive notice of the condition of the floor where the accident occurred.

La. R.S. 9:2800.6 C(l) defines constructive notice as follows:

“Constructive notice” means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.

That portion of the statute has been interpreted by our Supreme Court;

The definition is likewise clear and unambiguous. There is a temporal element included: “such a period of time •••” The statute does not allow for the inference of constructive notice absent some showing of this temporal element. The claimant must make a positive showing of the existence of the condition prior to the fall. A defendant merchant does not have to make a positive showing of the absence of the existence of the condition prior to the fall. Notwithstanding that such would require proving a negative, the statute simply does not provide for a shifting of the burden. White v. Wal-Mart Stores, Inc., 97-0393 (La.9/9/97), 699 So.2d 1081, 1084

This court has followed White in holding that a simple showing that the condition existed is insufficient for a finding of liability and recovery. A plaintiff must make a showing that the condition existed for some time before the fall occurred. Menjivar v. Rouse’s Enterprises, L.L.C., 03-0808 (La.App. 5 Cir. 12/30/03), 865 So.2d 176. Further, under the current law plaintiff cannot rely on the safety reports for an inference of constructive notice that the floor was wet, or had debris before Ms. Hernandez fell, without some showing of how long the specific condition existed.

Neither Ms. Hernandez nor Ms. Jefferson noticed any debris or water on the floor before the fall. Although Mr. McFadden testified that customers sometimes drip water from wet produce, he also testified that the mister does not spray the floor or the customers, and that a rug is in place to absorb any water that drips. [^Photos contained in the record show very little debris and no water on the floor. Further, plaintiff did not present evidence from either of the two employees in the area that they were aware of any water or debris on the floor. Given the evidence presented at trial, we cannot find the trial court’s ruling was manifestly erroneous. Accordingly, we affinn the judgment from which this appeal was taken.

AFFIRMED.

DALEY, J., concurs with reasons.

DALEY, J.

Concurring.

hi concur in the result reached by the majority, but for different reasons. My reading of the testimony shows that plaintiffs deposition and trial testimony regarding the facts of her accident varied widely, and I, therefore, agree with the trial court that she failed to bear her burden of proof to establish that a condition or defect in the Wal-Mart premises existed. I would affirm on these grounds.


author: CLARENCE E. McMANUS, Judge.

text:
    Scott GUMINA v. NEW ORLEANS SAINTS & Louisiana Worker’s Compensation Corp.
    No. 05-CA-854.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 25, 2006.

      Robert L. Hackett, The Hackett Law Firm, Attorney at Law, Atlanta, Georgia, for Plaintiff/Appellant.
    David K. Johnson, Johnson, Stiltner & Rahman, Baton Rouge, Louisiana, for Defendant/Appellee, New Orleans Saints and Louisiana Workers Compensation Corporation.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   CLARENCE E. McMANUS, Judge.

\ STATEMENT OF THE CASE

Scott Gumina was a professional athlete with the New Orleans Saints football team in 1999. He was allegedly injured during practice on August 22, 1999 in Lacrosse, Wisconsin. He claims he noticed a pain in his lower abdomen during football drills and suffered from a hernia. He claims he reported the injury to the athletic trainer on August 23, 1999 and sought medical treatment with Dr. Eric Carson at LSU Medical Center.

Gumina filed a Disputed Claim for Compensation with the workers’ compensation court on November 5, 1999. He sought wage benefits, authorization for medical treatment, penalties and attorneys fees. The Saints and the Louisiana Workers’ Compensation Corporation filed an Answer and General Denial on February 10, 2000. Gumina filed an Amended Disputed Claim for Compensation on October 4, 2001 seeking supplemental earnings benefits and disputing the constitutionality of La. R.S. 23:1225(D). Gumina then filed an Unopposed Motion to Recognize the Constitutionality Dispute of La. R.S. 23:1225(D) and to Transfer the Claim to the 24th JDC because the workers’ compensation court lacked jurisdiction to decide the constitutionality issue.

|sOn January 11, 2002, the workers’ compensation court signed an order transferring the case to the 24th JDC. Then on February 5, 2004, Gumina filed a motion to return the matter to the trial docket stating that the matter had never been transferred and the record had never been sent to the 24th JDC, so the 24th JDC never acquired jurisdiction. Gumina requested that the matter be returned to the workers’ compensation court’s docket. The workers’ compensation court signed an order on February 5, 2004 returning the matter to its trial docket. The matter was set for trial on January 14, 2005 before the workers’ compensation court.

Pre-trial memorandums were submitted and Gumina argued that he was entitled to indemnity and supplemental earnings benefits, medical expenses, penalties for failure to timely pay benefits and expenses, attorney’s fees and interest. Gumina argued he was injured on August 22, 1999 while involved in a drill and got into an awkward position and sustained a hyperex-tension injury to his great toe and had to suspend full activity. Gumina claims three weeks later he attempted to resume athletic activity and noticed a pain in his right groin or lower abdomen. Later medical evaluations revealed an inguinal hernia on the right side. Gumina claims the hernia had first occurred when he injured his toe on August 22, 1999 and got progressively worse thereafter. He was terminated on September 6,1999.

Gumina argued in his memorandum that his employer, the New Orleans Saints, had denied payment of benefits to him based on La. R.S. 23:1225(D) and 23:1021(12), which had been repealed by Act 561 in 2004. Gumina attached to his pre-trial memorandum a copy of a Judgment from the District 6 workers’ compensation court in Dombrowski v. New Orleans Saints, dated December 9, 2004, in which the court found the Saints liable for payment of supplemental earnings benefits, medical expenses, mileage, penalties, and attorney’s fees. The |4court in Dombrowski found that the 2004 Act was intended to cure and remedy past ills created by La. R.S. 23:1225(D). Since the statute was curative, the court found no specific statement of retroactivity was needed. Therefore, the 2004 repeal of La. R.S. 23:1225(D) means the collective bargaining agreement provisions apply as if La. R.S. 23:1225(D) never existed.

On January 13, 2005, counsel for the parties stated in open court that they agreed to stipulate to the evidence to be considered by the court and exhibits were introduced into evidence. The parties were also given the opportunity to submit post-trial memorandums. Gumina submitted a post-trial memo. In that memo he states that counsel for both parties met in pre-trial conference on January 13, 2005 and the Court indicated that the credit issue provisions of the compensation statute recently repealed by Act 561 of 2004 were not at issue. Gumina’s attorney admits that, although this conference is not presented as evidence, the evidence presented at trial does prove that the credit issue does not apply to Gumina’s case. Therefore, his post-trial memo goes on to address the issues of the denial of benefits and the amount of his average weekly wage. Counsel for the Saints submitted a post-trial memo which only addressed the issue of the average weekly wage.

The workers’ compensation court issued a written judgment on April 8, 2005 dismissing Gumina’s claims with prejudice. The workers’ compensation court found that the facts in evidence do not support Gumina’s version of the events surrounding the alleged injuries and he failed to prove by a preponderance of the evidence, according to La. R.S. 23:1221(4)(r), that he sustained an inguinal hernia arising out of the course and scope of employment with the Saints. Gumina now appeals this judgment.

I ¿DISCUSSION

Gumina appeals the workers’ compensation court’s judgment dismissing his claims with prejudice. The workers’ compensation court found that Gumina had not proven he had sustained an inguinal hernia in accordance with La. R.S. 23:1221(4)(r). La. R.S. 23:1221(4)(r) provides:

In all claims for inguinal hernia, it must be established by a preponderance of the evidence that the hernia resulted from injury by accident arising out of the course and scope of employment; that the accident was reported promptly to the employer, and that the employee was attended by a licensed physician within thirty days thereafter.

Review of the workers’ compensation court findings of fact is governed by the manifest error or clearly wrong standard. Smith v. Louisiana Dept. of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129, 132. A court of appeal may not overturn a judgment of the workers’ compensation court absent an error of law or a factual finding which is manifestly erroneous or clearly wrong. Barber Bros. Contracting Co. v. Cuccia, 98-0675 (La.App. 1 Cir. 4/1/99), 734 So.2d 820.

On appeal, Gumina addresses the issue of whether or not the credit issue applies to his case. Gumina’s post-trial memo filed with the workers’ compensation court indicated that counsel for both parties met in a pre-trial conference and the court had indicated that the credit issue provisions that had been repealed were not at issue. Further, the workers’ compensation court’s judgment does not rule on the issue, but only finds that Gumina did not sustain an injury during the course and scope of his employment with the Saints. Gumina further argues on appeal that he is entitled to SEB payments, as well as, penalties and attorney’s fees for the Saints failure to pay him weekly benefits and medical expenses.

| fiWe agree with the trial court’s finding that Gumina did not suffer an injury during the course and scope of his employment. We find that Gumina has not provided any information which would warrant, nor does the record warrant, a finding that the trial court erroneously found he did not suffer a hernia injury while in the course and scope of his employment with the Saints. Further, the issue of the credit provision was addressed in a pre-trial conference and the court indicated it was not an issue. Finally, since we find that Gumina did not suffer a work related injury and is not entitled to workers’ compensation benefits, we also find he is not entitled to penalties and attorney’s fees for the Saints failure to pay him those benefits and medical expenses.

Accordingly, we affirm the trial court’s judgment finding that Gumina did not suffer an injury during the course and scope of his employment with the Saints and dismissing his workers’ compensation claim.

AFFIRMED.